Court File and Parties

Ontario Court of Justice

Date: July 3, 2018

Court File No.: Oshawa 2811-998-17-35174-00; Oshawa 2811-998-17-35175-00

Between:

Her Majesty the Queen

— and —

Adam Boston & Spencer Isenor

Before: Justice M.S. Block

Heard on: October 16, 17, 18, 2017; November 14, 15, 16, 2017; December 1, 2017 and May 11, 2018

Ruling on Application released on: July 3, 2018

Counsel:

• G. Roy — counsel for the Crown
• K. Yeh — counsel for the Crown
• R. Moriah — counsel for the defendant Adam Boston
• S. Bergman — counsel for the defendant Spencer Isenor
• M. Schwartzentruber — counsel for the defendant Spencer Isenor

BLOCK J.:

THE CHARGES

[1] Adam Boston and Spencer Isenor are jointly charged with conspiracy to commit the indictable offence of robbery, contrary to the Criminal Code.

[2] Boston is separately charged with a number of other offences under the Criminal Code and the Controlled Drugs and Substance Act including possession of loaded firearm without a license, possession of a firearm with a defaced serial number, possession for the purpose of trafficking (x2), possession schedule I substance, possession schedule II substance and possession proceeds of crime.

[3] Isenor is separately charged with possession of a loaded prohibited or restricted firearm, occupy a motor vehicle with a firearm, possession of a prohibited or restricted firearm without a license, possession of a handgun with a defaced serial number, possession proceeds of crime and possession for the purpose of trafficking of a number of controlled substances.

[4] All of the charges against the two defendants are based on evidence seized during searches of Boston's residence of 3710-2200 Lakeshore Boulevard West (hereinafter referred to as "Lakeshore"), Isenor's purported residence of 1504-100 Hayden Street West (hereinafter referred to as "Hayden"), a search of Isenor's vehicle alleged to be incident to his arrest on June 9, 2016, and statements by the two men made in Boston's jeep on May 19, 2016, captured as a result of a Part VI authorization.

ISSUES

[5] The Applicants seek the exclusion from the trial of all the evidence referenced in the last paragraph pursuant to s.8 and s.24(2) of the Charter of Rights.

[6] The first domino in the series of alleged Charter breaches was created by observations made by Detective Chambers on the 37th floor of the Lakeshore condominium on February 22, 2016. He was accompanied that evening by Detective Naccarato. The Applicants allege that the detectives breached Boston's s. 8 right to be free from unreasonable search and seizure by attending that floor to make the impugned observations without appropriate permission from the property management.

[7] Detective Naccarato was the affiant of the March 14, 2016 Information to Obtain (ITO) for a tracking warrant for Boston's jeep and a general warrant into Boston's residence (Lakeshore). The Applicants seek the excision from that ITO of the February 22, 2016 observations. They contend that with that excision, the March 14, 2016 authorization could not have been granted. The search pursuant to that authorization led to the discovery of evidence in Boston's unit at Lakeshore which assisted investigators in obtaining the Part VI Authorization which resulted in the jeep intercepts referred to in paragraph 3, above.

[8] Regardless of the propriety of the February 22, 2016, observations, the Applicants also challenge the authorization of the search of Hayden on June 9, 2016 on the basis that Hayden was mischaracterized as Isenor's residence and not sufficiently established as a location where evidence was likely to be obtained.

[9] It is also contended that the search of Isenor's rented Hyundai after his arrest on June 9, 2016 was not incident to arrest and therefore a violation of s.8 of the Charter and that the evidence so acquired should also be excluded from the trial of these matters pursuant to s.24(2).

[10] In a supplemental application dated December 1, 2017, the Applicants provide an additional argument for the excision of the February 22, 2016 observations from the subsequent ITO: The Lakeshore condominium surveillance video viewed by the investigators before their attendance on the 37th floor was not retained, was not provided in disclosure and cannot be used to contradict or confirm police observations at Lakeshore on that date.

