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Byron's Trial, Day 4

Summary: Crown concludes response on French's affidavit. The Judge rules that Byron wasn't detained until the 'ruse'. Counsel responds to some issues raised in the Crown's response.


  • Prosecution & Defense: We were proceeding on the basis that there was a restricted access area and there is a fence. But my friend and I that the actual state of affairs is: the metro Toronto convention center, which is contained in the central access zone. There is the restricted access zone around the CAZ, which is also fenced in, and will also be under the control the RCMP. The RAZ contains residents and businesses. The Toronto Police are in there. And then there's another ring around the RAZ that wasn't fenced.
    • Judge: Did you need a fence to get into unfenced ring?
    • We need to clarify this.
  • Prosecution: What is the connection between Mr. Sonne and the location to be searched?

    • When we look at the surveillance report...
      • Judge: Did you know he was Byron Lione Sonne?
    • Link between Byron and twitter, legal argument later:
      • Looking at the reports:
        • Twitter is connected to blsonne.
        • Ban report... They suspect blsonne is B. L. Sonne, and run a drivers license search. Sonne isn't a common name. And torontogoat and tweets about G20 suggest that he is in Toronto. This is a pretty small pool, possibly only one person. They get the Elderwood. Further searches find halvan solutions and is CISSP and is a licensed Private Investigator, and has some skill in engineering on his blog.
          • This is reasonable and probable grounds -- it doesn't need to be certainty.
        • Judge: It's presented as certainty in affidavit...
        • Judge: There hasn't been extrinsic evidence against this from the Defense.
    • pg 9 par 16: Night report links twitter to Byron Lione Sonne. My friend says this is not only wrong but misleading. It's just a poorly formed sentence -- he didn't mean to link to the suspect but to say that they were suspecting...
    • Typesetting is difficult. He was rushed.
    • The surveillance line should have been in another paragraph.
    • He is not bound to not form his own opinions. He's not bound by Ban's opinion that this is just suspicion.
    • He doesn't have to clarify that things are opinion everywhere. It is implicit.
    • I concede that without excised evidence, there isn't freestanding evidence linking Byron to address.
    • Refer to Arajoh (sp?):
      • Affiant writes about a number of suspects labeled a b ... And accidentally mixes up evidence between them at one point.
      • Report makes it sound like informant gave address rather than description that could be used to determine the address.
      • Although report said grow op at address, but actually just described. While there is precedent if anything is found to have been misleading the judge, that the warrant should be quashed, in this case they didn't find misleading.
    • Scientology case:
      • Where erroneous material was not meant to mislead, amplification can be allowed.
    • This situation is much better than Arrajoh. What we're dealing with, I submit, is not a mistake.
    • Judge: Defense argued that he was ratcheting up evidence and was misleading... You're arguing that he isn't bound by what he's citing and can put his own opinions in.
    • If you find he's intentionally misleading, that's one thing, but I don't think any hint of misleading is out -- remember that the issuing judge is competent and would notice mistakes.
    • "intelligence gathering" -- clearly opinion and entirely reasonable
    • "homemade improvised weapon" -- he uses the word "appears". The Justice knows that it won't necessarily work -- he couldn't know that, given that he didn't have possession.
      • He goes on to say that he can't asses it.
    • par 11, "projectiles that could be fired from the improvised weapon"
      • Judge: Those are clearly dry wall plugs.
        • Prosectuion: Clear to Mr Di Luca, not to me.
        • Judge: Clear to anyone that watch home improvement shows.
      • He's only stating that he believes that these could be fired.
        • Judge: He admitted in cross-examination that he had no reason for the belief.
      • Judge: There may be some reason to believe from the boards that the cannons can fire. If you can fire a candle, you can fire a bolt?
    • "He has made every attempt" -- Well, this isn't misleading since anyone reading knows that it physically isn't possible to determine that he made every attempt.
  • Judge [Ruling]: I am not satisfied that Mr. Sonne was detained at any point before the ruse.

