Case Name:
R. v. [REDACTED]
Between
Her Majesty the Queen, and
[REDACTED], et al
[2013] O.J. No. [REDACTED]
2013 ONSC [REDACTED]
2013 CarswellOnt [REDACTED]
111 W.C.B. (2d) [REDACTED]
Court File No. 13-10000535-0000
Ontario Superior Court of Justice
[REDACTED]
Heard: December 2-5, 2013.
Judgment: December 20, 2013.
(95 paras.)
Counsel:
[REDACTED], [REDACTED] and [REDACTED], for the Accused Applicants.
REASONS FOR JUDGMENT
(Ruling on Pre-Trial Application)
[REDACTED]:--
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, [REDACTED], 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 [REDACTED], 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. [REDACTED]'s two lengthy affidavits which led to the two challenged wiretap authorizations, both of which were granted by [REDACTED]. 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. [REDACTED]'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. [REDACTED] 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 [REDACTED]. It involves a sub-facial attack on a narrow part of D.C. [REDACTED]'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 [REDACTED] 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.
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. [REDACTED]'s first affidavit and in the additional documents filed by the Applicants and the Respondent.
10 D.C. [REDACTED] 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. [REDACTED]. 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. [REDACTED] was investigating were an armed robbery of [REDACTED] on May 9, 2011 and an attempt murder of [REDACTED] 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 10th attempt murder, and it contained a number of items stolen from the victim [REDACTED] during the May 9th robbery.
12 In terms of identifying the perpetrators, there was no direct evidence. The May 9th 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 [REDACTED]' 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 [REDACTED] 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 10th attempt murder also failed to yield any direct identification evidence. Unlike the May 9th robbery, the May 10th 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 10th 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 10th shooting did not report the offence to the police. They drove away from the crime scene in their car. One of them, [REDACTED], was hit in the leg by one of the approximately 8-11 bullets that were fired from the Pathfinder. [REDACTED]' two male companions in the car were her boyfriend, [REDACTED], and his brother [REDACTED]. The police found the three of them, sometime after the shooting, after being called to a hospital where [REDACTED] 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. [REDACTED], 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". [REDACTED] 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 9th robbery or the May 10th 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 10th shooting, as follows:
* The Pathfinder was a rental vehicle that [REDACTED] and [REDACTED] had rented in Woodbridge on April 12, 2011;
* Fingerprints of [REDACTED], [REDACTED], [REDACTED], and [REDACTED] were found in or on the Pathfinder;
* The gun used in the May 10th 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 [REDACTED], [REDACTED], and [REDACTED]. Two handguns were found in the car, including the Smith and Wesson pistol that was used six weeks earlier in the May 10th shooting;
* A Louis Vuitton bag was found in the Pathfinder. The bag was associated with both [REDACTED] and [REDACTED]. It contained a photograph of six males, three of whom were identified as [REDACTED], [REDACTED], and [REDACTED]. Further police investigation led to the inference that the photograph was taken in the five days preceding the May 10th shooting. Another copy of the photograph was seized from [REDACTED]'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. [REDACTED] 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 [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED] [REDACTED], [REDACTED], [REDACTED], and [REDACTED];
* A Blackberry cell phone was found in the Pathfinder. Further police investigation connected this phone to [REDACTED];
* An LG cell phone was found in the Pathfinder. Further police investigation connected this phone to [REDACTED]. Calls on the LG phone at relevant times were made to phones associated with [REDACTED], [REDACTED], [REDACTED], [REDACTED], and [REDACTED];
* A GPS device was found in the Pathfinder. Further police investigation connected the device to [REDACTED].
17 It can be seen that the May 9th robbery was likely carried out by five or six males and the May 10th 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: [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED]; [REDACTED] [REDACTED]; [REDACTED]; and [REDACTED]. 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. [REDACTED] repeatedly referred to the May 9th robbery and the May 10th 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 [REDACTED]. 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. [REDACTED] 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, [REDACTED], 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. [REDACTED] were as follows:
* The February 9, 2011 shooting of [REDACTED] 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, [REDACTED] and [REDACTED] (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 [REDACTED] shooting;
* A March 17, 2011 incident where five to six gunshots appear to have been fired at a vehicle occupied by [REDACTED] and his friend [REDACTED]. The location of this shooting was a few blocks south of Jane and Finch in a neighbourhood known as "the Lanes" or "Bottom". [REDACTED] and [REDACTED] did not call the police and they initially fled from the scene. When police later questioned them, [REDACTED] 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'". [REDACTED] 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". [REDACTED] and [REDACTED] were seated in a parked car. They were approached by two black males with handguns. [REDACTED] ran away and [REDACTED] was robbed. They did not report the incident to the police. When [REDACTED] 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". [REDACTED] 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 [REDACTED] was being untruthful and that it was "obvious" he knew one of the perpetrators but "would not tell police". [REDACTED] advised that "he should be safe" in the area known as "the Palisades" but that he and [REDACTED] had "stayed too long [parked] in one place and it was not smart";
* The May 10, 2011 shooting of [REDACTED]. Earlier that same day, the May 10th attempt murder of [REDACTED] 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 [REDACTED] 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. [REDACTED] and a friend were approached by three black males, armed with handguns, and [REDACTED] was shot twice. The shooting took place outdoors in the dark in an area that was not well lit. [REDACTED] had never seen the three male perpetrators before. [REDACTED] 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 9th shooting of [REDACTED]. 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 [REDACTED] and [REDACTED];
* 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 11th shooting matched the 9 mm Beretta seized on May 14, 2011 from the address associated with [REDACTED] and [REDACTED] (and, therefore, also matched cartridge casings and projectiles found at the [REDACTED] and [REDACTED] shooting crime scenes). The police were also advised that the cartridge casings and projectiles fired from the second gun used in this May 11th shooting matched a .380 automatic handgun that was also seized on May 14, 2011 from the address associated with [REDACTED] and [REDACTED];
