Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Damon Pierce
Before: Justice Alan D. Cooper
Heard on: December 4, 5, 6, 2017
Reasons for Judgment released on: March 29, 2018
Counsel:
- Mark R. Miller for the Crown
- Kevin B. Westell for the defendant Damon Pierce
Case History
1Damon Pierce was charged that on June 13, 2016, at the Town of Milton, Ontario, he trafficked cocaine, possessed cocaine, possessed cocaine for the purpose of trafficking, and possessed a quantity of cash, not exceeding five thousand dollars, knowing that part or all of this property was obtained by the commission in Canada of an offence punishable by indictment. He elected to be tried in the Ontario Court of Justice.
2On June 13, a search warrant was obtained to search the residence of Mr. Pierce at 1229 Marlborough Court, Unit 201, in the Town of Oakville. It was based on an affidavit (Information to Obtain – "ITO") of Halton Regional Police Service officer Tim Corbeil.
3The grounds offered to support the need for a warrant were the following:
(a) A tip from a confidential informer who said that the defendant was trafficking cocaine, illegally sold alcohol, drove a white Honda Accord, and lived at 1229 Marlborough Court in Oakville. The ITO mistakenly said there were two informants.
(b) Surveillance on February 17, 2016, in which the defendant drove his car into the customer parking lot of a Dodge vehicle dealership at the corner of Trafalgar Road and Oak Park Boulevard. At 8:33pm, a male came from inside the dealership and went into the front passenger seat of Mr. Pierce's Honda, and closed the door. At 8:35pm, he left, and went back inside the dealership.
(c) Surveillance on February 25, 2016, when the defendant went into a business known as Medi Spa on Reynolds Street in Oakville. He went into the business at 7:49pm, and came out four minutes later.
(d) Surveillance on March 2, 2016, when Mr. Pierce drove into the customer parking lot of the same Dodge dealership. The same male from February 17 came out of the dealership and went to the driver's front window of the Honda. He gave the defendant a fist bump and after Mr. Pierce lowered his head toward his lap, the other male reached into the car in the area of the defendant's lap. The male then walked back to the dealership with both hands in his pea coat.
(e) Surveillance on June 7, 2016, in which officer Kyle Talsma saw two males in a red Chevrolet Cruz car drive into the outside parking lot of the defendant's residence at 9:47pm. It parked next to the defendant's Honda. Mr. Pierce was seen entering into the rear seat of the Cruz and conducting a hand-to-hand transaction with the driver in what appeared to be a cocaine-like substance. The defendant then left the car and went into his building. The driver of the Cruz then snorted a substance from the centre console.
(f) Surveillance on June 13, 2016, when police observed a truck driven by Bruce Thompson drive into the parking lot of the defendant's building at 3:54pm. He got out and at 4:06pm was let into the north stairwell door of the building. Officer Corbeil entered the building and saw Thompson and Pierce on the ground floor and in the second floor stairwell. He passed them by and saw no exchange. At 4:14pm, Mr. Thompson drove off and was arrested at 4:21pm, and found on him was one gram of cocaine. He said that he had received the cocaine from the defendant, and had previously purchased cocaine from him on five to ten occasions.
4The request for the search warrant was granted and it was executed on the same day at 9:55pm. Before it was executed, the defendant was arrested outside a grocery store at Trafalgar Road and Dundas Street, in Oakville. Half a gram of cocaine was found in his wallet and also on him was $740.00 in cash, in various denominations, which is the subject of the Criminal Code charge.
5A search of his apartment led to the discovery of twenty five grams of cocaine in a Tupperware container, a scale, and blue paper similar to the paper which matched the paper containing the cocaine found on Bruce Thompson.
Charter Application
6The defence previously filed a Charter Application alleging violations of sections 8 and 9, which are set out below:
Section 8:
(a) The search of the defendant's residence was unreasonable.
(b) The ITO did not disclose reasonable grounds that the objects enumerated in section 11(1) of the Controlled Drugs and Substances Act would be found.