[11] As the application commenced there was substantial discussion about the nature of the proceeding. The Applicants sought to cross-examine Detective Naccarato, the affiant of the ITO of the March 14, 2016 authorization and Detective Chambers, who attended the 37th floor of Lakeshore with Naccarato and made the observations in question on February 22, 2016. The Applicants conceded the veracity of the observations. The Applicants argued that the abandonment of the sub-facial attack on the warrant eliminated the need for the court to apply the required test: whether there was a reasonable likelihood that cross-examination might undermine the reasonableness and honesty of the grounds supplied to the issuing justice. The Applicants defined the purpose of cross-examination as an exploration of the alleged Charter violation associated with their attendance on the 37th floor. I permitted the cross-examination of Naccarato and Chambers on that basis.

[12] During their testimony taken during the application, Detectives Naccarato and Chambers were cross-examined, not only on their conduct on February 22, 2016, but also on the reliability of their account of the observations of that date. When challenged, the Applicants responded that while the veracity of the observations supplied in the ITO of March 14, 2016 was conceded, the cross-examination was intended to expose evidence relevant to the section 24(2) analysis that would be required if the requested excision took place.

[13] I permitted the cross-examination. At that time I was unaware of, and not referred to, the decision of the Court of Appeal in R. v. Green, 2015 ONCA 579. In its decision, the Court considered the appellant's contention that cross-examination of the affiant could be justified if there was a reasonable likelihood that evidence would be produced which would assist the accused in the s. 24(2) analysis of the admissibility of the evidence.

[14] In Green, an example given by the appellant was that of a single misstatement in the ITO which might provide a basis for:

"further cross-examination which would reveal other examples of carelessness in the affiant's preparation of the ITO. In turn, this carelessness could figure in a trial judge's assessment of the seriousness of the police misconduct under s. 24(2)" (at paragraph 38).

[15] The Court rejected the argument:

"Garofoli and Pires speak to the possibility of cross-examination going to the 'basis upon which the authorizing judge could grant the order'. Section 24(2) considerations have nothing to do with the 'basis upon which' a justice could sign the warrant." (at paragraph 39)

[16] The Court went on to indicate that the trial judge retained a discretion to allow cross-examination on matters relevant to s.24(2) if satisfied that there was a basis to cross-examine the affiant on matters relevant to the validity of the warrant (at paragraph 42).

[17] Had I been aware of the binding decision in Green, I would not have allowed cross-examination of Naccarato and Chambers based on the positions and concessions of the defence in this case. Nevertheless, as will be seen in later portions of this ruling, I have applied both the ratio in Green and the Applicant's concession of the veracity of the February 22, 2016 observations to several of the issues at play in the application before me: The treatment of alleged lapses, gaps and contradictions in the evidence of Naccarato and Chambers and the application to exclude these observations from the ITO of March 14, 2016, because of the failure to seize the Lakeshore security video.

ORIGIN OF THE INVESTIGATION & OBSERVATIONS MADE ON FEBRUARY 16, 2016

[18] In September 2015 Durham Regional Police started an investigation into trafficking in cocaine, BZP, GHB and other controlled substances in Durham Region and Toronto. Initially the investigation, which came to be known as "Project Neebing", focused on an alleged local trafficker, Storm Henry, who had been identified as a drug trafficker by a confidential human source. Surveillance led to Henry's alleged suppliers, Flammia, Bijelic and to other persons suspected of trafficking narcotics in association with them.

[19] Isenor first aroused interest on the afternoon of February 16, 2016 when he was seen with Bijelic and Henry at a restaurant in Toronto. Isenor and Bijelic then entered a Black BMW registered to Isenor's mother. Flammia and another man got into Henry's Mustang. Flammia then pulled his Nissan next to the Mustang and passed a bag to an unknown person in it. The police reasonably suspected that a drug transfer had taken place.

[20] Surveillance continued and in the evening Flammia, Bijelic and one Kyle Labarge attended at the underground parking garage at 2200 Lakeshore. Police observed a suspected drug transfer take place at that time. As a result of multiple attendances by both Flammia and Bijelic at 10 Hill Heights Road and at Lakeshore, police believed the two men had associated units in both of these multi-story condominium buildings.

THE PRODUCTION ORDER & OBSERVATIONS IN LAKESHORE ON FEBRUARY 22, 2016

[21] Prior to seeking a production order relating to Bijelic and Flammia's attendances and activity at Lakeshore, Detective Chambers of the Durham Regional Police made inquiries concerning the security arrangements in the condominium. He determined that there were surveillance cameras in common areas of Lakeshore including the underground parking garage, elevators, recreational facilities and the lobby. He also discovered that there were no surveillance cameras in the hallways. He learned that a fob or a mobile phone provided with the appropriate code is required to enter the building and access the elevators and hallways.

