)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 7420

CITATION : R. v. Abdirahim, 2013 ONSC 7420 COURT FILE NO.: 13-10000535-0000 DATE: 201312 20 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – MUSE ABDIRAHIM ET AL )) )) )) )) ) ) Gary Valiquette, Marylou Armour and Catherine Rhinelander , for the Crown Respondent Sal Caramanna, Heather Pringle, Joshua Tong and Paula Rochman , for the Accused Applicants HEARD: December 2 to 5, 2013 m.a. code j. REASONS FOR JUDGMENT (Ruling on Pre-Trial Application) A.

OVERVIEW [ 1 ] By Notice of Application dated November 7, 2013, thirty-three Applicants seek exclusion of wiretap evidence at their upcoming trials. They allege violations of s. 8 of the Charter of Rights and Freedoms and rely on the remedial powers found in s. 24(2) of the Charter . [ 2 ] The thirty-three Applicants are all charged with various offences in ten separate Indictments filed in this Court. The Indictments emerged out of a large police investigation in Toronto in 2011 known as “Project Marvel”.

Although the various Indictments are separate, they all rely on evidence derived from two common wiretap authorizations. As a result of this common evidentiary source, Then R.S.J. made an Order dated October 10, 2013, pursuant to the relatively new provisions of s. 551.7(3) of the Criminal Code , designating a single judge to rule on any motions attacking the admissibility of the wiretap evidence for purposes of all the separate trials. [ 3 ] The thirty-three accused, who are all separately represented for purposes of their trials, appointed three counsel to bring the present Application.

One of the thirty-three Applicants, Chermar Gardner, also raised an additional argument through his trial counsel. Lengthy and thorough facta were filed and I heard oral argument over four days, from December 2 to 5, 2013. [ 4 ] The Applicants had brought a motion before me, seeking further disclosure relevant to the present Application, but that motion was resolved without the need for a hearing. The Applicants also planned to seek leave to cross-examine the affiant, Detective Constable Patrick Plunkett, but that motion was abandoned.

As a result, there is virtually no extrinsic evidence before me on the Application, with the exception of a number of documents that were filed by the Applicants and by the Respondent. The great bulk of the Application Record consists of D.C. Plunkett’s two lengthy affidavits which led to the two challenged wiretap authorizations, both of which were granted by Nordheimer J. on August 31, 2011 and October 26, 2011. [ 5 ] The second authorization expired after sixty days, in late December 2011.

On December 13, 2011, the police executed ninety-two search warrants, laid charges against eighty people, and seized firearms, drugs and money. The charges proceeded through a number of separate preliminary inquiries in the Ontario Court of Justice. Some of the cases were resolved or are presently being resolved. What remains of “Project Marvel” are the ten Indictments filed in this Court.

They allege many different offences, including trafficking in both firearms and drugs for the benefit of a criminal organization, possession of firearms, transferring firearms, armed robbery, break and enter, obstruct justice, and prostitution related offences. [ 6 ] The thirty-three Applicants advanced two arguments, both alleging facial insufficiency in D. C.

Plunkett’s first affidavit, as follows: first, they submit that the “investigative necessity” requirement found in s. 186(1) of the Criminal Code was not met; second, they submit that five of the forty-five “known” and named persons, who were the subject of the first authorization, should not have been included as the facts relied on by D.C. Plunkett did not rise to the level required by s. 185(1) (

e) of the Criminal Code (“may assist the investigation”). The first of these two arguments has broad implications. If it is correct, the first authorization would have to be set aside

on the basis that it was unlawful. Given that the second authorization depended heavily on the first, it is conceded by the Crown that the second authorization would also have to be set aside. The unlawfulness of a wiretap authorization is a per se violation of s. 8 of the Charter . Accordingly, the issue would then become whether to exclude the fruits of this s. 8 violation pursuant to s. 24(2) of the Charter . The second argument has much narrower implications. It potentially could have an impact on some of the interceptions of five of the named targets.

It would have no impact if they were communicating with some other properly named target or if their communications fell within the “basket clause” relating to “unknown persons”. [ 7 ] As previously noted, a third argument was advanced by counsel on behalf of Chermar Gardner. It involves a sub-facial attack on a narrow part of D.C. Plunkett’s first affidavit and it raises complex issues concerning the “curtilage” doctrine of search and seizure law. If the sub-facial attack is successful, the result alleged is that Chermar Gardner should not have been named as a “known person”, within the meaning of s. 185(1) (e).

This, in turn, would mean that the lawfulness of intercepting his communications would depend on whether he was speaking to some other properly named target at the relevant time or whether his communications fell within the “basket clause” relating to “unknown persons”. [ 8 ] I reserved judgment at the end of oral argument. These are my reasons for judgment. B. FACTS [ 9 ] The facts relating to the second and third arguments, that is, whether six of the forty-five named targets were “known persons” within the meaning of s. 185(1)(e), will be set out later in these reasons when addressing these narrow arguments.

The broader and more fundamental argument is the first one, concerning “investigative necessity”. The facts relating to that argument are found in D.C. Plunkett’s first affidavit and in the additional documents filed by the Applicants and the Respondent. [ 10 ] D.C. Plunkett sought a wiretap authorization in his 341 page affidavit dated August 25, 2011 on the basis that he was investigating two primary offences, together with any conspiracy, attempt or accessorial liability relating to those two offences.

Nordheimer J. granted the first authorization in relation to the ability of the police to solve these offences on August 31, 2011. The essential statutory criterion known as “investigative necessity”, set out in s. 186(1) (b), must therefore be evaluated in relation to the ability of the police to solve these offences with or without wiretapping. [ 11 ] The two primary offences that D.C. Plunkett was investigating were an armed robbery of Daimeon Ennis on May 9, 2011 and an attempt murder of O’neal Goulbourne and two others on May 10, 2011. There was little doubt that both of these crimes occurred.

The only live issue was the identity of the perpetrators. There was also little doubt that the two crimes were linked. They both took place one day apart in north-west Toronto in the same neighbourhood, located a few blocks north of Jane and Finch. This neighbourhood is known as “the Courts” or “Up Top”. Firearms were used in both offences. Most importantly, a black Nissan Pathfinder was used by the perpetrators of both offences.

The Pathfinder was found by the police, shortly after the May 10 th attempt murder, and it contained a number of items stolen from the victim Ennis during the May 9 th robbery. [ 12 ] In terms of identifying the perpetrators, there was no direct evidence. The May 9 th robbery occurred late at night in a parking lot. It involved five or six males, some of whom were armed with handguns. One or more of them remained inside the Pathfinder. The others, who exited the Pathfinder, can be seen in video surveillance stealing Ennis’ belongings and then returning to the Pathfinder.

Some of them wore hooded jackets with the hood up. The entire incident appears to have lasted one or two minutes. The victim Ennis was reasonably cooperative with the police but he could only provide general descriptions of two of the perpetrators. Another witness, who was nearby, did not see the faces of the four perpetrators who exited the Pathfinder. He had not seen them before and did not think he would recognize them now. No identification procedures were attempted. [ 13 ] The May 10 th attempt murder also failed to yield any direct identification evidence.

Unlike the May 9 th robbery, the May 10 th attempt murder occurred in broad daylight at a public intersection. The perpetrators fired their gun from the window of the Pathfinder as it drove up to another car containing the three victims or targets of the shooting. Many witnesses either heard or saw the gunshots fired from the Pathfinder but none of these members of the public could describe the perpetrators, other than providing a very general description of the driver.

One photo line-up was attempted but the witness advised the police that she was unable to identify anyone. [ 14 ] Shortly after the May 10 th shooting, the Pathfinder was seen parking at a nearby building. Three occupants emerged from the vehicle and ran away. One witness observed them from her balcony and provided very general descriptions. The Pathfinder was seized by the police. [ 15 ] The three victims or targets of the May 10 th shooting did not report the offence to the police. They drove away from the crime scene in their car.

One of them, Chanise Thomas, was hit in the leg by one of the approximately 8-11 bullets that were fired from the Pathfinder. Thomas’ two male companions in the car were her boyfriend, O’neal Goulbourne, and his brother Matthew Hinkson. The police found the three of them, sometime after the shooting, after being called to a hospital where Thomas was being treated for a bullet wound to her leg.