(c) Prior surveillance used to support the ITO was conducted in the residential building of the defendant, where he had a reasonable expectation of privacy.
(d) Full, fair and frank disclosure was not provided, and this may have misled the issuing Justice into believing that reasonable and probable grounds for the search existed.
Section 9:
(a) The defendant was arrested without reasonable and probable grounds and was unlawfully detained.
(b) The surveillance obtained contrary to section 8 should not have been used to form reasonable and probable grounds.
(c) Because of the unlawful arrest and detention, the search of Mr. Pierce incidental to his arrest was unreasonable and contrary to section 8 of the Charter.
Section 24(2):
The remedy sought is the exclusion from evidence of all evidence obtained during searches of his residence and incidental to his arrest, as well as any statements he made to the police.
The Crown Evidence
7The Crown called five witnesses, and the defence cross-examined them in order to establish that the ITO was deficient, that the search warrant should not have been issued, and that the arrest and search of the defendant was unlawful.
8Bruce Thompson testified as set out in paragraph 3(f) above, except that in his testimony he did not say he had purchased cocaine from the defendant before June 13, 2016. This may have been in his statement to the police, but that statement was not in evidence.
9Officer Tim Corbeil was an important witness because he was the search warrant affiant and was present for four of the five surveillance operations relied on in his affidavit, and referred to in paragraph 3(b), (c), (d), (e), and (f) of this judgment. In his testimony, he provided further details of the observations made on those five occasions. For instance, on February 17, 2016, the defendant parked in the Dodge dealership lot but left to go to a nearby Wendy's hamburger drive-through, and then came back to the parking lot. Also, on March 2, 2016, during the second visit to the Dodge dealership, the defendant had a male passenger named Julian Larabie, who also lived in his building, but who had no involvement on March 2 with the man who came from inside the dealership.
10In cross-examination, officer Corbeil agreed that Julian Larabie's name was not included in the ITO, even though his identity was known by then, and was suspected of being involved in the drug trade. He also agreed that no mention was made in the ITO of Rudy MacLennan, who was driving the red Chevrolet Cruz on June 7, 2016. He too was thought to have been involved in the drug trade. Officer Corbeil said that MacLennan was involved in another drug investigation which was concluded within three months of June 13, 2016. He said that the police had received permission to be on the property from the superintendent and management of the apartment building, and on March 3, 2016, he was given the key fob for the front doors, the underground parking lot, and the side stairwells. He did not obtain judicial authorization to be inside the building, nor did he think it was necessary to do so.
11Officer Corbeil also conceded that there were two errors in the ITO. One was on page 6, paragraph 1, which said there were two confidential informers, when there was only one. The second was on page 12, paragraph 10, which erroneously referred to 330 Kerr Street, Unit 5, in Oakville, after he relied on an ITO precedent from a previous investigation.
12The cumulative evidence of officers Joe Ribaric and Lukasz Walczykiewiez is set out in paragraphs 4 and 5 of this judgment.
13Officer Kyle Talsma was the key witness to the events of June 7, 2016. Shortly after 9:57pm, he saw the defendant exit his building and enter the rear passenger seat of Rudy MacLennan's red Cruz. He saw Mr. Pierce give MacLennan a one inch by one inch bag of white powder, and was handed money by MacLennan or MacLennan's passenger. The defendant was in the car for four minutes. He then saw MacLennan prepare a line of coke and snort it.
14Officer Talsma said that Pierce and MacLennan could have been arrested at this time but there was limited police manpower to do so.
15In cross-examination, officer Talsma said that earlier in the evening at 7:26pm, when investigating Rudy MacLennan in a separate investigation, he saw MacLennan drive up to a building at 199 Queen Street in Oakville. A male came to the passenger side of his car and passed cash to MacLennan and received a baggie, but it was a smaller bag than Pierce would later give to MacLennan at 9:57pm. Talsma used binoculars when making observations at 199 Queen Street.
Defence Evidence
16No witnesses were called on behalf of the defence.
