



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Muddei, 2021 ONCA 200

DATE: 20210401

DOCKET: C67481, C67486, C67512 & C67848

Doherty, Zarnett and Coroza JJ.A.

DOCKET: C67481

BETWEEN

Her Majesty the Queen

Appellant

and

Said Muddei

Respondent

DOCKET: C67486

AND BETWEEN

Her Majesty the Queen

Appellant

and

Faysal Bashir

Respondent

DOCKET: C67512

AND BETWEEN

Her Majesty the Queen

Respondent

and

Mathieu Vaillant

Appellant

DOCKET: C67848

AND BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Thibault

Appellant

Jeffrey Pearson and Deborah Krick, for the appellant Her
    Majesty the Queen (C67481 & C67486)

Howard L. Krongold, for the appellant Mathieu Vaillant

James Foord and Brandon Crawford, for the appellant Patrick
    Thibault

Diane Condo, for the respondent Said Muddei

Solomon Friedman and Fady Mansour, for the respondent
    Faysal Bashir

Jeremy Streeter and Alexia Bystrzycki, for the respondent
    Her Majesty the Queen (C67512 & C67848)

Heard: January 7, 2021 by video conference

On appeal from the acquittals entered by Justice Sylvia
    Corthorn of the Superior Court of Justice on September 3, 2019 (C67481 &
    C67486).

On appeal from the convictions entered by Justice Trevor
    A. Brown of the Ontario Court of Justice on February 19, 2019 (C67512 &
    C67848).

Doherty J.A.:


I



overview

[1]

These two appeals were heard together. In
R. v. Thibault and
    Vaillant
, the accused appeal from their convictions on drug-related
    charges.
[1]
In
R. v. Bashir and Muddei
, the provincial Crown appeals from
    acquittals on charges arising out of an alleged home invasion. The two sets of
    charges are unrelated.

[2]

Both prosecutions turned on the admissibility of communications
    intercepted pursuant to the same authorization granted under Part VI of the
Criminal
    Code
in December 2016
.
[2]
In both cases, the accused sought the exclusion of the evidence obtained under
    the authority of the authorization. They maintained the authorization was
    improperly granted under the relevant provisions of the
Criminal Code
,
and the interceptions of their private
    communications violated their rights under s. 8 of the
Charter
. The
    accused argued the evidence should be excluded under s. 24(2) of the
Charter
.

[3]

The argument failed in
R. v. Thibault and Vaillant
. The trial
    judge found the authorization was properly granted, there was no s. 8 violation,
    and no reason to exclude the evidence. After the trial judge ruled the interceptions
    admissible, Thibault and Vaillant did not challenge the Crowns case. The trial
    judge entered convictions. Thibault and Vaillant appeal from those convictions.

[4]

The argument succeeded in
R. v. Bashir and Muddei
.
The
    trial judge found the authorization was not properly granted, rendering the interceptions
    a violation of s. 8 of the
Charter
. She further held the evidence
    should be excluded under s. 24(2):
R. v. Bashir and Muddei
, 2019 ONSC 4082
. Without that evidence,
    the Crown had no case and acquittals were entered. The Crown appeals from those
    acquittals.

[5]

I agree with counsel that both trial judges cannot be correct. While
    different judges asked to grant an authorization on the same evidence might
    reasonably and properly come to different conclusions as to whether to grant
    the authorization, the decision of the reviewing judge as to whether the
    authorization could have been granted is a question of law, which admits of
    only one correct answer.

[6]

Both trial judges delivered thoughtful reasons. They agreed the
    authorization was presumed valid and that, in reviewing the authorization, they
    must determine, not whether they would have granted the authorization, but
    rather whether the affidavit in support of the authorization provided an evidentiary
    basis upon which the issuing judge could have granted the authorization. The
    trial judges also agreed on the legal principles governing the interpretation
    of s. 186(1) of the
Criminal Code
, the provision setting out the
    criteria for granting an authorization.

[7]

Both trial judges acknowledged the reasonable grounds requirement
    implicit in s. 186(1)(a) had to be assessed in the context of the specific
    investigation. In this investigation, the police sought an authorization in
    respect of a murder that had occurred 7 ½ years earlier. The investigation had
    gone cold years before the police decided to seek an authorization. They
    proposed to use various investigative techniques to stimulate communication by
    and among the targets of the authorization, believing those communications
    would provide information relevant to the murder investigation.

[8]

Brown J., the trial judge in
Thibault and Vaillant
, after a review
    of the affidavit sworn in support of the authorization application, concluded,
    at para. 63:

I conclude therefore that the issuing judge could reasonably
    have inferred on the information before him that the investigative plan
    proposed, including the use of the investigative techniques outlined, would
    afford evidence of the offence.
[3]

[9]

Corthorn J., the trial judge in
Bashir and Muddei
, after a
    review of the same affidavit, concluded, at paras. 65-66:

In summary, there is no discrete evidence, no basis for a
    reasonable inference, nor any basis for judicial notice to be taken in support
    of a conclusion that the targets would, if communicating with another,
    communicate in a way that would afford evidence of the homicide.

Similarly, there is no discrete evidence, no basis for a
    reasonable inference, nor any basis for judicial notice to be taken in support
    of a conclusion that the targets would, in communication with other unknown
    persons, communicate in a way that will afford evidence of the homicide

[10]

For the
    reasons that follow, I agree with the conclusion of Corthorn J. It is certainly
    possible a person implicated in a serious crime committed years earlier may, if
    stimulated by police activity, communicate with others who were involved in, or
    had knowledge of, that crime. However, that possibility alone cannot be enough
    to warrant the granting of an authorization to intercept private communications.
    Were the possibility the police could stimulate communications about the
    offence enough, individuals who the police reasonably believed to have been
    involved in a crime years earlier, or perhaps to have been in communication
    with others involved in a crime, would remain subject to seriously intrusive state
    invasions of their privacy, as long as the investigation of the crime remained
    open and the police could think of something that might possibly stimulate communications
    relevant to the crime.


