SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-21-91103419

DATE: 20240111

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

MOHAMAD EL-ZAHAWI and CORY CHUNG

Lesley Pasquino and Kevin Stewart, for the Crown

Joseph Wilkinson and Aditi Iyer, for the Defendant Mohamad El-Zahawi

Defendants

Maurice Mattis and Nakita Kelsey, for the Defendant Cory Chung

HEARD: April 3-6, 11-14, May 2, 11, 18, 19, June 12, 14, 16, 20-23, 27-30, July 4, 6, 17, 19-21, 24, 26-28, 31, September 1, 8, 13, 14, and 22, 2023

RULING ON PRE-TRIAL MOTIONS

DI LUCA J.:

[1] Mohamad El-Zahawi and Cory Chung are charged with first degree murder in relation to the shooting death of Soheil Rafipour which occurred on December 24, 2018, in Richmond Hill. Their jury trial commenced on October 16, 2023.

[2] These written reasons address the following pre-trial motions:

a. The Crown’s application to prove voluntariness of utterances and statements made by Mr. El-Zahawi following his arrest in relation to the Cyan Lounge incident on February 1, 2019;

b. The defence application to exclude all statements made by Mr. El-Zahawi including utterances made to an undercover officer following his arrest in relation to the Cyan Lounge incident, based on violations of Mr. El-Zahawi’s s. 7, 10(a) and 10(b) Charter rights;

c. The defence application to exclude two cell phones, and the data contained therein, seized from Mr. El-Zahawi following his arrest in relation to the Cyan Lounge incident and later seized by homicide investigators;

d. An application by Mr. El-Zahawi and Mr. Chung seeking a Charter remedy in relation to the lost evidence, namely Mr. Rafipour’s Corvette;

e. A Garofoli application by Mr. El-Zahawi seeking exclusion of the fruits of various search warrants, tracking warrants and production orders obtained during the course of the homicide investigation; and,

f. A Garofoli application by Mr. Chung seeking exclusion of the fruits of a production order obtained during the course of the homicide investigation.

[3] Following the completion of the pre-trial motions on September 22, 2023, I reserved my decision and indicated that I would provide a bottom line ruling prior to the commencement of trial, with written reasons to follow. By email dated September 29, 2023, I provided a bottom line ruling as follows:

a. Re Cyan Lounge Motion – in addition to all statements and utterances made by Mr. El-Zahawi following his arrest (which the Crown has fairly and properly conceded should not be admitted into evidence), the two cell phones seized from Mr. El-Zahawi at the time of his arrest are also excluded. The evidence obtained from the cell phones (namely the extraction reports later obtained pursuant to the March 2019 warrant and production order package) is also excluded.

b. Re El-Zahawi Garofoli Application – the evidence targeted for exclusion is all admissible, except for the evidence (the extraction reports) obtained from the cell phones seized from Mr. El-Zahawi which, as set out above, is excluded. To be clear, the evidence obtained through the production orders in relation to Mr. El-Zahawi’s 4622 phone number is admissible.

c. Re Chung Garofoli Application – the evidence is admissible.

d. Re Destruction/Loss of the Corvette – the evidence was destroyed/lost due to unacceptable negligence. The appropriate remedy is a jury instruction. The defence is free to cross-examine and/or call evidence as discussed in paras. 65 and 66 of R. v. Bero, 2000 CanLII 16956 (ON CA). The contours of the jury instruction will depend on the evidence heard at trial and will be addressed at the pre-charge conference or at another appropriate time.

[4] At the outset of the pre-trial motions, it was agreed that a blended voluntariness and Charter voir dire would be held in relation to the various utterances and the statement. Charter issues relating to the seizure of the two cell phones were also to be dealt with during the voir dire. As well, as the evidence on the voir dire unfolded, issues relating to the lawfulness of a location “ping” done on Mr. El-Zahawi’s phone and the later destruction or disposal of the phone were added to the mix.[^1]

[5] It was agreed that the issues relating to the admissibility of the utterances and statements as well as the cell phone seizures were to be addressed at the outset as the outcome of these aspects of the pre-trial motions would play an important role in the Garofoli application. In short, much of the evidence obtained during the Cyan Lounge investigation was included in the Information to Obtain (ITOs) used in support of a multitude of search warrants, tracking warrants and production order applications.

[6] Following the presentation of a significant body of viva voce evidence,[^2] the parties managed to resolve the bulk of the issues relating to the Cyan Lounge investigation. The resolution resulted in the filing of an agreed statement of fact detailing a number of Charter violations conceded by the Crown. I pause to note that based on the evidence heard during this portion of the pre-trial motions, the concessions by the Crown were fair, reasonable and entirely in keeping with the quasi-ministerial role of Crown counsel. Importantly, the concessions were fully supported by the evidence called during the voir dire.

[7] Following the submission of the agreed statement of fact, counsel made submissions on additional factual findings and Charter violations stemming from the evidence tendered. As such, the parties invited further judicial determinations in relation to the Charter violations and related factual findings they “agreed to disagree” over.

[8] In what follows, I will summarize the evidence to the extent required to give context to the agreed statement of fact and as required in order to determine the additional issues falling outside of the agreement. I will also recite the agreed upon admissions and then I will address the additional findings sought by Mr. El-Zahawi. I will then address the s. 24(2) analysis in relation to the Cyan Lounge Charter violations.

[9] Next, I will turn to addressing the Garofoli applications. While the parties agree that evidence unlawfully obtained during the Cyan Lounge investigation must be excised from the various ITOs, they disagree over the scope and implications of that excision.

[10] In terms of Mr. Chung’s Garofoli application, it is conceded that if Mr. El-Zahawi is unsuccessful in his Garofoli challenges, the challenge to the ITO relating to the phone allegedly used by Mr. Chung is moot. Even if the challenge by Mr. El-Zahawi succeeds, there exists a complicated issue relating to Mr. Chung’s standing to claim excision based on a violation of Mr. El-Zahawi’s Charter rights.

Background of the Alleged Offence

[11] On December 24, 2018, Soheil Rafipour drove his red Corvette to a Christmas Eve party in Richmond Hill. He was accompanied by his friend, Maral Ashoury. The party was hosted by members of Ms. Ashoury’s family. Mr. Rafipour had not been specifically invited to the party. He had been simply asked by Ms. Ashoury to join her and her family for a Christmas Eve celebration.

[12] Mr. Rafipour and Ms. Ashoury stayed at the party for some time. At approximately 9:30 p.m., Mr. Rafipour and Ms. Ashoury decided to leave the party. As they proceeded towards Mr. Rafipour’s Corvette, which was parked on the street, a dark coloured SUV approached them. A person inside the SUV began shooting at Mr. Rafipour, striking him several times. Mr. Rafipour was able to run a short distance away where he then collapsed at the side of the road. The SUV pulled up next to Mr. Rafipour and further shots were fired at him.

[13] Mr. Rafipour was transported to hospital but did not survive. The cause of death was multiple gunshot wounds. Ms. Ashoury was not physically harmed during the shooting.

The Evolving Police Investigation

[14] Based on surveillance video and initial witness statements, the police came to believe that the vehicle involved in the shooting was likely a dark coloured Volkswagen (“VW”) Touareg. They also believed that at least two people were in the Touareg at the time of the shooting.

[15] The investigators learned that Mr. Rafipour had a lengthy criminal record dating back to 2008, and that the Corvette he was driving had been fraudulently obtained. At the time of his death, Mr. Rafipour was a manager for rap artists. He was also involved in a physiotherapy/accident rehabilitation business with a person named Serge Manukian. The investigators learned that there had been two previous attempts on Mr. Manukian’s life which took place near Mr. Manukian’s business. Mr. Rafipour was present with Mr. Manukian during one of these attempts.

[16] Importantly, the investigators learned from witnesses that Mr. Manukian and Mr. Rafipour had been planning on starting a tow truck business which would provide further clients for Mr. Manukian’s physiotherapy and accident rehabilitation clinic. This investigative lead dovetailed with information that started coming in from confidential human sources which suggested that the murder of Mr. Rafipour was related to a turf war involving a rival tow truck company called Paramount Towing. The owner of Paramount Towing was identified as Alex Vinogradsky and the confidential information received suggested that the murder of Mr. Rafipour had been ordered by Mr. Vinogradsky.

[17] The confidential human source information also suggested that Thomas Sliwinski and Salloum Jassem were part of a group that was planning the murder of an unknown victim in December 2018. Six days before the murder, Mr. Sliwinski was stopped by a Toronto Police Service Officer. He was driving a VW Touareg at the time. It was determined that the vehicle had been reported as stolen.

[18] Further investigation revealed a long-standing connection between Salloum Jassem and Mohamad El-Zahawi. The investigators also came to believe that Mr. El-Zahawi was associated with Paramount Towing and Alex Vinogradsky.

[19] As the investigation developed, the investigators formed the working theory that Mr. Rafipour was murdered as part of a turf war between rival tow truck companies. While they had reached no firm conclusions, the investigators came to believe that Mr. Rafipour’s Corvette had been tracked to the scene of his death. This aspect of the theory was supported by the fact that Mr. Rafipour had been an uninvited guest at the Christmas Eve party, and it did not appear that anyone at the party had “tipped off” someone else about Mr. Rafipour’s presence at the party.

The Cyan Lounge Incident

[20] On January 29, 2019, Vullnet Zenelli went to the Cyan Lounge on Yonge Street in Richmond Hill. He was accompanied by a female friend, Sara. At some point during the evening, Mr. Zenelli became involved in an altercation with a couple who were also at the lounge. Mr. Zenelli was accused of “hitting on” the female member of the couple. The altercation spilled into the parking lot. The male member of the couple, later identified as Belal Afzal, continued to engage Mr. Zenelli.

[21] According to Mr. Zenelli, while the altercation was unfolding in the parking lot, he observed another male party being dropped off by a tow truck. That male party approached Mr. Zenelli, brandished a black revolver and threatened to shoot him. The parties then returned to the Cyan Lounge where Mr. Zenelli was further physically assaulted.

[22] Mr. Zenelli reported the incident to police. A cell phone video depicting portions of the incident was provided to police. As well, Mr. Zenelli indicated that a female who was present referred to one of the parties as “Mo.” As a result of further investigation, the police concluded that Mohamad El-Zahawi was the second male involved in the altercation. They learned that he had arrived at the Cyan Lounge in a white Paramount Towing tow truck. They later learned that Mr. El-Zahawi drove a blue Paramount Towing tow truck.

The Cyan Lounge Investigation

[23] By way of factual backdrop, the Cyan Lounge investigation was conducted by the Criminal Investigations Bureau of the York Regional Police (“YRP “). The officer in charge was Det. Steve Blenkhorn. The investigation was not conducted or directed by the homicide investigators who were collecting evidence in relation to the Rafipour homicide. That said, Det. Blenkhorn was aware of the murder investigation and had spoken with Det. Gilmour, the officer in charge of the homicide investigation.

[24] As matters unfolded, the homicide investigators devised a plan to make use of the Cyan Lounge investigation and the anticipated arrest of Mr. El-Zahawi to further their investigation of the Rafipour homicide. At the time, Mr. El-Zahawi was, at a minimum, “on the radar screen” in relation to the Rafipour homicide.

[25] On February 1, 2019, Mr. El-Zahawi was arrested in relation to the events that occurred at the Cyan Lounge on January 29, 2019. Following his arrest, he made various utterances to a number of arresting/transporting police officers. He made further utterances to an undercover police officer that had been placed in his cell at the police station. He also gave a formal videotaped statement to Det. Bailey, a homicide officer seconded to the polygraph unit. Lastly, two cell phones that were with Mr. El-Zahawi on arrest were seized by police. The cell phones were turned over to homicide investigators.

The Events Leading Up to and Following Mr. El-Zahawi’s Cyan Lounge Arrest

[26] In preparation for Mr. El-Zahawi’s arrest, a number of police officers were tasked as a team to find and arrest Mr. El-Zahawi in relation to the Cyan Lounge incident. He was to be arrested for assault, uttering threats and possessing a weapon for a dangerous purpose. The arrest team was provided with a profile sheet for Mr. El-Zahawi which included his address and a description of a Paramount Towing tow truck that he was alleged to have been in while at the Cyan Lounge. In view of the allegation involving a firearm, the arrest was planned as a high-risk takedown.

[27] Det. Blenkhorn explained that once the police decided that Mr. El-Zahawi was arrestable for the Cyan Lounge incident they wanted to locate him quickly as there was a safety concern given the alleged use of a firearm. Det. Blenkhorn received a phone number for Mr. El-Zahawi from Mr. El-Zahawi’s probation officer.[^3] When the arrest team was initially unable to locate Mr. El-Zahawi at the residential address they had for him, Det. Blenkhorn made the decision to contact Rogers Communications to ask them to “ping” [^4] the location of the cell phone associated with the phone number for Mr. El-Zahawi. He explained that he was in the process of writing warrants at this time, and it was not feasible to obtain a tracking warrant. He believed he had a public safety concern given the alleged use of a firearm and the nature of Mr. El-Zahawi’s prior criminal record. When cross-examined on the steps taken to locate Mr. El-Zahawi prior to using the “ping”, Det. Blenkhorn could not recall many specifics. He agreed that there were gaps in his notes surrounding the events that preceded the “ping” and further agreed that he was not really thinking about taking notes setting out his basis for resorting to the “ping.”

[28] Det. Blenkhorn’s first request for a “ping” resulted in a location in Brantford. A second “ping” later directed police to a location in Hamilton. Eventually, and despite the “pings”, Mr. El-Zahawi was located back at his residence in Etobicoke.

[29] When the arrest team converged at Mr. El-Zahawi’s home address, the plan was to await the issuance of search warrants before arresting Mr. El-Zahawi. That plan changed as circumstances unfolded. Mr. El-Zahawi was observed leaving the residence and entering a black Acura that was parked on the driveway. A blue Paramount Towing tow truck was observed parked in a lot across the street from the residence.

[30] It appears that Mr. El-Zahawi became cognizant of the presence of a member of the take- down team, DC Marcoux, who was sitting in a nearby unmarked police vehicle. Mr. El-Zahawi drove the Acura up alongside the police vehicle and began aggressively yelling at DC Marcoux who was seated in the backseat of the vehicle. As DC Marcoux’s position had been revealed, Det. Beale, the lead officer on the arrest team, called the takedown. Mr. El-Zahawi’s vehicle was boxed in. DC Marcoux put on his police vest and approached Mr. El-Zahawi with his gun drawn. It appeared to DC Marcoux that Mr. El-Zahawi’s demeanour changed once he understood that he had been surrounded by police officers.

[31] Mr. El-Zahawi was arrested very shortly after 10:05 p.m. At approximately 10:10 p.m., he was read his rights to counsel, and he asked to speak with a specific lawyer. He was advised that a call would be facilitated back at the police station.

[32] Following his arrest, Mr. El-Zahawi was placed into a police vehicle along with DC Marcoux and PC Waung. The police vehicle was a surveillance vehicle and was not equipped for the transport of a person in custody. It did not have a divider between the front and back seats. While seated in this vehicle, the officers engaged in some “small talk” with Mr. El-Zahawi, though DC Marcoux agreed that he asked Mr. El-Zahawi some questions. The topics of discussion included the fact that he was a tow truck driver, that there was a hit out on him, and that he had a new tattoo on his hand. Mr. El-Zahawi seemed eager to talk and was reminded of his right to counsel more than once. That said, DC Marcoux explained that he knew very little about the Cyan Lounge incident and was not trying to ask questions about it.

[33] No attempt was made to permit Mr. El-Zahawi to contact counsel while seated in the police vehicle. DC Marcoux explained that privacy could not be provided. As well, he noted that while Mr. El-Zahawi was polite and cooperative, the incident remained high risk as the suspected firearm had not been located. It was also a very cold evening with temperatures of approximately -15 degrees Celsius. Interestingly, when Det. Blenkhorn was asked about facilitating rights to counsel prior to returning to the police station, he suggested that in his experience police have been able to facilitate calls “if need be.”

[34] Uniformed transport officers arrived on scene at approximately 11:20 p.m., approximately one hour and fifteen minutes after Mr. El-Zahawi had been initially arrested. DC Marcoux did not recall specifically telling the transporting officers that Mr. El-Zahawi had asked to speak with a specific lawyer. He did not tell the transporting officers that over an hour had passed since Mr. El-Zahawi had asked to speak with counsel.

[35] The decision to await the arrival of transport officers was undertaken in accordance with police policy that requires the use of a marked police vehicle with two uniformed officers for transport. Calls for transport are prioritized through dispatch and even if a request is made to prioritize transport, there is a priority system ahead of transporting a person in custody. Det. Beale explained that he made the call for transport approximately 15 minutes after the arrest. When he made the call, he did not know that Mr. El-Zahawi had already asked to speak to a specific lawyer. That said, given the high-risk nature of the arrest, he asked for the transport to be “as soon as possible.”

[36] Det. Blenkhorn was asked why arrangements for transport were not made to coincide with the arrest. He explained that his team’s ability to have two uniformed police officers on standby would depend on the available “manpower.” They did not know when the arrest would take place, and as such the potential length of time was an issue. He explained, “We generally can’t have a car follow them [the arrest team] around.”

[37] The transport officers, PC Rodgers and PC York, were dispatched to retrieve Mr. El-Zahawi from the location of his arrest in Etobicoke and return him to YRP 2 District Station. They took custody of Mr. El-Zahawi at approximately 11:25 p.m. PC York then read rights to counsel to Mr. El-Zahawi. The rights to counsel were recorded on the in-car camera. Mr. El-Zahawi re-iterated that he wanted to speak to counsel and he gave a specific name.

The Seizure of Mr. El-Zahawi’s Cell Phones

[38] The parties agreed on the following facts in relation to the seizure of Mr. El-Zahawi’s phones:

a. On February 1, 2019, DC Dixon seized the iPhone (4622) and the ZTE phone (0277) from the Acura Mr. El-Zahawi was arrested in on that same day.

b. DC Dixon’s notes are silent as to grounds. The applicant and the respondent on this motion both agree the court ought not to consider his grounds for seizing the two phones when considering the s. 8 Charter application, but for continuity purposes it is agreed that he seized the phones.

c. DC Dixon turned the phones over to DC Marcoux who then turned the two phones over to the two transport officers, PC Rodgers and PC York. DC Marcoux erroneously recalled seizing the two phones from the applicant’s person when he was arrested.

d. The two cellular phones were placed in a property locker at 2 District as testified to by Staff Sgt. Woodcock with the rest of Mr. El-Zahawi’s property destined to travel to court with the applicant for a show cause hearing.

e. For continuity purposes, on February 5, 2019, DC Arbour removed those phones from the property locker at 2 District. Both phones were in one bag with the property tag #1427639. DC Arbour placed the phones in an exhibit locker at police headquarters at 47 Don Hillock Drive in Aurora. The parties agree that DC Arbour was working pursuant to instructions from Det. Gilmour.

Additional Evidence Relating to the Cell Phone Seizure

[39] While DC Marcoux erroneously recalled personally seizing the two cell phones, he explained his understanding that the cell phones were seized as Mr. El-Zahawi’s personal property which was to be brought back to the station with him and returned to him upon release. With specific reference to the cell phones, DC Marcoux explained that he did not consider them as being seized incident to arrest as evidence in relation to the Cyan Lounge incident.

[40] Det. Beale explained that while Det. Blenkhorn did not specifically task him to seize cell phones from Mr. El-Zahawi incident to arrest, he believed he had a basis to seize the phones incident to arrest as they might have evidence relating to the Cyan Lounge incident on them. He agreed that he had no case specific reasons for seizing the phones, only generic factors. When Det. Blenkhorn was asked about whether there was any discussion in advance about a search incident to arrest, he indicated that he told Det. Beale that it would be “ideal” if Mr. El-Zahawi was arrested in his tow truck so that the truck could be searched incident to arrest. He did not speak to Det. Beale specifically about seizing the phones.

[41] Det. Blenkhorn later received both cell phones and processed them. While he explained that he intended to get a warrant for the phones, he never did. He last saw the phones when he logged them into the property room. Det. Blenkhorn explained that the homicide team was aware that the cell phones had been seized but he could not recall any specific conversations in relation to the phones.

[42] As well, at the time he dealt with the phones, he did not know what specific phone numbers were attached to each phone. He did not file a Report to Justice in relation to the phones. According to Det. Blenkhorn, the Report to Justice never crossed his mind. He described his failure to file the report as an “administrative oversight.”

[43] Det. Blenkhorn was aware that the homicide investigators eventually obtained the phones, but he recalled few if any details of how it was that the phones were transferred over to the homicide officers. He assumed that the homicide investigators would obtain a warrant for the contents of the phones.

[44] Approximately one year after the phones were seized, Det. Blenkhorn had a discussion with a Crown Attorney regarding the Cyan Lounge investigation. This discussion prompted him to start working on a warrant to search the seized phones. Ultimately, the Cyan Lounge charges were resolved, and the warrant was never completed.

[45] It appears that on October 5, 2022, the iPhone that was seized from Mr. El-Zahawi following his arrest on the Cyan Lounge incident was destroyed. While Det. Blenkhorn had no specific recollection of ordering or permitting the destruction of the phone, it appears from the relevant entries in the police computer system that he authorized the destruction. He could not explain why he would have authorized the destruction and surmised that it happened by mistake and not intentionally.

[46] Prior to the destruction of the cell phone, a digital image of the data was created. The parties agree that the digital imaging has preserved a forensic copy of the data that was on the phone, such that the defendant suffered no prejudice due to the physical loss of the phone.

The Events at the Police Station

[47] Staff Sgt. Woodcock was in charge of the booking desk on the evening of Mr. El-Zahawi’s arrest. He was briefed by Det. Sgt. Yan in terms of the plan to have an undercover officer play occur once Mr. El-Zahawi was brought to the station. He understood that Mr. El-Zahawi was to be arrested for a firearm related offence and also understood that Mr. El-Zahawi was a person of interest in a murder investigation. That said, he did not speak with any homicide investigators.

[48] In preparation for Mr. El-Zahawi’s arrival, Staff Sgt. Woodcock assigned two officers, PC McClure and PC Citroniti, to be on standby. The plan was that these two officers would be involved in the undercover play that had been devised and directed by Det. Sgt. Yan.

[49] Following his arrest, Mr. El-Zahawi was eventually transferred into the custody of transport officers and taken directly to 2 District YRP on Major Mackenzie Drive and Yonge Street in Richmond Hill. Once there, they sat in the sallyport for approximately 10-15 minutes. When they initially entered the sallyport, DC Rodgers was approached by Staff Sgt. Woodcock and told to wait. DC Rodgers observed another police vehicle in the sallyport ahead of his vehicle. The transport officers and Mr. El-Zahawi remained seated in the transport vehicle inside the sallyport. Unbeknownst to the transport officers and Mr. El-Zahawi, the delay in the sallyport was engineered to permit the introduction of an undercover officer.

[50] The undercover play commenced at this time and Mr. El-Zahawi was held in the transport car while two officers, who were visible in the sallyport area, pretended like they were dealing with a third individual at an eye-wash station inside the sallyport. The third individual was an undercover officer who was acting as a detainee who had been pepper-sprayed by the officers. He was swearing and shouting at the officers and appeared to be antagonistic. The events in the sallyport lasted approximately 18 minutes.

[51] After the eye-wash scene played out, Mr. El-Zahawi was taken into the booking area of 2 District. In the ordinary course, detainees are brought before the booking desk one at a time. In this instance, in order to further the undercover play, Mr. El-Zahawi was brought in while the undercover officer was still present and being “booked.”

[52] During the booking process, Mr. El-Zahawi re-iterated that he wanted to speak with counsel and provided the name of more than one counsel. He also asked to call his girlfriend who would have had the phone numbers for counsel. The call to his girlfriend was facilitated at 12:30 a.m. The booking process lasted 15-20 minutes. At approximately 12:38 a.m., Mr. El-Zahawi was lodged in the bullpen area, a large holding cell that is monitored by video. He had not yet spoken to counsel despite being arrested at 10:05 p.m. The only other person inside the bullpen was the undercover officer who had been essentially presented to Mr. El-Zahawi earlier at the eye-wash station in the sallyport and again at the booking desk.

[53] At approximately 12:56-12:57 a.m., calls were placed to both counsel named by Mr. El-Zahawi. One of the counsel answered the call and was advised that Mr. El-Zahawi wanted to speak with her. At 1:00 a.m., Mr. El-Zahawi was taken out of the bullpen and placed in contact with counsel of choice. The call ended at 1:06 a.m., after which Mr. El-Zahawi was again placed into the bullpen.

[54] In cross-examination, Staff Sgt. Woodcock was asked whether he knew how long Mr. El-Zahawi had been under arrest by the time he arrived at the station. He did not know. He also did not know whether or when Mr. El-Zahawi had asked to speak to counsel. He explained that if he had known that Mr. El-Zahawi had asked to speak to counsel an hour and fifty minutes prior to arriving at the station, he possibly would have told the officers running the undercover play that Mr. El-Zahawi had to be brought to counsel first. Nonetheless, he maintained that he did not do so as he did not have that information.

[55] Staff Sgt. Woodcock also explained that he would have, nonetheless, placed Mr. El-Zahawi in the bullpen in order to secure him and facilitate the undercover play. When asked if the undercover play took precedence, Staff Sgt. Woodcock stated, “I would say the immediacy is still counsel.” He went on to explain that he was considering many factors including the right to counsel.