Onus of Proof
17The Crown must prove the guilt of the defendant beyond a reasonable doubt on the trial proper. Both counsel agree that this case rises or falls on the Charter application. The onus is on the defence to establish a breach of sections 8 and 9 of the Charter on a balance of probabilities. If there has been a breach, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute under section 24(2) of the Charter.
The Law
18Section 11 of the Controlled Drugs and Substances Act reads as follows:
Information for search warrant
11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
Application of section 487.1 of the Criminal Code
(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.
Execution in another province
(3) A justice may, where a place referred to in subsection (1) is in a province other than that in which the justice has jurisdiction, issue the warrant referred to in that subsection and the warrant may be executed in the other province after it has been endorsed by a justice having jurisdiction in that other province.
Effect of endorsement
(4) An endorsement that is made on a warrant as provided for in subsection (3) is sufficient authority to any peace officer to whom it was originally directed and to all peace officers within the jurisdiction of the justice by whom it is endorsed to execute the warrant and to dispose of or otherwise deal with the things seized in accordance with the law.
Search of person and seizure
(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.
Seizure of things not specified
(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,
(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;
(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or
(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.
Where warrant not necessary
(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.
Seizure of additional things
(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.
Submissions of Counsel
19Counsel for the defendant, Mr. Westell, filed written submissions, and in my view accurately states the law concerning the grounds required for a search warrant and the requirements for a search warrant affidavit [ITO].
12 - To issue a warrant, a justice must be satisfied there are reasonable grounds to believe, stated under oath, that an offence has been committed and that evidence is to be found at the place searched. Reasonable grounds means credibly based probability rather than mere suspicion. In order to determine whether reasonable grounds exist, the totality of the circumstances must be considered.
13 - An ITO need not disclose superfluous or neutral facts but there must be disclosure of all facts weighing against the issuance of the warrant. Fraudulent errors, deliberate deception, misleading information and material non-disclosure do not automatically invalidate a warrant. Rather, the question a reviewing judge must answer is whether, after expunging any misleading or erroneous information, sufficient reliable information remains to support the warrant.
14 - An application for a warrant must fully state the grounds on which the affiant's belief is based. Informations in support of a warrant (an information to obtain or ITO) must provide full, fair and frank disclosure of all material facts. In Araujo, Lebel J, for the court, expressed the obligation in these terms:
(46) The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of all material facts. So long as the affidavit meets the requisite legal norm, there is no reason for it to be as lengthy as A la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing charge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of years.
(47) A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be lead into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.
15 – Information from an informant may be included in an ITO. The reliability of information provided by a confidential informant must be assessed by looking at the totality of the circumstances, including the degree of detail provided, the informant's source of knowledge, and indicia of the informant's reliability (i.e. past performance and confirmation in other cases).
16 - Where the sufficiency of a warrant is challenged, as here, the onus is on the accused to demonstrate that the ITO is insufficient. The test for the reviewing court is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued. The question is not whether the reviewing court would itself have reached the same decisions as the authorizing justice or issued the warrant, but whether there was credible evidence on which the authorization could have been granted.
17 - The ITO must specifically establish reasonable grounds for believing that the evidence to be searched for will be found at the place to be searched.
20Counsel points out the errors in the ITO, which have been referred to above in this judgment in paragraph 11.
21Mr. Westell also points out alleged deficiencies of the following police observations:
(a) February 17, 2016 – The omission of the defendant going to the Wendy's drive-through and coming back to the Dodge dealership deprived the issuing justice from considering whether this could mean that Mr. Pierce was delivering food, and not drugs, to the man at the dealership.
(b) February 25, 2016 – The four minute Medi Spa visit is not of any obvious relevance.
(c) March 2, 2016 – The omission of Julian Larabie's name, the fact that he was a suspected drug trafficker, and the fact that he lived in the same building as Mr. Pierce were misleading. The inclusion of this information might cause the issuing justice to think that he was the dealer and the defendant was merely the driver. Its inclusion may have caused the issuing justice to conclude that Larabie's apartment was where drugs were kept, instead of at the defendant's unit.