II



the murder investigation

[11]

Mohamed
    Ali was shot and killed in a busy downtown Ottawa bar on May 7, 2009. Wayne
    Morgan, an employee of the bar, was shot in the arm.

[12]

The police
    investigation of the murder is reviewed in detail in the affidavit sworn in
    support of the authorization application. According to the affidavit, a fight broke
    out in the bar between two groups of men. Apparently, one man in each group had
    been involved with the same woman.  After a physical altercation, shots rang
    out. Two guns were used, but one misfired. Mr. Ali, who was associated with one
    of the two groups, may or may not have been an intended target. Mr. Morgan was
    hit by a stray bullet.

[13]

Information
    gathered during the investigation indicated that Adnan Fazeli, Faysal Bashir,
    Rafat Mohamed, Saeed Sheikhdoon, and Christian Thibault were in the bar shortly
    before the shooting. The investigation pointed to Mr. Bashir as the likely
    shooter and perhaps the leader of that group. Other information suggested Rafat
    Mohamed was the shooter. I will sometimes refer to these five individuals collectively
    as the group. Mr. Ali was with the other group involved in the confrontation at
    the bar.

[14]

The
    police interviewed and re-interviewed many witnesses, gathered forensic
    evidence, and employed a variety of other investigative techniques in the weeks
    and months following the murder. These techniques included an undercover
    operation, which proved unsuccessful, additional interviews, surveillance,
    obtaining of production orders and search warrants, inquiries of various
    confidential informants, and resort to Crime Stoppers tips.

[15]

The
    shooting appeared to be gang related. The investigation was hampered by the reluctance
    of many individuals, including persons in the bar, to speak with the police
    about the incident.

[16]

The
    police interviewed Ashley Windebank in January 2010. Her boyfriend knew Mr. Bashir
    and other persons in his group. Ms. Windebank told the police she did not see
    the altercation in the bar but was privy to a conversation later that night involving
    the group. In the conversation, Adnan Fazeli said he had been struck in the
    face during the fight in the bar. He pulled his gun out, intending to shoot his
    assailant, but the gun misfired. Mr. Bashir said when Fazelis gun misfired, he
    shot Mr. Ali. According to Mr. Bashir, Mr. Ali got what he deserved. Forensic
    evidence confirmed that two guns were used in the shooting, and one had
    misfired.

[17]

Ms.
    Windebank told the police the gun used by Mr. Bashir belonged to her boyfriend
    who was in custody. She was asked to pick up the gun at the home of Mr.
    Bashirs mother. When Ms. Windebank saw the gun, it had blood on it so she
    refused to take it. The affidavit does not indicate when Ms. Windebank was
    asked to pick up the gun, or when she saw the gun.

[18]

The
    police re-interviewed Ms. Windebank in May 2014. She said the conversation she
    had described in her first interview took place at the apartment of Ahmed
    Mahfud. Ms. Windebank also told the police the murder weapon, a 9-millimetre
    handgun, had been buried in the forest near Vanier. The affidavit does not
    indicate who told Ms. Windebank the gun had been buried, or when she got that
    information.

[19]

The
    police interviewed Hendrick Alvaro-Raul in June 2012. He told them about a
    conversation he had with Rafat Mohamed in September 2011. According to Mr.
    Alvaro-Raul, Mr. Mohamed told him the fight started when Mr. Fazeli and a
    person from the other group were arguing about a woman. Mr. Ali attempted to
    stop the fight. Mr. Bashir told Mr. Mohamed to let it go if the fight got out
    of control. Mr. Mohamed said he then took out his gun and shot Mr. Ali. At some
    unspecified time, Mr. Mohamed promised to look after Mr. Alvaro-Raul if he did
    not tell anybody about Mr. Mohamed committing the murder.

[20]

Information
    from confidential informants confirmed, that at the time of the murder, Fazeli,
    Bashir, Rafat Mohamed and Thibault were a crew and regularly associated with
    each other. One informant (informant #4) told the police in September 2012 that
    the gun used in the murder had been buried by Rafat Mohamed. The informant did
    not indicate his source of the information about the gun, or when he received
    that information.


III



the authorization

[21]

By
    November 2016, the investigation into the murder had been cold for years. The
    police decided to reinvigorate their murder investigation by applying for an
    authorization to intercept the private communications of several people. The
    affidavit sworn in support of the authorization offers no specific reason for
    seeking an authorization some 7 ½ years after the murder, although the affiant
    indicated Mr. Bashir, who had been in jail since 2010, had been released and returned
    to Ottawa some time before August 1, 2016. The named targets of the
    authorization, with the exception of Mr. Sheikhdoon, lived in Ottawa.

[22]

The
    application sought to intercept communications in respect of Mr. Alis murder
    and related ancillary crimes. It identified seven named targets. These included
    the five persons who were believed to have been part of the group that included
    the shooter. They were:

·

Adnan Fazeli;

·

Faysal Bashir;

·

Rafat Mohamed;

·

Saeed Sheikhdoon; and

·

Christian Thibault.

[23]

In
    addition to the five persons believed to have been involved in the shooting,
    the application sought to intercept the private communications of Ahmad Mahfud
    and Ashley Windebank.
[4]
The group went to Mr. Mahfuds apartment after the shooting. Ms. Windebank was
    at the apartment with the group. As outlined above (paras. 16-18), Ms. Windebank
    had passed information about the murder on to the police in 2010 and in 2014.