* 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 12th shooting were matched to the Smith and Wesson pistol seized in London on June 26, 2011 from [REDACTED], [REDACTED], and [REDACTED] (and were, therefore, also matched to the May 10th attempt murder of [REDACTED] when a gun was fired from the Pathfinder); other cartridge casings from this May 12th shooting were matched to the 9 mm Beretta seized on May 14, 2011 from the address associated with [REDACTED] and [REDACTED] (and were, therefore, also matched to three other shootings - [REDACTED], [REDACTED], and the May 11 incident - already discussed above); and finally, other cartridge casings from this May 12th shooting were matched to the .380 automatic seized on May 14, 2011 from the address associated with [REDACTED] and [REDACTED] (and were, therefore also matched to the May 11th incident already discussed above). It can be seen that this incident brought together the gun seized in London, which was associated with [REDACTED], and the two guns seized in Toronto, which were associated with the [REDACTED] brothers. [REDACTED] and the two [REDACTED] 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 [REDACTED]'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. [REDACTED] 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. [REDACTED]'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. [REDACTED] 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 [REDACTED] 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 [REDACTED] and [REDACTED] were observed exiting the residence shortly after 2:00 p.m. At 4:15 p.m. [REDACTED] went "into back yard" and at 4:17 p.m. [REDACTED] also walked "into the backyard". [REDACTED] then left in a taxi. At 5:43 p.m. [REDACTED] 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. [REDACTED] 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 [REDACTED] 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 [REDACTED] was away from the residence he was observed in some exchange with a male in a car in which [REDACTED] 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 [REDACTED] 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. [REDACTED] set out in his affidavit came from [REDACTED]'s probation officer, [REDACTED]. She spoke with [REDACTED] after the four incidents where he or his car had been the target of shootings and an armed robbery. Based on these conversations, [REDACTED] came to believe that [REDACTED] "knew who the persons were who were responsible for the shootings". [REDACTED] discussed police witness protection programs with [REDACTED] but he declined this assistance. He told [REDACTED] 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 [REDACTED] several times, "you know how it is, we don't talk". During [REDACTED]'s last appointment with [REDACTED], on June 13, 2011, he was "wearing a bullet proof vest". [REDACTED] 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. [REDACTED] was a report from D.C. [REDACTED]. 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. [REDACTED] appended in its entirety to his affidavit. The report is dated August 12, 2011 so D.C. [REDACTED] would have received it less than two weeks before he swore his affidavit on August 25, 2011. D.C. [REDACTED] 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. [REDACTED] repeatedly referred to D.C. [REDACTED]'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 [REDACTED] appeared to have communicated by telephone on numerous occasions with [REDACTED], [REDACTED] and [REDACTED], in the days after the May 10th attempt murder. He also emphasized that [REDACTED] appeared to have called his mother, [REDACTED], numerous times in the hours immediately after the May 10th attempt murder. In terms of the many suspects or persons of interest, D.C. [REDACTED] referred to D.C. [REDACTED]'s analysis showing apparent telephone contacts between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], and between [REDACTED] and [REDACTED] at relevant times. These are simply some examples of how D.C. [REDACTED] used D.C. [REDACTED]'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. [REDACTED]'s report that D.C. [REDACTED] did not highlight and summarize in his affidavit, but which is set out in D.C. [REDACTED]'s appended report, is cell tower data inferring the approximate location of two telephones associated with [REDACTED] and [REDACTED]. On May 9, 2011, around the time of the armed robbery of [REDACTED], a cell phone associated with [REDACTED] 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. [REDACTED] 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 [REDACTED]'s home. The cell phone associated with [REDACTED] made the first of these two calls to the phone associated with [REDACTED], that is, the call about five minutes before the robbery. The cell tower data showed that the phone associated with [REDACTED] utilized a tower at [REDACTED], which is west of Keele and north of Finch. In other words, the [REDACTED] phone and the [REDACTED] phone did not appear to have been at the same location at a time shortly before the May 9th robbery of [REDACTED]. The next day, May 10, the cell phone associated with [REDACTED] 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 10th attempt murder of [REDACTED]. 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 [REDACTED] 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 [REDACTED]. 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 [REDACTED]. In other words, [REDACTED] and [REDACTED] did not appear to be at the same location at a time shortly after the May 10th attempt murder of [REDACTED].
25 I have set out this cell tower data from D.C. [REDACTED]'s report in some detail, as supplemented by further documentary evidence filed on the Motion, even though D.C. [REDACTED] 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. [REDACTED] set out in detail, and relied on, came from eight separate confidential informants. D.C. [REDACTED] 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. [REDACTED]'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 [REDACTED]. and to ask that judicial summaries be prepared for the defence.
27 [REDACTED]. 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". [REDACTED]., 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 [REDACTED] 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 [REDACTED] is "said to be" their "leader", while [REDACTED] is "second in charge". A cell phone seized from [REDACTED], 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 [REDACTED], [REDACTED], [REDACTED], and Jabarie Campbell are members. This informant also asserted that [REDACTED] "has a ... handgun", a point that the police surveillance and the seizure of the two handguns at [REDACTED]'s residence on May 14, 2011 tended to corroborate. Finally, this informant asserted that [REDACTED] 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 [REDACTED] 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 [REDACTED], [REDACTED], [REDACTED], and [REDACTED]. This informant also stated that [REDACTED] "has a gun", that he is close to [REDACTED], and that [REDACTED] "is running the show" and [REDACTED] 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 [REDACTED]. This informant stated that in one of the shootings a "male Somali who goes by the nickname [REDACTED] was driving around "in a large black SUV", that [REDACTED] is responsible for ... shooting" [REDACTED], that the black SUV "was used in that shooting", that [REDACTED] shot at Pops [[REDACTED]] on Gosford Blvd. when his girlfriend was in the car and Pops' girlfriend was shot during that shooting". This sixth informant also stated that [REDACTED] represents a gang ... Up Top". The May 10th attempt murder of [REDACTED] occurred on Gosford Blvd. and [REDACTED]'s girlfriend, [REDACTED], was shot in the leg. The fifth confidential informant had identified [REDACTED] as a member of "YBK" and asserted that his street name is [REDACTED]. [REDACTED]'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 [REDACTED] "runs the G-Siders" and associates with "[REDACTED]", who the police believed to be [REDACTED];
* The eighth and last confidential informant stated that [REDACTED] and [REDACTED] "are responsible for the shooting in the Grassways". The Grassways is the part of the "Bottom" neighbourhood where [REDACTED] was shot on the night of May 10, 2011. A 9 mm Beretta handgun seized from a shed in the backyard of [REDACTED]'s residence on May 14, 2011, surveillance of [REDACTED] on that date, and forensic ballistics testing of the gun connecting it to the shooting of [REDACTED], 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', [[REDACTED]'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 [[REDACTED]] dead".
29 Towards the end of his affidavit, D.C. [REDACTED] 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. [REDACTED] 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. [REDACTED]'s discussion of "investigative necessity" was analysis of cell phone records, including cell tower locations. This is not entirely accurate as D.C. [REDACTED] did set out the numerous search warrants and production orders obtained by D.C. [REDACTED] in relation to various cell phones. D.C. [REDACTED] 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 the required evidence necessary to prosecute the persons responsible for the named offences."