[56] Det. Sgt. Yan was the handler for the undercover officer, and he was responsible for implementing the operational plan for the undercover play. He was not involved with the homicide investigation, though he understood that Mr. El-Zahawi was a person of interest in the homicide investigation. The plan was to introduce the undercover officer to Mr. El-Zahawi with a view to establishing some form of relationship that would continue into the future.

[57] Det. Sgt. Yan was asked about the fact that Mr. El-Zahawi was placed in the bullpen with the undercover officer prior to speaking with counsel. He explained that even if he had known that Mr. El-Zahawi had asked for counsel some two hours prior, he would not have “put the brakes” on the undercover play. He explained that this was not an investigation for evidence but rather simply an effort aimed at establishing rapport. While he acknowledged that the undercover play might potentially gather incriminating evidence, he maintained that gathering evidence was not the focus of the play and he did not turn his mind to the possibility. He did not agree that placing a detainee in with an undercover officer during the “holding off” period prior to consultation with counsel would create a Charter problem. While he agreed that the implementation of the right to counsel was delayed in this case, he denied that this was done on purpose to facilitate the undercover play.

[58] In terms of the direction given to the undercover officer, Det. Sgt. Yan explained that the undercover officer was provided a brief fact sheet, but not the entire operational plan which contained details regarding the homicide investigation. He explained that this was done in part out of concerns for officer safety and also in order to preserve the integrity of any information received from the detainee. Det. Sgt. Yan reiterated that the goal of the operation was to build rapport with a view to future contacts. That said, Det. Sgt. Yan agreed that providing an undercover officer with limited information created a risk that the undercover officer might unwittingly ask incriminating questions.

[59] Det. Sgt. Yan monitored the bullpen when the undercover officer and Mr. El-Zahawi were together. The monitoring was done by video camera. While there was an intercom system available that would allow for audio monitoring, it was not used in this case. Following the undercover play, there was no discussion about preserving the video of the interaction between Mr. El-Zahawi and the undercover officer. As it turns out, the video was never preserved and was ultimately lost or destroyed. Det. Gilmour accepted responsibility for failing to preserve the video prior to the expiration of the 12-month retention period.

Interaction with the Undercover Officer

[60] The undercover officer, “Peter”[^5], was tasked to play the role of a disgruntled fellow detainee on the evening of Mr. El-Zahawi’s arrest. He was not otherwise involved in the Rafipour homicide investigation.

[61] In order to prepare for the interview, Peter reviewed a fact sheet that was provided to him as well as some related caselaw on the limits of his role. He understood that he had to act as a listening post and was not to engage in active elicitation of information. The objective of the undercover play was to build rapport with a view to setting up future meetings. While Peter understood that there was a homicide investigation underway, he knew no details of the homicide or the status of the investigation.

[62] The staging for the undercover play involved Peter administering pepper spray to himself. The object was to make it appear as though he had been pepper sprayed during the course of his “arrest.” Peter was initially placed in the bullpen alone, but was joined by Mr. El-Zahawi at approximately 12:38 a.m.

[63] Once the two of them were in the bullpen together, they engaged in a discussion on various topics including, their respective ethnicities and upbringing, certain tattoos that Mr. El-Zahawi had including three tear drop tattoos on his middle finger, the gang lifestyle, Mr. El-Zahawi’s arrest earlier that evening and his initial belief that he was being targeted by a rival gang member. Mr. El-Zahawi explained that he had “a hit” on him and that he had been targeted by many individuals. Mr. El-Zahawi also mentioned that he was on his way to pick up a “baby 9” when he was arrested, which Peter understood as a reference to a 9 mm handgun. Mr. El-Zahawi made reference to the fact that on an earlier occasion he had been shot and that he had returned fire and killed his assailant.

[64] Mr. El-Zahawi was taken out of the bullpen on three occasions. Initially, he was removed and placed in contact with his counsel. This occurred between 1:00 and 1:06 a.m. Following his consultation with counsel, he was placed back in the bullpen and the discussion between Peter and Mr. El-Zahawi continued until approximately 2:08 a.m., when Mr. El-Zahawi was taken to be interviewed by Det. Bailey. When Mr. El-Zahawi was removed from the bullpen, Peter met with Det. Sgt. Yan for a debriefing. At this time, he began reciting as best as he could the utterances made by Mr. El-Zahawi. Det. Sgt. Yan was typing a report as he did so.

[65] In cross-examination, Peter agreed that the notes memorializing his interactions with Mr. El-Zahawi were done from memory after the fact. He did not recite the utterances in chronological order and could not specifically recall which utterances occurred before Mr. El-Zahawi was placed in contact with counsel and which came after. He agreed that he later used Det. Sgt. Yan’s typed report to create his notes and that he had additional recollections not memorialized in the report.

[66] Peter was also cross-examined on his understanding of the limits imposed on him as an undercover officer speaking with a detainee in police custody. He explained that he was to act as a “listening post” and that he was to avoid asking questions that might prompt inculpatory answers. When asked about his knowledge of the Rafipour homicide, Peter explained that he was not privy to the details, including the police belief that the homicide was a drive-by shooting of a gangland participant in the context of a broader turf war between two tow truck companies. Peter was then asked about the various topics he discussed with Mr. El-Zahawi. He agreed that in some instances, he asked questions that he probably should have stayed away from. However, he explained that in the absence of any information about the homicide investigation, to the extent that his discussions with Mr. El-Zahawi veered into elicitation, it was done unknowingly. Ultimately, Peter agreed that in view of the informational deficit he was operating under, he would have had no way of knowing whether he was complying with the caselaw on active elicitation.

Interview with Detective Bailey

[67] Det. Bailey was a homicide investigator working with the polygraph unit of YRP. He was tasked to conduct a formal interview of Mr. El-Zahawi in relation to the Cyan Lounge incident. He was also advised that Mr. El-Zahawi was a person of interest in the Rafipour homicide investigation. While the interview was geared towards the Cyan Lounge incident, it was not Det. Blenkhorn who called in Det. Bailey to conduct the interview, it was the homicide investigators.

[68] Prior to interviewing Mr. El-Zahawi, Det. Bailey met with Det. Blenkhorn and was briefed on the status of the Cyan Lounge investigation. He was also briefed by Det. Gilmour who was in charge of the Rafipour homicide investigation and was made aware that an undercover play was planned. Det. Bailey understood that the purpose of the undercover play was simply to create an opportunity for the undercover officer to make contact with Mr. El-Zahawi at some point in the future.

[69] During his briefing with Det. Gilmour, it was made clear to Det. Bailey that his interview was to be restricted to the Cyan Lounge incident. The homicide investigators did not want Mr. El-Zahawi to be alerted to the fact that he was linked to the homicide investigation.

[70] Det. Bailey was not given extensive details about the homicide apart from a very basic outline of facts contained in the operational plan. That said, he agreed that he knew that investigators believed there was a connection between Paramount Towing and the Rafipour homicide. He understood that Mr. El-Zahawi worked for Paramount Towing. He also knew that the owner of Paramount Towing, Mr. Vinogradsky, was mentioned in the operational plan, but he knew no further details.

[71] Det. Bailey was clear that the purpose of his interview was to get information in relation to the Cyan Lounge incident and not the Rafipour homicide. It was not a “dual purpose” interview. Det. Bailey was cross-examined extensively on the fact that the initial part of his interview of Mr. El-Zahawi is spent discussing topics relating to Paramount Towing and the tow truck industry generally, including the various players and the fact that Mr. El-Zahawi believed that a hit had been placed on him. He maintained that none of the discussion about these topics caused him to be concerned that he was veering into the homicide investigation. At no time did he feel that he should “put the brakes on” and seek direction from Det. Gilmour in terms of cautions and further rights to counsel.

[72] In terms of Mr. El-Zahawi’s status during the interview, Det. Bailey agreed that he was told that Mr. El-Zahawi was a person of interest in the homicide. He explained that if Mr. El-Zahawi was going to be interviewed in relation to the homicide, he would have cautioned him. In his view, a detainee was to be cautioned on the topic of the interview. He also agreed that if the topic of an interview moved from an initial offence to a second offence, a detainee would need to be cautioned in relation to the second offence as well as the first.

[73] In terms of s. 10(a) and s. 10(b) of the Charter, Det. Bailey explained that obligations to comply with s. 10(a) and s. 10(b) would arise once a person “became arrestable” during an interview, though the duty to caution would nonetheless apply. Det. Bailey went on to explain that if a person had been detained and had been given his s. 10(a) and s. 10(b) rights in relation to one offence, he would only re-Charter the detainee once he had grounds to arrest for a further offence. He went on to further explain that even if a detainee started to incriminate himself in relation to a second offence, he would only re-Charter the detainee once he had sufficient grounds to arrest him for the second offence. That said, he was clear that he would provide the detainee a caution in relation to the second offence.

The Officer-in-Charge of the Homicide Investigation

[74] Det. Gilmour explained that the investigation into Mr. Rafipour’s homicide was very complex. It started off as a drive-by shooting with no eyewitnesses able to identify the shooter or shooters. Very shortly after the homicide, tips from various known and anonymous sources were provided to investigators. In broad terms, these tips implicated Alex Vinogradsky and Paramount Towing. As the investigation progressed, the investigators came to believe that the motive behind the homicide related to a turf war between competing tow truck companies and some related business involving auto repair and physiotherapy clinics. Investigators also came to believe that a tracking device of some sort had been placed on Mr. Rafipour’s vehicle prior to his murder.

[75] Following the events at the Cyan Lounge, investigators drew a connection between Mr. El-Zahawi and Paramount Towing. According to Det. Gilmour, Mr. El-Zahawi’s arrest provided an opportunity and the homicide investigators decided to place an undercover officer in Mr. El-Zahawi’s cell for the purpose of establishing a rapport aimed at having future meet ups. The undercover play was also aimed at gathering information about any potential involvement Paramount Towing had in the homicide. While Det. Gilmour was involved in organizing the undercover play, it was not her decision to introduce the undercover officer. She also denied directing or delaying the arrest/transport of Mr. El-Zahawi so that the undercover play could be organized and executed upon Mr. El-Zahawi’s arrival at the police station.

[76] According to Det. Gilmour, Mr. El-Zahawi was “a person of interest at best” at the time the plan to put an undercover officer in his cell was devised. She denied that Mr. El-Zahawi was a suspect or that there was any evidence connecting him to the Rafipour homicide at the time.

[77] Det. Gilmour was also aware that Det. Bailey had been asked to conduct an interview of Mr. El-Zahawi. The request came from Det. Sgt. Papineau who was with the homicide unit. Det. Gilmour met with Det. Bailey and gave him some information regarding Mr. El-Zahawi. However, she did not give Det. Bailey any information regarding the homicide investigation. She did not want the interview to focus on the homicide investigation and did not want to place Det. Bailey in the position where he could be criticized for asking questions that related to the homicide investigation.

[78] While Det. Gilmour acknowledged that during the interview, Mr. El-Zahawi spoke about the fact that he was the road boss for Paramount Towing and the fact that he believed there was a hit out on his life, she maintained that his status did not change during the interview. He remained a person of interest and there were no grounds to detain him in relation to the homicide investigation.

[79] In terms of Mr. El-Zahawi’s phones, Det. Gilmour explained that on February 5, 2019, she tasked Det. Arbour to obtain the phones from Det. Blenkhorn. She explained that she wanted to secure the phones and had reason to believe they would afford evidence in relation to the Rafipour homicide. She believed she had the authority to seize the phones under s. 489 of the Criminal Code. Notwithstanding her stated position in relation to the existence of evidence on the phones, Det. Gilmour maintained that at the time she directed the seizure of the phones, Mr. El-Zahawi was not a suspect. He remained simply a person of interest.[^6]

[80] Investigators began obtaining various production orders for phone records. In April 2019, they recovered a vehicle believed to have been involved in the shooting. Investigators learned that the vehicle had been queried by police officers on December 21, 2018, while it was at the Monte Carlo Inn in Vaughan. Investigators also learned of a “swatting call”[^7] that was later linked back to Mr. El-Zahawi. The investigators believed the “swatting call” was aimed at diverting attention away from the subject vehicle.

[81] Eventually the homicide investigators obtained approximately 35 production orders and 5 search warrants. At the end of the investigation seven individuals were arrested and charged with offences relating to Mr. Rafipour’s homicide. Mr. El-Zahawi was arrested on March 17, 2020.

The Loss of the Corvette

[82] Within days of Mr. Rafipour’s shooting, police had an operative theory that a GPS device had been placed on his vehicle on the night of the murder. This theory was based, in part, on the investigators’ understanding that Mr. Rafipour was not an invited guest at the party. He had simply agreed to go to the Christmas Eve party with Ms. Ashoury at the last minute. Another operative theory was that his killers had been tipped off by someone at the Christmas Eve party. As the investigation progressed, the “tipped off” theory gained little support as it appeared that no one present at the party had communicated Mr. Rafipour’s presence.[^8]

[83] On December 27, 2018, the police obtained a warrant to search Mr. Rafipour’s Corvette. Among the specified items they were searching for were GPS tracking devices. The initial search was conducted by DC Yee. He conducted a visual inspection of the car looking for anything obvious. He did not place the car on a hoist to examine its underside, though he used a flashlight to look underneath the car while lying on his side next to the car. He did not dismantle or re-arrange any vehicle components during his search. He did not find a GPS tracking device.

[84] The next day, December 28, 2018, DC Muir searched the vehicle using a radio frequency device which indicates the presence of a radio frequency emission. DC Muir did not locate a GPS device, though he detected a radio frequency signal in the trunk of the vehicle. No further physical search was done to try to locate the source of this emission.

[85] On January 22, 2019, an intelligence report was received by homicide investigators. The report related to information received from a confidential human source suggesting that a GPS device had been placed under Mr. Rafipour’s vehicle in order to locate him. The same report also provided information suggesting that Alex Vinogradsky, the owner of Paramount Towing, was involved and that the motive for the murder was possibly related to a dispute between tow truck companies.

[86] On January 23, 2019, DC Lee, an officer with the Intelligence and Special Services Unit of the YRP, conducted a further search. By this time, the Corvette was no longer located in a secure police vehicle bay. It had been moved to a yard at York Auto, a private business under contract to the YRP. The car had been released by the officer in charge of the homicide investigation, Det. Gilmour, on January 5, 2019, approximately 12 days after the homicide.

[87] DC Lee conducted a visual inspection of the Corvette but located no GPS device. He did not check the interior of the vehicle despite knowing that GPS devices could be placed on the internal workings of the vehicle. He also did not use any electronic detection tool, despite various such tools being available to YRP officers. It appears that one consideration relating to the search of the interior of the vehicle was the fact that the police did not want to damage the vehicle. That said, the police were also aware that Mr. Rafipour had obtained the vehicle fraudulently and they had not been able to locate the lawful owner.

[88] On December 13, 2019, investigators obtained a production order for a device known as “Van Dam”. Investigators believed that the “Van Dam” device was the GPS device that had been placed on Mr. Rafipour’s Corvette. On January 9, 2020, investigators received the results of the production order which showed, inter alia, that the “Van Dam” device hit off cell towers in the vicinity of YRP Headquarters from December 27 to 30, 2018, and near York Auto on January 15 and 18, 2019. These records support an inference that the “Van Dam” device was functional during this time period and was in or on the Corvette.

[89] One year later, on January 24, 2020, DC Mendoza of the Special Services Technical Surveillance Unit was tasked by Det. Gilmour to re-examine the vehicle for a GPS tracking device. By this time, the vehicle had been sold to a third party and was located in Welland, Ontario. The search included a visual inspection as well as a scan with a device that identifies radio or cellular frequencies. DC Mendoza looked at the vehicle to see if any panels appeared to have been removed, though he did not remove any panels or otherwise dismantle any part of the car. He also examined the engine bay, fuse box and interior of the vehicle to see if any wiring for a GPS device could be identified. DC Mendoza found no indication of a GPS device.

[90] Det. Gilmour agreed that she was the relevant decision maker when it came to the Corvette. She explained that the decision to release or sell the vehicle was made once she understood that it had been searched and no GPS device was located. She could not recall when the decision was made.

[91] While the Corvette was in police custody, Det. Gilmour did not turn her mind to dismantling the vehicle in order to search for the device. She did not know whether the car would be stored securely once at York Auto, and she felt that it was out of police custody at that time. Importantly, Det. Gilmour did not turn her mind to preserving the Corvette in the event that any accused person might want to examine the vehicle.

The Agreed Upon Charter Violations

[92] As set out in the agreed statement of fact, counsel agree that the following Charter violations and related facts have been established on the evidence:

a. Det. Blenkhorn breached Mr. El-Zahawi’s rights by “pinging” the 4622 cell phone to locate and arrest him since, although there was some exigency due to the allegations of a firearm, the exigency did not rise to the level that justified resort to a warrantless search of Mr. El-Zahawi’s real-time cellular phone activity.

b. Prior to February 1, 2019, the police, in particular Det. Gilmour, objectively had grounds to consider the applicant a suspect in the Rafipour homicide.

c. Det. Gilmour knew or ought to have known that Mr. El-Zahawi was a suspect in the homicide and that there was a realistic potential for him to incriminate himself in his discussions with the undercover officer and Det. Bailey.

d. Officers breached Mr. El-Zahawi’s s. 10(a) rights by failing to advise him that he was detained in respect of the homicide investigation in addition to being arrested on the Cyan Lounge charges. However, the “street team” and transporting officers did not know that the Rafipour homicide was being investigated, and that Mr. El-Zahawi was a person of interest or suspect.

e. Officers breached the implementational component of Mr. El-Zahawi’s s. 10(b) rights by failing to immediately facilitate his request to consult counsel upon arrival at 2 District YRP.[^9]

f. Det. Gilmour breached the implementational component of Mr. El-Zahawi’s s. 10(b) rights by failing to hold off compelling him to participate in a process which could ultimately have an adverse effect in the conduct of his trial by placing him in the bullpen with the undercover officer before he had a reasonable opportunity to consult with counsel.

g. Officers breached the implementational component of Mr. El-Zahawi’s s. 10(b) rights by not providing him with a fully informed consultation with his counsel, because he was not cautioned in respect of the homicide. However, none of the officers except Det. Gilmour, Det. Sgt. Yan, Staff Sgt. Woodcock, Det. Bailey and the undercover officer knew that Mr. El-Zahawi was a suspect in the Rafipour homicide.

h. The officers were negligent when they failed to preserve the video of the bullpen interaction between the undercover officer and Mr. El-Zahawi.[^10]

i. Det. Gilmour was part of the debriefing between Det. Sgt. Yan and the undercover officer, when Det. Sgt. Yan made the typewritten notes of the debriefing concerning what Mr. El-Zahawi told the undercover officer. Based on what Det. Gilmour learned during that debriefing she breached Mr. El-Zahawi’s s. 10(a) and 10(b) rights by not “re-Chartering” him at some point during the interview with Det. Bailey.

j. Det. Blenkhorn and Det. Gilmour breached Mr. El-Zahawi’s s. 8 rights when they failed to file a s. 489.1 Report to Justice about the initial seizure of the cell phones on February 2, 2019.

k. Det. Gilmour breached Mr. El-Zahawi’s s. 8 rights when she seized the 4622 and 0277 phones for the purpose of investigating the homicide without any lawful authority to do so.

l. Det. Gilmour breached Mr. El-Zahawi’s s. 8 right when she failed to file a s. 489.1 Report to Justice after executing the March 20, 2019 search warrant and seizing and searching the 4622 and 0277 phones but before charges were laid.

m. Det. Blenkhorn breached Mr. El-Zahawi’s s. 7 rights when he ordered the 4622 phone destroyed, though there was no prejudice arising from the loss of the physical phone as a copy of the data on the phone was completed prior to its destruction.

[93] In view of the agreed statement of fact relating to the various Charter violations, the Crown abandoned its application to have Mr. El-Zahawi’s utterances and formal statement declared voluntary. The Crown also agreed that the utterances to the undercover officer and the statement to Det. Bailey are inadmissible at trial as they were obtained in a manner that violated Mr. El-Zahawi’s s. 10(a), s. 10(b) and s. 7 rights and ought to be excluded. Lastly, the Crown agreed that the utterances and statements were to be excised from the various ITOs when determining the Garofoli application.

Additional Charter Findings - Cyan Lounge

[94] After the agreed statement of fact relating to the various Charter violations was presented in court, the parties made additional submissions in relation to additional findings sought by the defence. The parties also made submissions on s. 24(2) of the Charter. While the Crown conceded that the utterances and statement given by Mr. El-Zahawi would be inadmissible at trial, the defence sought the exclusion of additional evidence, including the two cell phones seized from Mr. El-Zahawi as well as the forensic data retrieved from those phones, particularly the 4622 phone.

[95] I will address the additional issues raised in the order in which they were presented in submissions.

(a) The Seriousness of the “Pinging” Breach

[96] There is no issue that the “pinging” of Mr. El-Zahawi’s phone was warrantless. There is also no issue that in exigent circumstances, such as where there is an imminent threat to public safety, the common law authorizes resort to warrantless “pinging” in order to locate a suspect, see R. v. Bakal, 2021 ONCA 584, at paras. 24-25 and R. v. Atwima, 2022 ONCA 268, at para. 139.

[97] In order to gauge the seriousness of the breach, the decision to resort to “pinging” must be viewed in context. The police had grounds to arrest Mr. El-Zahawi in relation to the Cyan Lounge incident wherein it was alleged that Mr. El-Zahawi turned up at a nightclub and brandished what appeared to be a firearm while threatening and assaulting the complainant.

[98] While there is no issue that the police were interested in quickly arresting Mr. El-Zahawi, almost 48 hours passed before they resorted to the “pinging.” In the interim, an operational plan was put in place for the use of an undercover play in relation to the separate homicide investigation in which Mr. El-Zahawi was, at a minimum, a person of interest. The operational plan had some degree of complexity and homicide officers wanted to “piggy-back” the undercover play on the Cyan Lounge arrest. Det. Blenkhorn was aware “in a roundabout” way of the operational plan by homicide investigators.

[99] Det. Blenkhorn explained that he had a concern for public safety given the nature of the Cyan Lounge allegations and Mr. El-Zahawi’s criminal record. Another factor was the fact that the murder investigation in which Mr. El-Zahawi was a person of interest involved a shooting. As a result, he wanted to locate Mr. El-Zahawi as quickly as possible. That said, the arrest took place some 48 hours after the Cyan Lounge incident. In the interim, Det. Blenkhorn took steps to verify Mr. El-Zahawi’s identification, including his address and telephone number, which he obtained from Mr. El-Zahawi’s probation officer.

[100] Det. Blenkhorn could not specifically recall what was done between the time when Mr. El-Zahawi was identified and the time when he “pinged” his cell phone. He explained that it was not feasible to obtain a warrant as that would have taken a day or two. That said, he agreed that warrants to search Mr. El-Zahawi’s home and vehicle were already being drafted at the time.

[101] Det. Blenkhorn took limited notes relating to the reasons why he resorted to the warrantless “pinging” of Mr. El-Zahawi’s cell phone. In his evidence, he could not explain his thought process in any significant detail. He agreed that there were steps that could have been taken in an effort to locate Mr. El-Zahawi, such as sending a police vehicle to his home address. Det. Blenkhorn had little recollection of his discussions with homicide investigators, including Det. Gilmour, in relation to the proposed undercover play or the need to time the arrest to coincide with the readiness of the undercover officer.

[102] The parties agree that Det. Blenkhorn violated s. 8 of the Charter when he conducted the warrantless “pinging” of Mr. El-Zahawi’s phone. They disagree on the seriousness of the violation. The defence argues that this is an instance where the “pinging” was undertaken as a convenience as opposed to an exigency. The Crown argues that Det. Blenkhorn’s grounds to resort to the technique fell just shy of the mark. Moreover, the Crown notes that the “pinging” did not actually result in the location of Mr. El-Zahawi, who as it turned out was actually located at his residence.

[103] I note that the Crown bears the onus of justifying the warrantless “pinging” of Mr. El-Zahawi’s phone on a balance of probabilities. In this regard, Det. Blenkhorn’s evidence was lacking. While he professed to be acting under exigent circumstances, when pressed for details of the steps he took to locate Mr. El-Zahawi, he provided few. As well, he was also unable to recall much about his discussions with homicide investigators regarding their desire to “piggy-back” their undercover play on the Cyan Lounge related arrest. The search for Mr. El-Zahawi did not start with the “pinging” of his phone as might be expected if the police were acting quickly to get him off the street for public safety reasons. When viewed in context, an obvious inference is that the resort to the “pinging” was done in order to facilitate the arrest of Mr. El-Zahawi at a time that coincided with the operational plan for the undercover play.

[104] Taken together, I find that the resort to the “pinging” was undertaken out of investigative convenience and not a true sense of exigency. In these circumstances, the breach is serious. It appears that Det. Blenkhorn did not turn his mind to properly considering, articulating or memorializing the reasons why he resorted to this warrantless technique.

(b) The Start of the Section 10(b) Charter Violation

[105] While the parties agree that Mr. El-Zahawi’s s. 10(b) rights were violated because the police failed to implement them immediately upon arrival at 2 District YRP and instead waited for the undercover play to commence, the defence argues that the violation of the implementational component of s. 10(b) occurred much earlier when Mr. El-Zahawi was initially arrested and held at the roadside for a lengthy period of time awaiting transport back to the station.