[22] The detectives clearly contemplated potential surveillance in the common hallways of the residential floors of Lakeshore prior to their attendance on February 22, 2016 to execute the production order. On February 18, 2016 Detective Chambers inquired of senior crown counsel what steps were necessary. He was told to get verbal permission to enter the building for investigative purposes and to follow that up with written permission from the property manager. Detective Chambers obtained verbal permission to enter the property for investigative purposes from Mr. Hassan Khawaja, a security guard on duty on the 18th of February, 2016. He had made initial inquiries of Mr. Khawaja on the previous day. He was unable to make contact with Mr. Bird, the property manager, until March 3, 2016. Their working schedules did not align until that day and Detective Chambers did not assign the duty of acquiring written permission to another officer in the interval. On March 3, 2016 Mr. Bird met Durham Regional Police detectives and accommodated them with the fob necessary to access common areas.

THE OBSERVATIONS MADE ON FEBRUARY 22, 2016

[23] As a result of the information obtained prior to February 22, 2016 the Project Neebing investigators believed that Bijelic and Flammia had access to a suite at, or were possible tenants of, Lakeshore. On February 22, 2016 the investigators sought and received, inter alia, a production order for the following materials:

(a) All fob records pertaining to the entry and activity associated to BIJELIC and/or FLAMMIA between the dates of February 16, 2016 to February 18, 2016.

(b) Surveillance video involving BIJELIC and/or FLAMMIA pertaining to the entry and activity associated between the dates of February 16, 2016 to February 18, 2016.

(c) All owner/tenant information related to the suite(s) identified to be associated to BIJELIC and/or FLAMMIA.

[24] The purpose of the February 22, 2016 production order was obviously to determine the destination of Bijelic and Flammia and the identity of the person(s) they were visiting.

[25] Detectives Naccarato and Chambers attended Lakeshore on February 22, 2016 to execute the production order. They met with the security guard on duty, Mr. Bala, and showed him the production order. They reviewed, but did not seize, the building surveillance video from February 16-18, 2016. As a result of their review of the surveillance video, the detectives reasonably suspected that Bijelic and Flammia may have attended the 37th floor. They asked for, and then studied, the tenant documentation for the 37th floor. The documentation consisted of a list of residents and the suites they occupied. The police believed they were acting on the authority of the production order. I accept that in order to demand "all owner/tenant information related to the suite(s) identified to BIJELIC and/or FLAMMIA", the detectives needed to review the tenant list to see if it provided any information to help determine their destination.

[26] The detectives recognized the name of Boston listed as the occupant of unit 3710. He ultimately proved to be a tenant renting that unit. His name and his potential connection with Bijelic resonated with the investigators because of their prior knowledge of their criminal associations. There is no evidence that the police recorded, or were the least interested in, the residency information regarding any other unit. While Detectives Chambers and Naccarato were still at the front desk they noticed Bijelic and Isenor walked through the entrance and entered the elevator. Naccarato watched the elevator floor indicator and saw that the elevator had stopped at the 37th floor.

[27] Detectives Chambers and Naccarato desired to continue their observations on the 37th floor, no doubt for the purpose of confirming that the destination of the suspects was 3710. Naccarato spoke to Mr. Bala and obtained permission to attend the 37th floor and to borrow the fob needed to use the elevator. It was unclear from the evidence which of the two officers obtained the fob from Mr. Bala and, for the purpose of this application, unnecessary for me to determine. They restricted their observations to the door of the unit associated to Boston, unit 3710.

[28] Detectives Chambers and Naccarato attended the 37th floor at approximately 8:36 p.m. They set up a vantage point in an electrical closet approximately 20-25 feet away from unit 3710. They continued to monitor suite 3710 until approximately 11:20 p.m.

[29] As we have seen, the observations made on the 37th floor corridor on February 22, 2016 formed part of the ITO sworn by Naccarato on March 14, 2016. On the basis of that ITO, authorization was obtained for, inter alia, a general warrant pursuant to s.487.01 of the Code with respect to Lakeshore and a tracking device warrant pursuant to s.492.1(1) for Boston's white Jeep Cherokee.