The various accounts of the shooting that were then provided by the three victims or targets were to the general effect that the Pathfinder had pulled up to their car and that the two drivers were facing each other at a distance of about twenty feet. A passenger in the Pathfinder then leaned out of a window and began shooting. The three victims or targets of the shooting ducked down, drove away, and did not call the police. No descriptions were provided of the perpetrators.

The three victims or targets were generally uncooperative with the police and their various accounts of the incident contained inconsistencies. Goulbourne, who appeared to be the main target of the shooting, told the police that he did not see the perpetrators, he did not know who it could be, and he had “no beefs with anyone”. However, he also said that “he would have to start wearing his [bullet proof] vest”.

Hinkson also told the police that he was “unable to see who was firing” and that he had “no idea who or why this would happen”. [ 16 ] Although there was no direct evidence identifying the perpetrators of the May 9 th robbery or the May 10 th attempt murder, the police investigation uncovered a wealth of circumstantial evidence over the ensuing months. That evidence linked numerous parties to

the Pathfinder or to the gun used in the May 10 th shooting, as follows: • The Pathfinder was a rental vehicle that Irshad Ahmed and Sliman Husaini had rented in Woodbridge on April 12, 2011; • Fingerprints of Guled Mahadale, Gaddiel Ledinek, Quinton Gardner, and Prince Asante were found in or on the Pathfinder; • The gun used in the May 10 th shooting left numerous shell casings and projectiles at the crime scene. They were later matched by forensic ballistics experts to a Smith and Wesson pistol that was seized on June 26, 2011 in London, Ontario.

The police stopped a car occupied by Sliman Husaini, Jouda Jouda, and Adnan Omar. Two handguns were found in the car, including the Smith and Wesson pistol that was used six weeks earlier in the May 10 th shooting; • A Louis Vuitton bag was found in the Pathfinder. The bag was associated with both Gaddiel Ledinek and Guled Mahadale. It contained a photograph of six males, three of whom were identified as Guled Mahadale, Abshir Abdirashid, and Chermar Gardner. Further police investigation led to the inference that the photograph was taken in the five days preceding the May 10 th shooting.

Another copy of the photograph was seized from Quinton Gardner’s cell phone when he was arrested on May 14, 2011. A second photograph in this cell phone depicted the letters “YBK” spelled out in money. The significance of the letters “YBK” will be discussed below; • A cell phone contract was found in the Pathfinder. Further police investigation connected the contract to a second cell phone purchased at the same time and place, that is, on April 26, 2011 in Vaughan. The purchaser on both of the cell phone contracts used the same apparently false name and address.

Yasin Hersi was identified as the purchaser of one of these two phones. Calls on the two cell phones at relevant times were made to phones associated with Prince Asante, Quinton Gardner, Irshad Ahmed, Turell Tomlinson, Mahadale Mahadale, Gaddiel Ledinek, Joel Benjamin, and Abshir Abdirashid; • A Blackberry cell phone was found in the Pathfinder. Further police investigation connected this phone to Joel Benjamin; • An LG cell phone was found in the Pathfinder. Further police investigation connected this phone to Turell Tomlinson.

Calls on the LG phone at relevant times were made to phones associated with Yasin Hersi, Quinton Gardner, Joel Benjamin, Jerry Mensah, and Kwasi Skene-Peters; • A GPS device was found in the Pathfinder. Further police investigation connected the device to Prince Asante. [ 17 ] It can be seen that the May 9 th robbery was likely carried out by five or six males and the May 10 th attempt murder was likely carried out by three males, none of whom had been identified.

The circumstantial evidence led the police to at least sixteen potential suspects or persons of interest, namely: Irshad Ahmed; Sliman Husaini; Guled Mahadale; Gaddiel Ledinek; Quinton Gardner; Prince Asante; Jouda Jouda; Adnan Omar; Abshir Abdirashid; Chermar Gardner; Yasin Hersi; Turell Tomlinson; Joel Benjamin; Mahadale Mahadale; Jerry Mensah; and Kwasi Skene-Peters. Information received by the police from eight confidential informants, which will be reviewed below, also implicated these and other parties.

Although it was useful, the totality of the circumstantial evidence was not sufficiently compelling to identify any one of these sixteen potential suspects or persons of interest as a perpetrator of either of the two primary offences under investigation. [ 18 ] D.C. Plunkett repeatedly referred to the May 9 th robbery and the May 10 th attempt murder as the primary focus of the investigation. However, his affidavit made it clear that there was a broader “context” to the investigation and that it involved seven other incidents. All nine incidents involved the use of firearms.

This broader “context” to the investigation was not lost on Nordheimer J. as he stated the following in his endorsement, when granting the first authorization: “The application relates to an investigation of an attempted murder and a robbery. However, other criminal activities are implicated by the information that has been revealed in the investigation to date. Specifically, four firearms that have been recovered are linked not only to one of the principal events but also to other shootings that have occurred … three of which occurred within two days of the May 10 event.

It is believed that all of these events are connected …” [ 19 ] D.C. Plunkett described the seven other shooting incidents in his affidavit in some detail and he explained how the police believed that these seven further offences were connected to the two primary offences. The connection was partly due to a common victim or target in three of the seven further incidents, namely, O’neal Goulbourne, and it was partly due to the use of the same firearms in four of the seven further incidents. In brief

summary, the seven further offences or incidents described by D.C. Plunkett were as follows: • The February 9, 2011 shooting of Derrick Palmer in a neighbourhood some distance to the west of Jane and Finch. He was struck by a bullet fired at night by a passenger in a car. He survived the shooting but he did not see any of the suspects. There did not appear to be any other witnesses to this incident. However, seven bullets and five cartridge casings were recovered from the crime scene.

Three months later on May 14, 2011, two firearms, including a 9 mm Beretta handgun, were seized by the police from an address associated with two brothers, Quinton Gardner and Chermar Gardner (who were both associated to some degree with the Pathfinder, as set out above).

On July 8, 2011, the police were advised by forensic ballistics experts that test casings and projectiles fired from this Beretta handgun matched the casings and projectiles from the Derrick Palmer shooting; • A March 17, 2011 incident where five to six gunshots appear to have been fired at a vehicle occupied by O’neal Goulbourne and his friend Lance Herman. The location of this shooting was a few blocks south of Jane and Finch in a neighbourhood known as “the Lanes” or “Bottom”. Goulbourne and Herman did not call the police and they initially fled from the scene.

When police later questioned them, Herman stated that “he did not see the shooter” and that he did not understand why he would be “targeted” because he felt that “he should be safe in the area of ‘the Lanes’”. Goulbourne similarly stated that “he had no idea who would want to shoot at them” and that he “knew nothing”; • An April 13, 2011 armed robbery that took place in the late afternoon in an area immediately to the north of Jane and

Finch, known as “the Palisades”. Goulbourne and Herman were seated in a parked car. They were approached by two black males with handguns. Goulbourne ran away and Herman was robbed. They did not report the incident to the police. When Goulbourne was later questioned about the matter, he declined to provide a statement to the police. However, he did tell his probation officer about the incident when they met on May 2, 2011 and he went on to tell her that he was “inquiring about where to obtain a bullet proof vest”. Herman eventually spoke to the police about the incident, three months after it happened.

He provided a general description of the black male perpetrators but denied knowing them. The police concluded that Herman was being untruthful and that it was “obvious” he knew one of the perpetrators but “would not tell police”. Herman advised that “he should be safe” in the area known as “the Palisades” but that he and Goulbourne had “stayed too long [parked] in one place and it was not smart”; • The May 10, 2011 shooting of Andrew Nugent.

Earlier that same day, the May 10 th attempt murder of O’neal Goulbourne and his two companions had taken place at about 3:30 p.m. to 3:45 p.m. in the “Up Top” neighbourhood, a few blocks north of Jane and Finch. The shooting of Andrew Nugent took place later that night, between 10:45 p.m. and 11:30 p.m., in the neighbourhood known as “Grassways” or “Bottom”, which is a few blocks south of Jane and Finch. Nugent and a friend were approached by three black males, armed with handguns, and Nugent was shot twice. The shooting took place outdoors in the dark in an area that was not well lit.

Nugent had never seen the three male perpetrators before. Nugent and his friend provided the police with somewhat similar descriptions of two of the three black males. They were both wearing hats. Cartridge casings and projectiles were recovered from the crime scene. On July 8, 2011, almost two months after the incident, the police were advised by forensic ballistics experts that these casings and projectiles matched casings and projectiles from the earlier February 9 th shooting of Derrick Palmer.