[24]

The
    application sought to intercept the verbal and non-verbal communications of the
    seven targets at their residences. It contained basket clauses with respect
    to unknown persons and other places. In addition, the application sought permission
    to employ a wide variety of other investigative techniques.

[25]

The
    affidavit provides a detailed account of the police investigation of the murder.
    That account makes it clear the police had gathered very little information
    about the homicide for many years prior to bringing the application for the
    authorization. The last pertinent information appears to have come from Ms.
    Windebank in June 2014. Prior to that contact, the police had not received any information
    since the summer or early fall of 2012.
[5]

[26]

The
    affidavit also describes the association among the seven targets at the time of
    the murder and shortly thereafter. It says virtually nothing about any
    association or contact among them in the several years preceding the
    application for the authorization. There is nothing in the affidavit indicating
    any of the targets have spoken with each other about the homicide, or for that
    matter anything else, since shortly after the murder. The affidavit is also
    silent about any communications by any member of the group with any person not
    in the group referable to the homicide after September 2011 when Mr. Mohamed
    spoke with Mr. Alvaro-Raul.

[27]

The
    affiant does indicate that Mr. Fazeli, Mr. Sheikhdoon and Ms. Windebank were
    arrested in September 2011-2012 as a result of a guns and gangs project
    conducted by the Ottawa police. The affiant does not provide any particulars.
    He does not say whether the three individuals were jointly charged, or whether
    their charges were in any way connected to each other. Police projects can
    result in multiple arrests arising out of different criminal activities.

[28]

The
    affiant also asserts a belief in an ongoing connection between Ms. Windebank
    and the other named targets. He writes:

I believe Windebank continues to maintain contact with this
    group and would be subject to investigative prompting to gather evidence of the
    homicide.

[29]

The
    affiant does not provide any grounds for his belief that Ms. Windebank
    continues to be in contact with any member of the group. There is no specific
    assertion Ms. Windebank had any contact with the other named targets except on
    the night of the shooting. Other references in the affidavit suggest Ms.
    Windebank had some subsequent contact with one or more of the targets at
    unspecified times. However, any contact Ms. Windebank had with the targets was
    at least 2 ½ years before the application for the authorization was made.

[30]

It is
    implicit in the affidavit that the affiant saw little possibility that the
    targets of the proposed authorization would spontaneously begin to communicate
    concerning the murder that had occurred 7 ½ years earlier. The affiant outlined
    an investigative plan intended to generate communications by and among the
    targets. Those communications could then be intercepted under the authority of
    the proposed authorization. The affiant described, in very general terms,
    different investigative techniques that might be used to stimulate
    communication. He also indicated, that as the investigation progressed with the
    aid of the authorization, the police might employ other techniques to stimulate
    communications.

[31]

As
    the proposed investigative plan is central to whether the police had reasonable
    grounds to believe the interceptions would afford evidence of the homicide, I
    will set out the relevant paragraphs in full:

321. Interception of private communications will be utilized at
    the outset in an information-gathering manner to determine the state of mind,
    activities, associates and tendencies. This will be augmented and supported by
    other investigative techniques including physical surveillance.

Information Release

322. Investigators will approach some of the identified targets
    of interceptions or some of their associates for the purpose of conducting
    interviews in relation to this now historical homicide. Investigators will
    provide some detail of the investigation and inform these individuals that the
    Ottawa Police Service are now aggressively pursuing cold case homicide
    investigations. At the same time, investigators may relay some details about
    the investigation. This information may consist of surveillance, photographs or
    police reports. It is anticipated the information relayed and the contents
    discussed.
[6]
It is anticipated the discussion will revolve around what evidence is believed
    police do or do not have.

Media Release

323. Although police have already appealed to the public via
    the media, investigators may conduct new media release, renewing its pledge to
    offer financial rewards for certain unsolved homicides, which include this
    homicide. In a year where Ottawa has seen multiple gang-related homicides, a
    focus may be but on this unsolved as an example of how the community has failed
    to assist and refused to provide information to the police.

Interviews with Persons of Interest

324. Investigators will approach some of the subjects of this
    investigation and speak to them about other unsolved homicides they have a
    connection to. The purpose of this is to stimulate conversation about unsolved
    homicides in Ottawa. While speaking about these other cases, investigators may
    reference this investigation as an example of what happens when people do not cooperate
    with the police.

Polygraph Stimulation

325. Several interviews have been completed in regards to this
    investigation and investigations will continue to approach individuals who are
    persons of interest connected to this investigation. Investigators will attempt
    to interview these individuals and during these interviews, investigators will
    challenge the truthfulness of these persons statements. Investigators will
    question them as to their knowledge of the murder of Mohamed Ali. The persons
    of interest will be given the option of taking a polygraph test to determine
    their truthfulness. Investigators have two polygraph examiners available to
    them. The tests will be conducted at Ottawa Police Service facilities depending
    on the availability of the persons of interests.

[32]

Stripped
    to its essentials, this investigative plan contemplates:

·

speaking to named targets or associates and expressing renewed
    interest in Mr. Alis murder, or other unresolved murders, while at the same
    time providing information in respect of Mr. Alis murder, or the other
    unsolved homicides (paras. 322, 324);

·

possible fresh media coverage of the homicide and other unsolved
    homicides, as well as the possible renewal of a financial reward for
    information in respect of the homicide (para. 323); and

·

interviews with persons of interest connected to the
    investigation. During those interviews, the police may challenge the
    credibility of the information that has been provided by those witnesses and
    give them the option of taking a polygraph test (para. 325).

[33]

On
    December 2, 2016, Kane J. granted the authorization in the terms requested in
    the application. The authorization did not generate evidence sufficient to lay
    any charges in respect of Mr. Alis murder. It did, however, provide evidence
    of the charges giving rise to these appeals.


IV



should the authorization have been granted?