(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), 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 reasonable and probable grounds to believe that a particular crime or crimes had been committed and that interception of private communications will afford evidence of that crime or crimes. These traditional search and seizure requirements are not spelled out in s. 186(1)(a), which refers only to whether the particular wiretap authorization would be "in the best interests of the administration of justice". The courts have 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 of the Charter. See: R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at 69-72 (Ont. C.A.); R. v. Duarte (1990), 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 afford evidence" standard. Rather it is the wiretap authorization, viewed as a whole, that must satisfy this second aspect of the "probable cause" standard. The less demanding statutory criterion for naming each "known person" as a target of the wiretap authorization is expressly set out in s. 185(1)(e), namely, whether interception of that person's private communications "may assist the investigation". It has repeatedly been held that this threshold is "a low one". See: R. v. Vanweenan and Chesson (1988), 43 C.C.C. (3d) 353 at 365-6 (S.C.C.); R. v. Mahal, supra at paras. 71, 75-6, 81 and 88; R. v. [REDACTED] (2005), 193 C.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, on the facts of this case, for a number of reasons. First, there was overwhelming evidence that the two primary offences under investigation had been committed, as outlined above. Second, there was evidence to infer that the two primary offences were part of a pattern of ongoing warfare between rival groups and/or neighbourhoods. One of the victims or targets in four of the incidents, [REDACTED], had stated that the ongoing dispute would be looked after "on the streets", rather than with the assistance of the police. He had taken to wearing 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 likely be discussing and committing further unlawful acts or, at least, would be discussing their ongoing rivalries, their past grievances, and any retaliatory plans on the telephone. In this context, it could be inferred that wiretapping of the targets would likely yield evidence concerning the vital issues of motive and identity in relation to the two primary offences. Finally, D.C. [REDACTED] had committed the investigation 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 primary offences. 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 the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
37 The three part test for "investigative necessity" is disjunctive and it has been held that "it is sufficient to satisfy one branch of s. 186(1)(b)". Nevertheless, the individual branches "ought not to be read in a vacuum" and "the disjunctive nature of the three branches does not remove the need to read the subsection together as a whole". See: R. v. Araujo et al (2000), 149 C.C.C. (3d) 449 at para. 28 (S.C.C.).
38 [REDACTED]. was satisfied that "investigative necessity" had been made out. His endorsement relied mainly on the second branch 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 been employed and have yielded considerable information. Some persons have already been arrested and charged in relation to the other events but not the main events. While other investigative techniques will continue to be used as the investigation progresses, it is apparent that these other investigative techniques will not, by themselves, be sufficient to fully and properly investigate the very serious offences that are at the heart of this investigation. I note in that regard a general level of non-cooperation by persons who are clearly connected to these events in terms of their willingness to provide information to the investigators. As a consequence, the police are forced to resort to other investigative techniques, such as this application, in order to garner the needed evidence to provide a proper foundation 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 particular investigation which the police wish to undertake ... There must be, practically speaking, no other reasonable alternative method of investigation, 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 a technique ... which can be employed not only when the other methods have failed, but also, when they appear to have little chance of success ... [adopting R. v. Hiscock (1992), 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 of investigation was available and it had not yet been fully employed. They submit that the reasonable alternative method was cell phone analysis, which D.C. [REDACTED] had commenced but had not yet fully explored or completed. The Applicants' recommended technique involves 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 the relevant times; and seizure of any text messages sent by the suspects at the relevant times. It is common ground between the parties that D.C. [REDACTED] had commenced some of this work but had not completed it. For example, he had not yet seized all the phone records of all cell phones associated with all the suspects, he had obtained cell tower locations in relation to two suspects but not others, and he had not seized any text messages.
41 In assessing the Applicants' assertion that [REDACTED]. 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. 8 Charter litigation, when the evidence in question has been gathered pursuant to a presumptively valid judicial order, the reviewing court does not conduct a de novo hearing. The well-known approach set out in the majority judgment of Sopinka J. in R. v. Garofoli (1990), 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 that the 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 or seizure 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 the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, 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 of the application for the wiretap ... the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued."
Most recently, in R. v. Pires & Lising (2005), 201 C.C.C. (3d) 449 at para. 30 (S.C.C.), in a unanimous judgment, the Court stated:
"The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied 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 [REDACTED]. could be satisfied that the test for "investigative necessity" had been met. I am also satisfied that the Applicants' proposed "reasonable alternative method 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 is unlikely that they were all using cell phones at or near the crime scenes at the two relevant times. Furthermore, if the crimes were being committed at the behest of "higher-ups", who were not even at the crime scenes, their cell phone locations would have no incriminating effect;
* Second, some of the targets and suspects in this case were known to use multiple cell phones and were known to transfer their cell phones to other parties. Even if a particular cell phone was being used at one of the relevant times and places, this would not necessarily 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 the neighbourhood, as set out in Exhibit 8A. As a result, it would not be surprising if their cell phones were shown to be in the neighbourhood at the relevant times. For example, the Crown established through an analysis of Exhibits 8 and 9 that [REDACTED]'s phone calls, at the relevant times on May 9 and May 10, 2011, utilized the same cell phone towers as he appeared to use when making calls from his home;
* Fourth, assuming cell tower analysis placed telephones associated with some of the suspects in the general vicinity of one or both crime scenes, at the relevant times, this would simply provide one piece of circumstantial evidence relevant to opportunity. It would hardly solve the crime or justify a prosecution. The Applicants concede this point and submit that other investigative steps would have 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 the perpetrators were sending text messages about the relevant events. Assuming one or more of the perpetrators was texting at the relevant times or in relation to the relevant events, and assuming that the content of the texts was incriminating in some fashion, those texts would only be admissible against the parties who made and sent the texts. Even assuming a conspiracy, it is highly unlikely that an incriminating 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. [REDACTED] used D.C. [REDACTED]'s analysis of the records in order to infer association. Needless to say, evidence of association does not result in a case that is fit for prosecution.
44 In conclusion, the "reasonable alternative method of investigation" proposed by the Applicants would undoubtedly yield some useful evidence. It already had produced useful evidence, as D.C. [REDACTED]'s report and D.C. [REDACTED]'s reliance on it made clear. This form of investigative work could and should continue but it is not realistic to suppose that it would solve the two cases. It is not a sufficiently incriminating form of evidence and it would not incriminate all of the perpetrators. It is somewhat analogous to the enhanced surveillance efforts recommended by the appellants in R. v Araujo et al, supra at para. 42, as a "reasonable alternative method of 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 quite uncertain how surveillance alone would ever have given good proof of laundering and conspiracy. By showing that the police were already conducting surveillance and that this was not accomplishing everything required, the affidavit materials established investigative necessity". [Emphasis added].