[30] The portions in bold in the following paragraphs of the March 14, 2016, ITO are the observations of February 22, 2016 which the Applicants ask to be excised:

18. During surveillance, BIJELIC, FLAMMIA have attended 2200 Lakeshore Blvd West, Toronto. Through the investigation officers observed BIJELIC and FLAMMIA attended unit 3710 located at 2200 Lakeshore Blvd W which was identified as Adam BOSTON's residence through the production order. Investigators also learned through surveillance and the production order that BOSTON drives a white Jeep Cherokee with license plate BVCZ 249. Investigators believe that BOSTON is involved in BIJELIC and FLAMMIA's drug network and is storing a quantity of drugs located at his residence of 2200 Lakeshore Blvd witness, unit 3710, Toronto.

19. On February 22nd, 2016 members from the Drug Enforcement Unit conducted surveillance on FLAMMIA and BIJELIC. D/Cst Marsh #3424 and D/Cst Phillips #3202 were the central note takers on this day. During surveillance officers were making observations on 10 Hill Heights Road, Toronto and 2200 Lakeshore Blvd W, Toronto at the same time. From reviewing the central notes, and have being involved in the surveillance and speaking with surveillance officers I learned the following information:

a. At 8:15 pm BIJELIC and ISENER arrived at 2200 Lakeshore Blvd W Toronto. Both buzzed into the building and attended the 37th floor.

f. At 10:11 pm FLAMMIA and LABARGE arrived in the underground parking located at 2200 Lakeshore Blvd W. FLAMMIA retrieved a bag from the back seat and walked away from the black Lexus in the underground.

g. At 10:16 pm FLAMMIA and LABARGE entered unit number 3710.

h. At 10:17 pm FLAMMIA exited unit number 3710 and entered the elevator.

i. At 10:21 pm FLAMMIA was observed walking back to the Lexus and attended the trunk. Officers were not able to observe if any item came out or sent into the trunk.

j. At 10:30 pm FLAMMIA attended back inside the building from the underground parking lot.

k. At 10:34 pm FLAMMIA entered unit number 3710-2200 Lakeshore Blvd W.

l. At 10:41 pm FLAMMIA exited 3710-2200 with a weighted down green bag. Bijelic was observed at the doorway when FLAMMIA left the unit.

m. At 10:43 pm FLAMMIA entered the Lexus and left the area. FLAMMIA was not followed from this location.

DID THE DETECTIVES VIOLATE BOSTON'S S.8 CHARTER RIGHTS BY ATTENDING THE 37TH FLOOR HALLWAY TO MAKE OBSERVATIONS?

[31] The Court of Appeal for Ontario considered this issue in Her Majesty the Queen v. White, 2015 ONCA 508. In that case the police surreptitiously entered the common areas of a ten unit condominium building on three separate occasions. They entered through a defective door without any anyone's prior permission. They walked through hallways and noted comings and goings from the suspect's unit. They listened at the door of the suspect and overheard a suspected drug-related conversation and the sounds of packing tape being unrolled. They inspected the suspect's storage locker and noted items consistent with a grow-op. These observations formed the basis of an ITO for a search warrant for the accused's unit. The trial judge found that the police had breached the defendant's reasonable expectation of privacy in the common areas of the condominium building and excised the impugned observations from the ITO for the warrant. The Court of Appeal agreed.

[32] In deciding whether the accused has a reasonable expectation of privacy in relation to the common areas of his condominium building, the Court applied the contextual analysis set out R. v. Edwards (1996). At paragraph 45 of Edwards, supra, the court set out some of the relevant factors:

(i) presence at the time of the search;

(ii) possession or control of the property or placed searched;

(iii) ownership of the property or place;

(iv) historical use of the property or place;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[33] In upholding the decision of the trial judge that the police had violated the suspect's privacy, the Court focused particularly on the obtrusive police approach to monitoring sounds audible within the unit, the observations of the contents of the storage unit, the multiple prolonged observations of the suspects unit, and the surreptitious entry into a building otherwise always locked to non-residents by way of a broken door. The after-the-fact permission of the condominium residents did not validate the earlier trespass.

