R. v. Mahmood,

• Jurisdiction: Ontario
• Judge: Blair, Watt and Epstein, JJ.A.
• Neutral Citation: 2011 ONCA 693
• Citation: 2011 ONCA 693,(2011), 284 O.A.C. 94 (CA),107 OR (3d) 641,284 OAC 94,284 O.A.C. 94,107 O.R. (3d) 641,(2011), 284 OAC 94 (CA)
• Date: 09 November 2011
• Court: Court of Appeal (Ontario)

R. v. Mahmood (A.) (2011), 284 O.A.C. 94 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. NO.018

Her Majesty the Queen (respondent) v. Arif Mahmood (appellant)

(C51398)

Her Majesty the Queen (respondent) v. Rehan Sheikh (appellant)

(C51168)

Her Majesty the Queen (respondent) v. Abraham Fundi (appellant)

(C51151; 2011 ONCA 693)

Indexed As: R. v. Mahmood (A.)

Ontario Court of Appeal

Blair, Watt and Epstein, JJ.A.

November 9, 2011.

Summary:

A jewellery store was robbed. Police thought that cell phone traffic near the store, around the time of the robbery, might help them track down the robbers. They got a search warrant for cell phone records about contemporaneous calls near the jewellery store. Subsequently, they got a search warrant for the cell phone records of a few people that they thought could be involved in the robbery. Finally, they got warrants to search some residences where they found things linked to the robbery. A jury convicted the three accused of several offences arising out of the robbery. The accused appealed, submitting that the trial judge should have excluded evidence of their cell phone records and of the things found on the search of their homes.

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Ontario Court of Appeal stated that the privacy interests protected by s. 8 of the Canadian Charter of Rights and Freedoms included personal privacy, territorial privacy and informational privacy - The court discussed informational privacy - See paragraphs 90 to 98.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A jewellery store was robbed - Police thought that cell phone traffic near the store, around the time of the robbery, might help them track down the robbers - They got a search warrant for cell phone records about contemporaneous calls near the jewellery store - Subsequently, they got a search warrant for the cell phone records of a few people that they thought could be involved in the robbery (subscriber warrants) - The Ontario Court of Appeal held, inter alia, that while a reasonable expectation of privacy attached to the records obtained under the subscriber warrants, it was significantly reduced - See paragraphs 125 to 131.

Civil Rights - Topic 1641.5

Property - Search and seizure - Personal information - [See both Civil Rights - Topic 1508 ].

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - [See first Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A jewellery store was robbed - Police thought that cell phone traffic near the store, around the time of the robbery, might help them track down the robbers - They got a search warrant for cell phone records about contemporaneous calls near the jewellery store (tower dump warrant) - Subsequently, they got a search warrant for the cell phone records of a few people that they thought could be involved in the robbery (subscriber warrants) - Finally, they got warrants to search some residences where they found things linked to the robbery - All the warrants were issued under s. 487(1) of the Criminal Code - The trial judge found that the search warrants were invalid - The court excluded the evidence of the tower dump warrant under s. 24(2) of the Charter, but admitted the evidence of the subscriber and residential warrants - The accused appealed, submitting that the trial judge erred, inter alia, in concluding that the availability of the subscriber records by the alternative constitutional means provided for in s. 492.2(2) of the Code attenuated the seriousness of the s. 8 breach created by the faulty conventional search warrant; and in limiting the effect of the s. 8 breach associated with the tower dump warrants to excision from the supportive informations for the subscriber and residential warrants, rather than considering it as a factor in his s. 24(2) analysis - The Ontario Court of Appeal held, inter alia, that the subscriber information was properly admitted under s. 24(2) - The court agreed that there was a sufficient nexus between the tower dump information and the information obtained under the subscriber warrants that the prior unconstitutional conduct should have been included in the s. 24(2) analysis for the subscriber information - However, a telephone records order under s. 492.2(2) could have yielded the same evidence in a constitutionally sustainable way - The availability of this alternative, coupled with the good faith finding of the trial judge with which there was no reason to interfere, diminished the seriousness of the combined violations - Further, the expectation of privacy respecting the subscriber records was substantially reduced, they were real evidence, reliable and relevant to proof of guilt and their exclusion would tend to undermine the truth seeking function of the criminal trial - See paragraphs 69 to 139.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A jewellery store was robbed - Police thought that cell phone traffic near the store, around the time of the robbery, might help them track down the robbers - They got a search warrant for cell phone records about contemporaneous calls near the jewellery store (tower dump warrant) - Subsequently, they got a search warrant for the cell phone records of a few people that they thought could be involved in the robbery (subscriber warrants) - Finally, they got warrants to search some residences where they found things linked to the robbery - All the warrants were issued under s. 487(1) of the Criminal Code - The trial judge found that the search warrants were invalid; therefore the evidence was obtained in breach of s. 8 of the Charter - The court excluded the evidence of the tower dump warrant under s. 24(2), but admitted the evidence of the subscriber and residential warrants notwithstanding the s. 8 breach - The Ontario Court of Appeal held, inter alia, that the evidence seized under the residential warrants was properly admitted - The police appreciated the obvious need for a warrant and obtained one - Had they proceeded under s. 492.2(2) of the Code to obtain an order for subscriber records based on a lower standard of reasonable suspicion, there would have been an evidentiary predicate to meet the requirements of s. 487 for the residential warrants - The seriousness of the breach was also attenuated by the finding of good faith made by the trial judge - While the impact on the three accused's Charter-protected interests was more significant than in the case of the subscriber records because of the heightened expectation of privacy in the home and its precincts, nothing was done that offended the accused's dignity or intruded upon their bodily integrity - Societal interest in adjudicating the case on its merits favoured admitting the evidence - It was real and reliable - It was relevant to establish the accused's participation in the substantive offences and of no small value in proving the conspiracy - It was also significant in its confirmation of various aspects of the evidence of a co-accused whose evidence was rightly subject to a strong Vetrovec caution - Its exclusion would undermine the trial's truth-seeking function - See paragraphs 140 to 158.