45 Similarly, cell phone analysis could not realistically provide sufficient evidence in the present case nor could it incriminate all of the perpetrators in the two primary offences. The recent decision of the Court of Appeal in R. v. Spackman (2012), 295 C.C.C. (3d) 177 (Ont. C.A.) illustrates the point. In that case, the cell phone evidence was particularly compelling and yet its effect was simply to place both the accused and the alternate suspect Chung in "the immediate vicinity" of the crime scene, giving them both "equivalent opportunity" to have committed the murder. As the Court commented, "it was not an overwhelming case". More importantly, the Court held that there was "investigative necessity" in that case, and that a wiretap authorization was justified, in order to add 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) 77 C.C.C. (3d) 241 at 247-9 (Alta C.A.); R. v. Riley, Atkins and Wisdom, [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 where the 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 of an 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 did it. It means developing a viable prosecution of the persons believed to have done it. In this case, that meant developing a case against Riley, 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 Charlton at 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 two suspects in the vicinity of the shooting or the robbery or both, and even if incriminating text messages might exist and might help to build a case against one or two suspects, this hardly amounts to "a viable prosecution of the persons believed to have [committed the two offences]", 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 he concluded:
"... it is apparent that these other investigative techniques will not, by themselves, be sufficient to fully and properly investigate the very serious offences that are at the heart of this investigation ... As a consequence, the police are forced to resort to other investigative techniques, such as this application, in order to garner the needed evidence to provide a proper foundation for an effective prosecution of these 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 [REDACTED], [REDACTED], [REDACTED], [REDACTED], and [REDACTED] as "known persons" or targets in the first authorization. They submit that there was insufficient evidence from which [REDACTED]. could conclude that the statutory test for interception of private communications was met in the case of these five individuals. 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. 33 above. The test is whether interception of a "known" person's communications "may assist the investigation". I have also cited the binding authorities holding that this standard is "a low one". It is important to remember that a named target of a wiretap authorization need not be implicated in the offence under investigation, unlike at the later stage of an arrest. The target of a wiretap may even be an entirely 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. [REDACTED], supra; R. v. Finlay and Grellette, supra at para. 84; R. v. Samson et al (1983), 9 C.C.C. (3d) 194 at para. 16 (Ont. C.A.).
51 The Applicants attack the facial sufficiency of D.C. [REDACTED]'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. [REDACTED]. was alive to the governing case law and to the fact that the strength of the evidence varied, as between the numerous targets, 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 to individual mentioned in the affidavit. Notwithstanding those variations, however, the grounds are still sufficient to meet the relatively low threshold for naming a person in an authorization, that is, that the interception of his or her communications may assist the investigation of the named offences - see R. v. Chesson (1988), 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 the nature and number of interactions between the persons named."
52 Counsel for the Applicants did not press the argument that [REDACTED], [REDACTED], and [REDACTED] ought not to have been named. These three were all closely connected to [REDACTED]. Indeed, [REDACTED] was with [REDACTED] at the time of the March 17 and April 13, 2011 incidents and he was robbed in the latter incident. [REDACTED] was [REDACTED]'s girlfriend and she was with him at the time of the May 10, 2011 incident in which she was shot. In other words, [REDACTED] and [REDACTED] were victims and eye witnesses in three of the nine incidents. [REDACTED] is [REDACTED]'s mother and they were living together at the relevant times. D.C. [REDACTED]'s analysis of the phone records showed "numerous contacts" between [REDACTED] and [REDACTED], between [REDACTED] and [REDACTED], and between [REDACTED] and [REDACTED] at the relevant times. In particular, [REDACTED] called his mother a number of times in the hours immediately after the May 10th shooting. There was evidence that [REDACTED] knew the identity of the perpetrators and there was some evidence that [REDACTED] knew one of the perpetrators. These four individuals were all in frequent telephone and in-person contact with each other at the relevant times. There was a reasonable inference that they had shared their knowledge and that, with some stimulation, 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), and certainly there was a basis on which [REDACTED]. "could" conclude that they "may assist the investigation", which is the Garofoli standard of review.
54 Counsel for the Applicants submitted, more forcefully, that [REDACTED] and [REDACTED] should not have been named in the authorization. They are both connected to suspects in the investigation, rather than being connected to a target or victim like [REDACTED].
55 The affiant, D.C. [REDACTED], relied on four different evidentiary bases when seeking to intercept [REDACTED]'s communications. There were as follows:
* First, [REDACTED] was depicted in a photograph, together with [REDACTED] and [REDACTED]. The photograph was found in the Pathfinder on May 10, 2011. The photograph had been taken in the five days preceding the May 10, 2011 shooting. [REDACTED] was connected to two guns used in a number of the shooting incidents and he was connected to the Pathfinder by the photograph. [REDACTED] was connected to the Pathfinder by his fingerprints, by the photograph, and by the Louis Vuitton bag;
* Second, [REDACTED]'s criminal associations and antecedents included a 2004 arrest for robbery, together with [REDACTED], which resulted in a conviction for assault. In 2009, [REDACTED] was arrested after fleeing from a building where a shooting had occurred and then discarding a firearm. He was convicted in 2010 of possession of a loaded restricted firearm;
* Third, D.C. [REDACTED]'s analysis of telephone records in the relevant time period disclosed "numerous calls" between phones associated with [REDACTED] and [REDACTED] and between [REDACTED] and [REDACTED]. It also disclosed calls between [REDACTED] and [REDACTED], [REDACTED], [REDACTED], and [REDACTED]. As set out previously, [REDACTED], [REDACTED], [REDACTED], and [REDACTED] were all connected to the Pathfinder in various ways;
* Fourth, and last, two of the confidential informants implicated [REDACTED] in the primary offences. Confidential Informant No. 5 provided information about the "YBK" gang and identified a number of its members, including one with the street name [REDACTED]. He/she identified a police photo of [REDACTED] as [REDACTED]. He/she went on to describe conflicts between the neighbourhood gangs as the cause of various shootings. Confidential Informant No. 6 provided more specific information linking a "Somali", named [REDACTED] to a shooting involving [REDACTED] and his girlfriend. [REDACTED] was said to be driving a black SUV on Gosford Blvd. when [REDACTED]'s girlfriend was shot. This sixth informant also asserted that [REDACTED] represents a gang ... Up Top".
56 A great deal of the argument on this point involved detailed analysis of the information provided by Confidential Informant No. 5 and Confidential Informant No. 6 and whether that information complied with the well known standards set out in R. v. Debot (1986), 30 C.C.C. (3d) 207 at 218-219 (Ont. C.A.); aff'd (1989), 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 with assessing whether an informant's tip rises to the level of reasonable and probable grounds and is, therefore, sufficient to justify an arrest or issuance of a search warrant. That is not a standard required by s. 185(1)(e). Second, D.C. [REDACTED] was relying on four sources of information, as set out above, and not just on the two confidential informants. The issue before [REDACTED]. 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 the investigation").