(d) June 7, 2016 – The omission of Rudy MacLennan's name and the fact that he was a drug dealer who police had seen trafficking drugs earlier in the same evening, may have misled the issuing justice. The baggie the police saw could have been from MacLennan's own supply, and not given to him by Pierce. MacLennan may also have snorted the drug from this same supply. Officer Talsma's observations may have been inaccurate, especially when he testified that the bag MacLennan allegedly got from Pierce was a different size than the one MacLennan gave to someone else earlier that night.
(e) June 13, 2016 – Mr. Westell contends that officer Corbeil breached section 8 of the Charter when he entered the apartment building and stairwell without a warrant. This unlawful entry led to the arrest of Bruce Thompson and drugs found on his person, as well as his statement implicating the defendant. Without this information, there would be no basis for a search warrant to enter Mr. Pierce's apartment. Mr. Westell relies on R. v. White, [2015] ONCA 508, O.J. No. 3563.
22Because the issuing justice would not have issued the search warrant if full, fair, and frank disclosure been made, there was an unreasonable search and seizure, a breach of section 8 of the Charter. This led to the arbitrary arrest of Mr. Pierce and was a contravention of section 9 of the Charter.
23The incriminating evidence ought to be excluded because the police entered the apartment building without permission from residents other than the defendant, and these entries had a serious impact on their privacy, and that of Mr. Pierce.
24Crown Counsel argues that there was frank, fair, and full disclosure made to the issuing justice, and ample reasonable grounds to issue a search warrant. Mr. Miller submits that R. v. White is distinguishable, and R. v. Brewster, [2016] O.J. No. 7204 (S.C.J.), is applicable. There were no Charter breaches and if there were, they should not result in exclusion of evidence.
Analysis
25In my view, the two errors in the ITO are not material.
26It is also my opinion that the ITO prepared by officer Corbeil was full, fair, and frank, and met the requirements set out in R. v. Araujo.
The Police Observations
27February 17, 2016: The events witnessed by the police are consistent with a drug transaction. The omission of picking up food at Wendy's is not important because no food or food wrapping was seen at the Dodge dealership property, which one would expect to see if the food was given to the unknown male.
28February 25, 2016: The only thing relevant about the Medi Spa visit was its short duration. It is equally consistent with going in quickly to pay an outstanding invoice.
29March 2, 2016: Again, the observations made are consistent with a drug transaction. Julian Larabie took no part in the apparent transaction in which the unknown male seemingly took something from the lap of Mr. Pierce. Even though he was suspected of being involved in the drug trade and lived in the same building as the defendant, nothing pointed to his apartment being a storage location for Mr. Pierce's cocaine.
30June 7, 2016: There was clearly a drug transfer from the defendant to Rudy MacLennan. Officer Talsma testified that the size of the bag of white powder was larger than the one MacLennan had earlier delivered to a male at 199 Queen Street. Officer Talsma used binoculars when outside 199 Queen Street. He did not say, but he may also have utilized them outside Mr. Pierce's apartment building. In any event, there is no basis for me to conclude that he did not see what he said he saw, even if it was not included in his notes.
31June 13, 2016: The brief meeting between Bruce Thompson and the defendant in the stairwell is consistent with a drug transaction. The manner in which the police arrested Mr. Thompson was not complained of by him, and the defence has no standing to challenge the constitutionality of it. The finding of cocaine on Mr. Thompson and his statement implicating Mr. Pierce were sufficient in themselves to justify the arrest of Mr. Pierce shortly before the search warrant was executed, assuming there was no section 8 violation when the police entered the apartment building stairwell without a search warrant, and entered the building prior to June 13 without a search warrant. Such alleged breaches could also affect the validity of the search warrant executed on the apartment of the defendant on June 13 at 9:55pm.
