R v. Bowen, 2015 ONCJ 690

ONTARIO COURT OF JUSTICE

Her Majesty the Queen v. Michael Bowen

REASONS FOR JUDGMENT

Court Information

Before: The Honourable Mr. Justice M.S. Felix

Date: Tuesday, October 20, 2015

Location: Oshawa, Ontario

Appearances:

• P. Greenway, Counsel for Crown
• R. Abraham, Counsel for M. Bowen

REASONS FOR JUDGMENT

FELIX, J: (Orally)

Michael Bowen is charged with various offences arising out of an investigation in 2013.

The police received confidential human source information that a person (later identified as Michael Bowen) was trafficking in crack cocaine out of a particular apartment building in Oshawa. I note parenthetically the name or address of the apartment is not important to my ruling.

The police investigated this information. They received further confidential human source information that Michael Bowen was trafficking drugs out of apartment 308. The tenant of apartment 308 was thought to be an associate of the applicant who the police believed was assisting with the trafficking enterprise. The police conducted surveillance and observed persons attending apartment 308 for short visits on numerous dates. On one date a person who had attended unit 308 was arrested and 0.5 grams of crack cocaine found on her person. The police observed both the applicant and his associate attending apartment 404 in the same building as well.

Based on the investigation and the experience of the investigating police officers, they believed that Michael Bowen and his associate were trafficking drugs out of apartment 308 and storing drugs in apartment 404. The police theorized that the numerous attendances by apparent customers at apartment 308, interspersed with occasional attendances by the applicant or his associate to apartment 404, meant that apartment 404 was a location where drugs were stored and 308 was being used to sell drugs.

Michael Bowen brought a Garofoli application that was ultimately abandoned. He maintained a Section 8 Charter argument. A blended hearing occurred. During this blended hearing police officers testified about the investigation. The Federal Prosecutor relied upon the redacted information to obtain (ITO) as it was presented to the issuing Justice and did not request that the Court consider any redacted information. The applicant did not testify.

Having considered the evidence and the submissions of counsel for Michael Bowen and the Federal Prosecutor the following issues on the Section 8 Charter application must be analysed:

1. Michael Bowen's standing to assert a violation of Section 8 of the Charter;

2. Whether Michael Bowen enjoyed a reasonable expectation of privacy in relation to apartment 404;

3. Whether Michael Bowen enjoyed a reasonable expectation of privacy in relation to the hallways in the apartment building including the hallway outside of apartment 308; and,

4. Whether a Justice could have authorized the search warrants having regard to the asserted omissions and misrepresentations in the ITO.

As it turns out, this case was not resolved based on the Charter argument. I will address the Charter argument because (i) it was the focus of counsel throughout the trial; (ii) there were important issues raised; and (iii) for the benefit of any Court reviewing this decision. After I have addressed the four issues on the Charter application I will address whether the Crown has proven the offences beyond a reasonable doubt.

Section 8 Charter

A review of the ITO's reveals that prosecution redacted information including an appendix (or perhaps appendices) related to the confidential human source. Presumably this was in furtherance of their obligation to ensure that nothing that might serve to identify a confidential informant was disclosed to the public (including the applicant Mr. Michael Bowen). The prosecution did not request that the Court consider any of the redacted information in the ITO.

The applicant abandoned any challenge to the search warrant in relation to apartment unit 308.

The police obtained prior judicial authorization to search unit 308 and unit 404 in the subject apartment building based on the same ITO. As such the search is presumptively valid in law (R v Feldman).

The applicant bears the onus to satisfy me on a balance of probabilities that the warrant could not have issued.

The test that I must employ is not controversial.

The role of the reviewing judge is a limited one. The test is not whether the reviewing judge would have issued the warrant, but whether the issuing justice could have issued the warrant.

I must consider whether the ITO set out enough "reliable evidence that might reasonably be believed" (R v Araujo 2000 SCC 65, at para 54; R v Vu 2013 SCC 60, at para 16) or "sufficient credible and reliable evidence" (R v Morelli 2010 SCC 8, at para 40), to support the issue justice's decision to grant the warrant.

