Court File and Parties
COURT FILE NO.: CR-23-40000589-0000 DATE: 20241115
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – TAFARI BEZABEH Applicant
Counsel: Frank Schembri and Ovais Ahmad, for the Crown Dirk Derstine and Jocelyn Heaton, for the Applicant
HEARD: November 12, 2024
M.A. Code J.
Reasons for Judgement on s. 8 Charter Motion
A. Overview
[1] The accused Tafari Bezabeh is charged with first degree murder and attempt murder in relation to two separate shooting incidents that occurred on June 19, 2022 in Toronto. The two shootings are closely connected by time, place, and circumstance. Two other co-accused, Jalen Campbell-Brown and Justin Harker, were charged with the same offences. I ordered severance of Campbell-Brown’s trial, due to delay issues. The joint trial of Bezabeh and Harker is scheduled to begin with jury selection on November 19, 2024.
[2] I heard a s. 8 Charter of Rights pre-trial motion brought by Bezabeh on November 12, 2024. The motion challenged the facial sufficiency of two affidavits filed in support of two search warrants that were executed by Toronto homicide officers. The warrants authorized the search of a residence in London, Ontario and the search of a car parked in the driveway of that residence. The warrant for the residence was executed on July 8, 2022, less than three weeks after the two shooting incidents had taken place in Toronto. The warrant for the car was executed shortly afterwards. Both warrants resulted in relevant seizures.
[3] The s. 8 pre-trial motion seeks a determination as to whether the two warrants were facially insufficient and, therefore, violated the rights of Bezabeh, and whether the evidence seized should be excluded. Bezabeh was the only one of the three co-accused who was found and arrested in the London residence at the time of the search. The other two co-accused had been arrested in Montreal on July 2, 2022, six days before the first London search warrant was executed. At the end of oral argument of the s. 8 motion, I dismissed it with reasons to follow. These are my Reasons for Judgement.
B. Facts
(i) Introduction
[4] As noted above, the only issue raised on the s. 8 motion is the facial sufficiency of the two search warrant affidavits. There is no sub-facial attack on the accuracy or completeness of the information set out in the affidavits. As a result, the only facts relevant to the s. 8 motion are those set out in the two lengthy affidavits prepared and sworn by Det. Nair of the Homicide Squad. The first affidavit is just over 80 pages in length. It sets out the history of the investigation in considerable detail and seeks authorization to search the London residence. When the warrant for the residence was executed on July 8, 2022, the officers found a grey Mazda parked in the driveway of the residence. The second affidavit was then prepared by Det. Nair. It is identical to the first affidavit except that about six pages have been added. These additional pages relate to observations of the Mazda made by surveillance officers. In addition, the seizures made at the residence were summarized. This second affidavit is 86 pages in length.
[5] As noted above, the first affidavit sets out the approximately three week history of the homicide investigation, between the June 19, 2022 shooting incidents in Toronto and the July 8, 2022 execution of the search warrant at the London residence. I will summarize the parts of this investigative history that are most relevant to the grounds for searching the London residence.
(ii) The two shootings and the Chevrolet Equinox vehicle
[6] The first shooting on June 19, 2022 took place at about 4:17 p.m. Gunshots were fired from the driver’s side of a motor vehicle on Amaranth Court. The victim of the shooting, David Joseph, suffered three gunshot wounds but he survived. The police found 15 cartridge casings at the scene. Most importantly, the police obtained video surveillance of the suspect vehicle on Amaranth Court, shortly before the shooting. Good quality stills from this video were included in the search warrant affidavit. They show a four door Chevrolet with license plate CTSD 309. That license plate belonged to a white BMW X3. When the police attended at the address associated with this white BMW X3, they found the car and saw that it had no license plates. It could be inferred from further investigative steps (set out below) that the perpetrators of the Amaranth Court shooting had stolen the license plates from the BMW and placed them on the Chevrolet.