[106] In short, the defence position is that this was not a happenstance arrest that resulted in a delay in returning Mr. El-Zahawi to the police station. Instead, this was a planned arrest where the arrest team was working in concert with officers staging an undercover play back at the police station. The arrest team knew at the outset that once they located Mr. El-Zahawi he would need to be transported back to 2 District YRP where the undercover play was being set up. However, the arrest team was not equipped to provide for the transfer of Mr. El-Zahawi. Once Mr. El-Zahawi was arrested, a call was made for transport, and this necessitated a lengthy wait at the roadside. During that wait, there is no reason why Mr. El-Zahawi could not have been provided access to counsel, as he requested when he was informed of his right to counsel.

[107] The Crown notes that this was a dynamic takedown stemming from a firearm related offence. The arrest itself was tense and involved Mr. El-Zahawi “driving up” on an officer who was in an unmarked vehicle. As well, the firearm had not been recovered and warrants for Mr. El-Zahawi’s home and vehicle were being prepared. The Crown argues that in these circumstances the police were not under an obligation to facilitate Mr. El-Zahawi’s access to counsel at the roadside. That said, the Crown accepts that the roadside delay of approximately one hour and fifteen minutes while awaiting transport could have, and perhaps should have, been avoided.

[108] I am not prepared to find that this is an instance where the arresting officers should have figured out a way to permit Mr. El-Zahawi to consult counsel while at the scene of his arrest. Simply stated, the circumstances were too dynamic. Mr. El-Zahawi’s arrest was a high risk takedown. There existed a reasonable belief that he was in possession of a firearm. When the arrest was called, Mr. El-Zahawi “drove up” on one of the officers, believing that the officer, who was undercover, was possibly a person sent to cause him harm or death. Warrants to search Mr. El-Zahawi’s residence and vehicle were in the works. Mr. El-Zahawi was seated in a police vehicle that had no detainee barrier. If he was left alone in the car to contact counsel, he would have had access to the vehicle’s controls. It was bitterly cold outside. There would have been an obvious concern about safety and/or loss of evidence in letting Mr. El-Zahawi simply use his phone in these circumstances. As well, the police were not obligated to provide him with the use of their phone while at the roadside, see R. v. Taylor, 2014 SCC 50.

[109] However, this finding does not end the analysis. This was not a happenstance arrest. It was planned and it included an undercover play at the behest of homicide investigators who had an interest in Mr. El-Zahawi. The operational plan involved deployment of a relatively significant amount of resources. An arrest team was dispatched. As set out in the operational plan, the arrest team was directed to remain in communication with homicide investigators and to eventually confirm whether they had been successful in locating Mr. El-Zahawi. Once confirmation was received, the undercover play would be operationalized at 2 District of YRP. The arrest team drove out to Brantford, Hamilton and Oakville, in order to find Mr. El-Zahawi. They eventually found him at his residence in Etobicoke.

[110] The plan to locate and arrest Mr. El-Zahawi invariably required his return to 2 District YRP. Given the locations searched, it would have been obvious to investigators that some period of time would be required in order to return Mr. El-Zahawi to the police station once arrested. It would have been or at least should have been obvious that on arrest, Mr. El-Zahawi might want to speak to counsel. Despite this, the arrest plan made no arrangements for either Mr. El-Zahawi’s quick transport to the station or for access to counsel should transport be delayed.

[111] It seems odd that an arrest team sent out to conduct a high risk takedown will have no immediate ability to transport the person they are sent to arrest. On this issue, I note that the plan was to find and arrest Mr. El-Zahawi and then call for transport. When the call for transport was made, two uniformed police officers were dispatched in a car equipped for transport to retrieve Mr. El-Zahawi and return him to the police station. I appreciate that there may have been practical realities restricting the availability of a transport vehicle as a result of other policing needs. That said, I find it hard to accept that given the resources made available to the arrest team and the undercover play, the police were simply not able to include a means of transportation, especially in view of the obvious s. 10(b) considerations. In the circumstances of this case, the plan adopted invariably created a significant delay in implementing the right to counsel. The delay would have been even longer if Mr. El-Zahawi had been arrested at one of the locations where he was initially believed to be.

[112] While I would not go so far as to say that the police must always have transport instantly available for an anticipated arrest, they must at a minimum turn their minds to the need to comply with s. 10(b) of the Charter when planning a takedown such as this one. In some circumstances, that may require that plans for quick transport be formulated. In other circumstances, it may require that plans be put in place to permit contact with counsel prior to arrival at the station. What happened here is that no one even considered the implications of the arrest plan in terms of their impact on s. 10(b) obligations. More problematically, the timing of the transport of Mr. El-Zahawi leaves open an inference that it was geared to providing time for the undercover play to be operationalized. In other words, the time was used to arrange for the arrival and briefing of the officers involved in the undercover play and the interview of Mr. El-Zahawi by Det. Bailey. To be clear, I am not finding that the delay in transport was done intentionally in order to facilitate the operational plan, but it certainly appears to have been one of the consequences.

[113] In terms of how these findings fit with the Charter analysis, I need not decide whether the failure to contemplate how to implement s. 10(b) rights following Mr. El-Zahawi’s arrest is a free-standing Charter violation. Instead, I will consider these findings as aggravating the s. 10(b) violation that occurred when Mr. El-Zahawi eventually made it to the station.

(c) The Failure to “Hold-Off” and the Need for a Prosper Warning at the Roadside

[114] The defence argues that the arresting officer failed to “hold-off” on questioning Mr. El-Zahawi once he indicated that he wished to speak with counsel. Moreover, the defence argues that once Mr. El-Zahawi engaged in conversation with the arresting officer, they were obliged to read him a Prosper[^11] warning. The defence notes that by telling Mr. El-Zahawi that he did not have to speak with them, the arresting officers essentially recognized that they were violating the “hold-off” rule and should have given a Prosper warning.

[115] The Crown submits that no violation of the “hold-off” rule occurred and that at best, the officers engaged in some understandable and idle chit-chat while awaiting the arrival of transport officers. Moreover, this was not an instance where Mr. El-Zahawi appeared to be changing his mind about speaking with counsel. As such, this was not an instance where the officers were required to give a Prosper warning.

[116] In assessing this issue, I note that during his time with DC Marcoux and PC Waung, Mr. El-Zahawi was advised of his right to counsel and told it could be accommodated once back at the station where privacy could be provided. Mr. El-Zahawi understood. The officers engaged Mr. El-Zahawi in small talk. Mr. El-Zahawi was eager to chat and was told on several occasions that he did not have to talk to the officers. The officers had no knowledge of the homicide investigation. They had very limited knowledge of the Cyan Lounge incident. They made no effort to question Mr. El-Zahawi about either event.

[117] In my view, the arresting officers did not violate the “hold-off” rule in the circumstances of this case. As well, there was no need for a Prosper warning, see R. v. Fountain, 2017 ONCA 596, at paras. 21-30. The “hold-off” requirement does not require that the police officers sit in absolute silence once a detainee has asked to speak with counsel of choice. The officers in this case engaged in some idle chit-chat while awaiting transport. Mr. El-Zahawi was an open and eager participant in the chit-chat to the point that he was told he did not have to speak to the officers. While DC Marcoux’s discussion with Mr. El-Zahawi about the reasons why Mr. El-Zahawi “drove up” on him should perhaps have been avoided, it is understandable that DC Marcoux would have asked about it given the dynamic and potentially dangerous way in which the events unfolded.

[118] I accept the defence submission that engaging in chit-chat with a detainee is a risky proposition. Even where the officers do not know the factual backdrop of the arrest, any seemingly idle chit-chat may inadvertently produce evidence. In this regard, I note that the officers learned that Mr. El-Zahawi worked in the tow truck industry, had a hit out on him and had a fresh tattoo on his hand. These topics all had potential evidentiary value. That said, the officers were in a vehicle for over an hour with a person who seemed intent on engaging in discussion. Apart from the understandable questions relating to the manner in which Mr. El-Zahawi approached the officers initially, they did not otherwise steer, direct or prompt conversation. They reminded Mr. El-Zahawi of his right to silence on more than one occasion. In these circumstances, there is no Charter violation.

(d) The Seriousness of the s. 10(b) Charter Violation at 2 District YRP

[119] The defence argues that the violation of s. 10(b) of the Charter that occurred once Mr. El-Zahawi arrived at 2 District YRP was, in a word, “profound.” The defence argues that the various investigators involved all abdicated their responsibility to comply with s. 10(b) and instead focussed on running the undercover play and formal interview, as set out in the operational plan. As such, the defence argues that the s. 10(b) violation should be seen as very significant.

[120] The Crown accepts that what happened once at 2 District YRP amounts to a serious breach of s. 10(b) of the Charter. The Crown argues that this is an instance where compliance with Mr. El-Zahawi’s s. 10(b) rights “fell between the cracks” when none of the officers involved appeared to take on the specific responsibility of ensuring that his rights were complied with.

[121] There are a number of circumstances where police officers may legitimately delay the implementation of the right to counsel, see R. v. Rover, 2018 ONCA 745, at paras. 24-27, R. v. Learning, 2010 ONSC 3816, at paras. 71-75, and R. v. Wu, 2017 ONSC 1003, at para. 78. The desire to run an undercover play on a detainee is not a legitimate reason to delay the implementation of the right to counsel.

[122] In this case, the context is particularly revealing. By the time Mr. El-Zahawi was transported to 2 District YRP, well over two hours had passed since he was arrested and had asked to speak to counsel. Instead of bringing him into the booking area where he could be processed and then put in touch with counsel, Mr. El-Zahawi was held in the police vehicle in the sallyport while the undercover play unfolded before him. He was then taken to the booking hall, where the undercover play continued. Inexplicably, once he was booked, he was placed in the bullpen where the undercover officer was introduced. This occurred before Mr. El-Zahawi was given a chance to speak with counsel. In addition, even when he was afforded the opportunity to speak with counsel some three hours after his arrest, he did so having only been told that the reason for his arrest was the Cyan Lounge incident. No attempt was made to advise him that he was also being detained in relation to the homicide investigation.

[123] In my view, the breach of Mr. El-Zahawi’s s. 10(b) rights at the police station is very serious. The need to comply with Mr. El-Zahawi’s s. 10(b) rights would have and should have come as no surprise to any of the lead investigators. It is simply amazing that none of these high ranking and presumably experienced officers even appears to have turned their mind to the propriety of running an undercover play on a detainee who had yet to be given an opportunity to consult with counsel following his detention and arrest.

[124] The nature of the breach is all the more serious when one considers the passage of time prior to the eventual consultation with counsel, as well as the failure to properly advise Mr. El-Zahawi of the reasons for his arrest and detention.

[125] Before moving on, I wish to add an additional observation. Some of the police witnesses attempted to justify the resort to the undercover play on the basis that it was simply a “meet and greet” and not intended as an evidence gathering technique. The caselaw draws no such distinction. Nor does the Charter. In any event, despite the asserted limited purpose of the undercover play, the police then turned around and used the product of the undercover play as part of the evidence base for various search warrants and production orders. Moreover, the Crown, at least initially, sought to admit the various utterances and statements made by Mr. El-Zahawi. Viewed in this context, the police assertions on the alleged limited purpose of the undercover play are essentially self-impeaching.

(e) Section 7 Charter Violation by the Undercover Officer

[126] The defence argues that the manner in which the undercover officer was prepared for his interaction with Mr. El-Zahawi created a scenario whereby the undercover officer was permitted to ask questions that amount to active, albeit inadvertent elicitation, which is prohibited by the controlling cases such as R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, R. v. Liew, 1999 CanLII 658 (SCC), [1999] 3 S.C.R. 227 and R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595. More particularly, the defence argues that once the undercover officer was left with an informational deficit about the nature of the homicide investigation, he would have had no way of gauging when his conversation with Mr. El-Zahawi was potentially veering into active elicitation.

[127] The Crown’s position is that the interaction between the undercover officer and Mr. El-Zahawi was not the functional equivalent of an interrogation. This was a situation where the undercover officer was simply engaged with the flow of the conversation. In terms of the alleged informational deficit, the Crown notes that there is a “catch-22” aspect to providing an undercover officer with information about the offence under investigation. If too much information is provided, there is a potential officer safety issue should the undercover officer say something that reveals his true identity. As well, if the undercover officer has too much information, there may be a suggestion that the results of the play are tainted by that information. That said, the Crown also agrees that leaving an undercover officer with too little information potentially creates problems. Ultimately, the Crown argues that in this case, while the undercover officer perhaps should have had more information, he did not effectively cross the line into active elicitation.

[128] In cross-examination, the undercover officer was asked about whether the information deficit prevented him from knowing where the line of active elicitation was. He agreed that in some instances, such as the discussion of “work”, the recent tattoo on Mr. El-Zahawi’s hand, teardrop tattoos, and the question relating to the “baby 9” handgun, he crossed the line. That said, he maintained that he had no knowledge at the time that these discussions and questions would have crossed the line. His position on this issue was based on the information that was now provided to him. When pressed, the undercover officer agreed that in view of the informational deficit, he had no way of knowing whether he was complying with the strictures set out in the Supreme Court of Canada caselaw. He nonetheless essentially suggested that his conduct was permissible because he “didn’t know.”

[129] When I consider the undercover officer’s evidence in context with the caselaw that articulates the concept of “active elicitation”, I am satisfied that in structuring the undercover play in the manner done in this case, investigators created a scenario where there was a high risk that the undercover officer would engage in active, albeit unknowing, elicitation. I agree with the defence argument that the undercover officer was “set up to fail” and was deliberately placed in a situation wherein he could not ascertain where the “active elicitation/passive listening post” line should or could be drawn. Indeed, by his own admission, had he known certain information about the homicide, he would have not asked certain questions or engaged in furthering certain discussions.

[130] I find that the fault for the informational deficit problem lies with the undercover officer’s handler and the investigators who worked with the handler. They chose to give no information to the undercover officer and effectively placed him in a state of wilful blindness in terms of the contours of permissible scope of his interactions with Mr. El-Zahawi. While I accept that there are legitimate reasons to guard against giving too much information to an undercover officer in the context of an in custody undercover play such as this, enough information must be given so that the undercover officer can operate within constitutional limits. That was not done in this case.

(f) Loss of the Bullpen Video and the Seized Cell Phone

[131] The interactions between Mr. El-Zahawi and the undercover officer were captured on a video recording without audio. No steps were taken to preserve the recording and it was eventually lost or destroyed.

[132] The video would have depicted the physical movements and gestures inside the bullpen, though it would not have revealed what was actually said between Mr. El-Zahawi and the undercover officer.

[133] The defence argues that the relevance of the video would have been obvious and that the failure to even consider taking steps to preserve it amounts to unacceptable negligence. While the defence agrees that the absence of audio significantly lessens the forensic value of the videotape, the defence argues that it would nonetheless have been relevant disclosure. The defence argues that the failure to preserve the video is yet another example of the investigators not fully appreciating their constitutional obligations.

[134] While the defence is not seeking a specific remedy in relation to the loss of this evidence, the defence seeks a finding that the loss of the video amounts to a s. 7 Charter violation and then seeks to add the violation “to the mix” on the overall s. 24(2) analysis.

[135] The Crown concedes that the video recording ought to have been preserved. The Crown argues that the loss of the video occurred as a result of an oversight. Det. Gilmour simply did not turn her mind to it and Det. Blenkhorn or someone else should have dealt with preserving the video. As such, while the Crown accepts that there was a degree of negligence, it argues that the negligence does not rise to the degree of being unacceptable.

[136] The phrase “unacceptable negligence” connotes conduct which is beyond mere negligence, see R. v. Hersi, 2019 ONCA 94, at para. 30. The touchstone of the inquiry is the reasonableness of the police conduct that resulted in the lost evidence.

[137] In this case, there is no issue that a video recording of the undercover officer’s interactions with Mr. El-Zahawi while in the bullpen area would have been obviously relevant, even in the absence of sound. The video would have captured the physical movements and interactions between Mr. El-Zahawi and the undercover officer. Indeed, the undercover officer’s handler live monitored the video feed to ensure the undercover officer’s safety during his interactions with Mr. El-Zahawi.

[138] Police officers are not required to preserve every single item of potential relevance in an investigation. However, this is not an instance where they decided not to preserve the item because its relevance was tenuous or remote. This is an instance where the officer in charge of the investigation simply did not even turn her mind to the need to preserve the video. In the circumstances of this case, that amounts to unacceptable negligence.

[139] Turning to the destruction of the 4622 cell phone seized from Mr. El-Zahawi upon his arrest, the Crown concedes that the destruction of the physical phone resulted in a s. 7 violation. That said, the Crown argues that the loss of the phone occasioned no prejudice to the defence as a mirror image of the contents of the phone was preserved prior to its destruction. The defence accepts that the availability of a forensic copy of the data on the phone, results in no prejudice to the right to make full answer and defence. Nonetheless, the defence argues that the s. 7 violation is an additional factor to be considered in the overall s. 24(2) analysis.

[140] The destruction of the phone appears to have occurred after it was noted for destruction on an internal police computer system once the Cyan Lounge incident was resolved. While Det. Blenkhorn had no memory of doing so, he accepted that he must have released the phone for destruction. He also knew that the cell phone was an item of evidence in relation to the homicide investigation and knew that it had been searched under warrant. Det. Blenkhorn surmised that he must have made a mistake when his computer terminal prompted him for destruction of the seized items. He acknowledged that the mistake was “colossal.” In the circumstances, this amounts to unacceptable negligence.

[141] There is no issue that the phone should have been preserved, and its destruction results in a breach of s. 7 of the Charter. However, the fact that a mirrored image of the phone was provided to the defence results in the breach having no real consequence. While the breach is a factor to be considered in the s. 24(2) analysis, the fact that there was no ultimate impact to the right to make full answer and defence significantly, if not entirely, attenuates its impact.

(g) Det. Bailey’s Failure to Re-Caution Mr. El-Zahawi

[142] The defence argues that Det. Bailey should have re-cautioned Mr. El-Zahawi during the course of the interview once it became clear that Mr. El-Zahawi began referring to events potentially relating to disputes in the tow truck industry. According to the defence, at this point in the interview, Det. Bailey either knew or ought to have known that Mr. El-Zahawi was at risk of incriminating himself and a further caution and rights to counsel would have been required.

[143] The Crown concedes that Mr. El-Zahawi should have been cautioned regarding the murder and should have been given his s. 10(a) and s. 10(b) rights in relation to the murder as well. However, in relation specifically to Det. Bailey, the Crown argues that Det. Bailey believed he was operating “on the right side of the law.” He took steps to clarify his role with Det. Gilmour and knew to stay away from a discussion of the murder. The problem arose because the discussion between Det. Bailey and Mr. El-Zahawi, which was nominally aimed at the Cyan Lounge incident, overlapped with matters relevant to the murder.

[144] In his evidence, Det. Bailey was clear that a caution would be required once a detainee started to provide inculpatory evidence in relation to a separate offence. However, he explained that he would only give further s. 10(a) and s. 10(b) rights once he had grounds to arrest the detainee in relation to the second offence.

[145] Det. Bailey’s evidence results in two problems for the Crown. First, Det. Bailey was intentionally left with an informational deficit at the outset of the interview. He was told his interview was to only relate to the Cyan Lounge incident as the homicide investigators did not want Mr. El-Zahawi to know that his name had come up in relation to the homicide investigation. Det. Bailey was not given a sufficient information base upon which he could determine whether and, if so, when the topics of discussion with Mr. El-Zahawi might veer into areas relating to the homicide, thus necessitating a further caution.

[146] Unlike the scenario with an undercover officer where the reason for giving the undercover officer limited information is related to officer safety and protecting the integrity of any admissions obtained against a suggestion of undue influence or suggestion, there seems to be no valid justification for limiting the information given to Det. Bailey. In short, homicide investigators made a decision to leave Det. Bailey in a state of deliberate ignorance. He would not have been equipped to assess when a second caution might be appropriate, in the absence of an intervention by officers monitoring the interview. A state of deliberate ignorance cannot be used to shield an interrogator from compliance with the legal requirements of a caution and/or s. 10(a) and s. 10(b) of the Charter.

[147] The second issue relates to Det. Bailey’s stated understanding of when a second s. 10(a) and s. 10(b) caution might be required. The duty to re-caution under the Charter does not only arise where the interrogating officer forms grounds to believe that the detainee is arrestable for a different offence, it arises where there has been a sufficient change in jeopardy, see R. v. Sinclair, 2010 SCC 35, at para. 51, R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, and R. v. Sawatsky, 1997 CanLII 511 (ON CA). In the circumstances of this case, Det. Bailey would have been ill-equipped to know when Mr. El-Zahawi’s comments could have suggested a change in jeopardy.

[148] Before leaving this issue, I make one further finding. Det. Bailey’s attendance at the police station to conduct the interview of Mr. El-Zahawi was not happenstance. Importantly, it was not at the request of Det. Blenkhorn who was in charge of the Cyan Lounge investigation. While the homicide investigators specifically tasked Det. Bailey to stay away from the topic of the homicide, it is manifestly obvious that Det. Bailey was brought in because of the homicide investigation. In these circumstances, the clear inference is that the homicide investigators adopted the informational deficit approach as a deliberate, albeit unwise, strategy.

(h) The Seriousness of the Failure to File a Report to Justice on the Seized Phones

[149] While the Crown concedes that the police violated s. 8 of the Charter when they failed to file a Report to Justice when Mr. El-Zahawi’s phones were initially seized on February 2, 2019 and later when the phones were seized and searched under warrant by the homicide officers, the parties disagree on the seriousness of the violations.

[150] There is no issue that s. 489.1 of the Code requires police officers who seize items to make a Report to a Justice “as soon as practicable” in respect of items seized. The Report to Justice is an important component of the judicial authorization process and it serves as the gateway to the s. 490 process which relates to judicial oversight of seized items, see R. v. Garcia-Machado, 2015 ONCA 569, at paras. 16, 44 and 45, and R. v. Canary, 2018 ONCA 304, at para. 45. As the Supreme Court of Canada states in R. v. Reeves, 2018 SCC 56, at para. 63:

Under s. 489.1, police must report a warrantless seizure to a justice “as soon as is practicable”. Under s. 490(2), the seized item cannot be detained for over three months unless certain conditions are met. In this case, the police only made a report to a justice as required by s. 489.1 of the Criminal Code after the computer was searched and almost five months after it was initially seized. These reporting requirements are important for Charter purposes, as they mandate police accountability for seizures that have not been judicially authorized (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at paras. 82 and 84).

[151] In terms of the initial seizure of the phones from Mr. El-Zahawi, it is clear that Det. Blenkhorn, at least initially, did not view the phones as being relevant to the Cyan Lounge investigation. Indeed, he agreed that he did nothing in terms of searching the phones for over one year, until February 18, 2020, when he started writing a warrant to search the phones. That warrant was never completed as the Cyan Lounge charges were resolved. In the interim, he neither filed a Report to Justice in accordance with s. 489.1 of the Code, nor did he seek an order detaining the phones under s. 490 of the Code.

[152] The evidence supports a finding that the phones were merely seized as “property” belonging to Mr. El-Zahawi. In other words, the phones were secured in police custody to be returned to Mr. El-Zahawi whenever he was released from police custody. While the nature of the Cyan Lounge investigation may well have objectively supported a belief that the phones had evidence in relation to that offence, the manner in which the phones were dealt with suggests that the officers did not subjectively have that view at the relevant time. On this issue, I note that DC Marcoux specifically stated that the phones were seized as property. Det. Beale agreed that he was not specifically tasked by Det. Blenkhorn to seize the phones, though he believed the phones were seized as evidence. That said, apart from generic factors relating to cell phones, he did not have a specific reason why the phones, in this case, were believed to contain evidence. Lastly, the booking officer, Staff Sgt. Woodcock, explained that he placed Mr. El-Zahawi’s cell phone into his property bag to go with him to court.

[153] Importantly, on February 5, 2019, days after Mr. El-Zahawi’s arrest on the Cyan Lounge incident, custody of the phones was taken over by the homicide investigators. The authority of homicide investigators to take custody of the phones is questionable. On the one hand, the investigators maintained that Mr. El-Zahawi was not a suspect in the homicide at this time, yet on the other, they took custody of his cell phones and secured them pending a warrant. Indeed, the Crown eventually conceded a Charter violation in this regard.

[154] Viewed against this backdrop, the failure to file a Report to Justice cannot be seen as a simple slip or moment of forgetfulness. Neither Det. Blenkhorn nor Det. Gilmour could offer an explanation for why they forgot to file a Report to Justice. In the circumstances of this case, where there is a distinct lack of clarity as to who was detaining the phones and for what purpose, the breach is significant.

[155] Compliance with the Report to Justice provisions would have caused the officers responsible for maintaining custody over the phones to consider the basis upon which they were doing so. Compliance with s. 490(2) of the Code would have caused the officers responsible to consider why they needed to maintain custody over the phones. In short, the failure to follow either provision in this case demonstrates why these provisions are important. Moreover, the obligation to comply with these provisions is not new. This makes the stated excuse for the failure to comply unpersuasive.