Furthermore, the casings and projectiles from both incidents matched casings and projectiles that were test fired in the Beretta handgun seized on May 14, 2011 from the address associated with Quinton and Chermar Gardner; • A May 11, 2011 incident where residents of a neighbourhood, some distance to the west of Jane and Finch, reported hearing the sound of gunshots in a parking lot. It was late at night and no one saw the perpetrators. The police attended and found gunshot damage to two parked cars.

They recovered six cartridge casings and six projectiles at the crime scene that had been fired from at least two different guns. Almost two months later, on July 8, 2011, the police were advised that the cartridge casings and projectiles from one of the guns used in this May 11 th shooting matched the 9 mm Beretta seized on May 14, 2011 from the address associated with Quinton and Chermar Gardner (and, therefore, also matched cartridge casings and projectiles found at the Derrick Palmer and Andrew Nugent shooting crime scenes).

The police were also advised that the cartridge casings and projectiles fired from the second gun used in this May 11 th shooting matched a .380 automatic handgun that was also seized on May 14, 2011 from the address associated with Quinton and Chermar Gardner; • A May 12, 2011 incident where residents of a neighbourhood known as “the Lanes” or “Bottom” reported gunshots fired at their homes. It was late at night and once the police arrived at the scene they found a number of shell casings and projectiles, as well as gunshot damage to the homes.

Surveillance video, at the relevant time and place, showed three or more suspicious males wearing all dark clothing. Forensic analysis of the casings and projectiles found at this crime scene were particularly significant because they came from a number of different guns and three of those guns were eventually seized by the police and then linked to the other shooting incidents.

In this regard, the police were advised by forensic ballistics experts on July 8, 2011 as follows: cartridge casings from this May 12 th shooting were matched to the Smith and Wesson pistol seized in London on June 26, 2011 from Husaini, Jouda, and Omar (and were, therefore, also matched to the May 10 th attempt murder of Goulbourne when a gun was fired from the Pathfinder); other cartridge casings from this May 12 th shooting were matched to the 9 mm Beretta seized on May 14, 2011 from the address associated with Quinton and Chermar Gardner (and were, therefore, also matched to three other shootings – Palmer, Nugent, and the May 11 incident – already discussed above); and finally, other cartridge casings from this May 12 th shooting were matched to the .380 automatic seized on May 14, 2011 from the address associated with Quinton and Chermar Gardner (and were, therefore also matched to the May 11 th incident already discussed above).

It can be seen that this incident brought together the gun seized in London, which was associated with Husaini, and the two guns seized in Toronto, which were associated with the Gardner brothers. Husaini and the two Gardner brothers were all associated to some degree with the Pathfinder; • The last of the seven further incidents took place on June 1, 2011 and it involved another shooting of O’neal Goulbourne’s car. He had parked the car near his residence and it was unoccupied at the time of the shooting, late at night. The police found seven bullet holes in the driver’s side of the car.

No one saw the perpetrators who appear to have fled in a car. Goulbourne was extremely upset about the damage to his car. He was uncooperative with the police and declined their offer of assistance. He advised that “he does not have any idea who would want to shoot at him or his car”, although he inferred that someone has “hatred” for him. [ 20 ] D.C. Plunkett’s affidavit detailed the efforts made by the police to interview the numerous suspects. None of these interviews produced any useful information.

Some suspects refused to be interviewed, some could not be found, some could not account for their whereabouts on the relevant dates or for their connection to the Pathfinder, and some gave accounts that were contradicted by known facts. [ 21 ] D.C. Plunkett also set out the police surveillance efforts. A number of suspects were followed between May 14 and August 16, 2011. Some of them could not be found and some of them engaged in counter-surveillance tactics.

The one particularly useful piece of surveillance evidence was on May 14, 2011, the day that the police executed a search warrant on an address associated with the two Gardner brothers. The search warrant was executed in the evening and the two handguns, already discussed above, were seized from “a shed in the back yard of the residence”. In the afternoon, prior to execution of the search warrant, surveillance officers were watching this location. Both Quinton Gardner and Chermar Gardner were observed exiting the residence shortly after 2:00 p.m. At 4:15 p.m. Quinton went “into back yard” and at 4:17 p.m.

Chermar also walked “into the backyard”. Chermar then left in a taxi. At 5:43 p.m. Quinton again “walked into the back yard briefly”. When he emerged and walked away from the residence, there was a “noticeable bulge … on the left side waistband area underneath his shirt” and he was “clutching the same area of the waistband with both hands”. At 5:50 p.m. Quinton returned to the residence, “clutching his waistband with his left hand”, and again went “into the back yard”. When he emerged, the “bulge in his waistband was gone”.

Similar observations of Quinton were repeated between 6:25 p.m., when he again went “into the back yard” and emerged with a “noticeable bulge in the left side waistband”, and 6:35 p.m. when he returned to “the rear” of the residence and emerged with “no visible bulge in the waistband”. During the ten minutes that Quinton was away from the

residence he was observed in some exchange with a male in a car in which Quinton threw some object into the car and then received money from the driver. A telewarrant was issued at 8:20 p.m. that evening, allowing the police to search this “dwelling house”. The sub-facial issue now raised by Chermar Gardner is whether the search warrant authorized a search of “a shed in the backyard”. This issue turns on whether the shed is within the “curtilage” of the home. [ 22 ] Another important piece of information that D.C. Plunkett set out in his affidavit came from Goulbourne’s probation officer, Paula Bonacci.

She spoke with Goulbourne after the four incidents where he or his car had been the target of shootings and an armed robbery. Based on these conversations, Bonacci came to believe that Goulbourne “knew who the persons were who were responsible for the shootings”. Bonacci discussed police witness protection programs with Goulbourne but he declined this assistance. He told Bonacci that “people know his family, know where he lives and he does not want to put his family in danger”. He said that, “going to the police was not an option, that it was a ‘street thing’ and it needed to [be] dealt with on the streets”.

He told Bonacci several times, “you know how it is, we don’t talk”. During Goulbourne’s last appointment with Bonacci, on June 13, 2011, he was “wearing a bullet proof vest”. Goulbourne had a 2009 conviction for possession of a loaded prohibited firearm and a 2010 conviction for trafficking. [ 23 ] One further body of useful investigative information received by D.C. Plunkett was a report from D.C. Tanabe. He was the officer delegated responsibility for investigating the telephones associated with the numerous suspects.

He obtained twenty-five separate Criminal Code search warrants and production orders relating to numerous telephones. He then set out the results of his analysis of the telephone records in a forty page report that D.C. Plunkett appended in its entirety to his affidavit. The report is dated August 12, 2011 so D.C. Plunkett would have received it less than two weeks before he swore his affidavit on August 25, 2011. D.C. Plunkett relied on the report as “showing association between seized phones and phone numbers associated to named parties”.

When setting out his grounds for naming the “known persons” who he believed “may assist the investigation”, as required by s. 185(1) (e), D. C. Plunkett repeatedly referred to D. C. Tanabe’s analysis of the seized or produced telephone records and summarized the parts that he relied on in his affidavit. For example, he emphasized that Goulbourne appeared to have communicated by telephone on numerous occasions with Chanise Thomas, Matthew Hinkson and Lance Herman, in the days after the May 10 th attempt murder.

He also emphasized that Goulbourne appeared to have called his mother, Althia Anderson, numerous times in the hours immediately after the May 10 th attempt murder. In terms of the many suspects or persons of interest, D.C. Plunkett referred to D.C.

Tanabe’s analysis showing apparent telephone contacts between Yasin Hersi and Quinton Gardner, between Yasin Hersi and Gaddiel Ledinek, between Quinton Gardner and Gaddiel Ledinek, between Prince Asante and Gaddiel Ledinek, between Abshir Abdirashid and Gaddiel Ledinek, between Turell Tomlinson and Gaddiel Ledinek, between Joel Benjamin and Gaddiel Ledinek, and between Yasin Hersi and Abshir Abdirashid at relevant times. These are simply some examples of how D.C. Plunkett used D.C.