[7] The second shooting on June 19, 2022 took place at about 4:23 p.m., a few minutes after the first shooting. The location of this second shooting was on Lotherton Pathway, which runs west off Caledonia Road. Eyewitnesses and dashcam video showed or described a Chevrolet with the same license plate CTSD 309 driving on Lotherton Pathway at the time of the shooting. Three black male suspects exited from the vehicle and fired numerous shots at the victim, Jaron Williams. One of the suspects had a gun with an extended magazine. The driver of the vehicle was a white male and there appeared to be a fourth passenger in the back seat who did not exit at the time of the shooting.
[8] The police obtained video surveillance of the vehicle and of the shooting on Lotherton Pathway. The surveillance images show a four door Chevrolet Equinox and also show three male suspects exiting from the two rear doors and from the front passenger side door. Descriptions of the clothing worn by these three suspects were set out in the search warrant affidavit and still images of the suspects were included. All three suspects fired guns at the victim. The driver of the vehicle never exited. After the suspects returned to the vehicle, it was driven away. The victim of this second shooting, Jaron Williams, died from multiple gunshot wounds. The police found numerous cartridge casings and projectiles at the scene. The colour of the Chevrolet was described as beige or champagne or gold.
(iii) The police find the Chevrolet Equinox and link it to a black SUV
[9] On June 20, 2022, the day following the two shootings, the Toronto police issued a news release. It stated that there were “potential links” between the two shootings and that “the suspect vehicle fleeing the area” was a “beige/champagne coloured Chevrolet Equinox”. That same day, officers found a “gold coloured” Chevrolet Equinox parked on Norval Street in Toronto. It had no license plates. The homicide investigators learned that this car had been reported stolen on May 23, 2022, that is, about a month prior to the two shootings. The license plate for the car at the time of its theft was CDSL 064. It could be inferred from further investigative steps (set out below) that the perpetrators of the two shootings had removed the license plates from the stolen Chevrolet Equinox, replaced them with license plates stolen from the BMW, and then removed the stolen BMW plates from the Chevrolet after the two shootings (leaving the Chevrolet without any license plates).
[10] The finding of the Chevrolet Equinox on Norval Street led to a particularly important development in the police investigation of the two shootings. On June 21, 2022, two days after the shootings, the police investigators conducted a canvass for video surveillance on Norval Street during the time frame between 4:30 and 5:00 p.m. on June 19, 2022. This was shortly after the two shootings had taken place at about 4:17 and 4:23 p.m. The police obtained video surveillance images showing the following:
- at 4:42 p.m., the Chevrolet Equinox drove north on Norval Street from Henrietta Street and parked;
- one minute later, at 4:43 p.m., the driver of the Chevrolet exited and walked to a black SUV that had reversed on Henrietta Street and was now reversing northbound on Norval Street;
- this driver of the Chevrolet twice walked back and forth between the driver’s side of the two vehicles, including once after an occupant of the black SUV could be heard on the surveillance audio track asking the driver of the Chevrolet “you got my phone?”;
- the black SUV parked on Norval Street, while a passenger exited from the rear driver’s side of the Chevrolet, walked to the rear passenger side of the black SUV, and entered the SUV (his clothing was described in some detail in the search warrant affidavit and it arguably resembled the clothing of the suspect who had emerged from the rear driver’s side of the Chevrolet at the time of the Lotherton Pathway shooting);
- another passenger in the Chevrolet then exited from the passenger side of the vehicle, walked to the black SUV, and entered its rear passenger side at 4:44 p.m. (his clothing was also described in some detail and arguably resembled the clothing of the suspect who had emerged from the rear passenger side of the Chevrolet at the time of the Lotherton Pathway shooting);
- also at 4:44 p.m., the driver of the Chevrolet removed the vehicle’s rear license plate and placed it in the trunk of the black SUV (his clothing was also described in considerable detail);
- another passenger in the Chevrolet exited from the passenger side of the vehicle and entered the rear driver’s side of the black SUV (there was less detail concerning his clothing but there were two possible similarities to the mask and clothing worn by the suspect who had emerged from the front passenger side of the Chevrolet at the time of the Lotherton Pathway shooting);
- finally, at 4:44 p.m., the driver of the Chevrolet entered the front passenger seat of the black SUV and it drove away southbound on Norval Street.