[34]

Section
    186(1) sets down the two prerequisites to the granting of an authorization. The
    issuing judge must be satisfied:

(a) that it would be in the best interests of the
    administration of justice to do so; and

(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 other investigative procedures.

(i)

Section 186(1)(a): The reasonable grounds requirement

[35]

The
    best interests of the administration of justice requirement in s. 186(1)(a)
    has been interpreted as imposing the constitutionally mandated reasonable and
    probable grounds standard. The issuing judge must be satisfied the affidavit contains
    reasonable and probable grounds to believe the named offence or offences are
    being or have been committed and that the interceptions will afford evidence of
    those offences:
R. v. Finlay and Grellette
(1985), 23 C.C.C. (3d) 48,
    at 70 (Ont. C.A.);
R. v. Duarte
, [1990] 1 S.C.R. 30, at 45;
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421, at paras. 35-36, 69;
R. v. Beauchamp
,
    2015 ONCA 260, at paras. 90-91.
[7]


[36]

All
    parties to both appeals accept the affiant had reasonable grounds to believe Mr.
    Ali had been murdered, and that the seven named targets were involved in, or
    had information pertaining to, the homicide. They join issue on whether the
    affidavit demonstrates reasonable grounds to believe interceptions of the private
    communications of the targets, some 7 ½ years after the homicide, would provide
    evidence in respect of that homicide. More precisely, they disagree over
    whether the affidavit contained sufficient evidence that might reasonably be believed
    to provide a basis upon which the issuing judge could have been satisfied the
    interceptions would afford evidence of the murder:
Beauchamp
, at para.
    87;
R. v. Araujo
, [2000] 2 S.C.R. 992, at pp. 1016-9.

[37]

The reasonable and probable grounds standard, also referred
    to as the probable cause requirement, requires more than suspicion, but less
    than proof on the balance of probabilities:
Beauchamp
, at paras. 90-92.
    There must be a credibly-based probability the interceptions will afford
    evidence of the named offences. The affidavit must be read as a whole and an issuing
    judge may draw common sense inferences from the information provided. The
    review of the validity of the authorization begins from the premise that the
    order was properly granted:
Garofoli
, at para. 35;
R. v. Sadikov
,
    2014 ONCA 72, at paras.
81-83;
R.
    v. Hosie
(1996), 107 C.C.C. (3d) 385,
    at 391 (Ont. C.A.);
R. v. Brown
, 2021 ONCA 119, at paras. 33-34.

[38]

An interception
will afford evidence if
    the communications to be intercepted shed light on the circumstances relating
    to the alleged offence, or the involvement of the named targets in the offence.
    The interceptions need not provide evidence that would be admissible at a trial:
    R.W. Hubbard, Peter M. Brauti, S.K. Fenton,
Wiretapping and Other Electronic
    Surveillance: Law and Procedure
, Volume 1 (Toronto Ont: 217) (Loose-leaf
    at 4-2.6);
CanadianOxy Chemicals Ltd. v. Canada (Attorney General)
,
    [1999] 1 S.C.R. 743, at para. 15.

[39]

The
    line of reasoning said to justify the authorization rests on three
    propositions. The first two were not controversial:

·

there were reasonable grounds to believe five of the named
    targets (the group) were involved in the murder;

·

there were reasonable grounds to believe all seven targets had knowledge
    about the circumstances surrounding the murder and had been privy to
    conversations about the murder in September 2011 or earlier; and

·

there were reasonable grounds to believe one or more of the
    stated stimulation techniques would generate communications relating to the
    murder, either among the targets, or by one or more of the targets, with
    persons unknown.

[40]

The
    probability of the stimulation techniques described by the affiant generating
    communications relevant to the murder investigation requires a consideration of
    the status of that investigation when the authorization was sought, the ongoing
    relationships, if any, among the targets, the possibility of communications in respect
    of the homicide by one of the named targets with other unknown persons, and the
    specifics of the proposed stimulation plan put forward in the affidavit.

[41]

The
    murder investigation had been stalled for years. The police had uncovered no
    new information since May 2014 when Ms. Windebank provided information about
    the location of the murder weapon. Prior to speaking with Ms. Windebank in May
    2014, the police had not developed any new information since the summer of
    2012. The affidavit does not refer to any significant active investigative
    steps taken by the police in anticipation of applying for an authorization. The
    renewed police interest in the murder investigation in the fall of 2016 had not
    generated any new leads or evidence pertaining to the murder. It is fair to say
    the investigative trail was about as cold as it could get when the police
    decided to seek an authorization.

[42]

The
    affidavit contained no direct evidence of any ongoing relationship among the
    targets of the authorization. The Crown contended, however, that, on the
    totality of the evidence, one could reasonably infer the association among the
    targets, especially the five who made up the group, continued as of December
    2016.

[43]

Brown
    J. accepted the Crowns position, indicating, at para. 50:

Both the officer and the issuing justice were entitled to rely
    on their experience and common sense in concluding that persons who commit
    crimes together are likely to maintain a level of familiarity and trust with
    one another that persists after the commission of those crimes.

[44]

Certainly,
    on the information provided in the affidavit, the continued association among
    the targets as of December 2016 was a real possibility. I cannot accept,
    however, that the common sense inference described by Brown J. existed on the
    facts of this case. The relevant events occurred 7 ½ years earlier. As I will
    explain in more detail below, there was virtually no evidence of any contact
    among the targets for many years prior to the authorization application. In
    those circumstances, it does not follow from association 7 ½ years earlier that
    the targets were likely to maintain a level of familiarity and trust with one
    another.