[156] In terms of Det. Gilmour’s failure to file a Report to Justice following the warranted search of the phones, I note that there is divided authority on whether police are required to file a further Report to Justice in instances where a seized phone is subjected to a warranted electronic search, see R. v. Robinson, 2021 ONSC 2446, wherein the court held that s. 489.1 should not be interpreted so as to require the filing of a second Report to Justice and R. v. Merritt, 2017 ONSC 1508, R. v. Sinnappillai, 2019 ONSC 5000, R. v. Neill, 2018 ONSC 5323 and R. v. DaCosta and Jeffrey, 2021 ONSC 6016, where the courts came to the opposite conclusion. Assuming Det. Gilmour should have filed a further Report to Justice, her failure to do so is aggravated by the fact that no initial Report to Justice was ever filed.

(i) The Seizure of the Phones by Det. Gilmour

[157] The Crown concedes that Det. Gilmour did not have sufficient grounds to take custody of the phones that had been seized from Mr. El-Zahawi in relation to the Cyan Lounge investigation. That said, the Crown argues that the breach was not that serious, given that Det. Gilmour subjectively believed that the phones contained evidence and the fact that there were objective grounds to seize the phones in relation to the Cyan Lounge incident. In short, the Crown suggests that the phones would have inevitably ended up in the hands of homicide officers, had the officers fully considered the issues at play.

[158] As indicated, the evidence suggests that the phones were initially seized as property and not evidence. The evidence also suggests that the Cyan Lounge investigators had no real interest in the content of the phones and only decided to start preparing a warrant to examine the phones a year later.

[159] I find that Det. Gilmour capitalized on the seizure of the phones by the Cyan Lounge investigators and secured them for use in the homicide investigation. She did so at a time when she subjectively viewed Mr. El-Zahawi as a mere person of interest and not a suspect on the homicide. Viewed in this context, the breach is significant, though it is attenuated by the fact that the phones were not searched electronically until a warrant was later obtained.

Section 24(2) of the Charter re: Cyan Lounge Related Breaches

[160] I turn next to considering the request for exclusion of evidence. At the outset, I note that this task is simplified in this case as the Crown has abandoned any attempts to introduce Mr. El-Zahawi’s utterances and statement as evidence at trial. As will be discussed later, the Crown also concedes that reference to any of the utterances and statements should be excised from various ITOs used in support of the search warrants and production orders.

[161] The defence seeks exclusion of additional evidence. First, the defence argues that a phone seized from Mr. El-Zahawi and the contents of that phone, later obtained under warrant, should be excluded.[^12] Second, the defence argues that the phone number connected to the phone seized from Mr. El-Zahawi should also be excluded from evidence. The defence position is that both the phone and phone number associated to the phone were obtained in a manner that violated the Charter. The defence argues that the application of the s. 24(2) analysis warrants exclusion. The defence further argues that references to the phone, content of the phone and the phone number should all be excised from the various ITOs.

The Section 24(2) Framework

[162] The applicant bears the onus of establishing on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute.

a. Obtained in a Manner

[163] Section 24(2) of the Charter permits exclusion of evidence where that evidence was “obtained in a manner” that infringed a Charter right. While the “obtained in a manner” component of the s. 24(2) analysis is usually established where there is a causal connection between the evidence seized and the Charter right violated, that is not always the case. The courts have interpreted the phrase “obtained in a manner” to also include temporal and contextual connections, see R. v. Tim, 2022 SCC 12, at para. 78 and R. v. Pino, 2016 ONCA 389.

[164] This generous and purposive approach to the consideration of the “obtained in a manner” component of s. 24(2) requires the court to consider the entire “chain of events” between the accused and the police to assess whether the evidence seized and the Charter breach are part of the same transaction or course of conduct. As long as the court can discern a causal, temporal or contextual connection that is not too tenuous or remote, s. 24(2) of the Charter will be engaged.

[165] In this case, the defence argues that there are sufficient causal, temporal and contextual connections between the evidence sought to be excluded and the Charter violations such that the court should find the “obtained in manner” test has been satisfied.

[166] I will start my analysis with some observations about the physical cell phones. There appears to be no issue that the physical cell phones were obtained in a manner that violated the Charter. The phones were initially seized from Mr. El-Zahawi when he was arrested in relation to the Cyan Lounge incident. As indicated, it appears that the phones were seized as property and not incident to arrest as evidence. In any event, days later the physical phones were taken into the custody of the homicide investigators, who later obtained a warrant to search the phones.

[167] The Cyan Lounge investigation resulted in a significant number of Charter violations. When these violations are viewed in context, I am satisfied that the obtaining of the phones was causally, temporally and contextually connected with the course of events that resulted in the various Charter breaches. I would reach this conclusion even if I had been satisfied that the phones had been lawfully seized incident to arrest in relation to the Cyan Lounge incident.

[168] In terms of the electronic contents of the physical phones, I rely on R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, and find that even though the search of the contents of the phone was done under warrant, there exists a sufficient temporal and contextual connection between the Cyan Lounge Charter breaches and the obtaining of the contents of the phone, such that a s. 24(2) analysis is warranted.

[169] A more nuanced issue arises in relation to the 4622 phone number and its connection with one of the cell phones that was seized by police. The defence seeks a finding that the 4622 number was obtained in a manner that violated the Charter and further, an order excluding it from evidence. More importantly, the defence also seeks a finding that the 4622 number was obtained unlawfully and that as a result it should be excised from the ITOs in the Garofoli analysis. This is an important issue because a production order on Rogers Communications was later obtained in relation to the 4622 phone number.

[170] In addressing this issue, it is important to understand that the police did not learn of the phone number by examining or doing something with the physical phones seized from Mr. El-Zahawi. The police initially learned that Mr. El-Zahawi’s phone number was the 4622 number through his probation officer. Det. Blenkhorn testified that he contacted Mr. El-Zahawi’s probation officer during his efforts to locate Mr. El-Zahawi in order to arrest him for the Cyan Lounge incident. The phone number was later also confirmed by Ms. Jerjis, who was Mr. El-Zahawi’s then girlfriend. This occurred when Det. Blenkhorn contacted her following Mr. El-Zahawi’s release on bail in relation to the Cyan Lounge charges. He was looking for a phone number for Mr. El-Zahawi in order to check up on him.

[171] When the police initially seized the phones from Mr. El-Zahawi, they did not know what phone number was connected to those phones. They simply knew that the phones were in his possession on arrest. While the police may well have inferred that one of the phones would have been using the 4622 number, they learned of the existence of the phone number separate and apart from an examination of the phones or through questions asked of Mr. El-Zahawi.

[172] I am not satisfied that knowledge of the 4622 phone number was obtained in a manner that violated the Charter. There is no causal connection with any Charter violation. In terms of temporal and contextual connections, while the phone number was initially obtained in order to locate Mr. El-Zahawi to arrest him for the Cyan Lounge events, the obtaining of the number predates any of the Cyan Lounge Charter violations. The police had a proper basis for arresting Mr. El-Zahawi in relation to the Cyan Lounge incident. They did nothing improper by checking with Mr. El-Zahawi’s probation officer to gather information that would assist in locating him, see R. v. Browne, 2021 ONCA 836, at paras. 51-62 and R. v. Charles, 2016 ONCA 892.

[173] More importantly, the police later also obtained the number from Ms. Jerjis as part of a bail compliance check. Even if the initial obtaining of the phone number was sufficiently temporally or contextually connected with the Cyan Lounge Charter breaches, the later obtaining of the number is free from any taint. As such, I would also find that the production order results eventually obtained in relation to the 4622 phone number are not temporally and/or contextually connected to Cyan Lounge Charter breaches. Any linkage to the Cyan Lounge breaches is broken by the later obtaining of the number from Ms. Jerjis.

[174] In the result, I consider only whether the contents of the 4622 phone should be excluded under s. 24(2).

b. The Three Lines of Inquiry in R. v. Grant

[175] As the Supreme Court of Canada sets out in R. v. Grant, 2009 SCC 32, the focus of the s. 24(2) analysis is on the overall repute of the administration of justice and the public’s confidence in the justice system in view of the long-term consequences of admission of unlawfully seized evidence.

[176] The analysis is necessarily prospective in nature. The various breaches of s. 8 of the Charter have already damaged the administration of justice. The issue is whether further damage to the administration of justice will be occasioned by the admission of the evidence.

[177] The focus of the analysis is not a case specific administration of punishment on the police or compensation for the accused. The analysis is objective. It asks whether a reasonable person informed of Charter values would find that the admission of the evidence in question would bring the administration of justice into disrepute, see R. v. Le, 2019 SCC 34, at paras. 139-140 and R. v. Taylor, at para. 42.

[178] The analysis is comprised of three lines of inquiry. The first line of inquiry addresses the seriousness of the Charter-infringing state conduct. In this regard, I note the guidance of the Supreme Court in R. v. Grant, at paras. 74 and 75:

State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. ‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[179] The second line of inquiry assesses the impact of the violation on the accused’s Charter- protected interests. This line of inquiry requires an assessment of the nature of the Charter- protected interests engaged and the degree to which the Charter violation impacts those interests.

[180] The third line of inquiry assesses the societal interest in an adjudication on the merits. This line of inquiry recognizes that society generally has an interest in having criminal charges adjudicated on their merits. In this regard, the court must ask whether vindication of a Charter violation exacts too great a toll on the truth-seeking function of the trial process: see R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47.

[181] The factors assessed in this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown’s case and the seriousness of the offence. On this last factor, the Supreme Court in Grant at para. 84 has noted that the seriousness of the offence is a factor that cuts both ways:

It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) ‘operate independently of the type of crime for which the individual stands accused’ (para. 51). And as Lamer J. observed in Collins, ‘[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[182] Once the various lines of inquiry have been determined, the role of the court is to assess whether on balance the admission of the evidence would bring the administration of justice into disrepute. In balancing the lines of inquiry, it is the cumulative weight of the first two lines of inquiry that must be balanced against the third line of inquiry, see R. v. Beaver, 2022 SCC 54, at paras. 133-134. Where the first two lines of inquiry tip strongly towards exclusion, the third line of inquiry will rarely tip the scale back to admissibility, see R. v. LaFrance, 2022 SCC 32, at para. 90 and R. v. McGuffie, 2016 ONCA 365, at paras. 62-63.

c. Analysis

The Seriousness of the State’s Charter-Infringing Conduct

[183] In considering this line of inquiry, I am readily satisfied that the police adopted an investigative strategy that demonstrated a high degree of indifference to Charter rights. This is not an instance where one officer made a bad call that resulted in a Charter violation. It is quite the opposite. The homicide investigators co-opted the Cyan Lounge investigation for the purpose of advancing their own investigation. They created and implemented a detailed investigative plan that resulted in a fairly involved undercover play and a related police interview. They also seized Mr. El-Zahawi’s phones as evidence that was in “plain view”, despite maintaining that Mr. El-Zahawi was just a person of interest and not a suspect. They failed to file Reports to Justice in relation to the phones and the subsequent searches of those phones.

[184] The investigative plan was extensive. However, it was missing an essential ingredient, namely Charter compliance. Indeed, the Crown has fairly conceded a lengthy list of Charter violations. The list includes significant violations of s. 10(a) and s. 10(b) of the Charter. The decision to run the undercover play while delaying access to counsel is a very significant violation. The attempts to justify the undercover play on the basis that it was not considered an evidence gathering technique are, in a word, unconvincing.

[185] In addition, the police adopted an intentional but flawed strategy of using an undercover officer and an interviewing officer who were specifically kept in the dark about the contours of the issues they were dealing with. This created obvious issues in terms of compliance with Charter rights. In addition, the officers involved, including Det. Gilmore, Det. Sgt. Yan and Det. Bailey, demonstrated a lack of understanding of important Charter concepts, including the right to counsel, the right to silence and the duty to re-Charter a detainee.

[186] At paras. 96-159, I addressed the seriousness of Charter infringing conduct conceded by the Crown. When that conduct is viewed as a whole, it reveals a pattern of sustained indifference to Charter compliance.[^13] This is the very type of conduct which the court must unequivocally distance itself from. As a result, this line of inquiry tips strongly in favour of exclusion.

The Impact of the Breaches on the Charter Protected Interests of Mr. El-Zahawi

[187] I turn next to considering the impact of the breaches on Mr. El-Zahawi’s Charter protected interests. In this regard, I note that the Crown abandoned its voluntariness application and agreed not to tender or rely on any statement or utterance made by Mr. El-Zahawi during the course of the Cyan Lounge investigation. The loss of the utterances and statements significantly lessens the impact of the breaches on Mr. El-Zahawi’s Charter protected interests, see R. v. Hamouth, 2023 ONCA 518, at paras. 40-45, R. v. Nguyen, 2023 ONCA 291, at para. 20 and R. v. Keshavarz, 2022 ONCA 312, at para. 117.

[188] That said, it is important to note that the series of Charter violations had a significant impact on Mr. El-Zahawi’s Charter protected interests. The police conduct resulted in a very significant violation of Mr. El-Zahawi’s right to counsel as well as serious violations of his right to silence. The police also violated Mr. El-Zahawi’s s. 10(a) rights, his s. 8 rights in relating to the “pinging” of his phone, and other breaches as detailed above. The breadth of breaches viewed in context with the rights engaged leaves open no conclusion other than a finding that these breaches had a significant impact on Mr. El-Zahawi’s Charter protected interests. Indeed, the Crown’s decision to disavow any reliance on the statements and utterances is indicative of the extent of the impact of these various breaches.

[189] Even considering the effect of Crown’s position on the statements and utterances, I am satisfied that there exists an impact on Mr. El-Zahawi’s Charter protected interests in relation to his cell phones. As I have found, the Cyan Lounge investigators had no real interest in the phones. The phones were initially seized by them as property. Custody over the seized phones was then taken over by the homicide investigators. At the time they did so, they did not have a lawful basis upon which to seize the phones.

[190] The searches of cell phones engage significant privacy interests, see R. v. Fearon, 2014 SCC 77. While the phones were later searched under warrant, I am satisfied that the contextual and temporal connections with the long list of Charter violations stemming from the Cyan Lounge investigation suggests that the seizure of the phones, and later warranted search of the content of the phones, had a significant impact on Mr. El-Zahawi’s Charter protected interests. This is not an instance where the police would have inevitably obtained the phones through other constitutionally compliant means. This line of inquiry also tips in favour of exclusion.

Society’s Interest in Adjudication on the Merits

[191] In considering the third line of inquiry in the Grant analysis, I note that the first two lines of inquiry tip in favour of exclusion. While there is an obvious societal interest in the adjudication of a murder trial on its merits, the loss of the evidence including the utterances, statements and data found on the cell phones, does not imperil the prosecution. In my view, this line of inquiry does not serve to overpower the first two lines of inquiry which both tip in favour of exclusion.

[192] When I balance the three lines of inquiry, I am satisfied that in addition to the utterances and statements made by Mr. El-Zahawi, the contents of his cell phones should also be excluded from evidence.

[193] Before moving on, I wish to add some further conclusions about the 4622 phone number. If I am wrong about the phone number not being obtained from the probation officer in a manner that was sufficient to engage s. 24(2) of the Charter, I would not have excluded the phone number from evidence. As well, I would not have excluded the evidence obtained through the production orders based on the phone number.

[194] In terms of the first line of inquiry, I note again the serious nature of the police conduct that resulted in a multitude of Charter violations during the Cyan Lounge investigation. That said, I would also note as will be discussed below, that the police later obtained a proper production order for the phone records and engaged in no further Charter violating conduct in terms of getting the records. Ultimately, given the nature and extent of the Cyan Lounge investigation Charter breaches, I find that this line of inquiry would nonetheless remain tipped in favour of exclusion.

[195] In terms of assessing the second line of inquiry, I note that the obtaining of the phone records was not causally linked to the Charter breaches stemming from the Cyan Lounge investigation. I also note that the police would have inevitably discovered the phone number through Ms. Jerjis and therefore would, nonetheless, have been in a position to obtain the production order for the phone number records. Put another way, when the police obtained the production order for his cell number, they had more than one source for Mr. El-Zahawi’s phone number and at least one source, if not both, was untainted by constitutional breaches. As such, the impact on Mr. El-Zahawi’s Charter protected interests in relation to his phone number would have been significantly, if not entirely, attenuated.

[196] In addition, I also note that there exists a reduced expectation of privacy around the phone records in question, see R. v. Mahmood, 2011 ONCA 693, at para. 131. As such, I would not find that there was a significant impact on Mr. El-Zahawi’s Charter protected interests in relation to the obtaining of cell phone records for the 4622 number which were later obtained using a production order. In my view, this line of inquiry would tip towards admission.

[197] In terms of the third line of inquiry, I note that the phone records set out historic phone activity and location data which cover the period of the murder. The evidence is reliable and it places Mr. El-Zahawi in key locations before, during and immediately after the murder. There is an obvious societal interest in trying this case on its merits. Exclusion of the phone number and the production order data obtained in relation to the 4622 phone number would have a significant, if not terminal, impact on the Crown’s ability to try Mr. El-Zahawi for first degree murder.

[198] The court has already distanced itself from the Cyan Lounge breaches by excluding all the utterances, statements and the contents of the cell phone extraction report. Excluding the phone number and the production order results would go too far. The third line of inquiry tips strongly in favour of admission of the phone number and the data received through the production orders.

[199] As such, I would not exclude the 4622 phone number and/or the results of the production order in relation to that number.

The Loss of the Corvette

[200] I turn next to addressing the s. 7 Charter application in relation to the loss of the Corvette.[^14] The defence seeks a remedy to address the fact that the early disposition of the Corvette has resulted in a lost opportunity to examine the vehicle in order to determine whether there is any evidence that a GPS device was ever placed on the vehicle.

[201] There is no issue that the presence of a GPS device on the Corvette is a significant issue at trial. The Crown’s theory is that the “Van Dam” device is a GPS device of some sort that was used to track Mr. Rafipour to the scene of his death. As such, it is an integral piece of evidence supporting a finding that the murder of Mr. Rafipour was planned and deliberate. It is also an integral piece of evidence against Mr. El-Zahawi as the Crown will argue that Mr. El-Zahawi procured the device and then was in contact with the device using cell phones connected to him. In short, the Crown will argue that Mr. El-Zahawi used the device to conduct electronic and physical surveillance on Mr. Rafipour.

[202] The Corvette was initially taken into police custody on December 25, 2018, and searched under warrant on December 27 and 28, 2018. While the police theory had not yet centered solely on the use of a GPS device as the means of determining Mr. Rafipour’s presence at the Christmas Eve party where he was shot, the theory had congealed at least to the point where a GPS device was one of the items to be searched for on the warrant to search the Corvette, which was issued on December 26, 2018.

[203] The initial searches of the Corvette did not result in the discovery of a GPS device.

[204] The Corvette was released from police custody on January 5, 2019, twelve days after the shooting of Mr. Rafipour. At this time, the car was moved to York Auto, a private third party under contract to YRP. Continuity over the vehicle was lost at this point and the vehicle was eventually sold off. Notwithstanding the transfer of the Corvette to York Auto, police conducted further examinations of the vehicle for a GPS device on January 23 and 24, 2019. The motivation for the further search is likely related to receipt of a confidential tip on January 22, 2019, suggesting that a GPS device was used to track Mr. Rafipour.

[205] A year later, on January 9, 2020, the police obtained production order results for the Van Dam phone. The production order results show, inter alia, that the Van Dam device was active on December 27 to 30, 2018 and January 15 and 18, 2019. At these times, the location of the Van Dam device was proximate to the location of the Corvette which was at York Regional Police Headquarters and then York Auto, respectively. The production order results prompted further searches of the Corvette in January 2020. No GPS device was ever located.

[206] The decision to release the Corvette was made by the officer in charge, Det. Gilmour. At the time she made the decision, she did not turn her mind to preserving the Corvette in the event that any eventual defendants might want to search the car. Det. Gilmour testified that she must have made the decision to release the vehicle when she felt that the police had searched it and found nothing. She could not recall when she specifically made the decision.

[207] The Crown concedes that the failure to preserve the Corvette was negligent. However, the Crown maintains that in the circumstances of this case, it does not amount to unacceptable negligence.

[208] In determining this issue, I am mindful that I must assess what the police knew at the time the Corvette was released from police custody in January 2019. The fact that the production order results for the Van Dam device strongly supported an inference that a GPS device of some sort was active on the Corvette while it was in police custody and then at York Auto, it was only learned in January 2020, a year after the Corvette was disposed of. Nonetheless, at the time the Corvette was disposed of, the police had already obtained a search warrant listing the GPS device as an item to be seized. In other words, they had articulated a belief based on reasonable grounds that a GPS device would be located on or in the Corvette, and that it would provide evidence relating to the offence. Moreover, during one of the initial examinations of the vehicle on December 28, 2018, DC Muir used a radio frequency scanning device, and a signal was picked up in the trunk area of the vehicle. For reasons that are not clear, it does not appear that the car was ever put on a hoist and examined or had parts of its interior dismantled to look for the presence of the device.

[209] When the facts known to police at the time of the disposal of the Corvette are considered as a whole, it is clear that the police should have preserved the Corvette. Preservation of the Corvette would not only have provided the police with further opportunities to secure additional forensically sound evidence against the defendants, it also would have preserved an opportunity for the defence to conduct its own examination of the vehicle.

[210] As it turns out, the presence or absence of a GPS device on Mr. Rafipour’s Corvette is one of the key issues at trial. While this would not have been known with certainty at the time of the disposal of the Corvette, it was an obvious and realistic possibility, if not probability. Problematically, the officer in charge did not turn her mind to the need to preserve the Corvette for the defence to conduct its examination. In this regard, the following passage in R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 39 is particularly apt:

This is not a situation in which the police considered the potential relevance of the vehicle and made a considered decision that it could not be relevant. Nor is it a case where the destruction was accidental in that it was the product of human error, or some cause beyond the control of the authorities. Nor is it a case where the police perceived the potential relevance of the vehicle but failed to take adequate steps to preserve it. Rather, as set out above, the failure to preserve the vehicle was caused by the failure to look beyond the needs of the prosecution to the wider question of the potential relevance of the vehicle to the defence. Had anyone directed their mind to the disclosure obligations set out in Stinchcombe, supra, I think the vehicle would have been preserved. The failure to preserve the vehicle reveals an ignorance of, or at least an indifference to, the duty on the Crown and the police to preserve the fruits of their investigation. This indifference or ignorance is difficult to comprehend so many years after the pronouncement of the Supreme Court of Canada in R. v. Stinchcombe, supra, and in my view, is a sufficiently serious departure from the Crown’s duty to preserve evidence that it constitutes an abuse of process.

[211] As such, I am satisfied that the police failed to preserve the Corvette as a result of unacceptable negligence and that as a result the defendant’s s. 7 rights have been violated.

[212] In terms of remedy, the defence accepts that a stay of proceedings is not an appropriate remedy. Instead, the defence seeks exclusion of evidence relating to the Van Dam device as well as exclusion of the proposed expert evidence in relation to the operation of a GPS device.[^15] I pause to note that the cell phone records for the Van Dam device were obtained by way of a presumptively valid production order.

[213] As the evidence sought to be excluded was not obtained in a manner that violated the Charter, the defence resorts to s. 24(1) of the Charter as the jurisdictional basis for the exclusionary remedy sought. In the alternative, the defence seeks an appropriate jury instruction.

[214] In my view, the exclusionary remedy sought is not appropriate in the circumstances of this case. Indeed, the defence more or less conceded this point in submissions.

[215] An appropriate remedy for lost evidence must seek to repair the unfairness created by the failure to preserve the Corvette. It is important, in this regard, to consider precisely what the defence lost when the Corvette was disposed of. The early release of the Corvette from police custody deprived the defence of the opportunity to conduct its own examination of the car. In essence, it deprived the defence of the opportunity to look for evidence to prove a negative.

[216] Importantly, it is unclear what that examination could have potentially revealed since no evidence was called on this issue. At best, the examination might potentially have revealed “no evidence” that a GPS device had been placed on the car. However, given that GPS devices can be placed on a car in any number of ways, including by way of a simple magnet, it is difficult to see how any examination would potentially have produced positive evidence showing that no GPS had been placed on or in the vehicle. As such, it is hard to see how the evidence from a defence examination would have placed the defendants in a better position to challenge the Crown’s position on the presence of the GPS device on the Corvette. When these factors are taken together, I am unable to find that the loss of the opportunity to examine the vehicle caused a significant unfairness to the defendants.

[217] In assessing the degree of unfairness to the defence, it must also be remembered that the failure to locate a GPS device on the Corvette presents a significant hurdle for the Crown in proving the case against the defendants. In the absence of a GPS device being located, the Crown must prove its existence through circumstantial evidence, including the cell phone records for the Van Dam device as well as the records for devices connected to various persons alleged to be involved with the offence.

[218] In my view, excluding the production order results in relation to the Van Dam device exacts too heavy a toll on the trial process. Rather than curing the limited degree of unfairness created, exclusion of the Van Dam records tips the unfairness scale manifestly in the opposite direction. This result is unwarranted in the circumstances of this case, see R. v. Spackman, 2012 ONCA 905, at paras. 102-103.