Surreptitious Police Entries into a Residential Apartment Building without Judicial Authorization
32Mr. Westell relies on R. v. White, 2015 ONCA 508 , [2015] O.J. No. 3563 (C.A.), for the proposition that surreptitious entries without a search warrant into a residential building violate the reasonable expectation of privacy which residents of the building would expect. In his written submissions he says as follows:
- "It appears that Officer Corbeil entered the apartment multiple times with the permission of the property manager but without any permission from other residents of the apartment. Officer Corbeil testified to multiple entries and to walking right up to the entrance to Mr. Pierce's suite on at least one occasion."
- "The front door, the north door, and the underground garage were all regulated by a 'fob' key and with it an apparent 'carte blanche' ability to come and go from the interior of the apartment as he pleased. The breach was, therefore, not only in respect of Mr. Pierce's privacy but of anyone who resided at the apartment building."
33When Mr. Westell refers to the "apartment" in paragraphs 50 and 51 of his submissions, it is assumed that he meant apartment building.
34In cross-examination, officer Corbeil said that on March 3, 2016, he got the building fob and permission to enter the building from the property manager, the regional property manager, and the assistant superintendent.
35Mr. Miller, for the Crown, asked me to distinguish R. v. White, and to rely on R. v. Brewster, [2016] O.J. No. 7204 (S.C.J.).
36The facts in White are as follows:
5 Detective Hill entered the condominium at 711 Churchill Avenue on three occasions prior to obtaining a search warrant. Each of his visits is outlined below.
First Visit - December 10, 2010
6 Detective Hill entered the respondent's condominium to determine the layout of the building, points of entry and exit, and obtain information as to other people that might be of interest. The police were already aware that the respondent lived in unit 302 of the building.
7 Detective Hill entered the building without the knowledge of any of the residents and without any prior consent. He gained entry by following a postal worker into the building through a door that was always locked.
8 Once inside, he took the stairs to the lower level, where he entered an unlocked storage room. There he observed storage lockers with numbers corresponding to unit numbers in the building. The lockers were cage-like and their contents were visible. Detective Hill observed the contents of locker 302, which corresponded to the number associated with the respondent's unit. Specifically, he saw a charcoal or carbon filter, blower fan, and garden hose, among other things, all of which he considered could be used in a grow-op. He did not touch anything in the locker room, take photographs or video, or install any devices.
9 Detective Hill then went upstairs where he observed unit 302. He was in the building for approximately 20 minutes.
Second Visit - January 20, 2011
10 The purpose of this entry was to determine whether Papadalios was coming or going from unit 302 and bringing or retrieving packages. Detective Hill entered the building through the north stairwell door, which he said was always locked. However, the door would not close properly and was not locked as a result. Again, he entered the building without the knowledge of any of the residents and without any prior consent.
11 Once inside the building, Detective Hill hid in a stairwell and from this location observed Papadalios leaving the respondent's unit carrying a box. Papadalios was later observed transferring the box to a third person outside the building.
Third Visit - January 21, 2011
12 Detective Hill used the same north stairwell door he had used on January 20 to gain entry to the condominium building in another attempt to find evidence linking Papadalios to unit 302. The door was still not closed properly and for the third time he entered the building without the knowledge of any of the residents and without any prior consent.
13 Detective Hill stationed himself in the stairwell and observed Papadalios entering unit 302. Detective Hill overheard a conversation inside the unit and believed that it concerned a drug deal. He also heard what he thought was the sound of packing tape being removed from a roll. Detective Hill observed Papadalios leaving the unit with a box in his possession and depositing the box into a minivan. The minivan was pulled over by the police and the box was found to contain 2,679.4 grams of marijuana and 166.6 grams of cocaine.
37It is clear that the police had no permission from property management to be on the premises:
19 Zoë Gillespie, a member of the board of directors of the respondent's condominium, testified that the north stairwell door is supposed to be locked but the locks do not latch properly in the winter. She understood there had been only one entry by the police, and stated that if the police had requested permission to enter the building it would have been granted. She added that Detective Redmond met with the board of directors of the condominium following execution of the search warrant and that 70% of the residents of the condominium had voted to sign an authorization under the Trespass to Property Act, R.S.O. 1990, c. T.21, allowing police to enter the building in the future. She noted that the building has inadequate insulation and as a result, she can hear voices from the hallway and other apartments when she is in her own unit.
