) ) HIS MAJESTY THE KING – v. –, 2024 ONSC 122

CITATION : R. v.

El-Zahawi and Chung, 2024 ONSC 122 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, Iprovided 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 theCrown has fairly and properly conceded should not be admitted into evidence), the two cell phones seized from Mr. El-Zahawi at thetime of his arrest are also excluded.

The evidence obtained from the cell phones (namely the extraction reports later obtained pursuant tothe 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 extractionreports) obtained from the cell phones seized from Mr. El-Zahawi which, as set out above, is excluded. To be clear, the evidenceobtained 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 ajury instruction. The defence is free to cross-examine and/or call evidence as discussed in paras. 65 and 66 of R. v. Bero, (ON CA). The contours of the jury instruction will depend on the evidence heard at trial and will be addressed at the pre-chargeconference 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 relationto the various utterances and the statement.

Charter issues relating to the seizure of the two cell phones were also to be dealt with duringthe 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 wereto be addressed at the outset as the outcome of these aspects of the pre-trial motions would play an important role in the Garofoliapplication.

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 issuesrelating to the Cyan Lounge investigation. The resolution resulted in the filing of an agreed statement of fact detailing a number ofCharter 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 Charterviolations stemming from the evidence tendered.

As such, the parties invited further judicial determinations in relation to the Charterviolations 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 asrequired in order to determine the additional issues falling outside of the agreement. I will also recite the agreed upon admissions andthen I will address the additional findings sought by Mr. El-Zahawi.

I will then address the s. 24(2) analysis in relation to the CyanLounge Charter violations. [9] Next, I will turn to addressing the Garofoli applications. While the parties agree that evidence unlawfully obtained during theCyan 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, thechallenge to the ITO relating to the phone allegedly used by Mr. Chung is moot. Even if the challenge by Mr.

El-Zahawi succeeds, thereexists 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 accompaniedby his friend, Maral Ashoury. The party was hosted by members of Ms. Ashoury’s family. Mr. Rafipour had not been specifically invitedto 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. Ashourydecided to leave the party. As they proceeded towards Mr. Rafipour’s Corvette, which was parked on the street, a dark coloured SUVapproached them. A person inside the SUV began shooting at Mr. Rafipour, striking him several times. Mr. Rafipour was able to run ashort distance away where he then collapsed at the side of the road. The SUV pulled up next to Mr. Rafipour and further shots were firedat him. [13] Mr. Rafipour was transported to hospital but did not survive. The cause of death was multiple gunshot wounds.

Ms. Ashoury wasnot 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 shootingwas likely a dark coloured Volkswagen (“VW”) Touareg. They also believed that at least two people were in the Touareg at the time ofthe shooting. [15] The investigators learned that Mr. Rafipour had a lengthy criminal record dating back to 2008, and that the Corvette he wasdriving 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- Charter ing” 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 theofficers 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. Thesetopics all had potential evidentiary value. That said, the officers were in a vehicle for over an hour with a person who seemed intent onengaging in discussion. Apart from the understandable questions relating to the manner in which Mr. El-Zahawi approached the officersinitially, they did not otherwise steer, direct or prompt conversation.

They reminded Mr. El-Zahawi of his right to silence on more thanone 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 defenceargues 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 Crownargues that this is an instance where compliance with Mr. El-Zahawi’s s. 10(

b) rights “fell between the cracks” when none of the officersinvolved 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, seeR. 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, atpara. 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 twohours had passed since he was arrested and had asked to speak to counsel. Instead of bringing him into the booking area where he couldbe processed and then put in touch with counsel, Mr. El-Zahawi was held in the police vehicle in the sallyport while the undercover playunfolded before him.

He was then taken to the booking hall, where the undercover play continued. Inexplicably, once he was booked, hewas placed in the bullpen where the undercover officer was introduced. This occurred before Mr. El-Zahawi was given a chance to speakwith counsel. In addition, even when he was afforded the opportunity to speak with counsel some three hours after his arrest, he did sohaving only been told that the reason for his arrest was the Cyan Lounge incident. No attempt was made to advise him that he was alsobeing 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 noneof these high ranking and presumably experienced officers even appears to have turned their mind to the propriety of running anundercover 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 withcounsel, 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 theundercover play on the basis that it was simply a “meet and greet” and not intended as an evidence gathering technique. The caselawdraws no such distinction. Nor does the Charter. In any event, despite the asserted limited purpose of the undercover play, the policethen turned around and used the product of the undercover play as part of the evidence base for various search warrants and productionorders.

Moreover, the Crown, at least initially, sought to admit the various utterances and statements made by Mr. El-Zahawi. Viewed inthis 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 ascenario whereby the undercover officer was permitted to ask questions that amount to active, albeit inadvertent elicitation, which isprohibited by the controlling cases such as R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, R. v. Liew, (SCC), [1999] 3 S.C.R. 227 and R. v. Broyles, (SCC), [1991] 3 S.C.R. 595.

More particularly, the defence argues thatonce the undercover officer was left with an informational deficit about the nature of the homicide investigation, he would have had noway 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 equivalentof an interrogation. This was a situation where the undercover officer was simply engaged with the flow of the conversation.

In terms ofthe alleged informational deficit, the Crown notes that there is a “catch-22” aspect to providing an undercover officer with informationabout the offence under investigation. If too much information is provided, there is a potential officer safety issue should the undercoverofficer say something that reveals his true identity. As well, if the undercover officer has too much information, there may be asuggestion that the results of the play are tainted by that information. That said, the Crown also agrees that leaving an undercover officerwith too little information potentially creates problems.

Ultimately, the Crown argues that in this case, while the undercover officerperhaps 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 wherethe 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 hehad no knowledge at the time that these discussions and questions would have crossed the line. His position on this issue was based onthe information that was now provided to him. When pressed, the undercover officer agreed that in view of the informational deficit, hehad no way of knowing whether he was complying with the strictures set out in the Supreme Court of Canada caselaw.

He nonethelessessentially 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”, Iam 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 obligati

[…]