Tanabe’s analysis of the telephone records in order to show association and to show that the numerous suspects talked to each other over the telephone at relevant times. [ 24 ] One aspect of D.C. Tanabe’s report that D.C. Plunkett did not highlight and summarize in his affidavit, but which is set out in D.C. Tanabe’s appended report, is cell tower data inferring the approximate location of two telephones associated with Yasin Hersi and Quinton Gardner.

On May 9, 2011, around the time of the armed robbery of Daimeon Ennis, a cell phone associated with Quinton Gardner received a call and made a call, about five minutes before the robbery (at 12:24 a.m.) and about eighteen minutes after the robbery (at 12:48 a.m.). The cell tower data analyzed by D.C. Tanabe showed that both calls utilized a tower at 35 Tobermory Drive which is just north of Finch and just east of Jane, near to the scene of the robbery. It is also near to Quinton Gardner’s home.

The cell phone associated with Yasin Hersi made the first of these two calls to the phone associated with Quinton Gardner, that is, the call about five minutes before the robbery. The cell tower data showed that the phone associated with Yasin Hersi utilized a tower at 1 Four Winds Drive, which is west of Keele and north of Finch. In other words, the Hersi phone and the Gardner phone did not appear to have been at the same location at a time shortly before the May 9 th robbery of Ennis.

The next day, May 10, the cell phone associated with Hersi made three calls in a five minute period (between 3:50 p.m. and 3:55 p.m.), which is a time period that was probably shortly after the May 10 th attempt murder of O’neal Goulbourne. The first two calls utilized a cell tower at Steeles and Norfinch and the third call utilized a cell tower at Pond and Sentinel. The first of these cell towers was to the north and west of the crime scene but in the same general vicinity. The second of these cell towers is some distance to the east of the crime scene.

The cell phone associated with Quinton Gardner made two calls on May 10 in a twelve minute period (at 3:44 p.m. and 3:56 p.m.), which is also a time period that was probably shortly after the attempt murder of Goulbourne. Both calls utilized a cell tower just west of Steeles and Jane, that is, to the north of the crime scene but in the same general vicinity. The second of these two calls was to the cell phone associated with Yasin Hersi.

In other words, Hersi and Gardner did not appear to be at the same location at a time shortly after the May 10 th attempt murder of Goulbourne. [ 25 ] I have set out this cell tower data from D.C. Tanabe’s report in some detail, as supplemented by further documentary evidence filed on the Motion, even though D.C. Plunkett did not appear to attach any great significance to it. His failure to emphasize its alleged importance and utility was significant in the Applicants’ argument relating to “investigative necessity”. [ 26 ] The last body of information that D.C.

Plunkett set out in detail, and relied on, came from eight separate confidential informants. D.C. Plunkett was not the handler of these informants but he asked the eight handlers to review his summaries of their information and to confirm its accuracy. This is a very sound practice. A considerable amount of the information from these eight confidential informants has been edited from the copy of D.C. Plunkett’s affidavit that was disclosed to the Applicants, in order to protect informant privilege. I have not been provided with a copy of the unedited affidavit and I have not been asked to provide a judicial

summary of the edited portions.

The parties were content to proceed on the basis of the edited affidavit although the Crown reserved the right, if it becomes necessary, to provide me with the unedited affidavit that was before Nordheimer J. and to ask that judicial summaries be prepared for the defence. [ 27 ] Nordheimer J. did not appear to place a great deal of weight on this final body of information, noting that the reliability of the confidential informants is “sometimes difficult to discern from the paper record” and holding that, in any event, “the authorization would be justified in large part absent the information from the confidential sources”.

Nordheimer J., nevertheless, noted that certain elements of the information was “consistent among different confidential sources”, which enhanced its reliability. He concluded, in his endorsement, that the confidential informants were reliable and useful in relation to the following issues: “I am therefore satisfied that the information from these sources is sufficiently reliable to establish the likely existence of two gangs known as ‘YBK’ and the ‘G-siders’; the possible involvement of persons related to this investigation in one or the other of these gangs;

the interrelationships between some of these persons; and the motive that the existence of these rival gangs might provide for the shooting that occurred.” [ 28 ] In brief

summary, the information from the eight confidential informants (as edited) was as follows: • The first confidential informant’s information has been heavily edited. What remains is little more than identification of some of the suspects, their nicknames and addresses, as well as a bald conclusory assertion that the informant “believes the group of males has done … shootings” and that one of them “obtained … firearms”; • The second confidential informant’s information has also been heavily edited.

It relates mainly to O’neal Goulbourne and asserts in a similarly bald conclusory fashion that “a possible gang member from … rival gang … shot up his vehicle”; • The third confidential informant identified a gang known as “YBK”, or “Young Buck Killers”, and asserted that Chermar Gardner is “said to be” their “leader”, while Quinton Gardner is “second in charge”. A cell phone seized from Quinton Gardner, on his arrest on May 14, 2011, tended to corroborate this assertion to some degree as it contained a photograph depicting the letters “YBK” spelled out in money.

This third informant also stated “that the ‘G-Siders’ are fighting with the old ‘Lanes’ guys over respect”; • The fourth confidential informant identified a street gang known as “the G-Siders” and asserted that Guled Mahadale, Kevin Duro, Mohammed Hersi, and Jabarie Campbell are members. This informant also asserted that Quinton Gardner “has a … handgun”, a point that the police surveillance and the seizure of the two handguns at Gardner’s residence on May 14, 2011 tended to corroborate.

Finally, this informant asserted that Kevin Duro was “one of the G-Siders who went back to the Grassways to shoot it up for retaliation”. The Grassways refers to the part of the “Bottom” neighbourhood where Nugent was shot on the night of May 10, 2011; • The fifth confidential informant stated that “YBK” refers to “Young Blood Killas”, that they are from “the Courts” or “Up Top”, and that they are “associated to the gang known as the G-Siders”. This informant identified the members or associates of “YBK” as including Gaddiel Ledinek, Chermar Gardner, Abshir Abdirashid, and Quinton Gardner.

This informant also stated that Ledinek “has a gun”, that he is close to Quinton Gardner, and that Chermar Gardner “is running the show” and Quinton Gardner is “next in line”. This fifth informant went on to state that there is “conflict between the G-Siders and Connections”. The term “Connections” refers to the neighbourhood just south of Jane and Finch, also known as “Grassways” or “Bottom”. As a result of this conflict, the informant advised that “four G-Siders were responsible for a shooting Up Top” and that “three G-Siders … went to Connections and carried out a … shooting”.

Finally, this informant stated that the “Palisades” buildings, which are immediately north of Jane and Finch, are “connected and allies with the neighbourhoods known as the Lanes and Connections”, which are a few blocks south of Jane and Finch; • The sixth confidential informant provided information about two shootings of O’neal Goulbourne.

This informant stated that in one of the shootings a “male Somali who goes by the nickname PI” was driving around “in a large black SUV”, that “PI is responsible for … shooting” Goulbourne, that the black SUV “was used in that shooting”, that “PI shot at Pops [Goulbourne] on Gosford Blvd. when his girlfriend was in the car and Pops’ girlfriend was shot during that shooting”. This sixth informant also stated that “PI represents a gang … Up Top”. The May 10 th attempt murder of Goulbourne occurred on Gosford Blvd. and Goulbourne’s girlfriend, Chanise Thomas, was shot in the leg.

The fifth confidential informant had identified Abshir Abdirashid as a member of “YBK” and asserted that his street name is “PI”. Abdirashid’s picture was found in the Pathfinder, although the fifth informant apparently could not identify him in this particular group photograph; • The seventh confidential informant stated that Guled Mahadale “runs the G-Siders” and associates with “Hershi”, who the police believed to be Mohamed Hersi; • The eighth and last confidential informant stated that Quinton Gardner and Gaddiel Ledinek “are responsible for the shooting in the Grassways”.

The Grassways is the part of the “Bottom” neighbourhood where Andrew Nugent was shot on the night of May 10, 2011. A 9 mm Beretta handgun seized from a shed in the backyard of Quinton Gardner’s residence on May 14, 2011, surveillance of Quinton Gardner on that date, and forensic ballistics testing of the gun connecting it to the shooting of Nugent, all tended to corroborate the eighth informant to some degree on this point. This informant went on to state that “word on the street is that ‘YBK’, [Quinton Gardner’s] boys, are responsible because of a beef between Up Top and Down Low”.