[11] From the totality of the above video evidence, it was apparent that four occupants of the stolen Chevrolet Equinox (a driver and three passengers) exited from that vehicle after it parked on Norval Street shortly after the two shootings. These four suspects all entered a black SUV and were driven away by a fifth suspect. That fifth suspect had reversed the black SUV northbound on Norval from Henrietta, stopped it to allow the other four to enter, and then the black SUV was driven away. The black SUV headed back to the south towards Henrietta Street. The Chevrolet Equinox was left parked on Norval Street without any license plates, where the police found it the following day.
(iv) The police identify the black Ford Escape SUV and further connect it to the two shootings
[12] The next significant development in the investigation was a video canvass conducted by the police in order to discover the identity and movements of the black SUV that had driven away southbound on Norval Street at 4:44 p.m. on June 19, 2022. The investigators obtained video surveillance showing a black SUV turning from Henrietta Street onto Runnymede Road and heading south at approximately 4:52 p.m. on June 19, 2022 (this time has been corrected to some extent because of inaccuracies in the original recording). Most importantly, the license plate of this black SUV can be seen in the surveillance on Runnymede Road. It is CVKV 443.
[13] In light of the above evidence identifying a second vehicle that was apparently used in the shootings as a “getaway” car, the homicide officers conducted an extensive investigation of that second vehicle. I need not summarize this part of the investigation in any great detail. It covers about 20 pages in the search warrant affidavit. In brief summary, the black vehicle was a Ford Escape SUV. The vehicle and/or its registered owner (one Shakaya Amos) had been connected to various police investigations in Sarnia, Tecumseh, Windsor, and Waterloo. More importantly, an extensive video surveillance canvass of the vehicle’s movements in Toronto on the date of the shootings revealed apparent coordination between the black Ford Escape SUV and the gold/beige Chevrolet Equinox. In particular, two occupants of the Ford entered a Dollarama store at 2:54 p.m. and then one of the passengers hopped a fence behind the Dollarama before getting back into the Ford. It then drove to St. Clair Avenue West, meeting up with the Chevrolet. The two vehicles drove into a Petro Canada gas station on St. Clair Avenue West where the two vehicles can be seen side by side at the gas pumps at 3:22 p.m. Some of the occupants of the two vehicles were interacting at the gas station. The two vehicles then drove to a plaza on Hagar Street and parked at 3:30 p.m. The driver of the Ford got into the Chevrolet at 3:31 p.m. The Chevrolet then drove away from the plaza at 3:47 p.m., leaving the Ford parked in the plaza. By 4:03 p.m., the Chevrolet was in the vicinity of the shootings which were to take place during the next 20 minutes. After the shootings, the two vehicles met up at 4:41 p.m. on Norval Street, as previously described. Finally, the Ford was last seen southbound on Runnymede at 4:55 p.m.
[14] All of the above movements of the two vehicles, before and after the two shootings, not only inferred coordination in relation to the shootings. The surveillance also provided additional images of some of the occupants of the vehicles and their clothing.
(v) The police find the Ford Escape SUV in Montreal and arrest two suspects
[15] About two weeks after the two shootings, on July 2, 2022, the police found the black Ford Escape SUV with license CVKV 443. It was observed by police officers in Montreal and its two occupants, Justin Harker and Jalen Campbell-Brown, were arrested for the present murder. Articles of clothing relevant to the Toronto investigation were seized from both individuals. In addition, Harker was in possession of a car key to the Chevrolet Equinox and Campbell-Brown was in possession of a car key to the Ford Escape. Finally, Campbell-Brown gave a cautioned recorded statement on arrest advising the police that he met Harker at an address in London, Ontario where he and Harker had stayed for “a couple of weeks”. That address in London was 1195 Blackwell Boulevard. Campbell-Brown described it as a “bed and breakfast type place.”