[45]

The
    line between speculation and inference can sometimes be difficult to draw, as
    can the line between credibly-based probability and suspicion. In my view, the
    information provided by the affiant, at its highest, raised a suspicion as to
    the continued relationship among the targets. On my reading of the affidavit,
    the police did almost nothing to try and turn that suspicion into reasonable
    belief before applying for the authorization.

[46]

Brown
    J. did not rely only on what he described as the common sense inference of an
    ongoing relationship. He found support for that inference in some of the
    information provided by the affiant. Brown J. relied on the evidence of Bashirs
    return to Ottawa some time before August 2016, the arrest of three of the
    targets (Ms. Windebank, Mr. Sheikhdoon and Mr. Fazeli) in 2012 on drug charges,
    and Ms. Windebanks supposed ongoing association with the group. Brown J.
    described Ms. Windebank as an important character in the investigation (para.
    62).

[47]

The
    three facts identified by Brown J. do not add any weight to the inference of an
    ongoing relationship among the targets. Bashir had been back in Ottawa since at
    least August 2016. The affidavit provides nothing to indicate Bashir had
    reconnected with any members of his old crew during the several months he had
    been back in Ottawa. In fact, the affidavit does not suggest the police took
    any investigative steps to determine whether Bashir had reconnected with any of
    his old associates.

[48]

With
    respect to the arrest of three of the targets in 2012 on drug charges, Brown J.
    erroneously describes the three as co-accused. The affidavit does not say
    they were co-accused. Rather, it indicates the three targets were charged with
    drug offences in relation to the same guns and gangs police project. The
    affiant provides no details of the facts underlying the charges and does not state
    the three individuals were co-accused, or even involved in the same or related
    drug activity.

[49]

It
    was not for the issuing judge to speculate about the relationship, if any,
    among the three targets arrested in 2012. Rather, it was for the affiant to set
    out the nature of that relationship, if one existed. The mere fact that three
    of the targets were arrested in the course of the same police operation does
    not say anything about the existence of an ongoing relationship among them. In
    any event, the arrests occurred more than four years before the police applied
    for the authorization.

[50]

I
    also cannot accept that the affidavit provides a basis for inferring an ongoing
    connection as of December 2016 between Ms. Windebank and any of the other
    targets. The affiants statement that Ms. Windebank maintained contact with
    the group was unsupported by anything in the affidavit. What the affidavit does
    tell the reader is that Ms. Windebank was present when the group discussed the
    murder at Mr. Mahfuds apartment on the night of the murder. The affidavit also
    indicates that Ms. Windebank had contact with one or more members of the group
    after the night of the murder. The affidavit does not indicate how many contacts
    were made, or when they occurred. It would appear, however, that any contact
    was relatively shortly after the homicide and certainly before Ms. Windebank
    spoke to the police in 2014.

[51]

The
    affidavit offers no support for the suggestion that Ms. Windebank was likely to
    reach out to any of the other targets if prompted by the police. Furthermore,
    even if she did, there is no basis to infer any of them would have reacted or
    responded.

[52]

Mr.
    Streeter, Crown counsel in
Thibault and Vaillant
, offers several
    arguments in support of the submission that it was reasonable to infer an
    ongoing relationship among the targets of the authorization, or at least the
    group who were all believed to have been involved in the homicide. Counsel submits
    the evidence showing an involvement in the homicide in and of itself goes a
    long way to support the inference the targets would communicate about the
    homicide if prompted.

[53]

The
    reasonableness of that inference depends on the circumstances. Clearly, the
    inference would be reasonable if the homicide was relatively recent, or there
    was other evidence that the targets continued to associate. Neither fact exists
    here. To the contrary, the offence occurred long ago and there is no evidence
    of any communication among the targets for several years.

[54]

Crown
    counsel further submits that the affidavit shows the targets have a history
    of discussing the homicide with others. The Crown contends this history lends
    credence to the inference that they would continue to do so after December
    2016.

[55]

The
    history as revealed by the affidavit comes down to perhaps three or four conversations
    with individuals who were not part of the group in the 7 ½-years since the
    murder. All of those conversations occurred more than four years before the
    application for the authorization. I regard this more as a history of
    non-communication with persons outside of the group.

[56]

Crown
    counsel also submits that it was open to the issuing judge to infer an
    association among the targets as of December 2016 because all but one of the
    targets was back in Ottawa and it would be relatively easy for them to reach
    each other and reunite the crew. While the facts relied on by the Crown give
    rise to a possibility the targets may have re-established their contacts, those
    facts alone do not permit an inference that a reunion had probably occurred. The
    police could have taken relatively straightforward investigative steps to
    confirm any existing association among the group as of the summer and fall of
    2016. They chose not to do so.

[57]

Corthorn
    J., in her reasons, found no reasonable basis to infer an ongoing relationship
    among the targets. She said, at para. 52:

The passage of 4.5 years from the date on which there is any
    evidence of communications by one of the targets about the homicide, without
    any evidence of ongoing contact between the targets, renders unreasonable an
    inference that the targets remained in communication with one another as of the
    latter half of 2016.

[58]

I
    agree with this conclusion.

[59]

In
    upholding the authorization, Brown J. correctly observed the Crown was not obligated
    to prove the likelihood of contact among the targets. It would have been
    sufficient to show a credibly-based probability of communication by a target with
    anyone else in respect of information relevant to the homicide investigation. He
    said, at para. 53:

In other words, the issuing judge was required only to be
    satisfied that the targets of the wiretaps, when appropriately stimulated,
    would discuss the Bar 56 incident among themselves or with other people they
    trusted. It would not have been unreasonable for a detached experienced
    judicial officer considering the wiretaps application before him to recognize
    that prompting strategies when properly employed can be highly effective means of
    inducing the targets of those strategies to reach out by phone in response to
    them.