The informant stated that “YBK” stands for “Young Blood Killers”. This informant later explained that “Up Top” is made up of the Driftwood, Gosford, and Shoreham neighbourhoods that are a few blocks north of Jane and Finch whereas “Bottom” consists of the Connections, Lanes, and Palisades neighbourhoods that are immediately north and a few blocks south of Jane and Finch. The informant advised that “people from the Bottom want [Gaddiel Ledinek] dead”. [ 29 ] Towards the end of his affidavit, D.C. Plunkett devoted some twelve pages to an explicit discussion of “investigative necessity”.

He reviewed a number of investigative procedures utilized by the police and assessed the extent to which they had helped or not helped in solving the two primary offences. These procedures included physical surveillance, use of undercover officers and agents, video surveillance, confidential informants, search warrants, production orders, expert forensic analysis of seized objects, identification line-ups, media releases, DNR and tracking warrants, witness interviews, and anonymous tips from Crimestoppers.

Many of these investigative procedures had yielded valuable evidence but the police did not yet have sufficient evidence for a successful prosecution. D.C. Plunkett concluded: “I believe that any of the above investigative techniques, without the accompanying Authorization to Intercept Private Communications, would not provide investigators and/or prosecutors with sufficient evidence to complete a successful prosecution of the named offences against the named persons.” [ 30 ] The Applicants emphasize that one investigative technique that was noticeably absent from D.C.

Plunkett’s discussion of “investigative necessity” was analysis of cell phone records, including cell tower locations. This is not entirely accurate as D.C. Plunkett did set out the numerous search warrants and production orders obtained by D. C. Tanabe in relation to various cell phones. D.C. Plunkett concluded his discussion of this investigative technique by stating:

“Although the productions … have assisted in establishing links between the identified persons of interest, the results do not provide therequired evidence necessary to prosecute the persons responsible for the named offences.” C. LAW (

i) Introduction [31] There are two statutory criteria that must be satisfied before a wiretap authorization can be granted. They are set out in s.186(1)(

a) and s. 186(1)(

b) and they have come to be referred to as “probable cause” and “investigative necessity”. See: R. v. Mahal(2012), 2012 ONCA 673 , 292 C.C.C. (3d) 252 at para. 39 (Ont. C.A.). [32] The Applicants concede that the first criterion, “probable cause”, was met in this case. It means that the police had reasonableand probable grounds to believe that a particular crime or crimes had been committed and that interception of private communicationswill afford evidence of that crime or crimes.

These traditional search and seizure requirements are not spelled out in s. 186(1)(a), whichrefers only to whether the particular wiretap authorization would be “in the best interests of the administration of justice”. The courtshave read in the two branches of the “probable cause” requirement in order to interpret s. 186(1)(

a) in a manner that complies with s. 8 ofthe Charter. See: R. v. Finlay and Grellette (1985), (ON CA), 23 C.C.C. (3d) 48 at 69-72 (Ont. C.A.); R. v. Duarte(1990), (SCC), 53 C.C.C. (3d) 1 at 12 (S.C.C.). [33] However, it is not each individual interception of each named target’s communications that must meet the “will affordevidence” standard. Rather it is the wiretap authorization, viewed as a whole, that must satisfy this second aspect of the “probablecause” standard.

The less demanding statutory criterion for naming each “known person” as a target of the wiretap authorization isexpressly set out in s. 185(1)(e), namely, whether interception of that person’s private communications “may assist the investigation”. Ithas repeatedly been held that this threshold is “a low one”. See: R. v. Vanweenan and Chesson (1988), (SCC), 43C.C.C. (3d) 353 at 365-6 (S.C.C.); R. v. Mahal, supra at paras. 71, 75-6, 81 and 88; R. v. Nugent (2005), (ON CA), 193C.C.C. (3d) 191 at paras. 8 and 9 (Ont.

C.A.). [34] I am satisfied that the Applicants were right to concede that both branches of the “probable cause” requirement were met, onthe facts of this case, for a number of reasons. First, there was overwhelming evidence that the two primary offences under investigationhad been committed, as outlined above. Second, there was evidence to infer that the two primary offences were part of a pattern ofongoing warfare between rival groups and/or neighbourhoods.

One of the victims or targets in four of the incidents, O’neal Goulbourne,had stated that the ongoing dispute would be looked after “on the streets”, rather than with the assistance of the police. He had taken towearing a bullet proof vest. Many of the suspects and targets and their associates were known to talk to each other on the telephone,including at the time of the primary offences.

It could be inferred from all the evidence that the various suspects and targets would likelybe discussing and committing further unlawful acts or, at least, would be discussing their ongoing rivalries, their past grievances, and anyretaliatory plans on the telephone. In this context, it could be inferred that wiretapping of the targets would likely yield evidenceconcerning the vital issues of motive and identity in relation to the two primary offences. Finally, D.C.

Plunkett had committed theinvestigation to various “stimulation” techniques, in order to encourage these kinds of discussions on the telephone. [35] For all these reasons, I am satisfied that “probable cause” existed for the first authorization. This provides important context,when assessing the Applicants’ arguments concerning “investigative necessity” and concerning the naming of certain “known persons”as targets. I am also satisfied that the police investigation had not yet succeeded in identifying the perpetrators of the two primaryoffences.

This is self-evident from the results of the three and a half month long investigation, as summarized above. (ii) Investigative necessity [36] The statutory language found in s. 186(1)(

b) enacts a three part test, as follows: (

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or theurgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigativeprocedures. [37] The three part test for “investigative necessity” is disjunctive and it has been held that “it is sufficient to satisfy one branch ofs. 186(1)(b)”.

Nevertheless, the individual branches “ought not to be read in a vacuum” and “the disjunctive nature of the three branchesdoes not remove the need to read the subsection together as a whole”. See: R. v. Araujo et al (2000), 2000 SCC 65 , 149 C.C.C.(3d) 449 at para. 28 (S.C.C.). [38] Nordheimer J. was satisfied that “investigative necessity” had been made out. His endorsement relied mainly on the secondbranch of the test as he stated the following: I am satisfied that the requirement of investigative necessity is made out in this case.

Many other investigative procedures have beenemployed and have yielded considerable information. Some persons have already been arrested and charged in relation to the otherevents but not the main events. While other investigative techniques will continue to be used as the investigation progresses, it isapparent that these other investigative techniques will not, by themselves, be sufficient to fully and properly investigate the very seriousoffences that are at the heart of this investigation.

I note in that regard a general level of non-cooperation by persons who are clearlyconnected to these events in terms of their willingness to provide information to the investigators. As a consequence, the police areforced to resort to other investigative techniques, such as this application, in order to garner the needed evidence to provide a properfoundation for any effective prosecution of these offences. [Emphasis added]. [39] The most authoritative judicial

interpretation of the second branch of s. 186(1)(

b) is found in R. v. Araujo et al, supra at paras.29-35. LeBel J. gave the unanimous judgment of the Court and stated:

“The words of the Code must be read with some common sense having regard both to the nature and purpose of the particularinvestigation which the police wish to undertake … There must be, practically speaking, no other reasonable alternative method ofinvestigation, in the circumstances of the particular criminal inquiry. … s. 186 does not require that all alternative investigative techniques have been tried. It is not simply a recourse of last resort. It is atechnique … which can be employed not only when the other methods have failed, but also, when they appear to have little chance ofsuccess … [adopting R. v.

Hiscock (1992), (QC CA), 72 C.C.C. (3d) 303 at 325 (Que. C.A)]. [Emphasis added]. [40] The Applicants assert that this standard was not met in the present case because a reasonable alternative method ofinvestigation was available and it had not yet been fully employed. They submit that the reasonable alternative method was cell phoneanalysis, which D.C. Tanabe had commenced but had not yet fully explored or completed.

The Applicants’ recommended techniqueinvolves a number of investigative steps including the following: cell tower analysis, to determine the location of all the suspects’phones at the time of the two primary offences; cell phone records analysis, to determine who all the suspects were talking to at therelevant times; and seizure of any text messages sent by the suspects at the relevant times. It is common ground between the parties thatD.C. Tanabe had commenced some of this work but had not completed it.

For example, he had not yet seized all the phone records of allcell phones associated with all the suspects, he had obtained cell tower locations in relation to two suspects but not others, and he had notseized any text messages. [41] In assessing the Applicants’ assertion that Nordheimer J. erred in granting the August 31, 2011 authorization, when a“reasonable alternative method of investigation” was available, it must be remembered that the standard of review is deferential.