(vi) The police confirm the above connection between the London address and the investigation
[16] The above developments in the investigation in Montreal on July 2, 2022, led to the final important body of evidence that is set out in the search warrant affidavit. On July 7, 2022, the Toronto homicide officers attended at the 1195 Blackwell address in London. They conducted a video surveillance canvass and found a camera that provided a street view that included the townhouse located at the address in question. The officers reviewed video from June 19, 2022, after 6:30 p.m. That time frame was based on the last observations of the black Ford SUV in Toronto on June 19th at 4:55 p.m. At 8:21 p.m., the Ford can be seen turning onto Blackwell Boulevard. A zoomed-in image of the vehicle and its license plate were included in the search warrant affidavit. The investigators believed that the license plate captured in the video image was CVKV 443. The driver parked the black Ford SUV on the street. Four occupants exited the vehicle and walked to 1195 Blackwell, entering at 8:23 p.m. This was about three and a half hours after the Ford Escape with the above license plate was last seen in Toronto on June 19, 2022. Surveillance images of the four individuals walking from the black SUV to the townhouse were included in the affidavit.
[17] The townhouse at 1195 Blackwell Boulevard was part of a complex. The police learned from management of the complex that the owner of 1195 had not been seen. Management believed that this unit was “some sort of rental.”
(vii) The second search warrant affidavit and the Mazda car
[18] The additional investigative information included in the second search warrant was as follows:
- the warrant to search the residence at 1195 Blackwell in London was granted by Justice Block of the Ontario Court of Justice on July 7, 2022. The police began surveillance at the residence that same day and the warrant was executed the next day, on July 8, 2022;
- the surveillance officers made five separate observations of a grey Mazda on July 7 and 8, 2022. It pulled into the driveway of the residence at 10:10 p.m. on July 7, 2022 and apparently remained there. The next day, when the police executed the first search warrant at the residence, the grey Mazda was still parked in the driveway of 1195 Blackwell;
- on five occasions during the above night time period, surveillance officers observed various occupants of the residence going back and forth between the Mazda and the townhouse. On two of these occasions, items were taken from the car to the townhouse. On a third occasion, a bag was taken from the townhouse to the car and was placed in the trunk. On two other occasions, occupants of the townhouse went out to the car for some purpose and then returned to the townhouse, apparently without carrying any observable items in either direction;
- the surveillance officers also made observations of a second vehicle, a white Nissan Altima. It arrived at 1:33 a.m. on July 8th and was parked on the street near 1195 Blackwell, but not in the driveway. One occupant of the white Nissan apparently entered the townhouse briefly and then exited at 1:43 a.m. and returned to the white Nissan. At 1:53 a.m. the white Nissan drove away. In other words, this car was connected to the residence for 20 minutes on one occasion late at night. There were no observations of items being carried in either direction between this car and the residence;
- the results of the July 8, 2022 search of the residence were summarized in the second search warrant affidavit. The police found and seized two loaded handguns, a large amount of ammunition, a large capacity magazine, a number of cell phones, various articles of clothing, and two bullet proof vests;
- five persons were found in the townhouse when the search warrant was executed. Two of these persons were females and they were not arrested. The three males, including the Applicant Bezabeh, were arrested for possession of the various items seized from the residence. On July 13, 2022, Bezabeh was also arrested for the present murder; and
- finally, the Mazda was seized pending the second application for a search warrant. It had apparently been rented from a Scarborough car rental company.
C. Analysis
[19] The well-known legal principles relating to s.8 Charter review of the facial sufficiency of a search warrant were recently summarized by the Court of Appeal in R. v. Kalonji, 2022 ONCA 414 at para. 19. They are as follows:
To begin, the principles that apply when reviewing a warrant are well settled. The question is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para. 51. The test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: Araujo, at paras. 51, 54; R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, at para. 40. The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: Morelli, at para. 40.