Criminal Law - Topic 3052

Special powers - Search warrants - Effect of defects - [See first Civil Rights - Topic 8368 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The Ontario Court of Appeal stated that "A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO [information to obtain], trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant ..." - See paragraph 99.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - A jewellery store was robbed - Police thought that cell phone traffic near the store, around the time of the robbery, might help them track down the robbers - They got a search warrant for cell phone records about contemporaneous calls near the jewellery store - Subsequently, they got a search warrant for the cell phone records of a few people that they thought could be involved in the robbery - Finally, they got warrants to search some residences where they found things linked to the robbery - A jury convicted the three accused, including Sheikh, of offences arising out of the robbery - On appeal, Sheikh complained for the first time about the prosecutor's conduct at trial in preparing the informant for cross-examination on the motion to exclude evidence seized under the warrants - The complaint was that, despite a specific request from trial counsel not to do so, the prosecutor at trial tipped off the informant about the grounds upon which the accused challenged the constitutional validity of the searches - The same police officer (informant) prepared and swore the information to obtain all the warrants - The informant had testified at the preliminary inquiry - The evidence he had given there was to form part of the evidentiary foundation for the "Garofoli hearing" at trial, along with his cross-examination at the hearing - Sheikh's counsel filed a factum to assist the trial judge on the Garofoli application - The factum outlined the legal arguments counsel intended to advance and the subjects to be explored in the informant's cross-examination - In order to guard against tainting, trial counsel asked the prosecutor not to provide the informant with a copy of the factum and not to discuss with him the subjects to be explored in cross-examination - The prosecutor met with the informant briefly before he testified on the Garofoli application - The prosecutor mentioned to the informant some of the general areas or subjects upon which he might be cross-examined - The subject of a warrantless request for Sheikh's phone number had not been raised at the preliminary inquiry - Sheik's counsel argued that the pre-trial discussion with the prosecutor enabled the informant to construct an after-the-fact justification for this warrantless seizure and impaired trial fairness - The Ontario Court of Appeal rejected this ground of appeal - Trial counsel's failure to raise this issue denied the prosecutor the opportunity to make submissions or adduce evidence on it before the trial judge - Likewise, the Court of Appeal was in no position to make any fact findings, much less determine whether whatever might have occurred was improper - In these circumstances, the finis litium principle should prevail - Further, there was no fixed or invariable rule that it was never appropriate for counsel to alert a witness to a subject that was likely to be raised in cross-examination, or supply the witness with a factum that outlined the arguments that might be advanced on an admissibility inquiry - See paragraphs 54 to 68.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The Ontario Court of Appeal stated that "A misapprehension of evidence may involve a failure to take into account an item or items of evidence relevant to a material issue, or it may have to do with a mistake about the substance of the evidence. A misapprehension of evidence may also reflect a failure to give proper effect to evidence ... Every misapprehension of evidence does not render a trial unfair or result in a miscarriage of justice. An appellate court must determine the nature and extent of an alleged misapprehension and its significance to the decision under review, whether a determination of admissibility or a final conclusion against guilt. Rulings on admissibility and final verdicts must be based exclusively on evidence adduced at trial ... The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge, in other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment ..." - See paragraphs 46 to 48.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - A jewellery store was robbed - Police thought that cell phone traffic near the store, around the time of the robbery, might help them track down the robbers - They got a search warrant for cell phone records about contemporaneous calls near the jewellery store - Subsequently, they got a search warrant for the cell phone records of a few people that they thought could be involved in the robbery (subscriber records) - Finally, they got warrants to search some residences where they found things linked to the robbery - All the warrants were issued under s. 487(1) of the Criminal Code - A jury convicted the three accused, including Fundi, of offences arising out of the robbery - The trial judge found that the search warrants were invalid, but admitted the evidence under s. 24(2) of the Charter - On appeal, Fundi submitted that the trial judge erred in concluding that investigators could have obtained the subscriber records under s. 492.2(2) of the Code upon satisfaction of a less vigorous standard than under s. 487(1)(b) - The Ontario Court of Appeal found that Fundi's complaint was essentially about the weight the trial judge assigned to the evidence linking him to the robbery - One of the robbers wore a burka - Fundi was linked to a contemporaneous burka purchase - A bag from the same store was found on the jewellery store's floor when police responded to the robbery - The store owner knew Fundi - Fundi's physical features were similar to those of one of the robbers - Fundi dealt in gold jewellery - The court held that the trial judge laboured under no misapprehension about the substance of the evidence that he considered - See paragraphs 49 to 53.