[60]

No
    one would quarrel with the statement that persons suspected of offences, who
    are prompted by police investigative techniques, sometimes communicate with
    others about those offences. Prompting can induce communications with other targets,
    or unknown third parties. However, it cannot be inferred that, because
    prompting sometimes works, there is a reasonable probability it will work in
    any given case. The availability of that inference must depend on the
    circumstances. Those circumstances include the details of the prompting plan.

[61]

Although
    Brown J. would have upheld the validity of the authorization, he was critical
    of the investigative plan put forward by the affiant:

I agree with the applicants that the investigative plan
    outlined by Detective Benson suffers from a lack of detail which might cause one
    to wonder whether it is a plan at all. On one view, it appears to be simply a
    listing of common investigative techniques used by the police in stimulating
    conversation once wires are in place. [para. 59]

[62]

Brown
    J. accurately characterized the plan. It says nothing about how the generic
    investigative techniques described by the affiant would be, or even could be,
    applied in the specific circumstances of the investigation. There is no
    concrete plan laid out. For example, the affiant does not identify how any
    specific targets might be prompted through some specific investigative
    technique to communicate with others in respect of the homicide. The plan, as described
    in the affidavit, is essentially a plan to do something to stimulate communication
    among the targets at some point in time after the authorization is in place and
    the private communications of the targets are being intercepted.

[63]

In
    holding that the plan, despite its deficiencies, was sufficient to uphold the
    issuance of the authorization, Brown J., at paras. 60-61, relied on the
    affiants indication the police intended to first use the intercepted
    communications to determine the state of mind, activities, associates and
    tendencies of the targets of the authorization. Armed with that information
    gained through the interception of private communications, the police would
    then be able to flesh out the details of their stimulation plan.

[64]

Brown
    J. accurately describes the two phases of the investigative plan laid out in
    the affidavit. This description demonstrates why the affidavit did not provide
    a basis for granting the authorization.  The police wanted an authorization so
    they could gather information contained in the private communications of the
    targets. They would then use that information to formulate an investigative
    plan tailored to the specific circumstances and likely to prompt discussions
    relevant to the homicide among or involving the targets. Those prompted
    discussions would then be intercepted under the authority of the authorization.

[65]

As
    counsel for the accused aptly put it, the police wanted to wiretap first and use
    the fruits of their wiretaps to hopefully develop an investigative plan that
    would provide the necessary credibly-based probability to justify interceptions
    under s. 186(1)(a). Section 186(1) does not contemplate the use of
    authorizations for information gathering purposes in the absence of reasonable
    grounds to believe the authorization, when issued, will afford evidence of the named
    offences. It is not enough that the authorizations will afford evidence at some
    point down the investigative road, after the police, using information gathered
    through wiretapping, have developed an effective plan to prompt communications
    among the targets.

[66]

I
    would hold the affidavit did not provide a basis upon which the issuing judge
    could conclude there were reasonable groups to believe the interceptions would
    afford evidence of the murder. As one of the prerequisites to the granting of
    an authorization under s. 186(1) did not exist, the interceptions resulted in a
    breach of the s. 8 rights of the accused.

(ii)

Section 186(1)(b): The investigative necessity requirement

[67]

The
    accused at both trials also argued the affidavit had failed to satisfy the
    investigative necessity requirement in s. 186(1)(b). Brown J. held that
    requirement was met (reasons paras. 76-87). Corthorn J. did not consider this
    issue. I will address it briefly.

[68]

The
    affiant asserted other investigative procedures were unlikely to succeed. However,
    the affidavit itself provides no basis for that conclusion. As I have indicated,
    the police conducted little, if any, investigation to attempt to update the
    homicide investigation before applying for the authorization. For example, they
    apparently made no effort to establish any ongoing connection among the
    targets, did not recontact the four confidential informants who had provided
    information earlier, and made no attempt to re-interview any potential
    witnesses.

[69]

Absent
    any attempts to bring the investigation up-to-date before applying for the
    authorization, I fail to see how it could be said that other investigative
    procedures had been tried or failed, or appeared unlikely to succeed. There is
    no suggestion that urgency could justify the authorization.

[70]

The
    investigative necessity requirement must speak to the status of the
    investigation at the time the application is made, not years earlier. The
    affidavit perhaps established investigative necessity as of the summer 2014,
    but was virtually silent about other investigative possibilities as of December
    2016.

[71]

The
    Crown correctly submits that an authorization is not necessarily an
    investigative technique of last resort. It also cannot be the investigative technique
    of first resort when the police seek to breathe new life into a long dormant
    investigation. I think that is what the police sought to do here. There was no
    basis upon which the reviewing judge could be satisfied the issuing judge could
    find the investigative necessity requirement had been met.


V



should the evidence of the intercepted
    communications have been excluded under s. 24(2) of the
Charter
?

[72]

Brown
    J., having concluded there was no s. 8 violation, did not address s. 24(2).
    Corthorn J. would have excluded the evidence:
R. v. Bashir and Muddei
,
    2009 ONSC 4937 (s. 24(2) Ruling).

[73]

No
    one argues that the s. 24(2) analysis should yield different results in the two
    appeals. I will first consider whether Corthorn J. erred in law in excluding the
    evidence in
R. v. Bashir and Muddei
. Whatever conclusion I reach in
R.
    v. Bashir and Muddei
, I will apply to
R. v. Thibault and Vaillant
.

[74]

The
    decision of Corthorn J. with respect to the admissibility of the intercepted
    communications is entitled to deference in this court. Absent an error in law,
    a misapprehension of material evidence, a failure to consider relevant factors,
    or an unreasonable finding, this court will accept a trial judges decision to
    admit or exclude evidence under s. 24(2):
R. v. Grant
, 2009 SCC 32, at
    paras. 86, 127;
R. v. C
ô
té
, 2011 SCC 46, at para. 44;
R.
    v. Szilagyi
, 2018 ONCA 695, at para.  41;
R. v. Strauss
, 2017
    ONCA 628, at para. 38.