Michael Bowen's Standing to Assert a Violation of Section 8 of the Charter

There was minimal evidence of standing presented during the blended application and trial.

The evidence at its highest relevant to standing was:

1. Michael Bowen found in apartment 404 when the search warrant was executed. I should note parenthetically that I do not know where within the apartment he was found;

2. His wallet was found on a shelf inside the residence in the kitchen;

3. A Bell Telephone notice with his name associated with apartment #404 was found within the apartment;

4. Michael Bowen was observed during surveillance attending apartment 404 on August 29, 2013, April 15, 2014, April 23, 2014 and April 24, 2014; and,

5. A police officer's check on a computer database revealed that the person associated with the apartment was a woman who had a partner named Michael Bowen.

Having considered the totality of the circumstances and having considered the guidance in R v Edwards the issue of standing was not settled by the end of the evidence.

The issue of standing was not satisfactorily addressed by the Applicant for the following reasons:

1. There was no evidence that Michael Bowen resided in apartment 404. It is true that he was there at the time of the search and attended the apartment on several occasions.

2. There was no admissible evidence of who resided in apartment 404.

   • The person or persons inhabiting unit 404 were not called as witnesses.
   • A property manager from the apartment was not called as a witness.
   • There was no evidence of a lease, tenant or rental agreement.
   • There was no evidence of how long a person or persons had resided in apartment 404.
   • I do not know if the applicant has belongings in apartment 404.
   • I do not know if the applicant has a key to the premises or whether he regulates access to the unit.
   • The Bell Telephone notice refers to cessation of services. This is not definitive with respect to current residency.
   • I do not know if the applicant's Government identification is registered to the unit.
   • I do not know the number of occupants of apartment 404.
   • I do not know if any supposed occupants are permanent inhabitants of apartment 404.

3. There was no admissible evidence that Michael Bowen was in a relationship with the person who inhabited apartment 404.

   • That the police relied upon a police database in asserting their reasonable grounds in an ITO does not mean that the information is true. The fact that a police database says that the occupant of unit 404 is in a relationship with the applicant does not mean that factually the occupant truly lives in 404 and truly is involved in a relationship with the applicant. This information was led by the Federal Prosecutor as part of the narrative and was not received for the truth of its contents.
   • There was no evidence in relation to the children apparently residing in the apartment and any connection to the Applicant.

Simply put, no evidence was called to establish that Michael Bowen was a current tenant or habitual resident of apartment 404.

While counsel posed questions to police officers concerning the occupants of the unit and the relationship between the occupant of the unit and the Applicant, the questions of counsel are not evidence. Further, the answers provided by the police officers could only be characterized as speculative with respect to the relationship between the Applicant and anyone else in the absence of any evidence.

In considering the analysis in Edwards I recall that was a case similar to the matter before me. Edwards sought to assert a reasonable expectation of privacy in his girlfriend's apartment. Mr. Edwards had a key to the apartment and had some personal belongings. But he was only an occasional visitor. He did not contribute to rent or household expenses. He had no authority to regulate access. He did not enjoy a reasonable expectation of privacy in his girlfriend's apartment.

Consideration of the Edwards factors reveals the following:

1. Michael Bowen was present at the time of the search;

2. I do not know who possesses the premises;

3. I do not know who has a right to inhabit the premises;

4. I do not know the historical association of any party to that property;

5. I do not know if Michael Bowen can regulate access;

6. I do not know if he is on the lease or rental agreement; and,

7. I do not know if he pays rent or contributes to expenses.

The analysis of whether a reasonable expectation of privacy exists begins with two questions: (1) whether the accused has a subjective expectation of privacy; (2) whether that subjective expectation of privacy was objectively reasonable (See R v Tessling, 2004 SCC 67, at para 19; R v Kang-Brown, 2008 SCC 18; and R v Patrick, 2009 SCC 17).

There is no way on this record to determine that the Applicant has a subjective expectation of privacy in relation to apartment 404 and objectively speaking I would not find that he possesses a reasonable expectation of privacy.