[219] The appropriate remedy is a jury instruction that draws the jury’s attention to the fact that the defendants, through no fault of their own, did not have an opportunity to conduct their own examination of the Corvette prior to its release from police custody. Such an instruction will serve to direct the jury that when they are deciding whether the Crown has proven that a GPS device was on the Corvette, they should consider the fact that the defendants were deprived of the opportunity to search the car. In my view, such an instruction more than adequately addresses the unfairness created by the lost opportunity to examine the Corvette.

[220] The exact contours of the jury instruction to be given must await the trial evidence and will be the subject of further submissions during the pre-charge conference.

The Garofoli Applications

[221] I turn next to addressing the Garofoli applications. I will address Mr. El-Zahawi’s application first and then turn to Mr. Chung’s application. I note that Mr. Chung concedes that his application cannot succeed unless Mr. El-Zahawi first succeeds in establishing that the authorizations relating to him were unlawful.

[222] The Garofoli application in this case was extremely complex. The application examined a number of successive authorizations that each built on the prior authorizations. Included in the Garofoli application was a very lengthy Step 2 process whereby the court reviewed confidential human source redactions made to the versions of the ITOs disclosed to defence counsel. That process involved both in court and in camera portions. Where the court addressed matters in camera, the process was undertaken in a manner that was informed by defence counsel’s submissions. As best as possible, defence counsel was kept apprised of the nature and content of the in camera proceedings. During the process, I directed that willstates of evidence be produced addressing issues raised. The process ultimately resulted in further disclosure to the defence, both through the removal of redactions and by the provision of judicial summaries describing the content that remained redacted.

[223] Following the Step 2 process, leave to cross-examine the affiant and a sub-affiant was granted. That evidence was heard, followed by submissions in relation to each of the authorizations. Of necessity, the submissions were presented in the form of multiple alternatives as the outcome of the application depended on the final set of factual/legal findings and the related scope of any excision and/or amplification warranted by the evidence.

Guiding Legal Principles on a Garofoli Application

[224] Search warrants under s. 487 and production orders under s. 487.014 are issued on the basis of “reasonable and probable grounds”. This standard requires “credibly based probability”, see: R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (NSCA) and R. v. Debot, [1982] 2 SCR 1140, at para. 47. As Paciocco J. (as he then was) explains in R. v. Floyd, 2012 ONCJ 417, at para. 9:

In sum, the “reasonable and probable grounds” or “credibly-based probability” concept requires that the grounds furnished must demonstrate that there is a probability as opposed to a suspicion that the relevant facts could be true, assuming the information to be true (the “sufficiency inquiry”), and that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant fact exists (the “credibility inquiry”).

[225] The inquiry has both a subjective and an objective component. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable; see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250. An officer is entitled to rely on training and experience in assessing grounds, but must be careful to consider both evidence that supports the grounds and evidence that detracts from grounds; see R. v. Wu, 2015 ONCA 667, at paras. 55-57 and 64. An officer should only ignore what is believed to be irrelevant or unreliable; see R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (ONCA), at p. 203.

[226] An officer has an obligation to make full, fair and frank disclosure in an ITO; see R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.) and R. v. Nguyen, 2011 ONCA 465, at para. 48. The obligation to make full, fair and frank disclosure is heightened by the ex-parte nature of search warrant proceedings; see United States of America v. Friedland, [1996] O.J. No. 4399 (Ont. Ct. (Gen.Div.)) per Sharpe J. (as he then was).

[227] The issuing justice is required to make a judicial determination as to whether sufficient grounds exist for issuance of the warrant or production order. The judicial determination is based on the facts conveyed in the ITO. Where an officer uses only boilerplate language or conclusory statements, an issuing justice may not be satisfied that the requisite grounds have been established, see R. v. Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 13-16. That said, an issuing justice is permitted to draw reasonable inferences from stated facts, see R. v. Nero, 2016 ONCA 160, at para. 71. The affiant need not underline the obvious, see R. v. Vu, 2013 SCC 60, at paras. 13-16.

[228] On a review, there is a presumption that the authorization in question is valid. The applicant bears the onus of establishing that the ITO was insufficient to justify issuing the warrant or production order. The role of the reviewing judge is not to substitute his or her view for that of the issuing justice. Rather, the role is to assess whether, on the basis of the material before the issuing justice as amplified and excised on review, the authorizing or issuing justice could have issued the authorization, see R. v. Araujo, [2000] S.C.R. 992, at paras. 52-54, R. v. Sadikov, 2014 ONCA 72, at paras. 83-89, R. v. Ebanks, 2009 ONCA 851, R. v. Lao, 2013 ONCA 285, at paras. 40-41. As Watt J.A. explains in R. v. Mahmood, at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.

[229] The review is conducted based on the whole of the ITO, using a common-sense approach sensitive to all of the circumstances. The review is not an exercise in picking apart the drafting of the ITO looking for minor imperfections, misstatements or omissions. While the police are required to draft an ITO as precisely and clearly as possible, they are not expected to spell things out as clearly as counsel. They are also not required to include every detail, no matter how minute, of the police investigation. The question is ultimately whether the core substance of the ITO could support issuance of the warrant, see R. v. Morelli, 2010 SCC 8, at para. 167, R. v. Lubell and The Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190, Re Chapman and the Queen (1983), 1983 CanLII 3587 (ON SC), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297, R. v. Campbell, 2010 ONCA 588, at para. 47.

[230] In conducting a review, it is important to keep in mind that search warrants and production orders are investigative evidence gathering tools often used in the early stages of an investigation before the final form of the investigation and the charges, if any, are known, see CanadianOxy Chemicals v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, at paras. 21-22. The police are not required to have solved a crime in order to have grounds to obtain an authorization.

[231] As well, it is also important to keep in mind that warrants and production orders authorize the seizure and production of things that “will afford evidence with respect to” the commission of an offence.[^16] The phrase “with respect to” is given a very broad meaning in the caselaw, and includes anything that is relevant or rationally connected to the incident under investigation, the parties involved and their potential culpability, see CanadianOxy Chemicals, at paras. 15-17 and R. v. Canadian Broadcasting Corp. (1992), 1992 CanLII 12752 (ON SC), 77 C.C.C. (3d) 341 (Ont. Ct. Gen. Div.). It does not need to be evidence that establishes an element of the Crown’s prima facie case. In this regard, I note the comments of Chief Justice McRuer in Re Bell Telephone Company of Canada (1947), 1947 CanLII 374 (ON SC), 89 C.C.C. 196 (Ont. H.C.) at p.198:

As I view it, the object and purpose of these sections is to assist the administration of justice by enabling the constable or other properly designated person to go upon the premises indicated for the purpose of procuring things that will in some degree afford evidence of the crime, but it must be something either taken by itself or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime.

[232] I also note the comments of Dickson J. in Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39:

The words “in respect of” are, in my opinion, words of widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The Phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters.

[233] Where the core of the ITO rests on information conveyed by an informant, the issuing court must assess the credibility and reliability of the information provided by the informant. This involves asking three questions: is the information compelling?; is the informer credible?; and, was the information provided corroborated?, see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, R. v. Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. No. 2175 (Ont. C.A.), R. v. Rocha, 2012 ONCA 707, at paras. 22-25, and R. v. Shivrattan, 2017 ONCA 23. In Shrivattan, Doherty J.A. provided the following guidance on this issue:

The first question addresses the quality of the CI’s information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI’s credibility. For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI’s credibility: see Crevier, at paras. 107-108.

ANALYSIS AND FINDINGS

The March 20, 2019 Search Warrant and Production Order Package

[234] In terms of the review process in this case, my role is not to decide whether I would have accepted the informer’s tips in combination with the balance of the evidence set out in the ITO as a sufficient basis for issuing the authorizations in question. Rather, the question is whether an issuing justice could have done so based on this record, as excised and amplified with the permitted cross-examination, considered as a whole.

[235] I will commence my analysis by focusing on the March 20, 2019 warrant/production orders. The findings made in relation to this package of authorizations essentially set the stage for the analysis of the subsequent warrants and production orders.

[236] The March 20, 2019 order provides judicial authorization for the following, inter alia:

a. A production order directing Rogers Communications to produce historical transmission data, tracking data and basic subscriber information in relation to the 4622 phone number between July 1, 2018 and the date of the order;

b. A search warrant for the electronic contents of the two phones seized from Mr. El-Zahawi during the Cyan Lounge investigation;

c. A transmission data recorder warrant in relation to the 4622 phone number and the 6660 phone (a number associated with another target, Thomas Sliwinski) and the devices associated with those phones;

d. A tracking warrant to track Mr. El-Zahawi and Mr. Sliwinski as well as the devices associated with the 4622 and 6660 phone numbers; and,

e. A production order for Highway 407 toll records for two vehicles connected to Thomas Sliwinski.

[237] In terms of s. 24(2) of the Charter, the defence seeks exclusion of the following evidence obtained pursuant to the March 2019 search warrant and production order package:

a. The contents of the two phones seized from Mr. El-Zahawi;

b. The phone records for the 4622 phone; and,

c. Any additional data obtained from the ancillary orders.

[238] The defence also seeks a finding that the balance of the evidence, including the phone records relating to Mr. Sliwinski, was obtained unlawfully for the purpose of excision from the subsequent ITOs.

The Scope of Excision

[239] At the outset, I will address the scope of excision relating to the Cyan Lounge incident. The Crown agrees that all utterances and statements made by Mr. El-Zahawi to the arresting officers, the undercover officer and to Det. Bailey, should be excised from the ITOs on review.

[240] The defence also seeks excision of any reference to the 4622 phone number. The defence argues that the 4622 number was obtained in a manner that violated the Charter and therefore must be excised.

[241] There is no issue that unlawfully obtained evidence is to be excised from consideration on a Garofoli review, see R. v. Mahmood, at para. 116. What is not clear from the caselaw is whether “unlawfully obtained” relates only to evidence that is causally obtained, or also includes evidence that is temporally or contextually connected with a Charter violation or other unlawful act. In other words, does the automatic excision rule extend to evidence that is only temporally or contextually connected to a Charter violation?

[242] Before examining this issue, I note that when I consider causal connection, I am not satisfied that the 4622 number should be excised from the ITO. Simply stated, I am not satisfied that the 4622 number was unlawfully obtained when the police initially obtained the phone number from Mr. El-Zahawi’s probation officer. In any event, the police also later obtained the number again from Mr. El-Zahawi’s girlfriend, Ms. Jerjis, who was acting as his bail surety. They did nothing wrong in doing so and there can be no suggestion that obtaining the 4622 phone number from Ms. Jerjis is in any way unlawful. Finally, after the police obtained Alex Vinogradsky’s phone records, they again learned of Mr. El-Zahawi’s phone number and his subscriber information as it was the fifth most frequent contact with Mr. Vinogradsky. By the time the police applied for the production order for the 4622 phone number records, there is no issue that they had lawfully obtained the phone number.

[243] Even if it could be said that the 4622 phone number was “obtained in a manner” that violated the Charter because it was contextually or temporally connected with the Cyan Lounge Charter breaches, I would likely not be satisfied that the broad and purposive “obtained in a manner” analysis used in the context of s. 24(2) of the Charter should also be applied in determining the scope of excision on a Garofoli review.

[244] I note that in terms of excision of unconstitutionally obtained evidence, there is a strong argument that excision should only be applied to evidence that is causally connected to a Charter violation, see R. v. Ferguson, 2018 BCSC 378, at paras. 32-70, R. v. Bentley, 2019 BCSC 2407, at para. 81, R. v. Braich, 2021 BCSC 114, and R. v. Lam, 2015 ONSC 2131. See also the discussion on the concept of excision found in R. v. Kang, 2020 BCSC 1151, at paras. 92-136.[^17]

[245] These cases recognize that unlike a s. 24(2) Charter remedy, excision is automatically applied with no balancing or consideration of competing factors and interests. The concern raised in these cases is that if the scope of evidence that is automatically excised from an ITO includes evidence that may only be temporally or contextually connected to a Charter violation, the scope of the excision will be unfairly and unnecessarily broad with no ability to balance the outcome against any countervailing factors.

[246] The proper scope of excision must be determined with reference to the purpose of the rule, which is maintaining the integrity of the judicial authorization process by ensuring that police officers do not benefit from unlawfully obtained evidence.[^18] By contrast, s. 24(2) of the Charter is a broad remedial provision that seeks to balance various factors in determining whether the admission of evidence “obtained in a manner” that violates the Charter will bring the administration of justice into disrepute. The approach to the “obtained in a manner” threshold analysis is connected to the broad purpose of s. 24(2), see R. v. Pino, at paras. 50-56.

[247] As a final point, I note that restricting excision to causally obtained evidence does not foreclose resort to s. 24(2) where evidence obtained under an otherwise valid warrant is, nonetheless, temporally or contextually connected to prior Charter violations, see R. v. Grant, R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 and R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263.

[248] Ultimately, I need not finally determine the scope of excision for the purpose of a Garofoli review as I am satisfied that in this case, on any analysis, by the time the police obtained the March search warrant and production orders, they had untainted knowledge of the 4622 number.

The Required Excisions to the March 20, 2019 ITO

[249] I turn next to determining what should be excised from the ITO. In this regard, I note that during the course of argument, the defence filed very helpful electronic versions of the various ITOs with the proposed areas of excision and the reasons for excision highlighted.

[250] Based on the concessions made by the Crown as well as the submissions made on the disputed excisions, I excise the following:

a. Paragraph 11 – the defence seeks excision of the portion of the paragraph that reads “Further to this, a connection was made between Salloum JASSEM and Mohamad EL-ZAHAWI, who is the “road-boss” for Paramount Towing; their relationship dates back to 2011.” I would excise the words “road boss” as this is evidence that is found in Mr. El-Zahawi’s statement to police. I would not excise the balance for the reasons discussed below in relation to paragraphs 56(a) and (b);

b. Paragraph 13 – the entire second sentence – this relates to information obtained from Mr. El-Zahawi during his police statement. I am not prepared to leave in the references to “Tuggy” as I agree with the defence that amplification would be required to do so. Further, I agree with the defence that it would constitute impermissible amplification to read in comments regarding “Tuggy” as those comments are found in intelligence reports that never went to the affiant. This is not a matter of simply correcting a minor slip or inadvertent error;

c. Paragraph 14 – the first sentence – this relates to the two cell phones seized from Mr. El-Zahawi;

d. Paragraph 16(b) – same as above;

e. Paragraph 46 (a)(ii) – the affiant’s comment connecting Mr. Direkoglu and other tow truck operators – this relates to information obtained from Mr. El-Zahawi during his police statement. Again, I would not permit amplification to provide an alternate means of introducing this material as it comes from intelligence reports that were not provided to the affiant;

f. Paragraph 50 – the portion of the heading that states “Road Boss” - this comes from Mr. El-Zahawi during his police statement;

g. Paragraph 52 – this relates to the seizure of the phones from Mr. El-Zahawi;

h. Paragraphs 53-54 – these paragraphs summarize Mr. El-Zahawi’s statement to Det. Bailey and his utterances to the undercover officer;

i. Paragraph 56(c) – this paragraph refers to comments made by Mr. El-Zahawi during his statement to Det. Bailey;

j. Paragraphs 92 and 94 – this paragraph references information from Mr. El-Zahawi’s statement to Det. Bailey;

k. Paragraph 100 – relates to the phone seized from Mr. El-Zahawi;

l. Paragraph 103(a) – the portion that states “EL-ZAHAWI also described a conflict involving “Tuggy” who was identified as…” – this relates to information from Mr. El-Zahawi’s statement to police;

m. Paragraph 108 – this is the prayer for relief in relation to the two phones seized from Mr. El-Zahawi;

n. Paragraph 129 – the portion of the sentence that states “as described by EL-ZAHAWI during his conversation with the undercover officer, in that he circles his house three or four times before going home (Paragraph 54.b).” This relates to information from Mr. El-Zahawi’s statement to police.

[251] In addition to references to the 4622 phone number which I have not excised, I am also not satisfied that the following should be excised from the March ITO:

a. Paragraph 56(a) and (b) – these paragraphs relate to police occurrence reports relating to two prior instances wherein Mr. El-Zahawi was shot. In relation to one incident, the police report notes a connection between Mr. El-Zahawi and Salloum Jassem. The defence argues that these paragraphs should be excised as the police only learned of the fact that Mr. El-Zahawi had been shot on two prior occasions from his statement. While I agree that Mr. El-Zahawi told the police that he had been shot on two prior occasions, I am not satisfied that these occurrence reports only came to police attention through the statement. Much like a CPIC check, the police would have invariably checked their own systems for any relevant occurrence reports regarding Mr. El-Zahawi.

b. Paragraphs 60 and 61 – these paragraphs relate to CPIC checks done on Mr. El-Zahawi. During argument, the defence conceded that these paragraphs would have been known to police as they would have done a CPIC check on Mr. El-Zahawi.

c. Paragraph 91 – this paragraph relates to information learned through the occurrence report discussed in Paragraph 56(a).

d. Paragraph 93 – While initially marked for excision, the defence agreed that this information came from Mr. Vinogradsky’s phone records and not from Mr. El-Zahawi’s statements.

e. Paragraph 127 – the statement identifying Mr. El-Zahawi as a person of interest (also found in Paragraph 59). I see no valid basis upon which this reference should be excised.

Additional Amplification Sought by Crown

[252] The Crown seeks amplification in relation to information connecting Alex Vinogradsky as the owner of Paramount Towing. This information had been included in a January 2019 ITO for different authorizations but was inadvertently removed from the March 2019 and subsequent ITOs. The extent of the amplification is a common phone number between Mr. Vinogradsky and Paramount Towing. The defence concedes that this is proper amplification.

[253] While the Crown initially also sought amplification in relation to paragraph 93 to add the date range of Mr. Vinogradsky’s phone records which include contacts with Mr. El-Zahawi, the Crown did not ultimately pursue this request.

The Confidential Human Source Information

[254] The ITO relies on information from five confidential human sources listed as Tips #1 through #5. The Crown only seeks to rely on Tip #1, #3, #4, and #5.[^19] The Crown agreed not to rely on Tip #2, which is an anonymous tip that came through Crime Stoppers.

[255] In terms of the structure of the ITO, the tip information in relation to each confidential source is summarized in Appendix A to the ITO. The pedigree information in relation to the known informants on Tips #3, #4, and #5, are included in Appendix A.1, A.2 and A.3, respectively. Tip #1 is from an anonymous caller and as a result there is no pedigree information.

[256] In terms of Tip #4, the affiant also included a lengthy summary of information under the heading “Information Known But Not Relied Upon.”[^20] In the KBRO, the affiant set out further details of information received from the informant on Tip #4. The level of detail is significant, occupying some four and half pages of information.[^21]

[257] The affiant states that he is providing the information in the KBRO in order to make full, fair and frank disclosure, though he is not relying on it out of a concern that its disclosure might reveal the identity of the informant.

[258] The premise for not relying on the information is flawed. This is not an instance where the affiant had a reason to disavow reliance on the information such as a lack of credibility or reliability in relation to the informant. ITOs routinely contain detailed information from informants that is specifically relied upon to support grounds for issuance. In these cases, the ITOs are sealed by way of court order so that information potentially identifying an informant is not placed in the public domain.

[259] When disclosure is being prepared, the Crown will obtain an order granting access to the sealed material and will then vet and redact the ITO to protect the identity of the informant. The mere fact that material will be redacted by the Crown for the purpose of disclosure does not make it impermissible to rely on that information in support of grounds for issuance of the warrant. While a review of the warrant poses hurdles in terms of redacted information, Step 6 of the Garofoli process provides an avenue for surpassing these hurdles.

[260] In this case, it appears that the affiant proceeded on the mistaken understanding that he could not rely on the information set out in the KBRO because if he did, it would need to be disclosed and, if disclosed, it would identify the informant.

[261] This mistaken understanding resulted in three issues in terms of the Garofoli application. The first issue relates to what use could be made of the KBRO information. On this issue, the Crown took the very fair position that the court should not rely on the KBRO information in assessing whether the test for issuance could have been satisfied.

[262] The second issue relates specifically to the consideration of the December 2019 ITO by the issuing justice. The copy of the ITO filed in the materials contains annotations which appear to have been made by the issuing justice in considering the application. The annotations suggest that the issuing justice considered Tip #1 and Tip #2, but did not consider Tip #3, #4, and #5. However, on page six of Appendix A, which sets out the final portion of the KBRO, there is an annotation that appears to read, “Did not consider this.” Oddly, the word “not” is scratched out, such that it appears that the issuing justice perhaps intended to write “Did consider this.”

[263] During the course of the Step 2 motion, I received the unredacted version of Appendix A from the December 2019 ITO. In unredacted form, the content that appears on page six of Appendix A is a continuation of a paragraph that starts on page five, and it sets out information received through certain investigative steps. Page five also contains additional information in relation to the same topic. Importantly, the entirety of page five is marked with the notation “Not Considered.” When the unredacted content of pages five and six is viewed as a whole, it appears that the issuing justice simply made a mistake on page six. There would be no reason for the issuing justice, who had otherwise not relied on anything in relation to Tips #3, #4 and #5, to rely on an incomplete portion of a paragraph. This conclusion is all the more obvious when considering the nature of the production orders sought in the December ITO.

[264] The final issue relating to the KBRO arises in relation to the pedigree for the Tip #4 informant. In Appendix A.2, the affiant summarizes information relating to the informant’s pedigree. The summary states that the informant “has been proven reliable regarding information corroborated through surveillance and other methods of investigation.” As will be discussed, the background information for this assertion, in part, relied on information that was set out in the KBRO. The overlap of information creates a circularity problem, as the affiant’s assertion is, in part, based on information he specifically opted to not rely on. I will canvass the evidence on this issue in more detail when I turn to the evidence of the affiant, Det. Harper, and the informant handler, Sgt. Kelly.

Leave to Cross-Examine the Affiant and Sub-Affiant

[265] In this case, the submissions on leave to cross-examination were heard at the conclusion of the lengthy Step 2 disclosure process. During that process, the defence obtained additional disclosure which provided some clarity on the evidential playing field in relation to the confidential human source information. The defence eventually pursued three areas of cross- examination in relation to the affiant, Det. Harper.

[266] In an email dated July 25, 2023, I advised counsel that the application for leave to cross-examine Det. Harper was granted with reasons to follow. I later heard further submissions in relation to a request for leave to cross-examine the confidential human source handler, Acting Sgt. Kelly of the Brantford Police Service. Brief oral reasons were provided granting leave to cross-examine on three narrow areas. During that cross-examination, a further in camera session was held to address issues relating to information contained in certain sealed exhibits. Thereafter, the defence sought leave for further cross-examination of Sgt. Kelly. Based on further submissions, I granted leave to cross-examine Sgt. Kelly on one additional focussed issue relating to his knowledge of what Det. Harper was planning on doing with the KBRO.

[267] I will now provide brief reasons for granting leave to cross-examine both Det. Harper and Sgt. Kelly.

[268] The defence does not have an automatic right to cross-examine an affiant on an ITO sworn in support of a judicial authorization. Rather, the defence must establish that there is a reasonable likelihood that the proposed cross-examination will generate evidence discrediting the existence of one or more of the grounds for issuance of the warrant. The threshold is not onerous and the defence does not have to demonstrate that the proposed cross-examination will succeed, see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, R. v. Pires and Lising, 2005 SCC 66, and R. v. Shivrattan. The cross-examination can be aimed at either undermining the specific content of the ITO or the credibility of the affiant and the ITO as a whole, see R. v. Green, 2015 ONCA 579, at paras. 34-36. Only inaccuracies or material omissions which are known or ought to have been reasonably known to the affiant can ground a request for cross-examination, see World Bank v. Wallace, 2016 SCC 15. The goal of the leave process is to ensure that a Garofoli review does not devolve into a prolix fishing expedition through unfocussed and overly broad cross-examination, see Pires and Lising, at para. 31.

[269] Against this backdrop, I turn to the three areas in which the defence sought leave to cross-examine Det. Harper.

[270] The first area relates to content reflected in Tip #1 in the ITO. The defence submits that when Tip #1, as reflected in the ITO is correlated to the Tip Sheet (found in Tab 9 of Exhibit J[^22]), it appears as though the affiant failed to properly attribute the source of the tipster’s information. The Crown argues that it would have been clear to the issuing justice that the tipster in Tip #1 was conveying second-hand information and that as such, no cross-examination is required. I agree with the defence that cross-examination is warranted on this focussed issue. The source of an informant’s knowledge is an important area of consideration. In this case, there is a discrepancy in the way in which the source of the informant’s knowledge is described.

[271] The second area relates to the document found at Tab 10(g) of Exhibit J, which is the source document for the pedigree relating to the informant in Tip #3. The defence position is that the final paragraph in that document suggests the improper use of boilerplate language to describe the track history of an informant, a practice that has been commented on negatively in various cases including R. v. Sutherland (2000), 2000 CanLII 17034 (ON CA), 150 C.C.C. (3d) 231 (Ont. C.A.), R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 (Ont. C.A.), R. v. Rocha, and R. v. Lucas, 2009 CanLII 27837 (Ont. SCJ), among others. The defence seeks to explore what Det. Harper did with this information and whether he should have asked the handler for further specifics on the informant’s track record. The Crown argues that to the extent that boilerplate language is used, it can be taken into account in assessing the value of the tip, which is otherwise detailed and compelling. In other words, the Crown argues that there is no value added by permitting cross-examination on the issue. While the Crown’s position is fairly taken, I am satisfied that some cross-examination on this issue is appropriate as the defence has established an arguable issue that boilerplate language has been used to describe the pedigree of the informant.