[34] The Court, however, rejected a categorical approach to the determination of a reasonable expectation of privacy in a multi-unit building. Instead, the Court determined that "a more nuanced, contextual approach is required" (White, supra, paragraph 41). The Court determined that whether there was a large or small number of units, ownership of the unit in question and the nature of the restrictions on access by strangers would be factors to consider in the determination of the issue. The Court ruled that a reasonable expectation of privacy might be attenuated without being eliminated in particular circumstances.

[35] In applying the Court of Appeal's nuanced and contextual approach, Justice M.A. Code considered the issue of police surveillance in a common hallway in a much larger condominium building in R. v. Brewster, 2016 ONSC 4133. He found that the officers had abundant reasonable grounds to follow the suspects. They confined themselves to mundane and non-obtrusive observations involving the fact of residency and the number of the unit in which the suspect resided. The police collected information available to anyone who happened to be in the hallways and avoided surveillance inside the units. The individual suspects who resided in this very large condominium building could not regulate access into the hallways outside their units by other residents, their guests or trades. As well, although the police did not seek prior approval from property management before entering the common areas of the buildings, once the suspect's residency was established the police sought the permission of the property management.

[36] Justice Code went on to conclude that the above considerations created a relatively low expectation of privacy in the common areas of multi-unit buildings and that the physical surveillance of the entry and exit of persons from specific units did not require a warrant and did not amount to a "search" within the meaning of s.8 of the Charter. It is of note that, in the companion case of R. v. Brewster, 2016 ONSC 8038, Code J. found that the installation and use of surveillance cameras by the police that created a permanent record was also lawful and did not violate s.8 "provided they had a valid consent from property management." (at paragraph 64)

[37] Justice Code's distinction between the limited physical surveillance of the traffic to and from a specific unit and the extensive use of surveillance cameras to create a permanent record was followed by Justice Dambrot in R. v. Batak, 2018 ONSC 546. In Batak, the Court found that the installation of the surveillance cameras, without a warrant and without a valid consent from property management violated the suspect resident's reasonable expectation of privacy. Justice Dambrot excised the information gleaned from the surveillance cameras from the ITO of subsequent warrants.

[38] This approach was also followed by Justice R. Beaudoin in R. v. Lantaigne, 2017 ONSC 3347, Justice Goldstein in R. v. Wawrykiewicz, [2017] O.J. No. 418, and Justice J.D. McCombs in R. v. Samuel, [2018] O.J. No. 932.

APPLYING THE "NUANCED, CONTEXTUAL APPROACH" TO THIS CASE

[39] The Applicants contend that the detectives violated Boston's reasonable expectation of privacy through their surveillance of the 37th floor on February 22, 2016 and that the grounds obtained through their observations should be excised from the judicial authorization of March 14, 2016.

[40] The sparse note-taking by Detectives Chambers and Naccarato on February 22, 2016, the gaps in their memories of some of the details of that evening and their somewhat inconsistent evidence of portions of this episode was the subject of much caustic comment in the Applicant's submissions.

[41] I will address the core of the Applicant's argument: did the permission granted to the detectives by the security guard Mr. Bala on the day of the observations and the permission granted previously by his colleague Mr. Kwajala address Boston's reasonable expectation of privacy in the common hallway of the 37th floor on February 22, 2016?

[42] There was nothing oblique, underhanded or surreptitious about the manner in which access to the hallway outside unit 3710 was achieved. Prior to attending there on February 22, 2016 the police clearly anticipated the possible physical surveillance of the residential areas of Lakeshore. After their surveillance of February 16, 2016 they sought, and followed, advice from Crown Counsel regarding the permission required to lawfully make observations in the elevators and common hallways of the condominium.

[43] Prior to the observations of February 22, 2016 the police sought advance permission from a security guard and the approval of the property manager, Mr. Bird. Mundane scheduling considerations delayed contact with Mr. Bird until March 3, 2016. On that date he provided his approval and supplied fobs for other investigations on request.

[44] On attendance for the execution of the production order on February 22, 2016 the investigators reviewed condominium surveillance footage and viewed documentation of the registered occupants of the 37th floor. I find that the production order clearly provided for the former. The latter activity involved the least intrusive method possible of identifying units associated to Bijelic and Flammia, as was expressly authorized by the order.