[20] The Applicant Bezabeh conceded, in counsel’s written and oral submissions, that the search warrant affidavit set out substantial grounds to believe that a murder of Jaron Williams and an attempt murder of David Joseph had taken place in Toronto on June 19, 2022. In addition, the Applicant conceded that there were substantial grounds to believe that a gold Chevrolet Equinox and a black Ford Escape were involved in these two shootings. Finally, the Applicant conceded that there was sufficient evidence to believe that the black Ford Escape had arrived at the 1195 Blackwell Boulevard address in London and that four occupants of the vehicle had entered the residence at about 8:23 p.m. on June 19, 2022 (some four hours after the shootings). When pressed during oral argument, Mr. Derstine also conceded that it would have been reasonable to search the London townhouse shortly after the shootings if there was evidence that the four suspects who had entered the premises on June 19, 2022 still resided there.
[21] The main thrust of the Applicant’s argument concerning the facial sufficiency of the search warrant affidavit was that the London townhouse appeared to be nothing more than a transitory place where the suspects had stayed for some unknown period of time. In this regard, Campbell-Brown described it as a “bed and breakfast type place”. In addition, almost three weeks had elapsed since the shootings, the black Ford Escape and two of the suspects had left and had been arrested in Montreal, and there was no direct evidence that the other suspects were still at the London townhouse. In all these circumstances, the Applicant submits that there were no reasonable grounds to believe that evidence relevant to the shootings would still be found at the London townhouse when the search warrant was executed on July 8, 2022.
[22] The above factual premises relied on by the Applicant ignore or omit a number of other facts. First, the police spoke to management of the Blackwell Boulevard townhouse complex. They were told that the owner of 1195 had not been seen and management believed that the house was “some sort of rental”. Second, Campbell-Brown’s statement to the police after his arrest in Montreal on July 2, 2022 was that he “met” Harker at the London townhouse and they had “stayed there for a couple of weeks”. Third, the arrest of Campbell-Brown and Harker in Montreal and the seizure of the black Ford Escape was 13 days after the shootings, so the “couple of weeks” that these two suspects “stayed” at the townhouse likely extended from both before and after the June 19th shootings. Fourth, there were five suspects in the two shootings, four of them had fled to the London townhouse, and only two had been found and arrested. Fifth, the five suspects had gone to considerable lengths to hide their flight to the London townhouse by using a stolen vehicle with stolen license plates during the shootings, by removing the stolen license plates and abandoning the stolen vehicle after the shootings, and by using a second vehicle unconnected to the shootings in order to drive for over three hours to London. Sixth, many of the items being sought as evidence such as clothing, cell phones, and identification documents were not illegal to possess (unlike stolen goods or handguns or drugs) and were more likely to be kept by the suspects.
[23] In all the above circumstances, including the Applicant’s significant concessions set out above at para. 20, I am satisfied that there was a reasonable inference that one or more of the suspects may still have been staying at the London townhouse, that the suspects may not have believed that they had been located at the London townhouse, that they may have been using the townhouse as a rental residence, and that the passage of 19 days since the shootings did not mean that any or all of the relevant evidence had been removed or destroyed.