[272] The third area relates to the pedigree for the informant on Tip #5. The Intelligence Report for this tip states that the informant is “proven reliable.” In an email from the informant’s handler, Sgt. Kelly, to the affiant, the handler states that the informant is a first time source, whose reliability and credibility cannot be judged. During the Step 2 process, Sgt. Kelly prepared a willstate in response to the issues that were raised during the in camera portion of the hearing. In that willstate, filed in redacted and unredacted form as part of Exhibit J, Sgt. Kelly explained that when he prepared the Intelligence Report he incorrectly cut and pasted the pedigree from a previous report. He further explained that he provided the correct pedigree to Det. Harper later in the email. The defence argues that it should be permitted to explore the discrepancy as the explanation provided makes little sense. Moreover, the defence wants to ask why Det. Harper would even think of asking Sgt. Kelly for the pedigree information given that it was already stated in the Intelligence Report. In response, the Crown notes that the correct pedigree was placed before the issuing justice in the ITO and that as a result the issue of the error and its correction are immaterial.

[273] If this issue was the only issue on which leave to cross was being sought, I likely would have declined leave. That said, the defence raises a narrow issue relating to what caused Det. Harper to seek clarification about the informant’s pedigree. Viewed in context with the other areas on which leave to cross has been granted, I am satisfied that the defence should be able to briefly unpack how this issue unfolded as it may reveal other issues relating to the packaging of the informant tips.

[274] In terms of Sgt. Kelly, the defence initially sought leave to cross-examine on three areas. First, the defence sought to explore the extent to which the pedigree of the informant on Tip #4 in the ITO was based on information found in the KBRO. The defence argues a circularity problem exists if the material referred to in the KBRO, which the affiant specifically placed no reliance on, was part of the material relied upon by the handler, Sgt. Kelly, in formulating the pedigree for the informant. The Crown agreed that leave should be granted on this issue.

[275] The second issue is linked with the correction of the pedigree in relation to the informant on Tip #5. The defence argues that it should be permitted brief cross-examination on this issue in order to “close the loop” with Det. Harper’s evidence on this issue. The Crown again argues that the issue is immaterial as the correct pedigree ended up before the issuing justice. In view of the fact that leave to cross Det. Harper has been granted on this issue, I am satisfied that leave should also be granted to cross-examine Sgt. Kelly. Again, this is a narrow and extremely focussed issue which will not result in the misuse of court resources.

[276] The final issue relates to whether Sgt. Kelly failed in fairly conveying information regarding the pedigree for the informant on Tip #4. In this regard, the defence argues that Sgt. Kelly was essentially a surrogate or deputy affiant and he failed to convey anything beyond standard boilerplate language in describing the informant’s pedigree. I agree that this is an issue on which leave to cross-examine should be granted. Sgt. Kelly’s “filtering” of the pedigree material is a live issue.

[277] During Sgt. Kelly’s cross-examination, a further in camera hearing was conducted to unpack the interplay between the information in the KBRO and the information known by Sgt. Kelly in relation to the informant’s pedigree. Once that process was completed, defence counsel sought leave to cross-examine Sgt. Kelly on five additional areas, stemming from the use of the KBRO. In the course of submissions, I ruled that most of the proposed areas of additional cross-examination were essentially matters for argument. In short, I was not satisfied that further cross-examination would potentially provide additional evidence relevant to the issues raised, which in my view had already crystalized on the evidence. That said, I permitted brief additional cross-examination on what Sgt. Kelly understood would be happening with respect to the information contained in the KBRO.

The Evidence of Det. Harper and Sgt. Kelly

[278] Det. Harper was the main affiant in the Rafipour murder investigation. At the time he wrote the ITOs, he had fairly extensive experience as an affiant, having prepared over one hundred prior judicial authorizations. In terms of complexity, none of the prior judicial authorizations he worked on even came close to the complexity of this investigation. While he did not have extensive prior experience with confidential human sources, he understood that assessing the credibility and reliability of their information was important. That said, he was unfamiliar with the term “Three C’s”.

[279] Det. Harper understood that he had to disclose an informant’s motivations, past history of performance, criminal involvement including offences of dishonesty, obstruction related offences and perjury. He believed that if there were any concerns regarding the confidential human sources, they would have been passed on by the handler. He did not see anything amiss in this case and believed that the information he received was reliable because of the corroboration.

[280] In terms of Tip #1, which was based on an anonymous tip, Det. Harper agreed that it would be important to inform the issuing justice whether the information was based on first-hand knowledge as opposed to mere rumour. Det. Harper agreed that Tip #1 as found in Appendix A in the ITOs stated that the informant “believed” certain information relating to the homicide. Det. Harper also agreed that the original tip sheet stated that the informant “overheard” the information during an occasion.[^23] Det. Harper agreed that the original tip sheet could have led someone to believe that the informant was simply overhearing rumour and gossip. He agreed that the use of the word “believed” was incorrect. He explained that he made an error in his choice of language though it was not intentional.

[281] Det. Harper also agreed that in the original tip sheet, the informant states “not sure what started the feud.” He agreed that he did not include this in the ITO, though he did not know why, stating that it may have been an oversight. He further agreed that he left out the comment relating to the tipster’s lack of knowledge about the location of an earlier shooting. Lastly, he agreed that he did not include the fact that the tipster did not know any of the suspect’s names. Ultimately, he agreed that he should have put this information into the ITO.

[282] In terms of the use of boilerplate language, Det. Harper explained that his role is to provide full, fair and frank disclosure using unique language. He agreed that conclusory sentences were to be avoided. Det. Harper was then asked about the pedigree for the informant on Tip #3, which was presented in Appendix A.1 of the ITO. He explained that the pedigree information found at Tab 10(h) of Exhibit J is how the information came to him. He cut and pasted that information directly into the appendix. He did not have any information beyond the colon that appears at the very end of the source document.

[283] Det. Harper confirmed that he trusted that the confidential informant handler would provide him with correct information regarding the informant’s pedigree. He believed the language used was acceptable and did not turn his mind to seeking elaboration or further details. He agreed that in hindsight it would have been better to inform the issuing justice about how many times the informant had given information that had been confirmed or corroborated, as well as the number of times, if any, when the information “did not come through.”

[284] In terms of the pedigree for the informant on Tip #4, Det. Harper agreed that the extent of the information he received is found in the email from Sgt. Kelly found at Tab 14(e) of Exhibit J. He cut and pasted this information into the related pedigree appendix. When asked why he emailed Sgt. Kelly to get the pedigree information when the pedigree was already set out in the related intelligence reports, Det. Harper explained that at the time he wanted a current pedigree for the informants and had perhaps not even remembered that the pedigree information was in the original intelligence report.

[285] When asked specifically about whether he knew that information contained in the KBRO was included in the information used to assess the informant’s pedigree on Tip #4, Det. Harper explained that it did not occur to him at the time. He agreed that had he known that there was overlap between the two, he would not have written the appendix as he had. That said, he explained that he cut and pasted from Sgt. Kelly’s email and did not know that the wording used was problematic. He agreed that he also did not ask Sgt. Kelly to explain the wording used.

[286] In terms of Tip #5, Det. Harper agreed that the initial pedigree information suggested that the informant was a tested informant and that the ultimate pedigree information was that the informant was a first time informant. He explained that he did not notice the discrepancy when preparing the ITO in March. He used the information from the email with Sgt. Kelly as the up to date pedigree information. He explained that he believed that the information provided by the informant was reliable based on the fact that the tip was essentially based on photographs, though he agreed that this would not have been set out for the issuing justice. He also agreed that based on his current understanding of vetting, he could have included the photographs in the ITO. That said, at the time, he felt that the photographs could identify the source.

[287] Sgt. Kelly was asked about the incorrect pedigree for the informant on Tip #5. He explained that in 2018, the intelligence report templates were not user friendly. He would type out content and then cut and paste it into the intelligence report. In this case, the wrong pedigree was in the intelligence report, but the correct pedigree was provided in the email to Det. Harper. Sgt. Kelly explained that this was essentially a clerical error.

[288] In terms of the pedigree for the informant on Tip #4, reflected in Appendix A.2, Sgt. Kelly agreed that he was the source for the information contained therein. He agreed that certain parts of the KBRO were relied upon in drafting the pedigree. He also explained that he based the pedigree in part on other information, as set out in sealed Exhibit Q. During an in camera portion of his evidence, Sgt. Kelly delineated which aspects of the KBRO formed part of the pedigree information. He also candidly explained that he assessed the informant’s credibility based on the totality of the information known to him, which included the information that was later contained in the KBRO. When asked if he could isolate the information in the KBRO from his assessment of the informant’s credibility, he explained that he could not “unknow” what he knows.

[289] In terms of Det. Harper’s intention to craft the KBRO portion of the ITO, Sgt. Kelly explained that the first time he saw the KBRO was the day before he testified. In short, he did not know how Det. Harper was planning on packaging the information, he merely provided the information to Det. Harper.

[290] Before moving on to my analysis of the March ITO, I will set out my brief findings in relation to the evidence of Det. Harper and Sgt. Kelly. In short, I accept their evidence. They were both open and candid about errors and mistakes that were made. Both accept that their work product was not perfect. That said, I find they were both knowledgeable of their respective roles in the judicial authorization process and neither of them set out to subvert or distort the process.

[291] In terms of Det. Harper’s mistaken understanding of the vetting process which resulted in the existence of the KBRO portion of the ITO, I accept his evidence that he now understands that reliance on grounds which may reveal an informant’s identity does not result in their disclosure and as such is permissible. Given the complexity of this area of law, his mistaken understanding is understandable. Moreover, since he included all the information in the ITO despite not relying on a large portion of it, I do not find that this is an instance where the affiant engaged in the improper filtering of the confidential human source information as discussed in R. v. Lucas, at para. 23. In any event, the mistake inured entirely to the benefit of the defence on issuance as the bulk of the informant’s tip was not relied upon despite otherwise being sufficiently reliable. It also inured to the benefit of the defence on review, as the Crown agreed that none of it should be relied on, despite the honest error.

[292] In terms of the circularity problem created by the KBRO, I agree that, as it turns out, part of Sgt. Kelly’s basis for concluding that the informant on Tip #4 was reliable was information later included by Det. Harper in the KBRO portion of the ITO. While Sgt. Kelly could not divide in his mind how the various items of knowledge individually contributed to his conclusion that the informant had a track record of providing reliable information, he was clear that there was material beyond that in the KBRO which contributed to informing this conclusion. The handler provided details of the non-KBRO information in a document that became sealed Exhibit Q.[^24]

[293] When Det. Harper decided to hive off certain information into the KBRO portion of the ITO, he did not turn his mind to the possibility that Sgt. Kelly had considered it in forming his conclusions about the reliability of the informant. For his part, Sgt. Kelly only learned of the KBRO shortly before testifying. I am satisfied that what happened was an unfortunate but clearly unintentional mistake. In any event, there is also no issue that based on the information known to Sgt. Kelly, he viewed the informant on Tip #4 as a proven reliable informant. As well, there is no issue that Det. Harper relied on Sgt. Kelly’s opinion in this regard and had no reason to question it.

Analysis of March 2019 ITO

[294] I turn next to reviewing the contents of the March 2019 ITO, as excised and amplified, in accordance with the applicable legal principles. I will start this analysis with some overarching observations.

[295] First, I must at all times keep in mind that my task is to determine whether based on the ITO as excised and amplified the issuing justice could have issued the warrants and production orders. The test is not whether I would have. As such, the scope of review is narrow.

[296] Second, I must examine the ITO as a whole. The review exercise is not a microscopic examination of police conduct aimed at finding minor errors, acts or omissions. No ITO is perfect and perfection is not the standard.

[297] Third, the production order relating to Rogers Communications is a production order under s. 487.014 of the Code. Issuance of such an order is predicated on proof of reasonable grounds to believe. While it would have been open to investigators to obtain the historical transmission data, tracking data and subscriber information using a production order issued under ss. 487.016 and 487.017 of Code based on proof of reasonable grounds to suspect, the investigating officers opted not to.[^25] As such, the operative standard of issuance is reasonable grounds to believe.[^26]

[298] Fourth, this is not an ITO that is based exclusively or mainly on information from confidential human sources. While the treatment of the source information is very important, it is the whole of the ITO that must be considered on review. Lastly, when considering the “Three C’s” of confidential human source information, I must remain mindful of the fact that weaknesses in one aspect can be compensated by strengths in other aspects, see R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.J. No. 118, at para. 53, see also R. v. Garofoli, at para. 68.

[299] In terms of corroboration, I note that there is no fixed degree of corroboration that is required in order to permit reliance on an informer’s tip. The assessment of corroboration is case and fact specific. The corroboration need not be about the core criminality revealed in the tip, though as the corroborative information moves away from the core criminality towards facts that are commonly known or readily discovered, the value or corroborative effect of the information may be diminished; see R. v. Caissey, 2008 SCC 65 affirming 2007 ABCA 380, at para. 25, R. v. Eftekhari, 2012 ONSC 5140, at para. 24 and R. v. Boussoulas, 2014 ONSC 5542, at para. 35.

[300] In terms of the compelling nature of the information provided, I am mindful that I should consider the degree of detail in the tip, whether the information is about something that could be easily ascertained, whether the information has an appropriate degree of recency, and whether the information is first-hand, second-hand or based on rumour or gossip, see R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, at paras. 40-42, R. v. Rocha, at para. 28 and R. v. Hosie.

[301] In terms of credibility, the court will consider whether the informant has a track record of providing accurate and reliable information. The court will also consider the criminal record, if any, particularly where the criminal record includes crimes of dishonesty or shows that the informant is entrenched in the criminal lifestyle. In this regard, the best practice is to include the entire criminal record of the informant, see R. v. Rocha, at para. 6, R. v. Szilagyi, 2018 ONCA 695, at paras. 12, 23, 59 to 62. Lastly, the court will also consider the informant’s motivation for coming forward with the information, see R. v. McKenzie, 2016 ONSC 245, at paras. 52-54. At times, the motivation is financial, at others it may be related to consideration on outstanding charges. In some instances, there may be no known motivation apart from “civic duty.”

[302] Against this backdrop, I turn to examining the content of the ITO as a whole. In this regard, I note the following information that is set out in the ITO:

a. Mr. Rafipour was shot and killed by armed assailants on December 24, 2018.

b. Ms. Ashoury, who was with Mr. Rafipour at the time of his death, told police that her boss, Mr. Manukian, and Mr. Rafipour were starting up a tow truck company.

c. Mr. Manukian, who owned a medical rehabilitation clinic, had been the target of two prior shootings in October 2018. On one of those occasions, he was in the company of Mr. Rafipour.

d. Nima Robati, Ms. Ashoury’s cousin, informed police that he had heard that the shooting was related to a territory dispute involving tow truck companies.

e. Natassja Maure-Loyola, Mr. Rafipour’s former fiancé, advised police that Mr. Rafipour had been providing some form of security service to Mr. Manukian and that he and Mr. Manukian were in the process of starting a tow truck company and were looking for trucks. She described Mr. Manukian as Russian.

f. Saman Rafipour, the victim’s brother, advised police that Mr. Rafipour had allowed Bully’s Towing to use his name. He also told police that Mr. Rafipour and Mr. Manukian were getting into the tow truck business. He believed that another tow truck company was responsible for his brother’s murder, possibly using a tracking device.

g. Simon Pitts, a security guard at Mackenzie Health Centre, where Mr. Rafipour was taken after the shooting, advised police that he observed three tow trucks with the name “Bully’s Towing” on them parked in front of the hospital, obstructing roadways to the hospital.

h. Mr. Manukian confirmed that he knew Mr. Rafipour and had assisted him in scouting locations for rap videos. Mr. Manukian denied that he and Mr. Rafipour were setting up a tow truck business.

i. The police knew that Mr. El-Zahawi arrived at the Cyan Lounge in a tow truck on the night of the Cyan Lounge incident on February 1, 2019. Mr. El-Zahawi brandished a firearm and assaulted the victim in that incident.

j. On February 2, 2019, search warrants were executed on Mr. El-Zahawi’s residence and his blue Chevrolet tow truck. The tow truck had “Paramount” written across the side. Inside the vehicle police discovered two vehicle registrations and two sets of licence plates. The plates were registered to Rusol Jassem.

k. On February 2, 2019, when Mr. El-Zahawi had his bail hearing on the Cyan Lounge charges, Salloum Jassem’s ankle bracelet had him present at the same courthouse.

l. Years prior, in January 2011, Mr. El-Zahawi had been shot. While in hospital under police guard, he was visited by two friends, Jassem Jassem and Salloum Jassem.

m. Both Mr. El-Zahawi and Mr. Jassem have criminal records for violence and weapons related offences.

n. On December 22, 2018, Thomas Sliwinski was stopped while driving a rented Nissan Versa. The vehicle was rented by Rusol Jassem between November 26, 2018 and December 27, 2018. Rusol Jassem is believed to be Salloum Jassem’s sister.

o. In the video of the shooting, a dark SUV is seen. A police officer described it as similar to an Audi Q5 or a VW Touareg. Shaunt Bederian, an eyewitness to the shooting, described the suspect vehicle as either a VW Touareg or VW Tiguan.

p. On December 18, 2018, Mr. Sliwinski was stopped by police. At the time, he was driving a stolen VW Touareg, brown in colour. Police were aware that Highway 407 records showed travel for the VW Touareg between the dates of December 17 and 31, 2018, a time period covering the homicide.

q. Police were aware that Alex Vinogradsky provided a phone number for himself that is the same phone number as the one listed online for Paramount Towing.[^27] Police obtained Mr. Vinogradsky’s phone records and noted that the 4622 phone number with a subscriber name of Mohamad El-Zahawi, was thefifth most frequent contact, with several hundred contacts.

r. On December 28, 2018, a suspicious 911 call was made directing police to Mr. Vinogradsky’s home. Based on confidential human source information, police became concerned for Mr. Vinogradsky’s safety and took steps to warn him.

[303] In addition to this information, the ITO sets out the following information provided by confidential human sources:

a. Tip #1 – is from an anonymous caller, who tells police that he believes the motive behind the murder is related to a feud between the victim and members of Paramount Towing related to a drug deal gone bad. The caller also advises that a month prior, the victim had been shot at by the same suspects but was not injured. Lastly, the caller believed that the victim was murdered by a member of Paramount Towing over a feud over turf in the Richmond Hill area.

b. Tip #3 – is a tip from a carded source who advises that the murder is the result of an ongoing dispute between tow companies. The informant states that Mr. Manukian owns a tow truck company that is expanding into an area run by Alex Vinogradsky. The tip suggests that Mr. Vinogradsky hired the killers. The victim was set up by someone at the Christmas Eve party who provided information about the victim’s presence. The tip also suggested that retribution was being planned.

c. Tip #4 – is a tip from a registered source who advises that Salloum Jassem and Thomas Sliwinski were part of a group that was planning on committing a murder within the GTA. The identity of the victim was not known, but it was believed that the murder would occur in December 2018. The tip includes Mr. Sliwinski’s phone number.

d. Tip #5 – is a tip from a first time source who conveys observations of a Paramount tow truck observed at Salloum Jassem’s house on multiple occasions. In “early November” a blue Paramount tow truck was observed to attend at Salloum Jassem’s residence and tow his white Lamborghini.

[304] Against this backdrop I turn to consider the issues raised in relation to the confidential human sources. I note again that the ITO must be considered as a whole. Even where a tip suffers from weaknesses, the tip may still be entitled to some weight when considered along with the other tips and the balance of the evidence set out in the ITO.

Overarching Corroboration from Body of ITO

[305] Before turning to the specific tips, I note that the content of the ITO provides a significant body of corroborative evidence upon which the potential weight of the tips can be assessed. Again, this is simply not a case where an informant’s tip provides the entire or even the main basis upon which the warrant was issued.

[306] Based on the material in the ITO, the police were aware that Mr. Rafipour was setting up a tow truck company with Mr. Manukian. They understood that certain witnesses believed the murder was related to a tow truck turf war. They knew that Mr. Rafipour was associated with Bully’s Towing and that Bully’s tow trucks turned up at the hospital when Mr. Rafipour was taken there following the shooting. They knew that Mr. Manukian had been shot at on two occasions in October 2018, and that on one of those occasions Mr. Rafipour was present. This information corroborates significant aspects of Tip #1 and #3.

[307] The police also knew of a connection between Mr. Vinogradsky and Paramount Towing. This corroborates aspects of Tip #1 and #3. The police had concerns that Mr. Vinogradsky would be harmed in retribution for the death of Mr. Rafipour and they took steps to warn him. The potential for retribution was also mentioned in Tip #3.

[308] The police knew that Mr. El-Zahawi was connected to Paramount Towing and when they searched his tow truck, they located licence plates registered to Rusol Jassem, Salloum Jassem’s sister. They also knew that Salloum Jassem was present at the courthouse when Mr. El-Zahawi’s bail hearing was held and that years prior he had visited Mr. El-Zahawi in the hospital following Mr. El-Zahawi’s shooting. When viewed in context with Tip #5, this provides support for a significant and ongoing connection between Mr. El-Zahawi and Salloum Jassem.

[309] The police knew that Mr. Sliwinski was driving a vehicle rented by Rusol Jassem just two days prior to the murder. This supports the assertion in Tip #4 of a connection between Mr. Sliwinski and Salloum Jassem. The police also had a connection between Mr. Sliwinski and a stolen VW Touareg, which was a vehicle that matched the description of the vehicle used during the shooting. This also supports the assertions of Mr. Sliwinski’s involvement as set out in Tip #4. Lastly, the police corroborated the phone number for Mr. Sliwinski which matched the number provided in Tip #4.

Tip #1

[310] In relation to Tip #1, I note that the informant is an anonymous tipster and as a result there is no information about their credibility or reliability.

[311] In terms of whether the tip is compelling, I agree with the defence that the phrasing used by the affiant is potentially misleading. The affiant should have made it clear that the informant simply overheard the information during an occurrence. The use of the word “believed” is potentially misleading as it does not reveal how the informant came to possess the knowledge conveyed. The tip is also problematic as it does not convey the reasons why the informant “believed” the information.

[312] That said, the content of the tip is fairly detailed. It refers specifically to Paramount Towing, and provides a timeline for the feud and the previous shooting. It provides a link to a turf war in the Richmond Hill area and also suggests a drug deal related motive. Importantly, Tip #1 dovetails with Tip #3 in suggesting a connection with a turf war in the tow truck industry, and in referring to a prior shooting.

[313] When this tip is considered in amplified form, it is entitled to less weight in the overall review analysis. That said, this is not a scenario where it is entitled to no weight.

Tip #3

[314] In relation to Tip #3, the informant is noted as a carded confidential human source, who has been cautioned regarding the consequences of making false statements. While the pedigree information reveals that the informant has “been proven multiple times which has resulted in the seizure of firearms and controlled substances with the laying of applicable charges against the arrested parties”, it does not provide the particulars regarding the number of times, the number of charges, the outcome of the charges and the number of times when information provided was either not confirmed or contradicted.

[315] The defence argues that Det. Harper failed in his duty as an affiant as he merely “cut and paste” the pedigree provided from the handler. Further, the defence argues that in doing so, the affiant simply imported stock phraseology which offers little assistance to the issuing justice. While I agree that Det. Harper should perhaps have asked for further details from the handler, his failure to do so does not mean that the tip was entitled to no weight or that it should be treated as a tip from an unproven informant. Det. Harper had no reason to doubt the pedigree information given to him by the handler. The pedigree information, while perhaps not entirely detailed, was also not simply conclusory. It provided some insight into the informant’s history and track record.

[316] Tip #3 is very compelling in its detail. The informant draws a specific connection between Mr. Manukian and Mr. Vinogradsky in the context of a tow truck turf war. It describes a similarity between the murder and earlier attempts on Mr. Manukian. It relates the fact that Mr. Rafipour’s presence at the Christmas Eve party was the subject of a tip-off. It also mentions that retribution is being planned. Tip #3 is thematically similar to Tip #1.

Tip #4

[317] In relation to Tip #4, I have already addressed the circularity issue caused by the KBRO in relation to the informant’s pedigree. I do not accept the defence submission that the appropriate remedy is to excise the comments about the informant’s track record. In terms of the further argument that Sgt. Kelly used stock phraseology to convey the informant’s pedigree, I accept Sgt. Kelly’s evidence which was to the effect that he attempted to tailor the language specifically to the case but that there are only so many ways to do so. Ultimately, I accept that he turned his mind to choosing language that fit the circumstances of the case. Again, to the extent that there are deficiencies in the language used, it does not result in a scenario where the pedigree of the informant is akin to that of an untested informant.

[318] The defence also requests that I consider the information contained in the KBRO, to the extent that it suggests that Tip #4 is not related to the Rafipour homicide. Having considered the unredacted KBRO, I am satisfied that, taken as a whole, the information contained therein either relates to the Rafipour homicide or, at a minimum, relates to the specific context within which the Rafipour homicide was believed to have occurred.

[319] Apart from the information in the KBRO, Tip #4 is not extensive but it is specific and somewhat compelling. It relates to information that Salloum Jassem and Thomas Sliwinski are part of a group that was planning on committing a murder in the GTA in the month of December 2018. Mr. Sliwinski’s phone number is provided.