In s. 8Charter litigation, when the evidence in question has been gathered pursuant to a presumptively valid judicial order, the reviewing courtdoes not conduct a de novo hearing. The well-known approach set out in the majority judgment of Sopinka J. in R. v. Garofoli (1990), (SCC), 60 C.C.C. (3d) 161 at paras. 55-6 (S.C.C.) is as follows: The correct approach is set out in the reasons of Martin J.A. in this appeal.

He states, at p. 119: If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied thatthe pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search orseizure contravened s. 8 of the Charter. The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. Ten years later, in R. v. Araujo et al, supra at para. 51, the Court reiterated this deferential approach stating: “The reviewing judge does not stand in the same place and function as the authorizing judge.

He or she does not conduct a re-hearing ofthe application for the wiretap … the question is simply whether there was at least some evidence that might reasonably be believed onthe basis of which the authorization could have issued.” Most recently, in R. v.

Pires & Lising (2005), 2005 SCC 66 , 201 C.C.C. (3d) 449 at para. 30 (S.C.C.), in a unanimousjudgment, the Court stated: “The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could besatisfied that the relevant statutory preconditions existed … Hence, there is a relatively narrow basis for exclusion”. [42] Applying the above deferential approach, I am not only satisfied that there was a basis on which Nordheimer J. could besatisfied that the test for “investigative necessity” had been met.

I am also satisfied that the Applicants’ proposed “reasonable alternativemethod of investigation” was not one which could undermine “investigative necessity”. [43] I arrive at this conclusion for a number of reasons, as follows: • First, there were a number of perpetrators who committed the two primary offences, perhaps as many as eight or nine. It isunlikely that they were all using cell phones at or near the crime scenes at the two relevant times.

Furthermore, if the crimes were beingcommitted at the behest of “higher-ups”, who were not even at the crime scenes, their cell phone locations would have no incriminatingeffect; • Second, some of the targets and suspects in this case were known to use multiple cell phones and were known to transfertheir cell phones to other parties.

Even if a particular cell phone was being used at one of the relevant times and places, this would notnecessarily infer that any particular suspect was using it; • Third, many of the targets and suspects either lived in the Jane and Finch neighbourhood or had some connection to theneighbourhood, as set out in Exhibit 8A. As a result, it would not be surprising if their cell phones were shown to be in theneighbourhood at the relevant times.

For example, the Crown established through an analysis of Exhibits 8 and 9 that Quinton Gardner’sphone calls, at the relevant times on May 9 and May 10, 2011, utilized the same cell phone towers as he appeared to use when makingcalls from his home; • Fourth, assuming cell tower analysis placed telephones associated with some of the suspects in the general vicinity of oneor both crime scenes, at the relevant times, this would simply provide one piece of circumstantial evidence relevant to opportunity. Itwould hardly solve the crime or justify a prosecution.

The Applicants concede this point and submit that other investigative steps wouldhave to be taken, in conjunction with cell tower analysis, such as the seizure of text messages;

• Fifth, seizure of text messages could be useful but it is subject to similar limitations. It is highly unlikely that all of theperpetrators were sending text messages about the relevant events. Assuming one or more of the perpetrators was texting at the relevanttimes or in relation to the relevant events, and assuming that the content of the texts was incriminating in some fashion, those texts wouldonly be admissible against the parties who made and sent the texts.

Even assuming a conspiracy, it is highly unlikely that anincriminating text would incriminate all of the perpetrators and would explain their respective roles in the two primary offences; • Sixth, cell phone records provide useful evidence of association at the relevant times and D.C. Plunkett used D. C.Tanabe’s analysis of the records in order to infer association. Needless to say, evidence of association does not result in a case that is fitfor prosecution. [44] In conclusion, the “reasonable alternative method of investigation” proposed by the Applicants would undoubtedly yield someuseful evidence.

It already had produced useful evidence, as D.C. Tanabe’s report and D.C. Plunkett’s reliance on it made clear. Thisform of investigative work could and should continue but it is not realistic to suppose that it would solve the two cases. It is not asufficiently incriminating form of evidence and it would not incriminate all of the perpetrators. It is somewhat analogous to theenhanced surveillance efforts recommended by the appellants in R. v Araujo et al, supra at para. 42, as a “reasonable alternative methodof investigation”.

LeBel J. rejected the argument and stated: “… surveillance efforts alone would not bring them [the police] into contact with higher-ups in the drug organization. Indeed, I am quiteuncertain how surveillance alone would ever have given good proof of laundering and conspiracy.

By showing that the police werealready conducting surveillance and that this was not accomplishing everything required, the affidavit materials established investigativenecessity”. [Emphasis added]. [45] Similarly, cell phone analysis could not realistically provide sufficient evidence in the present case nor could it incriminate allof the perpetrators in the two primary offences. The recent decision of the Court of Appeal in R. v. Spackman (2012), 2012 ONCA 905, 295 C.C.C. (3d) 177 (Ont. C.A.) illustrates the point.

In that case, the cell phone evidence was particularly compelling and yetits effect was simply to place both the accused and the alternate suspect Chung in “the immediate vicinity” of the crime scene, givingthem both “equivalent opportunity” to have committed the murder. As the Court commented, “it was not an overwhelming case”. Moreimportantly, the Court held that there was “investigative necessity” in that case, and that a wiretap authorization was justified, in order toadd to the prosecution’s cell phone and other evidence and thereby strengthen the available proof. See: R. v.

Spackman, supra at paras.22-33, 190, 217-226, and 241; R. v. Rosebush (1992) 1992 ABCA 293 , 77 C.C.C. (3d) 241 at 247-9 (Alta C.A.); R. v. Riley,Atkins and Wisdom, (ON SC), [2009] O.J. No. 738 at paras. 144-159. [46] In R. v. Riley, Atkins and Wisdom, supra at paras. 148 and 152, Dambrot J. upheld the wiretap on a s. 8 Charter motion wherethe Applicants alleged a lack of “investigative necessity”.

He stated a proposition which, in my view, applies equally to the present case: “Where the use of other investigative techniques would likely succeed in establishing the culpability of one target of an investigation ofan offence that was perpetrated by several persons acting in concert, but would not succeed in establishing the culpability of others,investigative necessity is not defeated. … The object of this investigation was to solve the murder of Charlton. Solving a murder obviously means more than figuring out who didit. It means developing a viable prosecution of the persons believed to have done it.

In this case, that meant developing a case againstRiley, if the investigation supported his guilt, but also ascertaining and building a case against whoever else was involved in the crime”. [Emphasis added]. In the Riley, Atkins and Wisdom case, coincidentally, three men in a black Pathfinder were believed to have shot a man named Charltonat a public intersection in the east end of Toronto. The wiretap in that case was intended to develop a viable prosecution against the three perpetrators.

In the present case, three males were believed to have been parties to the May 10th shooting and five or six males were believed to have committed the May 9th robbery.

Even if cell tower analysis could place a cell phone associated with one or twosuspects in the vicinity of the shooting or the robbery or both, and even if incriminating text messages might exist and might help to builda case against one or two suspects, this hardly amounts to “a viable prosecution of the persons believed to have [committed the twooffences]”, to paraphrase Dambrot J. [47] It is not my role, as a reviewing judge on a s.8 Charter motion, to assess the correctness of Nordheimer’s J.’s decision,granting the first wiretap authorization in this case.

If that had been my role, I would have been satisfied that he was right when heconcluded: “… it is apparent that these other investigative techniques will not, by themselves, be sufficient to fully and properly investigate the veryserious offences that are at the heart of this investigation … As a consequence, the police are forced to resort to other investigativetechniques, such as this application, in order to garner the needed evidence to provide a proper foundation for an effective prosecution ofthese offences”. [48] For all these reasons, I cannot accept the Applicants’ first argument alleging an insufficient basis in the affidavit to establish“investigative necessity”, pursuant to s. 186(1)(b). (iii) The “known persons” named in the authorization [49] The Applicants submit that it was unlawful to name Lance Herman, Chanise Thomas, Althea Anderson, Mohamed Hersi, andAbshir Abdirashid as “known persons” or targets in the first authorization.