57 I am satisfied that the total body of evidence relied on by D.C. [REDACTED] connected [REDACTED] to the Pathfinder, connected him to major suspects in the shooting incidents, connected him to "YBK", and showed that he was in telephone communication with a number of the suspects at the relevant time. All of this evidence was more than sufficient to provide [REDACTED]. with a basis on which he could conclude that intercepting [REDACTED]'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 briefly address this issue. The reliability of Confidential Informant No. 5 was attacked on the basis that he/she had no past history of providing information to the police. In addition, the editing of D.C. [REDACTED]'s affidavit had the effect of removing any references to whether he/she had a criminal record and any references to how he/she acquired relevant information. Finally, D.C. [REDACTED] acknowledged that one part of certain information provided by Confidential Informant No. 5 about a break and enter was not accurate while another part of this information was accurate. These are all legitimate reasons to be concerned about the reliability of Confidential Informant No. 5. On the positive side, Confidential Informant No. 5 provided reasonably detailed information about the gang known as "YBK", including its origins "in the Courts", its association with the "G-Siders", its various members (including [REDACTED]), their street names, and some of their criminal activities. D.C. [REDACTED] 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 [REDACTED], as the person known to him as [REDACTED]. He was apparently not able to identify [REDACTED] in the group photograph of six persons that was seized from the Pathfinder. In that photograph [REDACTED] was wearing a baseball hat that was pulled down low at the front such that it completely covered his hair and his eyes. The apparent inability of Confidential Informant No. 5 to identify [REDACTED] in this particular photograph strikes 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 of proven reliability, the informer's means of knowledge, any detail in the tip, and any corroboration of the information. It can be seen that Confidential Informant No. 5 was reasonably strong in relation to two of these indicia and was weak or unknown in the other two. I would 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 about his/her past performance. In addition, the editing has removed any information about his/her means of knowledge and about whether he/she has a criminal record. Accordingly, these are all negative or unknown features when assessing the reliability of Confidential Informant No. 6. On the other hand, Confidential Informant No. 6 provided relatively detailed information about two shootings that both involved [REDACTED] as the apparent target. He/she implicated a male named [REDACTED] in one of these shootings and asserted that [REDACTED] represents a gang ... Up Top". Once again, D.C. [REDACTED] set out the various instances where the police had been able to confirm some of this information. Like Confidential Informant No. 5, I would assess Confidential Informant No. 6 as being in the mid-range of reliability.
62 The Applicants conceded that two confidential informants can mutually corroborate each other. MacDonnell J. recently summarized 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 to the authorizing justice to find that this enhanced the reliability and credibility of each of them. That is, he was entitled to regard their reports of what was going on as mutually corroborative: see R. v. Saunders, (2003) 181 C.C.C. (3d) 268 at paragraphs 14-15 (Nfld. C.A.), aff'd (2004) 189 C.C.C. (3d) 436 (S.C.C.); R. v. Floyd, 2012 ONCJ 417, at paragraph 76; R. v. McElroy, [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 [REDACTED] with a gang referred to as "Up Top" and Confidential Informant No. 6 implicated him in a shooting of [REDACTED]'s girlfriend while driving a black SUV on Gosford Boulevard. Confidential Informant No. 5 implicated the gang in other shootings and identified their leaders as [REDACTED] and [REDACTED]. Confidential Informant No. 3 provided similar information about the leadership of the gang. I am satisfied that [REDACTED]. 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 are consistent among different confidential sources."
64 In conclusion concerning [REDACTED], the mutually corroborating confidential informants were in the mid-range of reliability, standing alone. However, they provided only one piece amongst the four separate pieces of information relied on by D.C. [REDACTED], as set out above. Furthermore, the issue was not "reasonable and probable grounds" to arrest [REDACTED] but simply whether his intercepted communications "may assist the investigation". In relation to that issue, there was more than sufficient evidence to meet the Garofoli standard of review and to justify naming [REDACTED] in the authorization as a "known person".
65 In terms of the basis for naming [REDACTED] as a "known person", D.C. [REDACTED] relied on four separate bodies of information as follows:
* First, [REDACTED]'s criminal associations and antecedents included April 2009 convictions for robbery, disguise with intent, and possession of a weapon. He had been arrested in 2007 for these offences, together with his brother [REDACTED]. In June 2009, [REDACTED] was arrested again, this time with [REDACTED], and they were charged with possession of two loaded firearms which they had each transported from Alberta to Toronto. [REDACTED] and [REDACTED] were both convicted of possession of a restricted firearm with ammunition and breach of a prohibition order;
* Second, [REDACTED] failed to report to his probation officer in York Region on May 13, 2011 and thereafter, that is, in the 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 [REDACTED]. A large amount of crack cocaine and money was found in the house and [REDACTED] was charged;
* Third, when residing in the Toronto area, [REDACTED] shared a home in Richmond Hill with his brother [REDACTED]. There was evidence connecting [REDACTED] to the Pathfinder, through his cell phone contract, and there was considerable telephone contact between [REDACTED] and the major suspects. In particular, [REDACTED] 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 [REDACTED] to the gang known as "G-Siders". Confidential Informant No. 4 asserted that [REDACTED] and [REDACTED] "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 [REDACTED] was shot on the evening of May 10, 2011). Confidential Informant No. 7 asserted that [REDACTED] "runs the "G-Siders" and that he "hangs with ... [REDACTED]". The police believed "[REDACTED]" to be [REDACTED]'s nickname, given that Confidential Informant No. 4 had stated that "[REDACTED]" was his nickname and this was consistent with police records.
66 The evidentiary basis in the present case for naming [REDACTED] 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 29th, 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. [REDACTED] concerning [REDACTED] 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). [REDACTED] had been involved in past criminal activities with both [REDACTED] and [REDACTED], who were both suspects in the primary offences on the basis of their connections to the Pathfinder. Indeed, they were significant suspects. In addition, [REDACTED] had recent connections to his brother [REDACTED]'s address in Richmond Hill and to [REDACTED]'s address in Calgary. [REDACTED] was also connected to the Pathfinder and was a suspect in the primary offences. Finally, the confidential informants connected [REDACTED] 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 [REDACTED]. 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 record and his/her means of knowledge is not revealed. However, he/she had a past record of proven reliability and the information that he/she provided in the present case was reasonably detailed. Finally, D.C. [REDACTED] set out the various instances where the police were able to confirm Confidential Informant No. 4's information. In sum, I would characterize Confidential Informant No. 4 as in the mid-range of reliability.
69 Confidential Informant No. 7 provided very little information and it was not particularly detailed. Furthermore, the affidavit of D.C. [REDACTED] was ambiguous as to whether he/she had a past record of proven reliability. As a result of the editing, his/her means of knowledge is unknown and whether he/she has a criminal record is also unknown. These factors all tend to undermine the informer's reliability. However, Confidential Informant No. 7's information mainly asserted that there was association between [REDACTED] and [REDACTED] and this information was reliably corroborated by known facts and it was also consistent with Confidential Informant No. 4's information. Confidential Informant No. 7's information as to [REDACTED]'s association with the "G-Siders" was also consistent with Confidential Informant No. 4. Accordingly, I am satisfied that the limited information about association provided by Confidential Informant No. 7 had some reasonable reliability.
70 In conclusion concerning [REDACTED], the mutually corroborating informants were in the mid-range of reliability, standing alone. However, they provided only one body of information amongst four bodies of information relied on by D.C. [REDACTED] as the s. 185(1)(e) basis for naming this target. I am satisfied that there was more than sufficient evidence to meet the Garofoli standard of review and to justify naming [REDACTED] in the authorization as a "known person".