Notwithstanding this record the Federal Prosecutor, at the end of submissions in this matter, conceded that standing had been established.

I am inclined to reject this concession. I need not accept a concession that is not properly founded in the evidence.

I would have dismissed the Charter application at this juncture and moved to consideration of the merits of the case. But for the purposes of the review of my decision and because of an interesting and important search and seizure issue, I will proceed to address the Section 8 allegations.

Section 8 Argument

The Applicant asserts that the ITO is deficient based on the following arguments in the alternative:

1. That the affiant did not establish within the ITO that there were reasonable grounds to believe that any criminal offence was occurring; and,

2. The affiant was not full, frank and fair in that:

   • a day of surveillance evidence (April 16) was left out of the ITO;
   • the affiant failed to disclose to the issuing justice the fact that the police were conducting video surveillance outside apartment 308 within apartment building; and,
   • that the police trespassed onto the premises of the apartment building on many occasions while conducting surveillance.

These arguments asserted by the Applicant engage considerations with respect to Michael Bowen's reasonable expectation of privacy in apartment 404 and his reasonable expectation of privacy in the common areas of the building including the hallway. The Applicant submits that the Court should excise the surveillance gleaned byway of video surveillance. Absent this surveillance evidence the ITO would not satisfy the statutory preconditions for issuance. The remedy sought by the Applicant was the exclusion of all of the offence-related seizures from apartment 404.

The Affiant Did Not Establish Reasonable and Probable Grounds

The first argument asserted by the Applicant is not sustainable. Having regard to the totality of the circumstances (R v Debot) the police had detailed confidential human source information from a proven and reliable confidential human source who had provided reliable information on eight prior occasions with the result that parties were arrested and drugs were seized. The confidential human source had a criminal record but not for crimes of dishonesty. The information was detailed and corroborated to a degree by the surveillance information including the involvement of Mr. Bowen's associate. The confidential human source provided information on several occasions. The police observed numerous parties attending apartment 308 for short visits and then departing. On one occasion a person who left apartment 308 after a short attendance was found in possession of 0.5 grams of crack cocaine. During the surveillance the police did not observe any trafficking within unit 308. This is not surprising since they had no access to unit and could not observe what was happening inside the unit. The police did not observe any trafficking in the hallways, stairwells, or anywhere else in the building.

The question for this Court as a reviewing Court is whether the issuing Justice could have drawn the inference that drug exchanges were occurring inside of apartment 308 and that drugs were also being stored in apartment 404.

Based on the information in the ITO the issuing Justice could have drawn the inference that drug trafficking was occurring within apartment 308. The link between the activity related to apartment 308 and a conclusion that illicit drugs were being stored in apartment 404 is more tenuous. But having considered the movements of the Applicant and his associate between the units, it was at least available to the issuing Justice to drawn an interference that "the stash" was in apartment 404.

I recognize the test is not whether I would have issued a warrant on these grounds.

A Day of Surveillance Evidence (April 16) was Left Out of the ITO

This argument asserted by the Applicant is not sustainable. Nothing of material significance occurred on April 16, 2014 and the affiant did not mislead the issuing Justice of the Peace by leaving this information out. The ITO should be a detailed summary of relevant evidence driving towards the statutory preconditions for issuance. The police are not required to provide every single detail that occurred.

Video Surveillance and Trespass Issues

The affiant failed to disclose to the issuing Justice the fact that the police were conducting video surveillance outside apartment 308 in the apartment building and that they trespassed in the common areas of the building on many occasions conducting surveillance.

This argument asserted by the Applicant is more nuanced. Nowhere within the four corners of the ITO does the affiant disclose that observations of suspected drug customers were made by way of video surveillance. It would have been preferable if the fact of video surveillance was disclosed to the issuing Justice.

It would have been preferable if the circumstances surrounding the installation and the monitoring of the video surveillance were disclosed to the issuing Justice.

During the blended application and trial a police witness testified that the observations outside of apartment 308 were made by way of a hidden camera. At the end of the blended application and trial this matter was adjourned and arrangements were made for the parties to file written submissions.