They submit that there was insufficient evidence from whichNordheimer J. could conclude that the statutory test for interception of private communications was met in the case of these fiveindividuals. When assessing the validity of this argument, it is important to remember the “probable cause” context in this case, set out

above at para. 34. [50] I have already summarized the law relating to the s. 185(1)(

e) statutory test for the naming of “known persons”, at para. 33above. The test is whether interception of a “known” person’s communications “may assist the investigation”. I have also cited thebinding authorities holding that this standard is “a low one”. It is important to remember that a named target of a wiretap authorizationneed not be implicated in the offence under investigation, unlike at the later stage of an arrest. The target of a wiretap may even be anentirely innocent third party, provided that seizure of their communications may somehow further the investigation.

See: R. v.Vanweenan and Chesson, supra; R. v. Mahal, supra; R. v. Nugent, supra; R. v. Finlay and Grellette, supra at para. 84; R. v. Samson et al(1983), (ON CA), 9 C.C.C. (3d) 194 at para. 16 (Ont. C.A.). [51] The Applicants attack the facial sufficiency of D.C. Plunkett’s affidavit in relation to five of the forty-five “known persons”named in the authorization. It bears emphasizing, once again, that the standard of review in relation to this argument is deferential.

Nordheimer J. was alive to the governing case law and to the fact that the strength of the evidence varied, as between the numeroustargets, in terms of meeting the s. 185(1)(

e) statutory test. He stated the following in this regard: “As with most cases, I am aware that the strength of the grounds for naming persons in the authorization varies from individual toindividual mentioned in the affidavit. Notwithstanding those variations, however, the grounds are still sufficient to meet the relativelylow threshold for naming a person in an authorization, that is, that the interception of his or her communications may assist theinvestigation of the named offences – see R. v. Chesson (1988), (SCC), 43 C.C.C. (3d) 353 (S.C.C.).

In some instances,the interception is justified by familial connections, in other instances by connections to the suspected vehicle and in other cases from thenature and number of interactions between the persons named.” [52] Counsel for the Applicants did not press the argument that Lance Herman, Chanise Thomas, and Althea Anderson ought notto have been named. These three were all closely connected to O’neal Goulbourne. Indeed, Herman was with Goulbourne at the time ofthe March 17 and April 13, 2011 incidents and he was robbed in the latter incident.

Thomas was Goulbourne’s girlfriend and she waswith him at the time of the May 10, 2011 incident in which she was shot. In other words, Herman and Thomas were victims and eyewitnesses in three of the nine incidents. Anderson is Goulbourne’s mother and they were living together at the relevant times. D.C.Tanabe’s analysis of the phone records showed “numerous contacts” between Goulbourne and Thomas, between Goulbourne andHerman, and between Goulbourne and Anderson at the relevant times. In particular, Goulbourne called his mother a number of times in the hours immediately after the May 10th shooting.

There was evidence that Goulbourne knew the identity of the perpetrators and therewas some evidence that Herman knew one of the perpetrators. These four individuals were all in frequent telephone and in-personcontact with each other at the relevant times.

There was a reasonable inference that they had shared their knowledge and that, with somestimulation, they could assist the investigation. [53] I am satisfied that there was a sufficient basis to name these three as “known persons”, within the meaning of s. 185(1)(e), andcertainly there was a basis on which Nordheimer J. “could” conclude that they “may assist the investigation”, which is the Garofolistandard of review. [54] Counsel for the Applicants submitted, more forcefully, that Abshir Abdirashid and Mohamed Hersi should not have beennamed in the authorization.

They are both connected to suspects in the investigation, rather than being connected to a target or victimlike O’neal Goulbourne. [55] The affiant, D.C. Plunkett, relied on four different evidentiary bases when seeking to intercept Abdirashid’s communications. There were as follows: • First, Abdirashid was depicted in a photograph, together with Chermar Gardner and Guled Mahadale. The photograph wasfound in the Pathfinder on May 10, 2011. The photograph had been taken in the five days preceding the May 10, 2011 shooting.

Chermar Gardner was connected to two guns used in a number of the shooting incidents and he was connected to the Pathfinder by thephotograph. Guled Mahadale was connected to the Pathfinder by his fingerprints, by the photograph, and by the Louis Vuitton bag; • Second, Abdirashid’s criminal associations and antecedents included a 2004 arrest for robbery, together with GuledMahadale, which resulted in a conviction for assault. In 2009, Abdirashid was arrested after fleeing from a building where a shootinghad occurred and then discarding a firearm.

He was convicted in 2010 of possession of a loaded restricted firearm; • Third, D.C. Tanabe’s analysis of telephone records in the relevant time period disclosed “numerous calls” between phonesassociated with Abdirashid and Yasin Hersi and between Abdirashid and Gaddiel Ledinek. It also disclosed calls between Abdirashidand Joel Benjamin, Turell Tomlinson, Jerry Mensah, and Kwasi Skene-Peters.

As set out previously, Yasin Hersi, Gaddiel Ledinek, JoelBenjamin, and Turell Tomlinson were all connected to the Pathfinder in various ways; • Fourth, and last, two of the confidential informants implicated Abdirashid in the primary offences. Confidential InformantNo. 5 provided information about the “YBK” gang and identified a number of its members, including one with the street name “PI”. He/she identified a police photo of Abdirashid as “PI”. He/she went on to describe conflicts between the neighbourhood gangs as thecause of various shootings.

Confidential Informant No. 6 provided more specific information linking a “Somali”, named “PI” to ashooting involving Goulbourne and his girlfriend. “PI” was said to be driving a black SUV on Gosford Blvd. when Goulbourne’sgirlfriend was shot. This sixth informant also asserted that “PI represents a gang … Up Top”. [56] A great deal of the argument on this point involved detailed analysis of the information provided by Confidential InformantNo. 5 and Confidential Informant No. 6 and whether that information complied with the well known standards set out in R. v.

Debot(1986), (ON CA), 30 C.C.C. (3d) 207 at 218-219 (Ont. C.A.); aff’d (1989), (SCC), 52 C.C.C. (3d) 193(S.C.C.). In my view, much of this argument was misconceived for two reasons. First, the Debot line of jurisprudence is concerned withassessing whether an informant’s tip rises to the level of reasonable and probable grounds and is, therefore, sufficient to justify an arrestor issuance of a search warrant. That is not a standard required by s. 185(1)(e). Second, D.C. Plunkett was relying on four sources ofinformation, as set out above, and not just on the two confidential informants.

The issue before Nordheimer J. was whether the totality of

the four sources of information, including tips from the two confidential informants, met the s. 185(1)(

e) standard (“may assist theinvestigation”). [57] I am satisfied that the total body of evidence relied on by D.C. Plunkett connected Abdirashid to the Pathfinder, connectedhim to major suspects in the shooting incidents, connected him to “YBK”, and showed that he was in telephone communication with anumber of the suspects at the relevant time.

All of this evidence was more than sufficient to provide Nordheimer J. with a basis on whichhe could conclude that intercepting Abdirashid’s communications “may assist the investigation”. [58] Out of respect for the detailed submissions made by counsel for the Applicants concerning the Debot criteria, I will brieflyaddress this issue. The reliability of Confidential Informant No. 5 was attacked on the basis that he/she had no past history of providinginformation to the police. In addition, the editing of D.C.

Plunkett’s affidavit had the effect of removing any references to whetherhe/she had a criminal record and any references to how he/she acquired relevant information. Finally, D.C. Plunkett acknowledged thatone part of certain information provided by Confidential Informant No. 5 about a break and enter was not accurate while another part ofthis information was accurate. These are all legitimate reasons to be concerned about the reliability of Confidential Informant No. 5.

Onthe positive side, Confidential Informant No. 5 provided reasonably detailed information about the gang known as “YBK”, including itsorigins “in the Courts”, its association with the “G-Siders”, its various members (including Abdirashid), their street names, and some oftheir criminal activities. D.C. Plunkett also set out all the instances where the police had been able to confirm some of this information. [59] I should note that Confidential Informant No. 5 was able to identify a police photograph of Abdirashid, as the person knownto him as “PI”.

He was apparently not able to identify Abdirashid in the group photograph of six persons that was seized from thePathfinder. In that photograph Abdirashid was wearing a baseball hat that was pulled down low at the front such that it completelycovered his hair and his eyes.