[75]

The
    s. 24(2) analysis requires the exclusion of the evidence if its admission
    would, in all the circumstances, bring the administration of justice into
    disrepute. The focus of the inquiry is on the long-term impact of the admission
    of constitutionally tainted evidence on the repute of the justice system in the
    broad sense. The accused carries the onus to demonstrate the evidence should be
    excluded:
Grant
, at paras. 67-70.

[76]

Grant
directs that the s. 24(2) inquiry should be approached by balancing assessments
    made under three lines of inquiry. They are:

·

the seriousness of the
Charter
-
infringing state conduct;

·

the impact of the breach of the
Charter
-
protected interests of the accused; and

·

societys interest in an adjudication on the merits:
Grant
,
    at paras. 71-86.

[77]

The
    first line of inquiry examines the state conduct that resulted in the
Charter
breach. That conduct will fall along a continuum of blameworthiness ranging
    from a deliberate breach through various levels of negligence to a breach
    committed in good faith and reasonably. The more blameworthy the conduct, the
    stronger the argument for excluding the evidence:
Grant
, at paras.
    72-75.

[78]

The
    second inquiry examines the impact on the
Charter
-protected interest
    of the accused flowing from the
Charter
breach. In this case, the
Charter
-protected
    interest is the privacy rights of the accused. The second inquiry requires an
    assessment of the extent to which that privacy interest was compromised by the
    improper interception of private communications. The more negative the impact
    on the privacy interests of the accused, the stronger the case for exclusion:
Grant
,
    at paras. 76-78.

[79]

The
    third inquiry is concerned with the impact of the admission or exclusion of the
    evidence on the integrity of the trial process. That integrity will suffer if
    reliable, cogent evidence is excluded. The routine admission of evidence gathered
    by unconstitutional means will also undermine the integrity of the trial
    process:
Grant
, at paras. 79-81.

[80]

In
R.
    v. Le
, 2019 SCC 34, at para. 142, the majority explained the interaction
    of the three inquires:

The third line of inquiry, societys interest in an
    adjudication of the case on its merits, typically pulls in the opposite
    direction  that is, toward a finding that admission would not bring the administration
    of justice into disrepute. While that pull is particularly strong where the
    evidence is reliable and critical to the Crowns case [citation omitted] we
    emphasize that the third line of inquiry cannot turn into a rubber stamp where
    all evidence is deemed reliable and critical to the Crowns case at this stage.
    The third line of inquiry becomes particularly important where one, but not
    both, of the two inquiries pull toward the exclusion of the evidence. Where the
    first and second inquiries, taken to together, make a strong case for
    exclusion, the third inquiry will seldom if ever tip the balance in favour of
    admissibility [citation omitted]. Conversely, if the first two inquiries
    together reveal weaker support for the exclusion of the evidence, the third
    inquiry will often confirm that the administration of justice would not be
    brought into disrepute by admitting the evidence.

[81]

Corthorn
    J. correctly identified the inquiries described in
Grant
: s. 24(2) Ruling,
    at paras. 5-8. There was no doubt that the second inquiry, the impact of the
    breach on the
Charter
-protected interests of the accused, strongly
    favoured the exclusion of the evidence. The accused were subjected to a
    prolonged and pervasive invasion of their private communications, a fundamental
    component of personal privacy.

[82]

The
    outcome of the s. 24(2) inquiry turns largely on the proper characterization of
    the seriousness of the
Charter
-
infringing
    state conduct. Corthorn J. placed the conduct at the more serious end of the
    spectrum: s. 24(2) Ruling, at para. 30. In doing so, she emphasized two
    things. First, the inadequacies in the affidavit were far from minor or
    technical. In her view, the affidavit failed to provide any evidence upon which
    the issuing judge could reasonably draw any of the inferences necessary to
    satisfy the fundamental requirement of reasonable grounds to believe the
    authorization would afford evidence of the specified offences: s. 24(2) Ruling,
    at paras. 17-18.

[83]

Second,
    Corthorn J. was critical of the manner in which parts of the affidavit had been
    drafted. In her view, the affiant, through carelessness or inadvertence, had
    unintentionally misled the issuing judge in respect of a material fact, namely
    any ongoing connection among the targets of the proposed authorization: s.
    24(2) Ruling, paras. 26-27.

[84]

I
    see no basis upon which this court can interfere with either finding. As to the
    fundamental nature of the inadequacies in the affidavit, not only was there no
    evidence upon which the issuing judge could have been satisfied the
    interceptions would afford evidence of the murder, there was also no basis for
    a finding of investigative necessity. The affidavit failed to provide a basis
    for a finding of either of the two prerequisites to the issuing of an
    authorization under s. 186. The inadequacies could not have been more
    fundamental. Corthorn J. did not err in describing them as serious and
    significant: s. 24(2) Ruling, para. 18.

[85]

The
    finding of Corthorn J., that aspects of the affidavit were unintentionally
    misleading, is also supported by the terms of the affidavit. As she points out,
    at para. 21, the affiant described Ms. Windebank as continuing to maintain
    contact with the group. This assertion was significant to the merits of the
    application, as there was virtually no evidence of any ongoing connection among
    the targets. Indeed, Brown J., in his review of the affidavit, saw Ms.
    Windebank as an important character in the police prompting strategy.

[86]

The
    unsubstantiated assertion of a continued connection between Ms. Windebank and
    the others caused Brown J. to misapprehend her potential importance to any
    future prompting strategy. It may well have had the same effect on the issuing
    judge.

