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| John L. Hill |
To make the short story long, as with most drug conspiracy cases, there was much more legal manoeuvring that preceded Maric’s conviction. He had been arrested along with several others (Vartevar Brounsuzian, Ethan Eckstein and Abdul Shahin); the prosecutions centred on the legality of the search and wiretap warrants that led to their arrests. Each challenged the legitimacy of the warrants by bringing pretrial Garofoli applications, challenging the constitutionality of various searches and the interception of private communications conducted under the authority of various wiretap authorizations,
usetrick: ISTOCKPHOTO.COM
Defence counsel realized that if the warrants that led to the accused persons' arrest could be set aside, there would be no basis for maintaining a conviction. They challenged the dismissal of the applications in the Ontario Court of Appeal. The appellate decision was handed down as a lengthy 217-paragraph decision on Sept. 10 (R. v. Maric, 2024 ONCA 665).
Maric, Eckstein and Shahin were suspected of drug trafficking in London. Toronto police were suspicious that a suspect named Kevin Er was operating in Toronto. The two investigations became linked. A confidential informant with knowledge of Er’s alleged organization identified an individual who purchased large quantities of controlled substances from Er as a Serbian named “Marco,” known to the informer only as “Marco.” (Marko Maric is Bosnian.)
Police had relied on confidential informants as a foundation to apply for wiretaps, search warrants and vehicle tracking warrants. In examining the validity of the surveillance warrants, the Court of Appeal determined that the reviewing justice’s task is not to determine whether the allegations underlying the warrant are ultimately true — a question for trial — but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds at the time the affidavit was sworn (R. v. Paryniuk, 2017 ONCA 87).
It was argued on appeal that s. 185(1)(e) requires that the affidavit in support of an authorization to specify “the names, addresses and occupations if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence.” Simply naming “Marco” did not comply with the legislation. The affiant seeking the warrant was not full, frank and fair in that Marko Maric could not be the man called Marco because of the absence of further identifiers such as occupation, place of residence, vehicle licence number, or a telephone number corroborating a link to Er.
The appeal court denied this ground finding that R. v. Hafizi, 2023 ONCA 639, set a low bar. Just because the affiant here did not know as much about “Marco” as he did about others whose private communications may be intercepted does not mean “Marco” was not “known.” Otherwise, the police would never be able to target a person whose name they did not know for interception, frustrating law enforcement’s ability to use this investigative tool (R. v. Degady, [1996] O.J. No. 2011, (Ont. Gen. Div.). Maric is wrong to suggest that the test for identification is correctness. This would be an impossibly high standard.
Maric also argued the application judge effectively reversed the onus by requiring him to prove that the police did not have reason to believe he was Marco. This argument also failed because the confidential informant said Marco was the person depicted in Maric’s photograph. The police had not fabricated evidence.
The appeal court also accepted that the confidential informant had accurately labelled Maric and his associates as drug traffickers. They knew one another and socialized together. The authorizations for surveillance were granted correctly and executed. There was no basis to exclude evidence that resulted from this investigation under s. 24(2) of the Charter.
The Court of Appeal then proceeded to provide an analysis of Maric’s co-accused and similarly rejected their application to quash the surveillance warrants. With the finding of substantial quantities of drugs and paraphernalia, it is questionable that an appeal court would find a paperwork error necessitating the tossing of the drug convictions and still maintain the public confidence on which our institutions depend.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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