In the written submissions, counsel to the Applicant raised for the first time arguments in relation to the hidden camera outside of apartment 308. The Applicant requested that the Court consider submissions concerning a Section 8 breach despite their having being no advance notice to the Federal prosecutor because the evidence concerning the hidden camera was revealed for the first time during the blended application and trial. The Applicant complained that nowhere in the disclosure materials was this circumstance revealed and the Federal prosecutor had not disclosed this circumstance.

The Federal prosecutor concurred with this submission, he did not object to the new argument, and sought leave of the Court to re-call a police witness to address the new issues raised in the Applicant's written submissions. The Applicant submitted that this course of action was appropriate.

I found it concerning that the use of video surveillance was not discovered, discussed and disclosed by the Federal Prosecutor during (what I would infer would or should have been the extensive) preparation of police witnesses for trial. One would have expected this issue to arise during any preparation for trial on even a summary review of the case. I have no explanation for why it did not. While this issue troubled me and perplexed me, I nevertheless declined to inquire further into the circumstances at the time the issue was raised. I granted leave for the Federal Prosecutor to re-call the investigating officer without comment. As a result I received further evidence on this issue including the following:

1. The owner and property manager of the apartment building gave permission for the police to install cameras;

2. The owner and property manager signed documents authorizing the police to set up the cameras;

3. The owner and property manager provided the police with a key to access the building;

4. No limits were placed upon the police in terms of their investigative presence on the property attendance and clearly the owner of the building facilitated the police investigation into drug trafficking in the apartment building;

5. The police installed a camera outside of apartment 308 to monitor the "comings and goings" of suspected customers;

6. The police took care not to position the camera such that it could view the interior of the apartment of 308. For example they could not see who opened the door to grant entry to the many people who attended 308 for very brief visits;

7. The cameras did not record the observations permanently;

8. There was no audio to the observed footage; and,

9. No prior judicial authorization was obtained via general warrant.

This evidence called by the Federal Prosecutor was not seriously challenged by the Applicant.

While not specifically addressed in submissions by the Federal Prosecutor, I infer that the Federal Prosecutor lead this evidence because it would have been relevant to any analysis under Section 24(2) of the Charter as this evidence does not properly fit within the parameters of amplification.

The issue of video surveillance in the hallway of an apartment building is an important issue for the criminal justice system. The manner in which this issue arose obviously caught the parties off guard and unprepared. As such the evidentiary record was perhaps not the bet.

Based on this record I would not find that the police breached the Applicant's Section 8 Charter rights by conducting video surveillance for the following reasons:

1. The police had permission to conduct this investigation from the property owner and had been provided a key and written consent to install the video camera.

2. The Applicant, (properly I would say) relinquished any Section 8 privacy argument with respect to apartment 308 in written submissions. As such he has no reasonable expectation of privacy in the hallway outside of 308. Even if I was wrong in the analysis of standing that I have outlined earlier, the Applicant possess at best the most minimal, diminished, reasonable expectation of privacy in the hallway outside of apartment 308 that I would not find there to be a breach of Section 8.

Left aside for another day, is the issue of whether the video surveillance in an apartment hallway requires a general warrant notwithstanding the permission of the owner of the property. The Ontario Court of Appeal in R v White cautioned that there may be situations where police activity in multi-level buildings engage Section 8 considerations. Certainly there would seem to be no reason to relegate inhabitants of apartment buildings to some greatly diminished Section 8 protection simply because they do not possess the "common elements". On the facts in this particular case, the lack of evidence concerning any meaningful connection between the Applicant and (i) the subject apartment building, or (ii) either apartment under investigation, would drive the result of the Charter application in my respectful view.

Material Omission from the ITO

The next issue raised by the Applicant was more elegant. If I found that the video capture without prior judicial authorization was permissible, the Applicant asserted that this was nonetheless a material omission from the ITO.