  • Prosecution: As far as the affiant knows, surveillance is fine. So it is fine to make a conclusion, even a firm conclusion, that since Mr. Sonne is home when the tweets are made, that he was the person making the tweets.
  • Mr. Sonne's pictures and videos confirm that he was the person.
  • He makes a statement, and then includes pictures that don't verify it. That's not a very good attempt to deceive. I'd say that that is a mistake.
  • Judge: I find it very concerning that he goes from "can someone show me a picture of a security pass" to "trying to get a pass". That's quite a leap and speculation and would have to come out.
    • Prosecution: I disagree with that. I think it is a perfectly reasonable statement. It is an opinion, and its a reasonable belief.
      • Speculating is pulling out of thin air, this is not out of thin air. This is the primary concern that arises from his behavior.
  • In blog, Mr. Sonne removing a layer from a pass.
    • French had his blog, though he doesn't cite it properly.
      • This indicates he was going to forge a pass.
  • Judge: "As for his twitter, he is attempting to acquire passes" that is not correct.
    • Prosecution: Not cited properly...
      • Judge: No, he's putting it as a fact and its not.
  • The only logical conclusion is that there's going to be an attempt to forge a pass.
  • I think there's a difference between an officer making a statement he believes, even if it is unsupported...
  • The association part from twitter puts you well on your way to a conspiracy charge ???
  • Not only is Mr. Sonne doing these things, but there is a desire to communicate. A number of reasons, but one of the reasonable conclusions is that he wants to communicate. And one can suggest
  • Direct counseling: "The bolt holes" / "tree climbing" are clearly counseling.
  • There are absolutely reasons for the issuing judge to grant the warrant.
  • "There is no other lawfull reason" -- is clearly a statement of belief. And it is a perfectly reasonable reason -- I can't see anyway that that was misleading or off the mark.
  • Judge: Except that there wasn't any evidence of destruction of videos, etc... He clearly didn't consider that there was anyone akin to a hacker that may be interested in testing the security... who is interested in the security of a system.
  • I think it is an unreasonable position to say he is testing the security of the system. There's just too much persistence.
  • It doesn't matter if it comes out, it doesn't change the grounds. This is just a synthesis. This isn't misleading. The judge doesn't have to accept the opinion.
  • Judge: There is no evidence that he destroyed video cameras or communication.
    • Prosecution: His obsession with the cameras in itself is evidence. His obsession with the security apparatus.
      • Judge: Security apparatus?
        • His video of the fence, his comment about more pictures...
        • If he hasn't destroyed, he clearly intends to.
  • There's no question he could have done it better...
  • He needs to have evidence justify his beliefs, but he's allowed
  • Judge: He would have to provide an innocent explanation?
    • Prosecution: If there was an innocent explanation that accounted for everything, yes. But if there's only innocent explanations for individual things. But when the full picture doesn't have an explanation that he's aware of, he doesn't need to and is still full fair and frank.
  • Par 19 out because of surveillance. But is it misleading?
  • Judge: He had not basis for the claims in par 19. He never went into the stores... He's clearly

    • Prosecution: I find it fairly obvious that it is concerning that he went into these stores. Some of the things he's interested in are made of plastic. He's clearly adept at making things, he's going to two specific stores for these materials.
      • Judge: One of them was a pottery supply store.
        • Prosecution: Well, yes.
      • I don't think we're dealing with an officer who set out to cook the books. We're talking about an officer who couldn't articulate his suspicion.
      • When French said he could get "text" at the plastic store, I think he meant text as in a textbook. A document that could help him.
      • He was just dreadfully inarticulate.
      • Judge: He'd never seen such a pass.
        • We're all inundated with passes. They're plastic -- at least mostly -- and it would be natural to assume.
          • Judge: It seems to me, and I'll need to consider and put it together, that he gets things in his head and only sees things in that light and everything... He sees everything in a bad light. It seems like it's that or he's nefariously twisting the evidence.
            • I think he sees the evidence and comes to conclusions.
              • Judge: He isn't a lawyer or judge. He doesn't need to presume innocence. He is presuming guilt.
                • He doesn't need to reach that standard of evidence.
                • He certainly believed the affidavit -- he had to or it would have been fraud. There's nothing wrong with him believing Mr. Sonne was guilty.
  • Judge: I'm not terribly concerned about those points. I'm more concerned about the context point.

    • Prosecution: It is not the law that you can't use a snippet, it is the law that you can't use it if there isn't adequate context for the trier of fact to do something useful with them.
      • Too many tweets, and too much other information providing context, and over too much time, for it to be taken out of context. There's sufficient context, at the very least, to reach the standard needed.
    • If the officer left out things that don't change the color, well, it doesn't matter.
    • Regarding the officer only putting in ones that show Mr. Sonne in a bad light, he leaves in one "Cops were polite enough but they threatened me with an HDA violation. Beware of this trick." Why wouldn't he have put in "Stopped by G20 filming fence..." if he was trying to bury Mr. Sonne.
      • Time pressure.
    • The Tamil comment sholdn't have been there. It was gratuitous. But it isn't part of a well thought out plan. The Issuing Justice would have been shocked by it and would've wondered why it was there. French inserting it was one of those things where you wake up the next day and go "what did I do?"
    • Judge: Only one tweet about cameras?