38There was a breach of section 8 of the Charter and evidence was excluded, resulting in the acquittal of the defendant White.
39When the police entered Mr. Pierce's building and went to common areas in it, they had the permission of property management since March 3, 2016, and there is no evidence of extremely intrusive searches as there were in R. White.
40In R. v. Brewster, Code J. said the following:
102 I have some concerns about Det. Theriault's credibility, given some of the inconsistencies that emerged with his evidence at the preliminary inquiry. However, there seems to be no dispute that he did obtain consent to enter the common areas of 18 Valley Woods Road on November 27, 2013, and that consent to install cameras was received on November 28, 2013. In any event, Det. Theriault's evidence is generally consistent with Det. Sgt. Johnston, who was a co-lead investigator on the same team. Their evidence is also consistent with the entire body of evidence on the s.8 Motion in relation to this issue, to the effect that entries were sometimes made into common areas of buildings without permission at the early stages, followed by a process of receiving permission from property management as the investigation progressed.
41The entries into the building were not nearly as intrusive as in R. v. White:
68 The first important point emerging from the evidence is that the vast majority of the physical surveillance did not involve entries into common areas of multi-unit buildings. The Crown helpfully summarized all of the Affiants' references to surveillance reports in a chart. It shows a total of 145 surveillance reports referred to by the Affiants, of which 24 included some observations in a parking garage and 5 included some observations in an elevator and/or hallway. I have reviewed all of the Affiants' references to physical surveillance and there is no question that the vast majority involved following cars and suspects at public locations away from their residences. The observations made inside the common areas of multi-unit buildings represent a very small percentage of the total surveillance evidence. Furthermore, most of these observations in common areas were made inside underground parking garages. There are very few observations made in elevators or hallways.
42Code J. also stated as follows:
107 Given the factual insignificance of the relatively minor amount of warrantless surveillance of the common areas of multi-unit buildings in this case, detailed elaboration in the Affidavits about these entries would not have been justified.
108 This immediately distinguishes the present case from R. v. White, supra at paras. 24 and 60, where Huscroft J.A. (Simmons and Brown JJ.A. concurring) noted that the warrantless entries in that case were essential to the grounds for the search warrant:
The trial judge ... found that Detective Hill's unconstitutional searches of the common areas of the building formed the foundation for the search warrant pursuant to which the respondent's unit was searched.
Detective Redmond acknowledged there was no basis for the judge to issue a search warrant to search the respondent's unit in the absence of the evidence obtained by Detective Hill pursuant to the three searches. [Emphasis added.]
In other words, the three warrantless entries in White were highly "material" and had to be fully disclosed. It was in this context that Huscroft J.A. went on (in White, supra at para. 64) to state that "one would have expected to see details ... in the ITO" about the "three surreptitious entries into the respondent's condominium in order to obtain evidence to support the issuance of a warrant." In the present case, none of the warrantless entries purported to support issuance of the wiretap authorization or the related General Warrants. Indeed, they could have been completely excised from the Affidavits. For this reason alone, the omission of details concerning the warrantless entries was not "material."
109 In any event, I do not accept the underlying legal premise of the Applicants' submission in relation to this issue. Mr. Foda submits that the s. 8 case law in this area is complex, nuanced, and divided, and that it has recently changed as a result of R. v. White. In this subtle and difficult legal landscape, he submits, the police were obliged to place all the circumstances concerning these warrantless entries before McMahon J. so that he could determine whether the police had been acting unlawfully and in violation of s. 8 of the Charter. This, in turn, would have been important context for McMahon J.'s decision as to whether to grant a General Warrant allowing the police "to make observations by means of a television camera or other similar electronic device ... throughout the common areas of addresses listed in para. 4(a) which are multi-unit buildings."