Tip #5

[320] In relation to Tip #5, which draws a connection between Salloum Jassem and Paramount Towing, I note that the information conveyed in Appendix A is based on photographs that depict the content of the tip. While the informant was a first time informant, there is no suggestion that the content of the tip raises credibility or reliability concerns. That said, it would have been perhaps preferable to simply include the photographs in the ITO rather than including a description.

Criminal Record Information

[321] In relation to the comments regarding the presence or absence of criminal records for the informants in Tips #3, #4, and #5, I note that during the Stage 2 disclosure process, the court was provided with information in sealed form as part of Exhibit J regarding the presence or absence of a criminal record for each of these informants. Based on the material reviewed, the comments made by the affiant in the ITO in relation to the presence or absence of criminal records were neither incorrect nor otherwise misleading.[^28] In reaching this conclusion, I accept the defence position that as a matter of best practices, an informant’s criminal record should be set out in full.

Conclusions on Review

[322] The defence position is that once the ITO is properly excised and amplified, there is no credible basis upon which the authorization could have issued. In particular, the defence argues that there is an insufficient basis upon which the issuing justice could conclude that Mr. Jassem, Mr. Vinogradsky or Mr. Sliwinski had anything to do with Mr. Rafipour’s murder or that the murder was related to Paramount Towing. As such, there is simply no basis to conclude that Mr. El-Zahawi’s phones, phone records or movements would afford evidence of the offence.

[323] I disagree. When I consider the totality of the evidence in the ITO, including the identified weaknesses in the various tips presented, I am satisfied that it was open to the issuing justice to conclude that the test for issuance was met. Again, the test is not whether I would have granted the authorizations. Rather, the issue is whether the issuing justice could have.

[324] In this regard, I note the following:

a. Mr. El-Zahawi is associated with Paramount Towing. The evidence connects him with a blue Paramount Towing tow truck, which was parked near his house and searched following his arrest on the Cyan Lounge incident.

b. Mr. El-Zahawi turned up at the Cyan Lounge in a tow truck and brandished a firearm during an assault related to a dispute between certain patrons. An inference arises that the purpose of his attendance was to act as an enforcer.

c. There is a connection between Alex Vinogradsky and Paramount Towing. There is tip evidence suggesting that Mr. Vinogradsky is responsible for the murder and that the murder relates to a tow truck turf war involving Mr. Manukian. Police were able to corroborate the fact that Mr. Manukian and Mr. Rafipour were starting a tow truck business. They also knew that Mr. Manukian had been shot at on two prior occasions, including once in Mr. Rafipour’s company.

d. Mr. El-Zahawi’s phone number is the fifth highest contact with Mr. Vinogradsky’s phone.

e. There is evidence of a long-standing connection between Mr. El-Zahawi and Salloum Jassem. A blue Paramount Towing tow truck is seen at Mr. Jassem’s residence, towing Mr. Jassem’s Lamborghini.

f. When Mr. El-Zahawi’s tow truck was searched, police discovered licence plates registered to Rusol Jassem, Salloum Jassem’s sister. Mr. Sliwinski is stopped on November 22, 2018 while driving a Nissan rented by Rusol Jassem.

g. The police have a basis for believing that the vehicle used in the murder is a VW Touareg. Mr. Sliwinski is stopped driving a stolen VW Touareg on December 18, 2018, a few days before the murder.

h. Source information connects Mr. Sliwinski and Mr. Jassem in the planning of a murder. The source information includes Mr. Sliwinski’s phone number, which the police are able to corroborate.

[325] When this evidence is taken together and viewed as a whole, I am satisfied that it provides a basis upon which the warrants and production orders sought through the March ITO could have issued. In short, the ITO as excised and amplified provides reasonable grounds to believe that Mr. El-Zahawi’s phones[^29] and phone records will contain evidence relating to the murder of Mr. Rafipour. I reach the same conclusion in relation to Mr. Sliwinski’s phone records and the Highway 407 records in relation to the VW Touareg.[^30] Indeed, the connection between the homicide and Mr. Sliwinski is even stronger as Mr. Sliwinski is connected to a VW Touareg which is believed to have been used in the shooting. As well, Mr. Sliwinski is personally connected to Salloum Jassem and a homicide believed to have been planned for December 2018 through the informant information. When taken all together, the evidence supports a finding that Mr. Sliwinski is connected with the homicide of Mr. Rafipour.

[326] In reaching this conclusion, I reject the defence argument that the ITO sets out an insufficient basis upon which to conclude that cell phones were used in the commission of the offence. On this issue, I note that the operative question is not whether cell phones were used in the commission of the offence, the question is whether the cell phones seized and the cell phone records sought for production will contain evidence relating to the homicide. In any event, given the nature of the shooting and the evidence suggesting that it came about as a result of a relatively sophisticated group enterprise, the overwhelming inference is that cell phones were used in the commission of the offence and that as a result, the phones (and records for the phones) connected to the parties involved will have evidence on them.

[327] I also reject the submission that the ITO sets out insufficient information about the 4622 phone number. While the date range for the cell phone records obtained in relation to Mr. Vinogradsky’s phone records was not the subject of amplification, the ITO sets out the fact that Mr. El-Zahawi is the fifth highest contact with Mr. Vinogradsky. This fact does not stand alone. Rather, it stands to be considered in context with all the evidence in the ITO, including the fact that on January 29, 2019, just a month after the murder, Mr. El-Zahawi attended the Cyan Lounge in a tow truck armed with what appears to be a firearm. An inference arises that Mr. El-Zahawi was called in to act as an enforcer at that time. Further, there is a connection between Mr. El-Zahawi, Paramount Towing and Mr. Vinogradsky. When all of this is taken together in context with the connection between Mr. Vinogradsky and the murder set out in the confidential human source information, there exists a sufficient basis upon which to conclude that the 4622 phone records will afford evidence in relation to the offence.

[328] Lastly, as a result of the Cyan Lounge incident findings, the excision exercise results in there being no basis upon which to issue a search warrant for the content of Mr. El-Zahawi’s two phones. This portion of the warrant can be safely severed, see R. v. Grabowski, 1985 CanLII 13 (SCC), [1985] 2 S.C.R. 434, at para. 61, Regina v. Johnson & Franklin Wholesale Distributors Ltd., [1971] B.C.J. No. 632 (C.A.), leave to appeal refused [1971] S.C.R. ix, at para. 23.

The May 21, 2019 Warrant and Production Orders

[329] I turn next to the May 21, 2019 warrant and production orders which were obtained on the basis of the ITO sworn May 16, 2019. Included in this package were authorizations for the following:

a. a Transmission Data Recorder (TDR) warrant under s. 492.2 of the Code in relation to the 4622 phone number (connected to Mr. El-Zahawi), and the 6660 phone number (connected to Mr. Sliwinski);

b. a tracking warrant under s. 492.1(2) of the Code for the devices connected to these phone numbers;

c. an assistance order under s. 487.02 of the Code for subscriber information for the numbers obtained under the TDR and the cellular tower information related to those communications in respect of both phones;

d. a production order for the Highway 407 records for the Hyundai Elantra (CFNP301) driven by Ms. Leachman on December 24, 2018;

e. a production order for guest registration records and video surveillance from the Monte Carlo Inn in Vaughan.

[330] In terms of s. 24(2) of the Charter, the defence seeks the exclusion of the following evidence obtained pursuant to this authorization package:

a. The evidence gathered via the tracker and TDR warrants for the 4622 phone and any additional data obtained via the related assistance orders; and,

b. The fruits of the production order for the Hyundai Elantra Highway 407 records and the records/video surveillance from the Monte Carlo Inn.[^31]

[331] In terms of excision, the defence argues that in addition to the material excised from the March ITO, anything seized or produced under the March ITO should also be excised. As I have determined that the March ITO properly grounded the search warrants and production orders sought and granted in March, I decline to excise any information obtained through those warrants and production orders. In particular, I decline to excise the fruits of the production order on Mr. Sliwinski’s 6660 phone number and the Highway 407 records in relation to the Touareg. Even assuming that Mr. El-Zahawi has standing to seek excision of this material, I am satisfied that it was lawfully obtained under the March warrant and production order package and therefore should remain to be considered along with the balance of the information set out in the May ITO.

[332] I decline to excise the description of Mr. El-Zahawi as a person of interest in paragraph 130. I agree with the Crown’s submissions that Mr. El-Zahawi became a person of interest on the basis of the Cyan Lounge incident, his connection with Paramount Towing and the information police had connecting Paramount Towing and/or Mr. Vinogradsky to Mr. Rafipour’s murder. In any event, the description in and of itself does not add much, if anything, by way of grounds.

[333] I would maintain the same excisions that were done on the March ITO as they appear in the May ITO.[^32] I note that there are additional areas of excision as well. These include:

a. Paragraph 11 – portion of sentence - “who is the ‘road boss’ for Paramount Towing”;

b. Paragraph 91 – the affiant commentary in bold;

c. Paragraph 110 – the sentence “According to EL-ZAHAWI, Pro Car Rental is owned by his ‘boss’, who is known to be Alexander Vinogradsky”; and,

d. Paragraph 134 – portion of sentence – “as described by EL-ZAHAWI during his conversation with the undercover officer, in that he circles his house three or four times before going home (paragraph 56.b).”

[334] In terms of additional information, the May ITO includes the following new evidence:

a. The VW Touareg connected to Mr. Sliwinski was queried by a police officer in the parking lot of the Monte Carlo Inn on December 21, 2018. The officer observed a male sitting in the vehicle smoking. The phone records for Mr. Sliwinski place him in the vicinity of the Monte Carlo Inn at the time of this observation. This supports an inference that it was Mr. Sliwinski who was observed in the Touareg at the time.

b. On April 19, 2019, the VW Touareg was recovered from a parking lot at 112 Crosby Avenue, approximately 8.5 kms from the scene of the homicide. Investigation revealed that the vehicle had been there since at least January 2, 2019. On recovery, the vehicle had a bullet hole in the hood. Highway 407 records for the vehicle showed it travelled along Highway 407 on the night of the murder. Based on all of this, investigators believed that this was the vehicle used in the murder.

c. A white Hyundai Elantra was also queried on December 21, 2018 in the parking lot at the Monte Carlo Inn. The same vehicle was stopped for speeding in Cambridge, Ontario, on December 24, 2018 at 7:49 p.m. There were two black males seated in the back seat and a white female in the front passenger seat. The driver of the Hyundai Elantra was Marena Leachman. Ms. Leachman advised that the vehicle belonged to her friend Mohamad El-Zahawi. Police later confirmed that Ms. Leachman was Salloum Jassem’s girlfriend.

d. Police also learned that the white Hyundai Elantra was leased to Pro Car and Truck Rentals, a company owned by David Israeli. Mr. Israeli was a high frequency contact in Mr. Vinogradsky’s phone records.

[335] The thrust of the defence argument in relation to the May ITO relates to the excision of Mr. Sliwinski’s phone records and the Highway 407 records obtained through the March production orders. As indicated, I am not prepared to excise this information as I have found that the March authorization was validly issued. When I consider the balance, I am readily satisfied that the ITO could support the various orders sought. In short, the additional evidence only makes the case for issuance stronger. I also note that the connection between Mr. Sliwinski and the VW Touareg, which appears to have been the vehicle used in the murder, adds more cogency to Tip #4 which does not identify a target. Based on the totality of the information, the inference that Tip #4 is about the Rafipour homicide is made stronger.

[336] In terms of the particular requested authorizations, I note that the TDR warrant can be issued on the basis of reasonable grounds to suspect as set out in s. 492.2 of the Code. A tracking warrant under s. 491.1(2) requires reasonable grounds to believe.[^33] I am satisfied that the ITO sets out sufficient grounds for the device using the 4622 number connected to Mr. El-Zahawi for the same reasons given in upholding issuance of the March warrants and production orders. In relation to the device using the 6660 number connected with Mr. Sliwinski, the grounds are even stronger in this instance given the discovery of the VW Touareg, the association between Mr. Sliwinski and Mr. Jassem and the presence of the VW Touareg at the Monte Carlo Inn.

[337] In terms of the production order in relation to the Highway 407 records for the Hyundai Elantra, the defence argues that the evidence provides at best a tangential connection between the vehicle and Mr. El-Zahawi, and between Ms. Leachman and Mr. Jassem. I disagree. Based on the totality of the evidence in the ITO, it would have been open to the issuing justice to consider the connections between the presence of the VW Touareg and the Hyundai Elantra at the Monte Carlo Inn on December 21, 2018, the fact that the police had a strong basis for concluding that the VW Touareg was used during the homicide, the Elantra was pulled over on the evening of the homicide in Cambridge, the driver indicated that the car belonged to Mr. El-Zahawi, the driver is the girlfriend of Mr. Jassem, there were three other people in the car, including two males in the back seat, and the police investigation revealed that the vehicle was leased to a company owned by someone who was in frequent contact with Mr. Vinogradsky. While each of these individual facts may not have supported issuance, the matrix of facts viewed as a whole and in context provides a sufficient basis upon which the issuing justice could conclude that the Highway 407 records for the Elantra would provide evidence relating to the homicide.

[338] I would apply the same analysis to the production order request relating to the Monte Carlo Inn records and video surveillance. Ultimately, the matrix of facts provides a basis upon which the issuing justice could conclude that the sought after registration records and video surveillance would provide evidence in relation to the homicide. The police articulate a reasonable basis to conclude that the persons they believed were connected with the homicide may have stayed at the hotel in the days prior to the homicide.

[339] As such, I am satisfied that the sought after authorizations could have issued on the basis of the ITO, as excised and amplified on review.

The June 25, 2019 Production Order Package

[340] On June 25, 2019, police obtained a package of production orders seeking phone records for the following phones/phone numbers:

a. “Abdelaziz iphone” – believed to be Abdelaziz Ibrahim;

b. “FuCkponeliVes”;

c. 0277 – Mohamad El-Zahawi;

d. 8171 – Mohamad El-Zahawi;

e. 9522 – Anita Jerjis;

f. 6963 – Gilbert Ansah;

g. 9229 – Gilbert Ansah;

h. 2453 – Said Ahmed;

i. 3829 – Kin Kloiu;

j. 0015 – James Brown;

k. 3977 – Conce Kenny;

l. 9744 – Marena Leachman; and

m. 0578 – Bob Marley (believed to be Salloum Jassem).

[341] In terms of s. 24(2) of the Charter, the defence seeks exclusion of the records obtained for the following phone numbers obtained pursuant to the June authorizations:

a. 0277 and 8171 connected to Mr. El-Zahawi;

b. 6963 connected to “Gilbert Ansah”; and,

c. 2453 connected to “Said Ahmed”, 3829 connected to “Kin Kliou”, 0015 connected to “James Brown”, and 3977 connected to “Conce Kenny”.

[342] The defence position on standing to seek exclusion of this evidence is premised on the Crown’s theory that Mr. El-Zahawi is responsible for either using and/or controlling or directing the use of all of these phones.

[343] In addition to the material excised in relation to the March ITO, the defence seeks excision of the fruits of the March warrant and production orders as well as the May warrant and production orders. As I have upheld the issuance of those warrants and orders, I decline to excise the fruits.[^34] That said, I will excise the results of the searches of the two phones seized from Mr. El-Zahawi in relation to the Cyan Lounge incident as that portion of the March warrant was severed and quashed.

[344] In terms of the particular excisions sought, in addition to material already excised previously in relation to the earlier ITOs, I excise the following:

a. Para. 14 – the reference to the fact that a confidential human source report was found on Mr. El-Zahawi’s phone and that the report appeared to have been disseminated to five people.

b. Para. 16 – the reference to 2453 (Tomes Smith), 0578 (Bob Marley) and 0277 (Ash Goan/El-Zahawi) are excised as they were only discovered through the search of Mr. El-Zahawi’s phone. I decline to excise the numbers relating to Gilbert Ansah, Ms. Leachman and Ms. Jerjis, as they were not discovered through the search of Mr. El-Zahawi’s phone. The Gilbert Ansah number was discovered through a 911 call alleged to be a false swatting call. Ms. Jerjis’ phone number was discovered through the production order for Mr. El-Zahawi’s 4622 phone.

c. Paras. 52-55 – these paragraphs detail the electronic searches of Mr. El-Zahawi’s phone seized following the Cyan Lounge incident.

d. Para. 113 – the numbers: 2453 (Said Ahmed), 0578 (Bob Marley), and 0277 (Ash Goan/El-Zahawi). I note that the balance of the numbers were discovered through the phone records for the 4622 and 6660 numbers and/or through other untainted investigative leads. I also note that the reference to the 2453 number for Said Ahmed, aka Tomes Smith, that is found at paragraph 129 appears to stem from the production order results for the 4622 number and not from the search of Mr. El-Zahawi’s devices. As such, it should not be excised.

e. Para. 126 – the reference to the 0277 number which is the number for one of the phones seized from Mr. El-Zahawi in relation to the Cyan Lounge incident should be excised as it was obtained through the search of the device. In the same paragraph, the 8171 number is not excised as it was obtained from the production order records for the 4622 number.

f. Para. 127 – the reference to Ms. Jerjis receiving a copy of the confidential human source intelligence report should be excised as it stems from the search of Mr. El-Zahawi’s phones.

g. Para. 132 – relates to the 0578 phone number connected to “Bob Marley” – knowledge of this phone came only through the search of Mr. El-Zahawi’s phone.

[345] In assessing the sufficiency of the grounds set out in the June ITO, I note that the following additional grounds were provided:

a. Paras. 57-58 – the 4622 phone records place Mr. El-Zahawi in contact with Ms. Jerjis and in the vicinity of a McDonalds restaurant where Mr. Rafipour was present mere hours before the shooting.

b. Para. 88 – two devices connected with the Human Machine Interface (HMI) on the VW Touareg on December 23 and 24, 2018. One of those phones, “Fuckphonelives”, was in contact with the Ansah 6963 number three times on the morning of the murder.

c. Para. 89 – the Highway 407 records for the VW Touareg show that it travelled from Jane Street to Highway 404 shortly before the murder.

d. Para. 93 – police believe a false 911 swatting call was made using the 6963 Ansah phone to divert police attention away from the vehicles parked at the Monte Carlo Inn on December 21, 2018.

e. Para. 100 – the Highway 407 records for the Hyundai Elantra show that it travelled from Cambridge, Ontario, to Jane Street in Vaughan, which is where the VW Touareg departed from.

f. Para. 102 – the phone records for Mr. Sliwinski’s 6660 number reveal communication with the 6963 Ansah number between December 22 and 28, 2018.

g. Para. 103 – sets out a chart of common contacts between Mr. Sliwinski’s 6660 number and Mr. El-Zahawi’s 4622 number.

h. Paras. 105-108 – records received from the Monte Carlo Inn show that Mr. El-Zahawi is present with Mr. Ibrahim, whose phone had connected to the VW Touareg. Mr. Sliwinski is also seen in the video footage. The evidence relating to the Monte Carlo Inn is significant given its proximity in time to the murder. It connects Mr. El-Zahawi to Mr. Sliwinski and Mr. Ibrahim who are both connected to the VW Touareg used in the murder. This adds further cogency to Tip #4.

[346] When I consider the entire ITO as excised and amplified, there is a robust basis on which the issuing justice could have issued the sought after production orders.

[347] In particular, there is no issue that the ITO supports issuance of the production orders in relation to the phones named “Abdelaziz iphone” and “FuCkpHonEliVes”.

[348] The 8171 number connected to Mr. El-Zahawi was discovered through the production order on his phone and is not subject to excision. Given the evidence connecting Mr. El-Zahawi to the homicide, there is an adequate basis for production of the records in relation to this phone.

[349] There is also an adequate basis for obtaining the records for the 9522 phone number connected to Ms. Jerjis. The ITO sets out that at 6:55 p.m. on December 24, 2018, while Mr. El-Zahawi is in the vicinity of Mr. Rafipour and later when the VW Touareg entered Highway 407 at 8:59 p.m., Mr. El-Zahawi is in communication with Ms. Jerjis. The timing of these communications and the related events supports a conclusion that evidence relating to the offence will be found in Ms. Jerjis’ phone records.

[350] In terms of the 6963 phone number connected to Gilbert Ansah, Mr. Sliwinski’s records show that he is in contact with this phone on dozens of occasions between December 22, 2018 and December 28, 2018, the majority of which occur on the day of the murder. As well, the 6963 phone was in contact with the “FuCkpHonEliVes” device which was connected to the HMI on the VW Touareg believed to have been used in the murder. Lastly, the 6963 phone number was used in relation to the suspicious 911 swatting call made on December 21, 2018, while police were checking licence plates at the Monte Carlo Inn. Taken together, these facts amply support issuance of a production order for this phone number.

[351] In terms of the 2453 number connected with Said Ahmed, aka Tomes Smith, the phone records show that Mr. El-Zahawi was in contact with this number in the immediate aftermath of the homicide. Even considering excision of the fact that the 2453 number was the recipient of a copy of the confidential human source report from Mr. El-Zahawi, there remains a basis for production of the phone records in relation to this phone number.

[352] In terms of the 3829 (“Kin Kliou”), 0015 (“James Brown”) and 3977 (“Conce Kenny”) phone numbers, the fact that these numbers are mutual contacts between Mr. El-Zahawi and Mr. Sliwinski provides a basis on which to order production of the related phone records.

[353] Lastly, in terms of the 9744 number connected to Marena Leachman, the matrix of facts relating to the Hyundai Elantra she is driving when stopped in Cambridge, her statement connecting the vehicle to Mr. El-Zahawi, and the timing and location of the subsequent travel to Vaughan all support a conclusion that her phone records will have evidence in respect of the offence.

[354] That said, as a result of the excision exercise, there remains no basis for the production orders in relation to the following numbers:

a. 0578 – “Bob Marley”; and

b. 0277 – Mohamad El-Zahawi.

[355] The production orders that relate to these numbers can be severed from the balance of the orders.

The October 11, 2019 Production Order Package

[356] The production order package obtained by police on October 11, 2019, relates to the production of Highway 407 records for all vehicles entering Jane Street and exiting at Highway 404 between 8:50 p.m. and 9:15 p.m. on December 24, 2018, as well as production of phone records for six telephones:

a. 6992 - “Mowgli Dapper”;

b. 5885 – “David Borke”;

c. 9899 – “Becky Rose”;

d. 0190 – “Frank Luc”;

e. 7723 – “Mickey Mouse”; and

f. 2807 – “Mark Michaels”.

[357] In terms of s. 24(2) of the Charter, the defence seeks exclusion of all the phone records obtained as well as the Highway 407 records. Apart from the “Frank Luc” phone which is alleged to have been used by Mr. El-Zahawi, the defence concedes that Mr. El-Zahawi does not have standing to seek exclusion of the remaining phone records per se, though he argues that they are derivative of breaches of his rights and therefore ought to nonetheless be excluded. In relation to the Highway 407 records, the defence argues that since records relating to a vehicle he is alleged to have driven, a red Mazda 6, were obtained under the production order, he has standing to challenge the admissibility of the evidence.

[358] In relation to the 2807 phone number connected to “Mark Michaels”, the Crown’s theory is that this is the phone used by Mr. Chung during the commission of the offence. Based on the Crown’s theory, it is conceded that Mr. Chung has standing to challenge the admissibility of these phone records. This is the sole focus of Mr. Chung’s Garofoli application.

[359] In terms of excision, the defence seeks successive excision starting with the excision sought in relation to the March 2019 search warrant and production orders, and continuing through to the fruits of the June 2019 production orders. Again, and for the reasons already provided, I decline to excise the vast majority of this evidence as it is untainted by constitutional violation. That said, I maintain the excisions I have made to the prior ITOs as tracked through to this version.

[360] Turning to the requested production orders, it is important to note that in addition to the grounds set out in the earlier ITOs, investigators had by this point also learned of the following:

a. Mr. Sliwinski’s phone records placed him in York Region in the six days leading up to the murder. His records otherwise suggested that he frequented Brantford and Hamilton. His records also showed communication with the 6963 Gilbert Ansah phone, including three occasions on December 24, 2018;

b. The 6963 Gilbert Ansah phone was activated on December 17, 2018, with a first call connecting in Brantford. The last call on that device was on December 24, 2018 at 10:07 p.m., shortly after the murder;

c. Mr. El-Zahawi was identified as the user of the 6963 Gilbert Ansah phone, through a 911 call made on December 19, 2018;

d. The 6963 Gilbert Ansah phone was also used to make a 911 call on December 21, 2018. Investigators believe that this was a false call made for diversionary purposes;

e. The top contacts for the 6963 Gilbert Ansah phone include 2807 Mark Michaels (the phone associated with Cory Chung), and 9899 Becky Rose (a phone associated with Mr. Chung’s girlfriend, Jessica Gortych);

f. Communication between the 6963 Gilbert Ansah phone and the 2807 Mark Michaels phone on December 24, 2018 shows relevant travel towards the scene of the murder and towards the scene where the VW Touareg was later recovered;

g. Ms. Leachman is in communication with the 9899 Becky Rose phone (associated with Mr. Chung’s girlfriend, Jessica Gortych);

h. The phone records show that the 6963 Ansah phone, the 4622 El-Zahawi phone and the Leachman phone, were in an area proximate to Highway 407 and Jane Street between 8:40 p.m. and 8:55 p.m.;

i. Mr. Sliwinski was arrested on unrelated charges and gave statements to police. In his statements he described driving a VW Touareg or Tiguan while following a Corvette driven by a “Russian mob figure.” He described “Z” as a black male in his 20’s or 30’s who lived in Hamilton. Based on information known, police believed “Z” was Abdelaziz Ibrahim. Mr. Sliwinski also explained that he was to be paid $10,000 as the driver and that “Z” was to be paid $50,000 as the shooter. Lastly, Mr. Sliwinski mentioned a Marriott Hotel in Vaughan that was used as a base of operations.[^35]; and

j. Police believed that the Monte Carlo Inn in Vaughan was the hotel Mr. Sliwinski was referring to. They had already obtained records from the hotel relating to Mr. Ibrahim.