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See first Criminal Law - Topic 4866 ].

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - [See first Civil Rights - Topic 8368 and second Criminal Law - Topic 4866 ].

Evidence - Topic 4045

Witnesses - Interference with - Tainted evidence - [See Criminal Law - Topic 4853 ].

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 28, footnote 2].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 46].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 48].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 62].

R. v. L.G. (2007), 229 O.A.C. 89; 228 C.C.C.(3d) 194; 2007 ONCA 654, refd to. [para. 62].

R. v. R.R. - see R. v. Rollocks (R.).

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 62].

R. v. Lajeunesse - see R. v. Paris (N.) et al.

R. v. Paris (N.) et al. (2006), 208 O.A.C. 385 (C.A.), refd to. [para. 63].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 90].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 90].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 90].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 93].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 94].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 96].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 96].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 97].

R. v. B.M. (1998), 115 O.A.C. 117; 42 O.R.(3d) 1 (C.A.), refd to. [para. 98].

R. v. Hutchings (E.W.) (1996), 83 B.C.A.C. 25; 136 W.A.C. 25; 111 C.C.C.(3d) 215 (C.A.), refd to. [para. 98].

R. v. Morelli (U.P.) - see R. v. U.P.M.

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 99].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 99].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 99].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135, refd to. [para. 99].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, appld. [para. 105].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 105].

York Condominium Corp. No. 382 v. Jay-M Holdings Ltd. et al. (2007), 220 O.A.C. 311; 84 O.R.(3d) 414 (C.A.), refd to. [para. 105].

R. v. Fegan (J.J.) (1993), 62 O.A.C. 146; 13 O.R.(3d) 88 (C.A.), refd to. [para. 107].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 113].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 114].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 114].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 117].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 117].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 87 O.R.(3d) 214, refd to. [para. 119].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 120].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 122].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 125, footnote 3].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 492.2(1), sect. 492.2(2) [para. 101].

Counsel:

Catriona Verner, for the appellant, Arif Mahmood;

Mark Halfyard, for the appellant, Rehan Sheikh;

Paula Locke, for the appellant, Abraham Fundi;

Michael Bernstein, for the respondent, Crown.

These appeals were heard on May 30 and 31, 2011, by Blair, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the court on November 9, 2011.