Nowhere in the ITO does the affiant disclose to the issuing Justice that video surveillance produced almost all of the surveillance evidence supportive of the assertion that drug trafficking was occurring. As outlined above earlier in this judgment during submissions I was advised that this fact was not disclosed prior to hearing the evidence for the first time at trial.

Leaving aside these obvious and serious concerns I would not find a breach of Section 8 and I would not excise the evidence gleaned from the video surveillance on this record. If the issuing Justice had been advised of the fact of video surveillance a number of scenarios would be available:

1. The issuing Justice could have interpreted the Ontario Court of Appeal in R v White in such a manner that it did not apply to the apartment building;

2. The issuing Justice could have interpreted R v White such that a diminished reasonable expectation of privacy was available in the hallways;

3. The issuing Justice could have reasonably had questions concerning Michael Bowen's standing to assert a reasonable expectation of privacy in the hallway of the apartment building; or,

4. An issuing Justice could have viewed the video surveillance as a violation of the Charter and simply declined to consider portions of the surveillance evidence in relation to apartment 308 which I find would have necessarily lead to the warrant being declined.

If the video surveillance had been disclosed to the authorizing Justice it is reasonable to assume that he or she would have also been advised:

1. That the owner and landlord provided explicit written permission for the police to install a video camera in a public hallway;

2. The video surveillance broadcasted events but did not permanently record the events;

3. There was no audio to the video broadcast;

4. The owner and landlord provided permission for the police to be on the premises;

5. The owner provided a key so that the police could access the building;

In these circumstances, it is apparent that an issuing Justice, fully aware of the video surveillance, could have nonetheless issued the warrant. As such the Applicant has not established a basis for me to excise this information from the ITO.

And as I indicated earlier I would have dismissed the Charter application.

Disposition of the Offences

Now I must consider whether or not the Federal Prosecutor has proven the allegations before the Court. For the reasons outlined in this judgment I find that the prosecution has not proven the offences beyond a reasonable doubt. The defendant Michael Bowen will be acquitted of all counts before this Court.

Section 4(3) of the Criminal Code defines possession and that definition is adopted by the Controlled Drugs and Substances Act. Possession as we know can be actual, constructive or joint. Actual possession I would have to find that Mr. Bowen had the item in his personal possession. Constructive possession involves me finding that he had the item in a place for the use or benefit of himself or a third party. Concepts involved in joint possession involve one or more than one person having an item in their possession with the knowledge and consent of others and that item is then deemed to be in the possession of all.

The Federal Prosecutor in this case did not specifically articulate a theory as to possession, but none of the illegal drugs found in apartment 404 were found in the actual possession of the defendant. There was no evidence that the defendant jointly possessed the items found within apartment 404 with any other occupant or his associate apparently who was also apparently engaged in trafficking drugs. Further, perhaps the prosecution did not argue the issue of joint possession because of the evidentiary record and as I have already pointed out no other persons were called to narrow the pool of people available to argue possession with respect to apartment 404. So that leaves constructive possession.

Constructive possession involves the defendant having knowledge, possession, and control of the drugs found in apartment 404. I would have to find that Mr. Bowen had possession of the items in a particular place for his own use, for the purposes of facilitating his trafficking enterprise, or for the benefit of a third party (for example his trafficking associate). As I understand the prosecution theory, the defendant and his associate were trafficking out of apartment 308. Apartment 404 was used for the "stash". The prosecution relied on the circumstantial evidence in this case to prove that the defendant had possession of the drugs in the apartment and as such I must be satisfied that the circumstantial evidence points to guilt and no other explanation (R v Griffin 2009 2 SCR).

I will not recite the analysis concerning standing. The factors cited earlier concerning the deficient evidence on standing apply to the analysis of possession of the impugned items in this case.

Crack Cocaine Found in a Boot at the Entrance to the Apartment

I have not seen a picture of this boot. I have not heard evidence of whether it is a man's boot or a women's boot. I have not heard evidence that Michael Bowen wore those boots. I do not know a description of the boot. I do not even know the size of the boot. I do not know whose boots they were. I have no evidence about how the crack cocaine was apparently situated within the boot. I do not know if one could easily see the crack cocaine in the boot or not. There is no evidence that Michael Bowen possession this material.