(Lunch)

  • Waveguide:
    • The Counsel has suggested that the blog was concealed nefariously.
      • He's citing the bog, he just doesn't realize it. The blog is the only source of information.
    • Judge: The picture came from the blog, not Flickr
    • He simply makes a mistake with the blog. His desk was probably as cluttered as my desk.
    • "... The Internet, something a largely don't understand."
    • He included dates. He wants the judge to know this information is a year old
    • It's just like Arajoh, attributing facts to the wrong informant.
    • What about the fact that he never
    • I think that it is reasonable for an affiant to leave if they realize that it just makes him look that much worse.
    • If he was looking to grind an axe, he would have been salivating over the "chemically removing thin plastic cases" post.
    • Judge: I assume you would make the same argument with the first post about building the waveguide
    • Persistence. He devoted a year of my life.
    • It didn't work very well, but the point is that it worked. It's like saying the cat isn't very smart because it only worked two out five times.
    • I think the question is, is this so obviously helpful to the defense and so harmful to the author of the affidavit, that the only reasonable conclusion is that it was left out to mislead.
    • Discussion of implication of omission/misleading
    • Term waveguide used several times within the blog.
    • Staleness is an issue in search warrants, but only certain types of search warrants. If the police get a tip that I have a glock gun 6 months ago, its hard for them to get a warrant. But If I was also a suspect in bank robberies and the gun looked like a glock, then that's another matter.
      • Imagine you're the affidavit. We become aware of this twitter-goat person. He has a persistent interest in the security apparatus.
      • He learns that Mr. Sonne has a blog, and learns about the waveguide a year ago. His stated purpose is to "Can a dude in a garage blow things up, no I shouldn't say that..."
        • He goes to Wikipedia and learns that it can guide waves.
        • He stumbles upon a website where someone implemented a HIRF and destroyed a camera.
      • Thee's a nexus between his current intention with the G20 and this waveguide
        • Judge: Is the only interest in the cameras and telecommunication that one tweet?
          • Prosecution: Also arrows to camera in picture
      • The nexus brings it into the present day and gets rid of any issue of staleness.
    • Topsite is different from an anonymous claim because the Defense can attack it.
      • Judge: And Wikipedia is becoming more reliable.
      • Judge: Ideally he would have done a source check or commented on its uncertain reliability.
      • Judge: Is there an inference by him putting it in that it is reliable.
      • Judge: If we assume that Mr. Sonne isn't he an idiot, why couldn't build it?
        • Well, things don't have to be absolutely reliable....
    • It's remarkable that just a year earlier he was working on this device.
    • I can use the the evidence the Defense's evidence of the blog
  • Items relating to co-conspirators.
    • Judge: There's evidence from the tweets that he was using a computer and from the surveillance at his home. But no evidence of phones used to pass messages
      • Everyone has a phone. And I don't just mean phones, I mean blackberries and so on.
      • Judge: Without the surveillance what evidence is there that it was at his home? Couldn't it be at an Internet cafe? We have access to computers everywhere?
        • It had to be somewhere he had privacy?
          • Judge: What about at work?
            • No mention of work in the document
              • Judge He had his own business.
        • Judge: The computer has a heightened degree of privacy.
        • I think that if there was evidence that Mr. Sonne was frequently at 3 locations that likely had computers, that would be grounds to go to all of them and seize the computers.
      • Phones don't make sense here. I thought we were on to the next page. I think that in anything involving conspiracy you have, in 2011, reason to go after phones.
      • Judge: It could have been an iPad on the subway. And I'm sensitive to the privacy involved with a home computer.
        • The issuing justice was convinced.
          • Judge: But that could have been on the grounds of surveillance.
        • The police will never be able to say that a particular computer was used, but just that they were used a specific time.
          • Judge: are you arguing that police should be able to get a warrant for any computer when computers are somehow involved.
            • Gives example of someone with child pornography.
        • He didn't want to seize a computer, just the contents of any computer they may find.
          • Judge: I've never heard of them seizing content of a computer without seizing it. Do they mirror the hard drive on site?
        • At the end of the document, it is implicitly his opinion.
    • Police video typo. It was supposed to be camera.
    • Judge: There's one tweet about the cameras.
      • But all the pictures, and the possible use of the waveguide.
    • "destroy cameras as discussed on twitter" -- that's fine.
    • Toronto star didn't go out and video tape and picture every camera
    • Tweets equivalent to a written plan ???
    • The officer really likes stating things in absolute terms.
    • "His target will be the camera structure" and we get his point
      • Judge: Um, no we don't. Structures has to mean buildings. That's out of the blue.
        • It's just imprecise language. He didn't mean that.
          • Judge: I can't read his mind.
            • It's mistakes and he had a time limit.
              • Judge: These aren't a few mistake. And, I'd have to refer to the cross, that he had three days.
                • That's not a lot of time.