[24] None of the above reasonable inferences excludes other alternative inferences, nor does the search warrant investigative standard of reasonable and probable grounds require the exclusion of alternative exculpatory inferences. As the Court of Appeal recently stated in R. v. Ilia, 2023 ONCA 75 at para. 17:
As the Crown argues, reasonable grounds can co-exist with exculpatory possibilities: R. v. Ha, 2018 ABCA 233, [2018] A.J. No. 801, at para. 34 and at paras. 82, 85 and 89, per Slatter J.A. (concurring); R. v. MacCannell, 2014 BCCA 254, [2014] B.C.J. No. 2069, at paras. 45-46; and see Bush, at para. 58. To hold otherwise would effectively be to insist on the standard of proof beyond a reasonable doubt to obtain a search warrant, when “reasonable and probable grounds” is a threshold investigative standard. This standard requires only a “reasonable” or “credibly-based” probability, a standard even below the balance of probabilities: R. v. Baron, [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510, at 531-532, per Sopinka J.; Mugesera v. Canada (Minister of Citizenship & Immigration, [2005] 2 S.C.R. 100, 2005 SCC 40, at para. 114; and Ha, at para. 89, per Slatter J.A. (concurring). [Emphasis added].
[25] The Court of Appeal reiterated this point in R. v. Kalonji, supra at para. 29:
I agree with the appellant that the net effect of this error was to raise the “reasonable grounds to believe” threshold to one of “on a balance of probabilities”. The standard for issuing a warrant is whether there are reasonable grounds to believe that there is evidence respecting the commission of an offence in the location to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167. This standard does not require proof on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. Put another way, an affiant is not required to satisfy an issuing justice that it is more likely than not that the things to be searched for are at the location to be searched, which is what the trial judge did by requiring direct evidence that guns were at Brunel Court. [Emphasis added]
Also see: R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421 (S.C.C.) at para. 72 (sub-para. 6); R. v. Bailey-Ricketts, 2023 ONSC 1302 at para. 27.
[26] There is no authority for the proposition that relevant evidence of a murder, that is believed to be located at rental premises where suspects have fled, will become “stale” in 19 days and can, therefore, no longer be seized by search warrant. In my view, it could be inferred that four of the five suspects fled to the townhouse in London shortly after the two shootings in Toronto and that relevant evidence would still be at this location less than three weeks later. It was, therefore, reasonable to grant the search warrant for those premises in this case. See also: R. v. McNeil, 2020 ONCA 313; R. v. Fuller, 2021 ONCA 411; R. v. Hamouth, 2023 ONCA 518.
[27] The Applicant submits that the grounds for the search warrant, authorizing a search of the Mazda parked in the driveway of the London townhouse, were also facially insufficient. In particular, the Applicant relies on the fact that the Mazda was not connected to the two shootings in Toronto. In addition, when the surveillance officers first saw the Mazda arrive at the London residence, it was driven and occupied by two women who do not appear to be connected to the Toronto shootings.
[28] In my view, there were reasonable grounds to search the Mazda. The search of the townhouse residence on July 8, 2022 had yielded a rich body of evidence that appeared to be relevant to the shootings in Toronto. There was a reasonable inference that the Mazda was being used by the occupants of the townhouse as a place to store, carry, retrieve, or simply examine items located in the Mazda. It had remained parked in the driveway overnight on July 7/8, 2022. On five separate occasions during the night, various occupants of the townhouse attended at the Mazda. On these occasions, the occupants of the townhouse either brought items from the townhouse to the Mazda, brought items from the Mazda to the townhouse, or went to the Mazda in order to simply do something in the car. The Mazda was now the only motor vehicle associated with the occupants of the townhouse. The Ford Escape SUV had been associated with the townhouse but had apparently been driven to Montreal by two of the suspects. Four suspects had fled to the townhouse after the shootings on June 19, 2022. Three male occupants of the townhouse had been arrested during the search on July 8, 2022.
[29] In all the above circumstances, there was a reasonable inference that evidence relevant to the shootings would be found in the Mazda. Once again, this inference does not exclude other alternate inferences, and it need not do so. See: R. v. Ilia, supra; R. v. Kalonji, supra.
D. Conclusion
[30] For all the above reasons, the s. 8 pre-trial motion challenging the facial sufficiency of the two search warrant affidavits, one relating to the London townhouse and the other relating to the Mazda parked in its driveway, was dismissed at the end of oral argument on November 12, 2024.
M.A. Code J.
Released: November 15, 2024