Crack Cocaine in the Tubing of the Home Weightlifting Set

The prosecution must prove control over the drugs found in the weight lifting apparatus and not simply control over the apartment (R v Escoffery; R v Masters 2014 ONCA 556 at para 23 - 24.)

In Masters, the Ontario Court of Appeal criticized a trial judge's response to a jury's question about possession of proceeds of crime and failed to properly explain the necessary element of control over the money as opposed to simply control over the place where the money was found. In that case, the fact that the Appellant was a joint occupant of the apartment standing alone did not necessarily give him control over an item or items belonging to or in the possession of another joint occupant of the apartment. The Court of Appeal instructed that the trial judge should have told the jury to consider whether the accused had an element of control over the item and therefore the ability to consent or allow the presence of the item in the jointly occupied apartment. The trial judge erred in failing to do so.

In this case the prosecution has not proven control over the apartment in relation to Mr. Bowen let alone control over the weight lifting apparatus or the room where the drugs were found.

The crack cocaine was discovered in the metal tube of a weightlifting set. I have heard viva voce evidence and observed photographs documenting this particular seizure. The drugs were concealed, they were covered by a plastic or rubber cover on the end of one tube making up the weight lifting set. I do not have specific evidence as to the height of the set, but I may reasonably infer from the photographs that the drugs were located at some height off the ground. The drugs were not in plain view and in fact the police only located the drugs after sometime searching in the unit and that was a thorough search of the apartment.

The prosecution has presented minimal evidence linking the defendant to the apartment. The highlight of that analysis that I have already addressed is that there is no evidence concerning the occupancy of the apartment.

It is certainly not clear that the defendant is an occupant or joint occupant of the apartment.

Presence at the time of the search on its own cannot establish possession.

There was no evidence linking the defendant to trafficking drugs. For example I heard about the defendant and his associate using cell phones, but no evidence was presented concerning messages.

As I have already outlined no occupant of the apartment was called.

The associate apparently trafficking with Mr. Bowen I don't know what happened to him and he was not called.

In the end, I had no idea of the subset of individuals who have access to this apartment.

While I am prepared to find that the defendant attended this apartment more than once as observed by the police, on this evidentiary record that does not assist with possession of the crack cocaine in the weightlifting apparatus.

I must hold this evidence to the standard of proof beyond a reasonable doubt.

Percocets

Five percocets were found sitting on a kitchen shelf. There is no other evidence linking the defendant to these drugs. Once again the ordinary occupant or occupants of the apartment were not called. In any event there is no evidence that Mr. Bowen possessed these items. When I specifically addressed this with the Federal Prosecutor he could not point to no other evidence than his presence in the unit as evidence of possession.

Marijuana in a Pill Box

The marijuana was within a green unlabeled coloured pill box found on the kitchen table within the apartment. The pill box itself was on the table, it is coloured green. I have looked at the photographs of the pill box (the actual physical exhibit was not produced) and it is not apparent to any casual observer that there is an illegal drug contained within. Once again, were there evidence of the defendant's connection to this particular apartment unit there would at least be a stronger inference of his possession of this item and other items that I have documented. In the absence of this evidence I do not know who or what number of persons have access to the unit. Once again, I rely on the analysis that I have outlined earlier in this judgment with respect to standing and conclude that the prosecution has not established possession beyond a reasonable doubt.

Conclusion

As a result notwithstanding all of the evidence that I have heard I am obliged to acquit the defendant of all the charges before the Court.

Footnotes

1I will note at this point that the Federal Prosecutor sought to admit an envelope from counsel to the applicant's firm addressed to him at apartment 404. The filing of this exhibit was challenged based on solicitor-client privilege. Having considered the issues overall I need not address the admissibility of this exhibit as it would not change my ruling in this matter.

2I've already noted and acknowledged his wallet was on a shelf in the kitchen, but I am referring to belongings suggestive of more permanent habitation that you hear in cases like this for example, clothing.