The second ITO

  • pg4, par 5: (files exhibit) "HTMD was located" was not correct and is conceded. The entered exhibit is the information he would likely have received from Gibson.
    • He was likely told that he had the components to make the explosive and through a broken telephone it became him having the explosive. This is understandable, given the circumstances.
    • I don't think this is a hatchet shop. Unless you're a chemist, this is an easy mistake to make. You're told that you have the substances to make a substance...
    • Judge and Prosecution agree on excluding somethings, possibly subject to some amplification.
    • acetone triperoxide ingredients. The only ingredient I've heard of is sulfuric acid.
    • All these chemicals and books and documents and laboratory equipment for manufacturing explosives.
    • Judge: I'm disturbed by the wave guide not being specified as disassembled.
    • Judge: I'm disturbed by the mention of the security passes that were conference passes.
    • Judge: If I find it factually in error, in the case of competing evidence for good faith and bad faith, for amplification the onus is on you.
    • I don't agree that I have the onus...
    • It wouldn't be fair to the officer...
  • Regarding the wave guide being in pieces, one can have a gun that is disassembled and be put together in minutes and you can have a car that is partially disassembled and still drive. It could still be dangerous.
  • Security passes -- and we don't know what they... I don't think the document stands or falls on this. (He seems to shift position part way through his statement.)

Defense responds

  • My friend started off his submission "if there's some evidence, that ends it" -- that's the Sheppard test, no the test for a search warrant. On a search warrant, "sufficient, reliable, information given the circumstances" (Araho, par 54) This connects to "Full fair or frank"
    • Amplification: My friend says he has no onus to prove good faith. But I thik the case law focuses on the presence of finding good faith. "If the evidence was erroneous, despite good faith, then there may be amplification". It's not the defense failing to find bad faith, there needs to be good faith. Even on technical issues in Araho.
    • Judge: I don't know about precedents suggesting I should assume good faith ...
    • There's a spectrum between good and bad faith. The absence of bad faith doesn't mean you have good faith. You can have recklessness between it. Good faith is when the author tries to be full fair and frank, and made a technical mistake.
      • Precedent: He was embarrassed by his mistake and took full responsibility for it. The justice was impressed by him. His work was otherwise of a high standard.
      • The crown could have asked questions at the preliminary inquiry to build an evidentiary basis for good faith or called him.
      • In preliminary inquiry, he didn't say he was under time constraints.
      • Good faith could come from the whole document .
        • Judge: Can't some points be good/bad faith and not others?
    • He said these weren't misstatements. (Can't amplify?)
    • Using amplification to get around a charter breach, can't by definition, be a technical error.
    • If you accept that it is accurate, you at best have the torontogoat is suspected be Byron Sonne. He could personally come to that belief, but that's not how he puts it.
    • She mentions him being a CISSP and licensed private investigator, both tidbits that don't get put in.
    • Judge: I see how the home address being lost would be fatal, but its not ...
      • The issue is not whether the information is correct, it's whether they give sufficient grounds.
        • There's no defense at the issuing of the affidavit. This is why there is such a high standard.
      • Following my friends comments to their conclusion would mean I'd have to show innocence to get rid of the warrant.
      • In Moreli, the affidavit relied on the opinion of officers and the judge didn't allow it to be rewritten in retrospect.
        • The defense didn't have to prove it wrong.
    • "There's fixing an honest hour, there's rewriting, and then there's starting from scratch."
    • Mr Sonne has a wave guide, a hollow tube that guides wave. A toilet paper roll is wave guide.
    • "Any idiot can make a wave guide by ... from a microwave..." No where in this affidavit do they suggest he has a microwave or that he's taken it apart.
    • The blog missing isn't just a technical error. And even if it isn't bad faith, which I submit it it is, it certainly isn't good.
    • " Affidavit doesn't connect a wave guide to HERF"
    • Judge: What should happen with the blog?
      • Everything that depends on it should be excised, unless my friends convince you to amplify it back in.
    • Kadhir case: (cell tower case) Relied on the opinion of Rogers employee on how cell tower work, but didn't explain her credentials before working for Rogers in this area...
    • Identity issue:
      • Constitutional violation should come out
      • False and misleading because while they did tell him they were investigating, they were lying to him.
      • Results for constitution violation. The connection doesn't have to be temporal.
      • He never would have tweeted about being stopped if he hadn't been top. So that tweet wouldn't have been there. And without that it wouldn't have been specific enough to connect him to someone on the street.
      • Circumvents excision of unconstitutional conduct. Ironically, its circumventing it for the very purpose of establishing identity, which was the purpose of the constitutional violation in the first place.
      • Defense will give the rest of their response as a written submission.
      • Judge: I don't think I've ever seen anything this complicated. I don't think I'll have a ruling on Monday.
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