71 For all these reasons, the Applicants' second argument, concerning the five named persons and compliance with the statutory test in s. 185(1)(e), is dismissed.
72 In the result, none of the s. 8 Charter breaches alleged by the thirty-three Applicants have been made out.
(iv) [REDACTED]'s sub-facial attack on part of D.C. [REDACTED]'s affidavit, the "curtilage" doctrine, and its effect on the s. 185(1)(e) "naming" issue
73 The information relied on by D.C. [REDACTED], as a basis for seeking to intercept [REDACTED]'s communications pursuant to s. 185(1)(e), was as follows:
* First, [REDACTED] was associated with his younger brother [REDACTED] through past police records, through police surveillance of the two at their residence on May 14, 2011 (shortly after a number of the incidents), and through information from his mother that [REDACTED] "resided" at her home which is where [REDACTED] also resided. [REDACTED]'s fingerprints were found on the Pathfinder and [REDACTED]'s cell phone contained a photograph of the letters "YBK" spelled out in money;
* Second, [REDACTED] was associated with [REDACTED] and [REDACTED]. The three of them were photographed together, in the five days prior to the May 10, 2011 shooting incident, and their photograph was found in a Louis Vuitton bag that was left inside the Pathfinder after the Pathfinder had been used in both of the primary offences. The Louis Vuitton bag was associated with both [REDACTED] and [REDACTED] and both of their fingerprints were found in the Pathfinder;
* Third, the various confidential informants implicated [REDACTED] in the activities of a street gang known as "YBK". In particular, the third and fifth confidential informants both asserted that [REDACTED] was the "boss/leader" of "YBK", or was "running the show", and that his younger brother [REDACTED] was "second in charge" or "next in line". They both described conflict between various neighbourhoods and groups, which was corroborated to some extent by the eighth confidential informant. The fifth confidential informant identified the members of "YBK" and implicated them in various incidents, including shootings, which was corroborated to some extent by the first, sixth, and eighth confidential informants;
* Fourth, and last, the police seized two handguns from "a shed in the back yard" of [REDACTED]'s mother's residence on the evening of May 14, 2011. Police surveillance officers had observed both [REDACTED] and [REDACTED] exiting the residence and going into the back yard, earlier that same day. On two occasions, when [REDACTED] emerged from the back yard, there was a suspicious bulge in his waistband. Forensic ballistics testing of the two firearms linked one or both of these guns to four of the shooting incidents, as follows: the February 9, 2011 shooting of [REDACTED]; the May 10, 2011 shooting of [REDACTED]; the May 11, 2011 shooting of cars in a parking lot; and the May 12, 2011 shooting of various houses in the "Bottom" neighbourhood. D.C. [REDACTED] stressed the significance of the last of these four incidents as it occurred shortly after the two primary offences, both of the guns seized from the [REDACTED] property were used, and the gun used in the May 10th shooting of [REDACTED] and [REDACTED] (seized in London from [REDACTED] and others) was also used. In other words, the perpetrators of the May 12th shooting had possession of all three guns used in five of the nine incidents.
74 Counsel for [REDACTED] submitted that the fourth item of evidence relied on by D.C. [REDACTED], namely, the seizure of the two handguns from the [REDACTED] residence on May 14, 2011 and the ensuing ballistics test results, ought to be excised from the affidavit. The basis for the excision is an assertion that the search of the residence violated [REDACTED]'s s.8 Charter rights. Assuming such a violation can be established, counsel then sought to rely on authorities holding that unconstitutionally obtained evidence cannot be used as a basis to justify subsequent searches and seizures. See, e.g.: R. v. Wiley (1993), 84 C.C.C. (3d) 161 at 169-172 (S.C.C.); R. v. Grant (1993), 84 C.C.C. (3d) 173 at 195-7 (S.C.C.); R. v. Plant (1993), 84 C.C.C. (3d) 203 at 211 (S.C.C.); R. v. Mahmood (2011), 282 C.C.C. (3d) 314 at para. 116 (Ont. C.A.). Once the fourth item of evidence relied on by D.C. [REDACTED] is excised, counsel for [REDACTED] submitted that the remaining three items were insufficient to name him as a "known person" pursuant to s. 185(1)(e).
75 The Crown challenged [REDACTED]'s standing to allege a violation of his own s. 8 Charter rights, at the time of the May 14, 2011 search of his mother's home. I am satisfied that he has standing to raise the s. 8 issue. The police surveillance evidence established that he was at the residence on the afternoon of May 14, 2011, just prior to the search. In addition, D.C. [REDACTED]'s affidavit disclosed an interview with [REDACTED]'s mother at the time of the search in which she stated that "[REDACTED] resided at" her home although he "sometimes stayed in Calgary". Finally, police records indicated that [REDACTED] resided at his mother's address. On all the evidence, there is a reasonable inference that [REDACTED] travelled to western Canada from time to time but that, when he was in Toronto (as he was on May 14, 2011), he resided at his mother's home. Accordingly, he has standing to challenge the search of that residence. See: R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.); R. v. Belnavis and Lawrence (1997), 118 C.C.C. (3d) 405 (S.C.C.).
76 The only s. 8 Charter violation alleged, in relation to the May 14, 2011 search of the [REDACTED] property, relates to whether the warrant authorized a search of "a shed in the back yard", which is admittedly where the two guns were found. The grounds to search for firearms, set out in the search warrant information, related to [REDACTED] and [REDACTED] and not to [REDACTED]. It is conceded that the grounds were sufficient to justify a search of [REDACTED]'s residence for firearms. I am advised that on June 7, 2012 [REDACTED] pleaded guilty to possession of the restricted firearms that were seized from the shed on May 14, 2011. He apparently did not raise the s. 8 Charter issue that is now being raised by his brother [REDACTED].
77 The search warrant in question was not appended to the affidavit of D.C. [REDACTED] and so it was not before [REDACTED]. However, D.C. [REDACTED] frankly and repeatedly acknowledged in his affidavit that the two guns had been seized from "a shed in the back yard". The search warrant was filed before me on the Charter motion and it authorized a search of "a dwelling house at 3 Bloomington Crescent". The officer swearing the information had sought a warrant "to search the said 3 Bloomington Crescent" and he repeatedly asserted grounds to search "the address at [or of] 3 Bloomington Crescent". Leaving aside this ambiguity or inconsistency, as between the warrant and the information, the issue before me is whether "a dwelling house at 3 Bloomington Crescent" includes "a shed in the back yard".
78 Very little evidence was placed before me on the s. 8 Charter motion concerning this "shed in the back yard" where the two guns were seized. Neither of the two searching officers were called to testify, no diagram or photograph of the property was filed, there was no evidence as to whether any fence or wall exists in the back yard, there was no admission between the parties concerning the distance from the house to the shed or about the respective locations and relationships of the house and the shed, and no witness who resided at the house (such as [REDACTED], his brother, or his mother) testified about the location and usage of the shed.