110 I do not agree with the Applicants' reading of the case law. In my view, the authorities in this area are relatively clear, they are not divided, and White has not changed the law. That case involved a bad set of facts (from the Crown's perspective) and the Court simply affirmed and applied the pre-existing case law to those unfavourable facts. Applying the law, as I understand it, the police in the present case were not acting unlawfully and they did not violate s.8 by conducting limited physical surveillance in the common areas of multi-unit buildings in the manner set out above. This provides a further reason in support of my conclusion that the omitted details about the manner, duration, purpose, and permission (or lack of permission) to make the warrantless entries were not "material." Had it all been fully disclosed to McMahon J., he would not have concluded that the police were acting unlawfully and it would not have influenced his decision to grant the General Warrant permitting video surveillance in the common areas.
43It was held that no "search" had taken place by the surreptitious entries.
44Code J. has found that the caselaw in this area is consistent, and the difference between R. v. White and R. v. Brewster, was just a matter of degree.
45In the present case, Mr. Westell argued that residents other than the defendant ought to have been consulted about the possibility of entries by the police into common areas of the building without a warrant. One problem with this approach is that one of the residents might have informed Mr. Pierce, without knowing that he was the subject of the investigation. Also, Julian Larabie lived in this building. Secondly, Code J. found that such consent is not required:
115 Before leaving this issue, there are two related but subsidiary points that should be briefly mentioned. It was submitted, somewhat faintly, that it was only the condominium board that could permit the surveillance officers to enter the common areas of multi-unit buildings, and not property management. The argument is based, in part, on a somewhat technical reading of the "Rules" that exist at one particular condominium building. Those "Rules" at most, require the condominium board to authorize any "duplication of keys." As I understand the facts of this case, the police were never given duplicate keys. They certainly were never given the keys to any unit.
116 In any event, in those cases where the issue of permission to enter the common areas of buildings has arisen, it has always been "property management" or "the property manager" who has granted permission and no issue has been taken with the sufficiency of this permission. See, e.g.,: R. v. Drakes and Brewster, supra ; R. v. Thomsen, supra ; R. v. Verret, supra at paras. 11 and 30. I also note that in the cases dealing with the "implied license" doctrine in the context of condominium buildings, which I will discuss below, it has been the security staff who called the police and took them to the particular unit where some trouble had arisen. See: R. v. MacDonald (2014), 2014 SCC 3 , 303 C.C.C. (3d) 113 at paras. 3-5 and 27 (S.C.C.) ; R. v. Zargar, 2014 ONSC 1415 at paras. 9-10 and 28-32.
117 I am satisfied that property management staff have the authority to call the police and to cooperate with an ongoing police investigation, without needing express permission from the condominium board for each cooperative interaction with the police. This is simply practical common sense. It also reflects the longstanding "moral or social duty ... to assist the police" which the courts have always recognized. See: Rice v. Connolly, [1966] 2 All E.R. 649 at 652 (C.A.) ; R. v. Grafe (1987), 36 C.C.C. (3d) 267 at 271 (Ont. C.A.) ; R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 at para. 37 (S.C.C.). When Mr. Chudnofsky and his property management firm adopted a policy of cooperating with police investigations, they were simply acting in accordance with this longstanding "moral or social duty." Of course, it is always open to a particular condominium board to decide not to retain a property management firm that adopts this cooperative policy, or to restrain and prevent certain kinds of assistance to the police. There is no evidence that this occurred in the present case.
46It is my opinion that R. v. White is clearly distinguishable from the facts of our case, and that R. v. Brewster is applicable. Even assuming the warrantless entries into the building constituted "searches" it is my view that they do not amount to breaches of section 8 of the Charter, since the police sought and obtained permission from property management to enter.
Conclusion
47Accordingly, the Charter application is dismissed, and the defendant is found guilty of all four charges.
March 29, 2018
Signed: "Justice Alan D. Cooper"