[361] In terms of the specific production orders sought, I note that at paragraphs 102 to 104 of the ITO, the affiant sets out the patterns of communication between the 6963 Gilbert Ansah phone and the various phones that are the subject of the production orders. The communications relate to the time frame of 6:31p.m. and 10:07 p.m. on December 24, 2018, which is the time frame before and immediately after the homicide. The cell tower locations for the communications closest in time to the homicide are shown at paragraphs 105 and 106 of the ITO. Communications between Ms. Leachman and the Becky Rose phone on December 24, 2018 are shown in para. 107. The cell tower locations for Ms. Leachman, Mr. El-Zahawi, the Gilbert Ansah phone and the Highway 407 records for the Hyundai Elantra, are plotted on a map contained at para. 108.

[362] At paragraph 121 of the ITO, the affiant also sets out a timeline of key events which includes a detailed description of the nature and timing of various communications between the known parties and the identified phone numbers.

[363] The 7723 Mickey Mouse number was a mutual contact with Mr. El-Zahawi, Ms. Leachman and Gilbert Ansah. This number was in contact with Gilbert Ansah less than 30 minutes before the murder.

[364] The 6992 Mowgli Dapper phone is the top contact in Gilbert Ansah’s phone records and was in contact on the day of the murder. This number was also in contact with Mr. Sliwinski.

[365] The 5885 David Borke number is a mutual contact between Gilbert Ansah, Mr. El-Zahawi and Mr. Sliwinski.

[366] The 9899 Becky Rose number was a common contact between Gilbert Ansah, Mr. Sliwinski, Ms. Leachman and Kin Kloiu. This number was in contact with both Ms. Leachman and Gilbert Ansah on the day of the homicide, including a communication one minute before the murder.

[367] Lastly, the 0190 Frank Luc number was active between December 20, 2018 and June 23, 2019. The phone number was a mutual contact of Mr. El-Zahawi and Mr. Sliwinski and was in contact with Gilbert Ansah. The Frank Luc number was also used to make a 911 call on December 22, 2018 reporting a complaint of a person pointing a firearm from a vehicle. The licence plate for the vehicle was registered to Toronto Medical Clinic, a business owned by Serge Manukian, an associate of Soheil Rafipour’s.

[368] When the ITO is considered as a whole, I am readily satisfied that the ITO provides a basis upon which the issuing justice could issue the production orders sought in relation to the records for the identified phone numbers.

[369] I reach the same conclusion in relation to the Highway 407 records sought for the specific date, times and locations. The ITO at paragraphs 142-145 sets out a compelling basis to believe that a second vehicle was involved, and likely would have travelled in unison on Highway 407 along with the VW Touareg which used during the murder and later dumped off after the murder.

Mr. Chung’s Garofoli Application – 2807 - Mark Michaels

[370] Mr. Chung’s Garofoli application is entirely contingent on the success of Mr. El-Zahawi’s successive Garofoli challenges. If, as I have found, Mr. El-Zahawi is unsuccessful in his Garofoli applications, Mr. Chung concedes that there exists a lawful basis for obtaining the phone records for the 2807 Mark Michaels phone. Had I found that Mr. El-Zahawi was successful in his Garofoli challenges, I would have been required to address the complicated issue of standing for the purpose of excision (as opposed to exclusion of evidence under s. 24(2) of the Charter).[^36]

[371] Based on the findings set out in relation to Mr. El-Zahawi’s Garofoli application in relation to the March, May, June and October 2019 ITOs, Mr. Chung’s Garofoli is dismissed. As conceded, there was a sufficient basis upon which the issuing justice could order production of the 2807 Mark Michaels phone records. The concession was fairly made. The 2807 phone number was discovered through the records obtained for the 6963 Gilbert Ansah phone using the production order obtained in June 2019. When those records were reviewed, it was revealed that the 2807 Mark Michaels phone was in contact with the 6963 Gilbert Ansah phone around the time of the murder on December 24, 2018. The 2807 Mark Michaels phone was also the fifth highest frequency contact on the 6963 Gilbert Ansah phone and was also a mutual contact with Ms. Leachman, “Kin Kloiu” and the 6963 Gilbert Ansah phone.

[372] I will add that had the production order for the 2807 Mark Michaels phone number not survived a Garofoli review, I would nonetheless have admitted the evidence. The nature of the police conduct that resulted in the Charter violation would be at the lower end of the scale, essentially a matter of falling short on grounds as opposed to some other form of intentional or deliberate misfeasance. The nature of the Charter violation that resulted in the production order failing the review would have been entirely unrelated to Mr. Chung, as it would have stemmed from the Garofoli review in relation to phone records connected to Mr. El-Zahawi. The phone records obtained through the production order could have been obtained using a less rigorous standard for issuance, which reflects the more limited expectation of privacy that exists with these records. As such, the impact on Mr. Chung’s Charter protected interest would have been slight. Lastly, the exclusion of the evidence would have terminated the prosecution against Mr. Chung.

The December 13, 2019 Production Order Package

[373] The production order package obtained on December 13, 2019, relates to the following records, inter alia:

a. Phone records for the “Van Dam” device, the “Jacky Chan” phone and the “Rebecca Rose” phone; and,

b. Highway 407 records for a red Mazda 6 rented in Anita Jerjis’ name.

[374] In terms of s. 24(2) of the Charter, the defence seeks exclusion of the above listed evidence. The defence argues that standing to seek this exclusion stems from the Crown’s theory of the case which includes the position that the red Mazda 6 was the vehicle used by Mr. El-Zahawi at the time of the murder, and that the phones are all phones he had some role in either using or controlling.

[375] Again, the defence position is that successive excision is required, starting with the excision sought in relation to the March 2019 search warrant and production orders and continuing through to the fruits of the October 2019 production orders. Again, and for the reasons already provided, I decline to excise the vast majority of this evidence as it is untainted by constitutional violation. That said, I maintain the excisions I have made to the prior ITOs as tracked through to this version. I also extend excision to additional paragraphs that contain additional information stemming from already excised portions.[^37]

[376] In terms of the development of grounds, by this point in time the investigation had matured significantly. The ITO sets out an extensive body of evidence that amply supports the investigative theory that Mr. Rafipour was the subject of electronic and physical tracking in the days before his murder. The tracking was done by Mr. Sliwinski and Mr. Ibrahim. The police also came to believe that a tracking device had been placed on Mr. Rafipour’s Corvette. The device was identified as having the 0136 number with a subscriber name of “Van Dam.” The 0136 phone number was listed in Mr. Ibrahim’s contact list as “GPSK.” Between December 22 and December 25, 2018, Mr. Sliwinski’s and Mr. Ibrahim’s phones contacted the 0136 Van Dam device 351 times, 334 of these communications took place between December 22 and 23, 2018, when Mr. Ibrahim, Mr. Sliwinski and Mr. Rafipour were in the same geographical vicinities. Mr. Sliwinski and Mr. Ibrahim also communicated with a second device, 0015 “James Brown”, which was listed in Mr. Ibrahim’s contacts as GPS1. Police believed that this second device was also a GPS device, perhaps used to track one of Mr. Rafipour’s associates.

[377] The evidence also revealed that the 0190 Frank Luc phone contacted the Van Dam device 76 times on the day of the murder, including minutes before and after the murder. The Van Dam device was the highest frequency caller on the Frank Luc phone. As well, at 9:40 p.m. on December 24, 2018, approximately 10 minutes after the murder, the Frank Luc phone connected to a cell site located at 39 Crosby Avenue in Richmond Hill. The VW Touareg was eventually recovered from 112 Crosby Avenue.

[378] Based on phone record comparisons for the 0190 Frank Luc, 6963 Gilbert Ansah and 4622 El-Zahawi phones, investigators concluded that the three phones were consistently in the same locations when communications occurred supporting an inference that they were used by the same person, Mr. El-Zahawi.

[379] The Highway 407 records showed that the VW Touareg and the red Mazda 6 travelled in tandem from Jane Street to Highway 404 immediately prior to the murder. Video footage from the scene of the murder depicts a red vehicle consistent with Mazda 6 in the neighbourhood minutes before the murder.

[380] A succinct summary of the grounds relating to specific production orders sought are set out in paragraphs 164 and 165 of the ITO. The affiant sought the records for the Van Dam and Jacky Chan devices as they believed these devices were used as GPS trackers. Detailed grounds were provided in relation the Van Dam device. While the grounds were not as detailed in relation to the Jacky Chan device, the affiant outlined a basis for concluding that it too was a GPS device. In terms of the Rebecca Rose phone, the affiant learned that it was a second phone connected to the “Becky Rose” phone they had already obtained records for. Taken together, the grounds amply justify issuance of the production orders requested.

[381] I reach the same conclusion in relation to the Highway 407 records for the Mazda 6. The investigators already received Highway 407 records showing that the Mazda 6 travelled in unison with the VW Touareg across Highway 407 shortly before the murder. They were now looking for records memorializing the return trip. Again, the ITO amply supports the issuance of this production order.

[382] As a result, I am satisfied that the issuing justice could have issued the December 2019 authorizations.

Exclusion of Evidence Under s. 24(2) of the Charter

[383] In view of my findings on the Garofoli review, I need not consider exclusion of the impugned evidence under s. 24(2) of the Charter. However, in the event that I am wrong on aspects of the Garofoli review, I add the following findings and analysis.

[384] In terms of standing to seek exclusion, I am generally satisfied that Mr. El-Zahawi has standing to seek exclusion of the impugned evidence, with a few possible exceptions:

a. The hotel security camera footage from the Monte Carlo Inn. There is a real issue as to whether Mr. El-Zahawi would have a reasonable expectation of privacy in relation to security camera footage taken in the public areas of a hotel he happens to attend. The public area of a hotel is not analogous to the semi-private common areas of a multi-residential unit, see R. v. White, 2015 ONCA 508, and R. v. Latimer, 2020 BCSC 488, at para. 161.

b. The 2807 Mark Michaels phone records, which were the subject of Mr. Chung’s Garofoli application.

c. The phone records for 2453 - “Said Ahmed”, 3829 - “Kin Kliou”, 3977 - “Conce Kenny”, “Rebecca Rose”, 9899 - “Becky Rose”, 6992 - “Mowgli Dapper”, 5885 - “David Borke”, and 7723 - “Mickey Mouse.” There is a real issue as to whether R. v. Jones, 2017 SCC 60, supports a finding of a reasonable expectation of privacy on behalf of Mr. El-Zahawi in relation to call records revealed by production orders relating to phones used by persons other than Mr. El-Zahawi, even where the call records may reveal communication with him.

[385] The issue of standing was not fully addressed in submissions and, as a result, I will not finally decide the issue. Even assuming that Mr. El-Zahawi had an expectation of privacy in the above-noted evidence, that expectation of privacy would have been at the low end of the spectrum in view of the nature of the records obtained and the information revealed therein.

[386] In terms of the first line of the Grant inquiry, I accept the Crown’s submission that the police conduct demonstrated in relation to the Cyan Lounge incident did not carry through to the judicial authorization process in relation to the subsequent portion of the homicide investigation. The police obtained approximately 38 judicial authorizations. The ITOs for the subject authorizations considered on this Garofoli motion were not perfect, but any mistakes made were honest and minor. The affiant understood the need to make full, fair and frank disclosure. There was no attempt to subvert the process or mislead the issuing justice. To borrow from R. v. Rocha, at para. 28, the authorization process followed by investigators in this case was the “antithesis of wilful disregard of Charter rights.”

[387] As well, I note that the core evidence sought to be excluded by the defence are the phone records for the 4622 phone connected to Mr. El-Zahawi. Even if the March ITO fell just shy of establishing “reasonable grounds to believe” that these records would provide evidence in relation to the homicide, there is no issue that the lesser standard of “reasonable grounds to suspect” was amply met. The police could have obtained the same records using the lower standard. The same issue arises with the subsequent production order requests in relation to the other phone records. In these circumstances the seriousness of the violations is significantly diminished, see R. v. Mahmood, at para. 136.

[388] In terms of the second line of the Grant inquiry, I note that the impact on Mr. El-Zahawi’s Charter protected interests is not significant. The evidence obtained was mainly comprised of cell phone usage records for phones used by Mr. El-Zahawi, Highway 407 usage records for vehicles connected to Mr. El-Zahawi, hotel records and the phone records for phones Mr. El-Zahawi was in contact with. These are all records over which there exists a reduced expectation of privacy. Put another way, the evidence obtained was not situated at the core of biographical data which attracts the highest expectation of privacy.

[389] While I must also consider the impact of the Cyan Lounge Charter breaches in assessing this line of inquiry, I note that those breaches have already been vindicated by the exclusion of all of the utterances and statements, as well as the exclusion of the cell phones and related extraction reports. While the impact of the Cyan Lounge breaches is not “spent” per se, it does not add much to the impact of the s. 8 violations in relation to the judicial authorizations, had I found such violations, see R. v. Hamouth, at para. 45.

[390] Lastly, in terms of the third line of inquiry, there is no issue that there exists a high societal interest in a trial on the merits. The exclusion of the evidence obtained, especially the 4622 phone records, would likely terminate the prosecution of Mr. El-Zahawi. Excluding this evidence would exact too great a tool on the truth-seeking function of the trial process. This point is all the more strengthened when the exclusion of the Cyan Lounge evidence is considered, see R. v. Hamouth, at para. 47.

[391] Ultimately, in balancing the three lines of the Grant inquiry, I would not have excluded the remaining evidence obtained through the judicial authorizations.

Conclusions

[392] As set out in these reasons, I have reached the following conclusions:

a. In relation to the Cyan Lounge investigation, all statements and utterances made by Mr. El-Zahawi following his arrest are excluded. The two cell phones seized from Mr. El-Zahawi at the time of his arrest are also excluded. The extraction reports relating to the contents of the phones later obtained pursuant to the March 2019 warrant and production order package are also excluded.

b. The lost evidence motion relating to the Corvette is granted. The appropriate remedy is a jury instruction.

c. Mr. El-Zahawi’s Garofoli application is dismissed and the evidence obtained from the various warrants and production orders is admissible, except for the evidence obtained from the cell phones seized from Mr. El-Zahawi which, as indicated, is excluded.

d. Mr. Chung’s Garofoli application is dismissed and the evidence from the 2807 Mark Michaels phone records production order is admissible.

[393] In closing, I would be remiss if I did not acknowledge that throughout these lengthy and complex pre-trial motions, all counsel demonstrated an exceptionally high degree of skill, knowledge and professionalism. Their efforts stand as a credit to the profession.

Justice J. Di Luca

Release Date: January 11, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

MOHAMAD EL-ZAHAWI and CORY CHUNG

Defendants

RULING ON PRE-TRIAL MOTIONS

Justice J. Di Luca

Released: January 11, 2024

[^1]: Counsel also raised a possible challenge to the lawfulness of obtaining Mr. El-Zahawi’s cell phone number from his then girlfriend and bail surety, Ms. Anita Jerjis. The challenge was ultimately not pursued.

[^2]: Some aspects of the evidence presented significant forensic challenges. In particular, during the early stages of the investigation, investigators received a multitude of different tips from anonymous sources as well as “carded” confidential human sources. The tips were received by a number of police services and resulted in a large number of investigative reports and entries in police officers’ notebooks. Cross-referencing the information presented significant logistical challenges. As well, one significant aspect of the pre-trial motions involved ascertaining Mr. El-Zahawi’s status in relation to the murder investigation. In other words, whether at the time of the Cyan Lounge arrest and statements, the investigators viewed Mr. El-Zahawi as a suspect in the Rafipour homicide or simply a “person of interest.” The examination and cross-examination on this topic raised significant informer privilege issues which resulted in obvious evidentiary challenges. The agreements reached by counsel thankfully resolved the bulk of these challenges.

[^3]: Following Mr. El-Zahawi’s release on bail in relation to the Cyan Lounge incident, Det. Blenkhorn also received the same number from Mr. El-Zahawi’s then girlfriend and surety, Ms. Jerjis.

[^4]: A “ping” is a process whereby a telco provider obtains a real-time GPS coordinate for a device subscribed to their services.

[^5]: This pseudonym was used in court to protect the officer’s identity as he remains engaged in undercover work for YRP. The officer’s actual name was provided to the Registrar in writing and sealed during the administration of the oath. Various other steps were taken as described in the Order that issued following the Crown’s motion for measures to protect the identity of the undercover officer.

[^6]: By agreement between counsel, once the parties arrived at the agreed statement of fact in relation to the various Charter issues, the cross-examination of Det. Gilmour was terminated. The cross-examination of Det. Gilmour on her knowledge and beliefs regarding Mr. El-Zahawi’s alleged role in the homicide presented significant challenges as her knowledge and beliefs were based, in large part, on a number of anonymous and known confidential human sources who gave information during the early stages of the investigation. The agreement in relation to the Charter issues was arrived at while counsel and the court were engaged in reviewing edits to certain items of disclosure, including Det. Gilmour’s notes and various confidential human source reports.

[^7]: A “swatting call” is a false call placed to 911 geared towards diverting police officers to or away from a desired location.

[^8]: Investigators were also pursuing other theories, such as the possibility that Mr. Rafipour was simply followed to the destination by his killers.

[^9]: The Crown does not concede that Mr. El-Zahawi’s access to counsel should have been facilitated at the roadside while waiting for transport to 2 District of YRP. In other words, the Crown does not concede that the failure to comply with the implementational component commenced at the roadside.

[^10]: This admission does not extend to an admission of “unacceptable negligence” as discussed in s. 7 lost evidence Charter jurisprudence.

[^11]: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236. A Propser warning is required where a detainee who has previously indicated a desire to speak with counsel, changes their mind before speaking with counsel. In such circumstances, the police are required to tell the detainee of their right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until they have had that reasonable opportunity.

[^12]: While two phones were seized from Mr. El-Zahawi, it appears that the phone using the 0277 number revealed no evidence relevant to the murder. As such, the focus of submissions was on the phone using the 4622 number.

[^13]: I note that in R. v. Zacharias, 2023 SCC 30, the Supreme Court recently discussed the approach to take in assessing consequential Charter breaches. As I am satisfied that the breaches in this case are essentially independent Charter breaches, the approach directed in this decision does not apply.

[^14]: This application was brought by Mr. El-Zahawi. Mr. Chung also filed a notice of application and essentially adopted the submissions made on behalf of Mr. El-Zahawi.

[^15]: I note that the Crown eventually abandoned efforts to qualify an expert in relation to the patterns of communication observed in the cell phone records for the Van Dam device. As such, this aspect of the remedy sought is moot.

[^16]: The language used in the production order context is “will afford evidence respecting the commission of the offence.” The difference in language appears to be of no moment.

[^17]: I also note that there is also caselaw that extends the concept of excision to include evidence that is derivative of evidence obtained from a Charter violation, see also R. v. Lambert, 2020 NSPC 37, at paras. 230-235, R. v. Ahmad, [2009] O.J. No. 6159 (Ont. Sup. Ct.), and R. v. Newman, 2014 NLCA 48.

[^18]: This is within the context of unlawfully obtained evidence. Excision is also regularly used to address erroneous and/or misleading evidence in an ITO.

[^19]: During the course of submissions, Crown counsel confirmed that the known confidential human sources relied upon in the ITOs for the Rafipour homicide are not the same as those involved in Project Platinum, see R. v. Khamo, 2023 ONCA 614 (and the unreported decisions discussed therein; R. v. Jassem and R. v. Vinogradsky), and see R. v. El-Zahawi, 2023 ONSC 2686. As such, the disclosure issue that resulted in the termination of those prosecutions does not arise here.

[^20]: During the course of submissions, the acronym “KBRO” was offered by defence counsel. While the Crown’s version, described as “KBNRO” in the written materials, was perhaps a more accurate acronym, ease of pronunciation resulted in “KBRO” gaining acceptance.

[^21]: During the course of the Step 2 Disclosure motion, the unredacted Appendix A for each of the ITOs was provided to the court as sealed Exhibit I. Included in this material is the unredacted KBRO. As a result of the Step 2 process, the defence was provided, to the extent possible, a summary of the redactions.

[^22]: Exhibit J is a sealed binder of information containing all the various Confidential Human Source Reports and Tip Sheets in both redacted and unredacted (post-Step 2) form, along with summaries of redactions. The defence, in Exhibit M, was provided the redacted documents and related summary of redactions, though not the unredacted documents. Exhibit J contains the Appendices related to the five tips referred to in the ITOs, along with the related background documents. Exhibit J also contains certain Intelligence Reports which were known to Det. Gilmour and which correlate to Tips #4 and #5 as set out in the ITOs. Lastly, it also includes Intelligence Reports which were known to Det. Gilmour but not known or relied upon by the affiant, Det. Harper.

[^23]: The nature of the occasion was redacted on the basis that it could reveal the identity of the informant.

[^24]: A summary of the document was provided to defence counsel and filed as Exhibit R.

[^25]: Had the police resorted to ss. 487.016 and 487.017 to obtain transmission data and tracking data production orders, it would have been open to them to use an assistance order linked to the transmission data recorder warrant obtained pursuant to s. 492.2 of the Code to compel production of subscriber information, see R. v. Telus Communications Co., 2015 ONSC 3694, H.M.Q. and Telus Communications Company, 2015 ONSC 3072 and Reference re Criminal Code, s. 487.016, 2015 ABPC 178.

[^26]: The police are to be held to the standard of the investigative technique of their choosing, see R. v. Jodoin, 2018 ONCA 638, at para. 14. That said, the fact that they would have satisfied the lower standard and therefore otherwise obtained the same evidence lawfully is properly a factor to consider on a s. 24(2) analysis, see R. v. Mahmood, at para. 136.

[^27]: This fact was included by way of amplification.

[^28]: The Crown resorted to Step 6 in order to have the court consider the unredacted criminal record information on review.

[^29]: I note that I have already excluded the content of the phones seized from Mr. El-Zahawi as a result of the Cyan Lounge related Charter violations.

[^30]: The defence seeks a finding that Mr. Sliwinski’s phone records were unlawfully obtained under this production order. There is an interesting issue regarding Mr. El-Zahawi’s standing to allege that Mr. Sliwinski’s phone records were unlawfully obtained. The caselaw on standing for the purpose of excision is deeply divided, see inter alia, R. v. Kang, R. v. Colegrove, 2022 NSSC 132, R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225 (Ont. C.A.), R. v. Guindon, 2015 ONSC 4317, R. v. Hamid, 2019 ONSC 5622, R. v. Vickerson, 2018 BCCA 39, R. v. Brounsuzian, 2019 ONSC 4481, R. v. Abdullahi, 2014 ONSC 6036. I need not decide this issue as I am amply satisfied that the ITO sets out a sufficient basis upon which Mr. Sliwinski’s phone records could be obtained.

[^31]: Mr. El-Zahawi argues that he has standing to seek exclusion of the Highway 407 records in relation to the Hyundai Elantra as the Crown’s theory is that Mr. El-Zahawi “rented” the vehicle for Ms. Leachman. He also argues that he has standing to seek exclusion of the Monte Carlo Inn surveillance videos which show him at the hotel, though he concedes that he does not have standing to seek exclusion of the guest registration records in Mr. Ibrahim’s name.

[^32]: The Crown filed a very helpful Table of Concordance as Appendix D to its written submissions on the Garofoli motion. This table tracks the migration of various paragraphs of the March 2019 ITO through the later ITOs.

[^33]: Section 492.2(1) and (2) contain different standards for issuance. Where the item to be tracked is something that is usually carried or worn by an individual, the higher standard of reasonable grounds to believe is required.

[^34]: This includes paragraphs 57-63 which set out the results of the 4622 production order and correlates that evidence to locations where Mr. Rafipour was located prior to his death, and to other relevant locations. It includes paragraphs 89 and 90 which relate to the Highway 407 records for the VW Touareg and paragraph 100 which relates to the Highway 407 records for the Hyundai Elantra. It also includes paragraphs 101-102 which detail the results obtained from the production orders for Mr. Sliwinski’s 6660 phone. Lastly, it includes paragraphs 106-108, 110b and c, which detail the results of the Monte Carlo Inn production order.

[^35]: In his second statement, Mr. Sliwinski recanted much of what he told police initially, though he confirmed that he followed a person who was driving a Corvette and believed there was a tracking device on the car. He also confirmed that he drove a vehicle that had a V-10 and “Lamborghini DNA”. The affiant notes that Lamborghini and Volkswagen are owned by the same company.

[^36]: See footnote 30 above which sets out the conflicting caselaw on this issue.

[^37]: For example, paragraph 55 of the ITO, which contains additional information gleaned from the extraction reports prepared during the search of Mr. El-Zahawi’s phone.