[45] I reject the Applicant's contention that the February 22, 2016, production order demanded a two stage execution: first the identification of a specific unit associated to Bijelic and Flammia and only then the production of documentation regarding that specific unit. There is nothing in the language of the production order which suggests that this is what the issuing justice must have intended. In the absence of direct physical observations of the suspects attending the unit or the review of the tenant list it would have been impossible for the investigators to identify unit 3710 as a potential destination. The happy coincidence of the recognition of Boston's name and associations made the latter course possible.

[46] The police conduct was consistent with the least intrusion possible into the privacy interests of innocent third parties who also resided on the 37th floor. The purported impact on other residents of the floor was microscopic and ephemeral, if it existed at all. I do not accept that the review of the resident's list invaded the reasonable expectation of privacy by other residents. The review of the resident list for the floor was equivalent to the use of a telephone book or directory in these circumstances. Once the suspect unit was identified, the evidence confirms the police interest in the other units ceased. A review of R. v. Saciragic, 2017 ONCA 91, must dispose of the notion that there is a reasonable expectation of privacy in a municipal address.

[47] It was appropriate for the police to exploit the opportunity provided by the unexpected attendance of known suspects at the condominium building. In my view they did all that was required of them. They sought the permission of the security guard on duty, Mr. Bala, obtained the necessary fob from him and attended the 37th floor to conduct physical surveillance of unit 3710. It was also appropriate for the police to rely on his permission to enter the premises.

[48] The electrical closet on the 37th floor was used as an observation post by the investigators. The closet was enclosed by double doors. It was deep enough to enclose an electrical panel but not so deep as to permit a person to stand within it with the doors closed. On the evidence before me, the closet was the only cover available. The police were investigating persons suspected of very serious crimes. The detectives would have exposed themselves to certain discovery, and potential confrontation, by openly conducting surveillance in the corridor 20 to 25 feet away from unit 3710 over the course of several hours with no other apparent purpose. As we now know, Boston and Isenor had possession of firearms during the currency of this investigation. This fact would not have been a surprise to experienced drug squad investigators.

[49] The Applicants argue that the failure of the investigators to note in their memo books that they were making observations from behind the door to the electrical panel indicates that Detectives Chambers and Naccarato knew that they were trespassing and acting beyond the scope of any common law authority or consent. There is nothing insidious about the absence of a record of the use of the electrical closet doors for cover. It is of limited interest in these circumstances. I find it unexceptional that there would be no note of this technique. It is clear from their testimony that the detectives were reluctant to expose their surveillance tradecraft to paper. I am not satisfied that the failure to note their actions in this regard is an indication of any consciousness that they were intruding on any privacy interest.

[50] Access to the closet was forbidden to tenants, no doubt for obvious safety and liability reasons. I find nothing wrong in the police conducting surveillance from an area forbidden to the residents. In doing so the police did not hide their presence, they obscured their purpose. In supplying the police with the electrical closet key, Mr. Bala did not change the purpose of the police attendance on the 37th floor, he merely aided them in carrying out their intended purpose. The evidence indicates that full cooperation with police investigation was the unvaried practice of property management for Lakeshore during the time period of this investigation.

[51] I have previously noted the ratio in Green, supra, and the Applicant's surrender of the sub-facial attack on the ITO of March 14, 2016. I have applied the discretion contemplated by the Court of Appeal in the following manner: The Charter compliance of the police conduct in obtaining access to the 37th floor of Lakeshore was a legitimate issue. I have considered the attack on the reliability of Detectives Naccarato and Chambers when relevant to that use of police authority. Where the evidence relates to the reliability of the account of the observations contained in the ITO, I have excluded it from consideration.

[52] Examination of the observations recounted in the ITO of March 14, 2016, the evidence given by Detectives Chambers and Naccarato on this application and the undisputed facts make it clear that the omissions and confusion described above do not undermine the essence of their evidence that permission for police investigative access was gained to the 37th floor on February 22, 2016.

[53] It scarce matters if the police cannot recall who got the fob or electrical cabinet key from Mr. Bala, or who might have been present when Mr. Bala was asked for his permission to attend the 37th floor. It is common ground that the police could not have accessed the 37th floor without a fob or mobile phone code, nor could they have accessed the electrical closet without a key. These instruments could only have been provided by the security guard, Mr. Bala.