[87]

In
    addition to the potentially misleading description of Ms. Windebanks ongoing connection
    with the group, I think there is a second aspect of the affidavit that is also
    misleading. As set out above, the affiant describes three of the targets as
    having been arrested in relation to a guns and gangs police operation. The
    affidavit provides no details. Later, the affiant refers to Ms. Windebank as
    having been charged along with the other two targets.

[88]

In
    his reasons, Brown J. refers to the three targets as co-accused. The affidavit
    may imply the three targets were co-accused, but it does not actually say they
    were charged together, or that their charges had any connection to each other. The
    language used in the affidavit, and the absence of any details relating to the
    subject matter of the arrests, misled Brown J. to describe the three targets as
    co-accused. It may have had the same effect on the issuing judge.

[89]

The
    inadequacies in the affidavit must be considered having regard to the
ex
    parte
nature of the authorization for the application. The potential to
    mislead by careless drafting, or ambiguous silences, is very real. It falls to
    the affiant, and the Crown agent, to be especially careful to minimize the risk
    that the issuing judge will be unintentionally misled by the language in the
    affidavit.

[90]

In
    fairness, most of the affidavit was drawn in a straightforward and accurate
    manner. Corthorn J. accepted there was no intention to mislead the issuing
    judge. However, the misleading aspects of the affidavit go to the existence of
    any ongoing connection among the targets, a crucial component of the Crowns
    reasonable grounds claim, and probably the weakest part of that claim. Corthorn
    J.s finding that the affiant, through carelessness or inadvertence, misled the
    issuing judge on an important component of the affidavit supported her finding
    that the nature of the state misconduct should be placed toward the more serious
    end of the continuum: see
R. v. Rocha
, 2012 ONCA 707, at paras. 27-37.

[91]

Counsel
    for the provincial Crown made two additional arguments, which they submit were
    not considered by Corthorn J. and, which if taken into account, significantly
    diminish the blameworthiness of the state conduct resulting in the
s. 8
breach. They submit the police
    followed the required procedure under the
Criminal Code
by seeking a
    judicial authorization. In doing so, the police acted in good faith and with
    the judicial approval of the issuing judge:
Rocha
, at paras. 28, 32.

[92]

The
    Crown submission is a fair one, but it goes only so far in assessing the
    blameworthiness of the state conduct. Even when the police follow the proper
    procedures and seek a judicial authorization, serious inadequacies in the material
    placed before the issuing judge can justify a finding the police acted
    negligently or unreasonably, thereby exacerbating the blameworthiness of the
    state conduct leading to the
Charter
breach:
Rocha
, at paras.
    32-38. Corthorn J. properly used her finding that the affidavit was materially,
    albeit unintentionally, misleading to place the state conduct at the more
    serious end of the fault spectrum.

[93]

Crown
    counsel also argue that the seriousness of the state conduct is mitigated
    because the grounds set out in the affidavit, if they were inadequate, fell
    just short of the grounds needed for an authorization. This was a near miss,
    say Crown counsel.

[94]

Corthorn
    J. did not accept this submission. Nor do I. I have difficulty with the
    proposition that an affidavit that does not provide a basis upon which an
    issuing judge could (not should or would) be satisfied the criteria in s.
    186(1) have been met can be accurately described as a near miss. The standard
    of review to be applied by the reviewing judge sets a relatively low bar. I
    would think that most affidavits which cannot clear that low bar will be seriously
    deficient in setting out the grounds required to justify the issuance of an
    authorization.

[95]

Finally,
    I cannot agree that the finding by Brown J., that the affidavit satisfied the
    requirements of s. 186(1), supports the claim that if the affidavit fell short,
    it barely missed the mark. With respect to Brown J., he fell into the same
    error as the affiant. Both viewed the existence of grounds to obtain an
    authorization in the distant past, combined with a generic potential plan to
    employ prompting strategies in the future, as sufficient to provide the
    requisite reasonable grounds. For the reasons set out above, that combination may
    create suspicion warranting further investigation. The combination, without more,
    however, does not meet the requirements of s. 186(1) of the
Criminal Code
.

[96]

On
    the findings of Corthorn J., the first and second inquiries described in
Grant
strongly favoured exclusion. She properly excluded the evidence.


VI



conclusion

[97]

I
    would dismiss the appeal from the acquittals in
R. v. Bashir and Muddei
.

[98]

I
    would allow the appeal from the convictions in
R. v. Thibault and Vaillant
.
The evidence obtained pursuant to the
    authorization should have been excluded under s. 24(2) of the
Charter
.
    The Crown acknowledges that the excluded evidence was essential to the Crowns
    case. The convictions should be quashed and acquittals entered.

Released: APRIL 1 2021 DD

Doherty J.A.

I agree B. Zarnett J.A.

I agree Coroza J.A.





[1]

There were two other persons charged with Thibault and
    Vaillant, but they are not involved in the appeal.



[2]
The authorization was amended in December 2016 and a second
authorization
    was granted in February 2017. For the purposes of the appeals, only the authorization
    granted in December 2016 is relevant.



[3]

The reasons of Brown J. are not reported. They were released
    on February 2, 2019 and can be found in court file number 17-RF1043.



[4]

The appellant, Vaillant, was not named in the first
    authorization, but was named in the authorization granted on February 1, 2017.
    The respondent, Muddei, was not named at all. Nothing in my analysis turns on
    whether individuals were named or not named in the authorizations.



[5]

The affidavit does refer to information received from
    confidential informant # 5 in August and September 2016. That information
    provided the phone numbers of certain targets, and indicated Bashir was back in
    Ottawa and involved in drug trafficking. This information did not advance the homicide
    investigation.



[6]

It would appear that something is missing from this sentence.



[7]

In this case, there were redactions in the affidavit. The
    Crown did not rely on any of the redacted parts of the affidavit when defending
    the authorization.