79 The only evidence put before me was the notes of the two searching officers. They were filed as exhibits on the Charter motion, with the consent of the parties. Det. [REDACTED]'s notes (Exhibit 10) state the following:
"- walk out side door to rear of yard where I saw shed - unable to see it from road or driveway.
- call [D.C. [REDACTED]] out - clear shed -mattress on floor.
- junk strewn about.
- shed unlocked - but could be if wanted.
- clothing hanging - male M/L.
- observe black ... safe on floor.
- pry open with [D.C. [REDACTED]].
- open safe."
D.C. [REDACTED]'s notes (Exhibit 11) state the following:
"- attend back of property.
- search small shed/cottage like structure [on/with] wood porch, unlocked."
The two firearms were found in the safe.
80 It can be seen that the two officer's notes do not describe the dimensions of the shed, its distance from the house, or its relationship to the house. The one potentially useful note is D.C. [REDACTED]'s reference to the shed being a "structure [on/with] wood porch". The critical word is the one I have placed in square brackets. The Crown submitted that the word is "on", which is how I initially read it. The defence submitted that the word is an abbreviation of "with", which is also a possible interpretation of the notes. If the Crown is right, the note could mean that the shed was located on the back porch or wooden deck of the house. If the defence is right, the note could mean that the shed was an independent structure with its own wooden porch. I could not resolve this issue, one way or the other, as the note is not clear and the officer was not called to testify before me on the motion.
81 The issue concerning whether a back yard shed can be searched, pursuant to a warrant authorizing the search of a "dwelling house", is governed by the "curtilage" doctrine. This is a particularly esoteric branch of search and seizure law and there are very few Canadian authorities on point. The power to search a building or place, both at common law and pursuant to statutory powers such as those found in the Criminal Code, has generally been limited by the scope of the particular court order that authorized the search. As a general rule, searches of separate buildings on a single piece of property must be separately authorized in the warrant, on the basis of grounds to believe that the items to be seized are to be found in those buildings. However, at common law a dwelling house included its "curtilage". Section 2 of the Criminal Code is to somewhat similar effect, defining a "dwelling house" as including "a building within the curtilage of a dwelling house that is connected to it by a doorway or by a covered and enclosed passage-way". The dictionary meaning of "curtilage" is somewhat broader, namely, "a small court, yard, or piece of ground attached to a house and forming one enclosure with it". See: The New Shorter Oxford English Dictionary, 1993 Oxford University Press, Vol. 1, p. 575. It can be seen that the s. 2 definition of "dwelling house" includes only part of what is meant by the "curtilage" in its broad dictionary sense.
82 The history of the common law and statutory definitions of a "dwelling house," as including its "curtilage" or some part of its "curtilage," is tied up with the offence of burglary or break and enter of a dwelling house as it is called in s. 348 of the Criminal Code. At common law, this was a very serious offence that was punishable by death. The modern Canadian offence remains punishable by life imprisonment. It will be seen that the main function of the s. 2 definition of "dwelling house" was to place some limits on the scope of this serious criminal offence, particularly at a time when it carried the death penalty.
83 The original common law definition of "curtilage" was broad, like the dictionary definition, as explained in C.S. [REDACTED], "Burglary: outbuildings or the like as part of the 'dwelling house' " (1955) 43 A.L.R. 2d 831 at p. 12:
In England it was common for the manor or dwelling house to be inclosed, together with its cluster of outbuildings, by a common wall or fence, used principally as a means of protection. Quite naturally, the area inclosed by this common wall or fence, known as the curtilage, offered a means whereby to determine whether the outbuilding was part or parcel of the dwelling, for if it were within the curtilage it would be considered a part, while if it were without the curtilage it would not be so considered. Thus, in 4 Blackstone, Commentaries 225, it was stated: "And if the barn, stable, or warehouse be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenants, if within the curtilage or home-stall."
The breadth of this "within the fence" definition led to the absurdity that burglary of a stable or outhouse within the curtilage was a capital offence. Not surprisingly, the definition was eventually constrained by statutory amendment. In particular, the Larceny Act, 1861 (UK), 24 and 25 Vict. C. 96, s. 53, provided as follows:
53. No building, although within the same curtilage with any dwelling house, and occupied therewith, shall be deemed to be part of such dwelling house for any of the purposes of this act, unless there shall be a communication between such building and dwelling house, either immediate, or by means of a covered and inclosed passage leading from the one to the other. [Emphasis added].
It can be seen that the Canadian statutory definition of "dwelling house", found in s. 2 of the Criminal Code, is substantially derived from s. 53 of the Larceny Act, 1861. See: Leon Radzinowicz, A History of English Criminal Law, Vol. 1 (New York: MacMillan Co., 1948), at pp. 582-4; George Burbidge, A Digest of the Criminal Law of Canada (Toronto: Carswell & Co., 1890), at p. 316; Sir James Stephen, A Digest of the Criminal Law, (London: MacMillan Co., 1877), at p. 230; Karl Laird, "Conceptualizing the interpretation of "dwelling" in section 9 of the Theft Act 1968", [2013] 8 Crim.L.R. 656.
84 While the above restrictive and somewhat technical definition of the "curtilage" developed in English and Canadian law, as a means of limiting the severe consequences of a conviction for the offence of burglary of a dwelling house, American search and seizure law took a much more functional and practical approach to the "curtilage" issue. The Fourth Amendment sets out the core of U.S. constitutional protections "against unreasonable searches and seizures". Like s. 8 of the Charter of Rights and Freedoms in Canada, its scope depends on the existence of "a reasonable expectation of privacy" in the place or thing to be searched and seized. See: Katz v. U.S. (1967), 389 U.S. 347; Hunter et al v. Southam Inc. (1984) 14 C.C.C. (3d) 97 at 108 (S.C.C.). Accordingly, American search and seizure case law has defined the "curtilage" as the area that is functionally and practically connected to the privacy of the home. Most recently, in Florida v. Jardines, No. 11-564 (U.S. Supreme Court, March 26, 2013), at slip. op. p. 4, the Court stated:
But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's "very core" stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511 (1961). This right would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window.
We therefore regard the area "immediately surrounding and associated with the home" - what our cases call the curtilage - as "part of the home itself for Fourth Amendment purposes."Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is "as old as the common law," Hester, supra, at 59, so too is the identity of home and what Blackstone called the "curtilage or homestall," for the "house protects and privileges all its branches and appurtenants." 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is "intimately linked to the home, both physically and psychologically," and is where "privacy expectations are most heightened." California v. Ciraolo, 476 U.S. 207, 213 (1986).