[54] There is absolutely no evidence that they lied about their contact with Mr. Bala or about their acquisition of the fob or electrical closet key. I cannot find anything amounting to a significant contradiction or improbability in the evidence of the steps that were taken to secure adequate advance permission of the investigative steps taken at Lakeshore in February 2016. It is of no consequence that these steps were not exhaustively recorded in minute detail.

[55] The evidence that Detective Chambers made no observations that he recalled or recorded when he shared the electrical closet with Detective Naccarato may have held legitimate interest for the curious cross-examiner in another context. But the only point of cross-examination in this area would have been to mount a credibility attack on the veracity of the February 22, 2016 observations. This is precisely the attack foresworn by the applicant's concession.

[56] Mr. Steven Bird testified. He was the property manager of Lakeshore. Mr. Bird proved to be an unusually accommodating witness who tended to agree with propositions suggested to him by his examiners. The totality of the evidence indicates that, whatever the formal rules of the condominium corporation, the practice of the property management had been to cooperate with police investigation and provide them with fobs to provide access without prior judicial authorization. In fact, on March 3, 2016, Mr. Bird provided police with an access fob without any court order. In any event, given my determination in this matter, it was not necessary for the police to obtain a waiver from property management to conduct the unobtrusive observations at issue.

[57] While the police observed 3710 for over 2½ hours they attended that floor on one day only and did not install video equipment to make a permanent record of their observations. The duration of the impugned observations was approximately 25 minutes.

[58] The Lakeshore condominium building is a vast building of some 44 stories with hundreds of units. The police minimized their intrusion into 3710. The Applicants argue that the police took advantage of their position in the electrical closet to allow them to hear and see inside the unit. This contention is not founded on the evidence and I reject it. In the evidence of Detective Chambers, Mr. Flammia knocked on the door of 3710. A voice shouted "come in" in response. That is the one account of a sound heard emanating from the unit. The sole account of someone visible in the doorway was that of Bijelic, wearing a black garment. These are observations that would easily have been made by anyone watching the doorway of a detached house from the street. There is no evidence that the police deliberately positioned themselves in an attempt to hear, smell, or see anything or anyone inside the unit.

[59] The security system was designed to prevent anyone not possessing a key, fob or mobile phone code from accessing the elevators and residential floors, including the common hallways. The mobile phone code could be used by anyone who had a smartphone and had been provided the code. The security guard had the discretion to provide access to anyone on legitimate business including residents, visitors, tradespersons, delivery persons, dog-walkers and police.

[60] No resident could deny use of the common hallways to other persons permitted to access the common hallways by the security guard. The reasonable expectation of privacy in the common hallways in such a large premises is necessarily very limited. There is no evidence of Boston's subjective expectation of privacy in the common hallway.

[61] Boston was a tenant of 3710, not an owner. His movement from the unit to and from the outside world were recorded by video and tracked by fob. He had effectively surrendered any privacy interest in the common hallway to condominium management.

[62] For the above reasons I find that the observations of Lakeshore unit 3710 of by police on February 22, 2016 do not amount to a search and did not violate s.8 of the Charter.

LOST EVIDENCE

[63] During the evidentiary portion of this application the Applicants brought a supplementary application seeking exclusion of evidence of the:

"Observations made by police who viewed the surveillance video footage from 2200 Lakeshore Blvd. W. pertaining to February 16, 2016, and specifically Mr. Bijelic's attendance at 2200 Lakeshore Blvd. W. on that date as well as information they received regarding the contents of that video footage from the security guard at that address." (paragraph 1 of the Supplementary Notice of Application)

[64] The application is brought pursuant to sections 8 and 24(2) of the Charter. The following grounds were provided:

"In furtherance of the investigation the officers rely upon the contents in the surveillance video yet failed to preserve that very evidence. The failure of the officers to seize the surveillance video renders it virtually impossible to test the veracity of their observations." (paragraph 6, my emphasis)

[65] It is clear in context and from the submissions during the pre-trial application that the goal of the supplemental application is not the exclusion of evidence from the trial proper but is the excision from the ITO of March 14, 2016 of the above noted observations and information received on February 22, 2016.

[66] This supplementary application is without merit. I dismiss it for the following reasons.