The apparent inability of Confidential Informant No. 5 to identify Abdirashid in this particular photographstrikes me as a neutral factor. [60] The four most important Debot indicia of reliability, when assessing the strength of an informant’s tip, are any past record ofproven reliability, the informer’s means of knowledge, any detail in the tip, and any corroboration of the information. It can be seen thatConfidential Informant No. 5 was reasonably strong in relation to two of these indicia and was weak or unknown in the other two.

Iwould assess Confidential Informant No. 5 as being in the mid-range of reliability. [61] Confidential Informant No. 6 was somewhat similar to Confidential Informant No. 5. Although he/she was said to be a“carded confidential source” with the Toronto Police Service, the editing of the affidavit appears to have removed any information abouthis/her past performance. In addition, the editing has removed any information about his/her means of knowledge and about whetherhe/she has a criminal record. Accordingly, these are all negative or unknown features when assessing the reliability of ConfidentialInformant No. 6.

On the other hand, Confidential Informant No. 6 provided relatively detailed information about two shootings thatboth involved O’neal Goulbourne as the apparent target. He/she implicated a male named “PI” in one of these shootings and asserted that“PI represents a gang … Up Top”. Once again, D.C. Plunkett set out the various instances where the police had been able to confirmsome of this information.

Like Confidential Informant No. 5, I would assess Confidential Informant No. 6 as being in the mid-range ofreliability. [62] The Applicants conceded that two confidential informants can mutually corroborate each other. MacDonnell J. recentlysummarized the law on this point and cited the leading authorities, in R. v. Ahmed et al, 2012 ONSC 6266 at para. 200, where he stated: With respect to the hostility between Tretheway and Woolner, all six sources essentially told the police the same thing. It was open tothe authorizing justice to find that this enhanced the reliability and credibility of each of them.

That is, he was entitled to regard theirreports of what was going on as mutually corroborative: see R. v. Saunders, (2003) 2003 NLCA 63 , 181 C.C.C. (3d) 268 atparagraphs 14-15 (Nfld. C.A.), aff’d (2004) 2004 SCC 70 , 189 C.C.C. (3d) 436 (S.C.C.); R. v. Floyd, 2012 ONCJ 417, atparagraph 76; R. v. McElroy, 2009 SKCA 77 , [2009] S.J. No. 416, at paragraphs 39-43 (Sask.

C.A.). [63] Confidential Informant No. 5 and Confidential Informant No. 6 both associated a male by the name of “PI” with a gangreferred to as “Up Top” and Confidential Informant No. 6 implicated him in a shooting of Goulbourne’s girlfriend while driving a blackSUV on Gosford Boulevard. Confidential Informant No. 5 implicated the gang in other shootings and identified their leaders as Chermarand Quinton Gardner. Confidential Informant No. 3 provided similar information about the leadership of the gang.

I am satisfied thatNordheimer J. could regard all this information as mutually corroborative, as he did when he stated in his endorsement: “… some measure of comfort can be taken in the reliability of the information provided from the fact that different elements of it areconsistent among different confidential sources.” [64] In conclusion concerning Abshir Abdirashid, the mutually corroborating confidential informants were in the mid-range ofreliability, standing alone. However, they provided only one piece amongst the four separate pieces of information relied on by D.C.Plunkett, as set out above.

Furthermore, the issue was not “reasonable and probable grounds” to arrest Abdirashid but simply whetherhis intercepted communications “may assist the investigation”. In relation to that issue, there was more than sufficient evidence to meetthe Garofoli standard of review and to justify naming Abdirashid in the authorization as a “known person”. [65] In terms of the basis for naming Mohamed Hersi as a “known person”, D.C.

Plunkett relied on four separate bodies ofinformation as follows: • First, Mohamed Hersi’s criminal associations and antecedents included April 2009 convictions for robbery, disguise withintent, and possession of a weapon. He had been arrested in 2007 for these offences, together with his brother Yasin Hersi. In June2009, Mohamed Hersi was arrested again, this time with Guled Mahadale, and they were charged with possession of two loaded firearmswhich they had each transported from Alberta to Toronto.

Mohamed Hersi and Mahadale were both convicted of possession of arestricted firearm with ammunition and breach of a prohibition order; • Second, Mohamed Hersi failed to report to his probation officer in York Region on May 13, 2011 and thereafter, that is, inthe period shortly after the May 9 and 10, 2011 offences. A warrant was issued for his arrest. On July 28, 2011, he was found “in a

closet in the basement” of a house in Calgary that was occupied by Abdirashid. A large amount of crack cocaine and money was found in the house and Abdirashid was charged; • Third, when residing in the Toronto area, Mohamed Hersi shared a home in Richmond Hill with his brother Yasin Hersi. There was evidence connecting Yasin Hersi to the Pathfinder, through his cell phone contract, and there was considerable telephone contact between Yasin Hersi and the major suspects.

In particular, Yasin Hersi may have been the link between the Toronto parties, who were suspected of carrying out the shootings, and the London parties who had initially rented the Pathfinder and who were found with the gun used in the May 10 and 12 shootings; • Fourth, and last, two of the confidential informants linked Mohamed Hersi to the gang known as “G-Siders”.

Confidential Informant No. 4 asserted that Guled Mahadale and Mohamed Hersi “are always together”, that they are “part of the G-Siders street gang”, and that various “G-Siders” are involved with guns and with a “retaliation” shooting at “the Grassways” (which is the neighbourhood where Nugent was shot on the evening of May 10, 2011). Confidential Informant No. 7 asserted that Guled Mahadale “runs the “G-Siders” and that he “hangs with … Hershi”.

The police believed “Hershi” to be Mohamed Hersi’s nickname, given that Confidential Informant No. 4 had stated that “Hershey” was his nickname and this was consistent with police records. [ 66 ] The evidentiary basis in the present case for naming Mohamed Hersi as a “known person” is not that different from the facts of the leading case, R. v. Vanweenan and Chesson , supra . In the latter case, the Court held that Vanweenan should have been named as a “known person” as she fell within the test set out in s. 185(1) (e) (“may assist the investigation”).

The police were investigating a man named Whiteman, and others, for various property offences. They obtained a wiretap authorization in June 1983 that named four “known persons” but did not name Vanweenan. The police knew, at the time, that “Vanweenan was Whiteman’s girlfriend and that they had been associated together in criminal activities in the past”. The trial judge held that, “Vanweenan’s association with Whiteman, including her close relationship with him, her alleged … joint criminal activities with him”, provided a proper basis to name her as a “known person”.

On further appeal to the Supreme Court of Canada, McIntyre J. gave the unanimous judgment of the Court on this point, and agreed with the trial judge. He stated: Vanweenan and Whiteman were close associates and in the past had joined in criminal activity. She was the girlfriend of Whiteman and surveillance of the Whiteman vehicle prior to June 29 th , established her use of the vehicle. She had previously been involved in criminal activity with him and on June 29, 1983, Vanweenan and Whiteman were co-accused under an indictment with respect to drug offences.

The police officer, Peterson, considered it reasonable to assume that her private communications would, or could assist the investigation. All that was required to include her in the application was reasonable and probable grounds that her communications may assist. This test was met in the present case. I would therefore conclude that she was a “known” person and that the Crown may not rely on the basket clause. [Italics of McIntyre J. in the original]. See: R. v. Vanweenan and Chesson , supra at paras. 4, 9 and 22-3 . [ 67 ] I am satisfied that the four bodies of information relied on by D.C.

Plunkett concerning Mohamed Hersi were just as strong, if not stronger, than the information relating to Vanweenan, in terms of meeting the statutory test in s. 185(1) (e). Mohamed Hersi had been involved in past criminal activities with both Yasin Hersi and Guled Mahadale, who were both suspects in the primary offences on the basis of their connections to the Pathfinder. Indeed, they were significant suspects. In addition, Mohamed Hersi had recent connections to his brother Yasin Hersi’s address in Richmond Hill and to Abshir Abdirashid’s address in Calgary.

Abdirashid was also connected to the Pathfinder and was a suspect in the primary offences. Finally, the confidential informants connected Mohamed Hersi to “the G- Siders street gang”. Taken cumulatively, this body of information was easily sufficient to meet the statutory test in s. 185(1)(e). [ 68 ] I will briefly address counsel’s argument concerning application of the Debot criteria to the two informants who relate to Mohamed Hersi. Confidential Informant No. 4 had provided information on a number of occasions and had received money from the police in return for the information.

As a result of the editing, it is not known whether he/she has a criminal recor

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