While the boundaries of the curtilage are generally "clearly marked," the conception defining the curtilage" is at any rate familiar enough that it is "easily understood from our daily experience." Oliver, 466 U.S., at 182, n. 12. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and "to which the activity of home life extends." Ibid. [Emphasis added]
Similarly, in Oliver v. U.S., (1984), 466 U.S. 170 at 180, the Court stated:
At common law, the curtilage is the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U.S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. See, e.g. United States v. Van Dyke, 643 F. 2d 992, 993-994 (CA4 1981); United States v. Williams, 581 F. 2d 451, 453 (CA5 1978); Care v. United States, 231 F. 2d 22, 25 (CA 10), cert. denied, 351 U.S. 932 (1956). Conversely, the common law implies, as we reaffirm today, that no expectation of privacy legitimately attaches to open fields." [Emphasis added].
85 When interpreting the meaning of "dwelling house" in a modern Canadian search warrant, an interesting question arises as to whether that term should be interpreted in a functional and practical way, related to the privacy interests of the home (as in American search and seizure law), or in the technical manner set out in s. 2 of the Criminal Code (derived from the English law of burglary). It is certainly arguable that s. 2 of the Criminal Code simply defines those statutory terms found "in this Act" and does not define terms used by justices when drafting and issuing search warrants. Canadian case law has not addressed this question and, fortunately, I need not attempt to answer it, given the record before me in this case.
86 The Canadian law relating to the "curtilage" doctrine has recently been reviewed by Hill J. in R. v. M. (N.N.), (2007) 223 C.C.C. (3d) 417 at paras. 359-379 (Ont. S.C.J.). I need not repeat Hill J.'s thorough analysis of the leading cases and texts. Suffice it to say that existing Canadian law is to the effect that attached garages, driveways, patios, and decks are part of the "curtilage", whether utilizing the restrictive s. 2 statutory definition or the broader common law definition. As a result, any structure or receptacle within these locations can be lawfully searched pursuant to a warrant authorizing a search of the house.
87 If the shed in the present case was located on a back patio, deck or porch, and was closely connected to a door leading from the house, then it would be part of the "curtilage" of the "dwelling house", under any applicable definition. If the shed was entirely separate and was some distance from the house, unconnected by any patio, deck, or porch, then it would arguably not be part of the "curtilage", at least under the more restrictive s. 2 definition. Counsel for [REDACTED] conceded that the [REDACTED] residence is not a large rural property, with a distant barn or workshop, but was a typical home on a small urban lot. When I questioned the sufficiency of the evidentiary record, I was told that there was no further evidence on the motion beyond the two officers' notes.
88 In the result, the Applicant [REDACTED] has not met the burden of establishing, on a balance of probabilities, that the search of his residence on May 14, 2011 was unlawful because there was no authority to search "a shed in the back yard". It was the Applicant's burden to establish that the shed was not part of the "curtilage" of the house, within the applicable definition or definitions, and that burden has not been met. The shed may well have been part of the "curtilage", even under the more restrictive s. 2 definition. I simply cannot say, one way or the other, and so the s. 8 breach has not been established. As Lamer J. (as he then was) put it in R. v. Collins (1987), 33 C.C.C. (3d) 1 at 14 (S.C.C.):
"The standard of persuasion required [on a Charter motion] is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not".
89 For all these reasons, no sub-facial s. 8 Charter breach has been made out and there is no basis for excising the seizure of the two guns or the subsequent forensic ballistics testing of the two guns, from D.C. [REDACTED]'s grounds for naming [REDACTED] as a s. 185(1)(e) "known person". As a result, there was abundant evidence from which [REDACTED]. could conclude that intercepting [REDACTED]'s communications "may assist the investigation".
90 I should note that the Crown submitted, in the alternative, that excision of the fourth item of evidence concerning the seizure and testing of the two guns, would still have left a sufficient basis to name [REDACTED] as a "known person". There is considerable force to this argument. The first three sources of information for D.C. [REDACTED]'s grounds, set out above, established that [REDACTED] was closely associated with three major suspects at a time shortly before and shortly after the May 10, 2011 events. Those three suspects, [REDACTED], [REDACTED], and [REDACTED], were all connected to the Pathfinder. Furthermore, there was a broad consistency in the information relevant to [REDACTED] provided by five of the confidential informants, much of it was detailed, and much of it was confirmed by the police. I do not need to decide whether excision of the fourth item of information relied on by D.C. [REDACTED] would lead to the result sought by [REDACTED], namely, insufficient evidence to name him as a "known person". Suffice it to say that the Crown's alternative submission appears to be a strong one.
91 For all these reasons, I am satisfied that [REDACTED] was properly named, pursuant to s. 185(1)(e), as a "known person". As a result, no s. 8 Charter violation has been made out in relation to intercepting [REDACTED]'s communications.
(v) Section 24(2) of the Charter
92 Having found no violation of s. 8 of the Charter, I need not address s. 24(2) of the Charter. However, I cannot see how the Applicants' second and third arguments, concerning s. 185(1)(e) and the "naming" issue, could ever have led to the exclusion of the wiretaps. If the argument had succeeded in establishing that D.C. [REDACTED] was short of the grounds needed to name any one of six targets as a "known person", he would not have been short by much. Furthermore, [REDACTED]. concluded that there was a sufficient basis to name these six targets.
93 Reasonable people can disagree as to when there is a sufficient evidentiary basis to meet a statutory standard, such as the test found in s. 185(1)(e). It is an exercise in line drawing that is based on judgment, experience, and law. When an experienced police officer and an experienced judge are both satisfied that the standard has been met, and a different judge disagrees on a subsequent review pursuant to s. 8 of the Charter, and finds that the police fell "just short" of the statutory standard, it is hard to characterize this kind of Charter breach as anything other than a very minor good faith error in judgment. Obtaining a warrant from a judge, assuming the affidavit in support is not misleading, "generally...tells in favour of admitting the evidence." Furthermore, where the Charter breach involves falling "short of reasonable grounds," but "only to a minor degree," the violation is "considerably attenuated." These kinds of minor Charter violations have not led to the exclusion of reliable and essential evidence under the post-Grant approach to s. 24(2). See: R. v. Rocha (2012), 292 C.C.C. (3d) 325 at para. 28 (Ont. C.A.); R. v. Blake (2010), 251 C.C.C, (3d) 4 at paras. 23-27 (Ont. C.A.); R. v. McKenzie (2011), 280 O.A.C. 175 at paras. 9-10 (C.A.); R. v. Amofa (2011), 85 C.R. (6th) 265 at para. 29 (Ont. C.A.); R. v. Dene, 2010 ONCA 796 at para. 6.
94 For all these reasons, I would not have excluded any of the wiretap evidence, even if the s. 185(1)(e) arguments about "naming" had succeeded. The first argument, concerning investigative necessity", raised much more fundamental and difficult s. 24(2) issues, including an assertion of lack of good faith, that I need not address.
95 For all these reasons, the s. 8 Charter motion is dismissed. None of the alleged violations have been made out. The wiretap evidence is admissible at the various trials being conducted pursuant to the ten Indictments filed in this Court.
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