[67] At the outset of this application counsel for the Applicants conceded the veracity of the observations of February 22, 2016 in the ITO of March 14, 2016. The stated basis for the attack on the authorization was that the investigators had no lawful authority to make the observations in the common hallway of the 37th floor Lakeshore. The cross examinations of Detectives Chambers and Naccarato were sought and permitted on that basis.

[68] The supplementary application alleges an injury to an inquiry that was abandoned by the Applicants. The abandonment of the sub-facial attack means the production of the condominium surveillance video is irrelevant to any material issue before this court.

[69] The burden of demonstrating the relevance of third-party records falls upon the Applicant in a Garofoli proceeding. Behold the guidance given by the Supreme Court of Canada in World Bank Group v. Wallace, 2016 SCC 15:

"Therefore, to obtain third party production in the Garofoli context, an accused must show a reasonable likelihood that the records sought will be of probative value to the issues on the application. As with cross-examination of an affiant, it must be reasonably likely that the records will be useful." (paragraph 132)

[70] An affiant must describe facts or circumstances corroborating tipsters or confidential human sources. It is expected that an affiant's inferences be supported by recitation of the facts or observations on which they are based. That said, it would be both unprecedented and bad public policy to require investigators to provide corroboration for their own direct observations when seeking judicial authorization to search. Sworn evidence in the form of the ITO is the basis for the ex parte proceeding in which authorizations are sought. The statements in the ITO must be assumed to be true unless undermined by a sub-facial attack, the very issue abandoned by the Applicants.

[71] There is no logical or legal reason to distinguish between observations made directly by the investigators and observations made through the medium of CCTV.

[72] It is not at all clear that the seizure of the condominium surveillance video was within the lawful scope of the February 22, 2016 production order. See R. v. Mahmoud, 2011 ONCA 693 at para. 112.

SEARCH OF HAYDEN – JUNE 9, 2016

[73] On June 6, 2016 Justice of the Peace Mecoy authorized a warrant to search the Hayden condo, owned by Isenor's parents, and the BMW license no. BXXP 839, registered to Isenor's mother and used extensively during that time period by Isenor. The attack on the Hayden June 6, 2016 warrant is based on the contention that there was an insufficient connection established between Isenor and the Hayden residence. In addition, in cross-examination it was implied that there were insufficient grounds advanced for Isenor's involvement in the offences named. This issue was not identified as contentious in submissions.

[74] The warrant permitted a search for evidence of conspiracy to commit robbery and firearms charges. There is adequate evidence referenced in the ITO to support the Hayden condo as a search target. The Hayden condo was provided as Isenor's address on a recognizance dated December 20, 2013. Isenor's parents owned both Balsam Road and the Hayden Avenue condominium. It was evident from the ITO that his parents allowed Isenor the run of the Hayden condominium and the use of the BMW.

[75] If the dated recognizance, referenced above, was the sole evidence of Isenor's connection to Hayden, this might well be insufficient contemporaneous connection. However, on May 29, 2016 officers attended Hayden to execute a general warrant. They saw Isenor in an elevator that accessed a resident's only section of the parking lot. This elevator required a fob to gain access. This fact supplied potent contemporary confirmation of Isenor's use of the Hayden condominium.

[76] While attending the residents-only section of the parking lot on May 27, 2016 at 10:00 p.m. to execute the general warrant, the detectives did not find Isenor's BMW. After spotting Isenor in the elevator at 10:45 p.m., the detectives returned to the restricted parking area. They still didn't find the BMW, but they spotted a red Hyundai license BXSP 346 that had not been seen on their first canvass of the area. This proved to be Isenor's rented vehicle.

[77] The audio probe of Boston's jeep of May 19, 2016 captured a discussion between Boston and Isenor as they drove to a meeting with another drug dealer. They planned to rob that individual of his cocaine at the rendezvous. In the discussion both men confirmed their access to handguns. Isenor stated that it was always his practice to have a handgun and it was in the trunk of his vehicle at that moment. On that day, Isenor was driving the BMW BXXP 839 both before and after his drive with Boston.

[78] The Applicants suggest in their submission that the poor quality of the May 19, 2016 audio probe makes the content of the discussion unclear. I disagree. In any event, the affiant himself informed the issuing justice about the difficulties with the recording. The content of the recording was confirmed by the conduct of the two men. The preparations for the robbery went well beyond the planning stage. The preparations included Boston's purchase of bear spray at a Canadian Tire store in Ajax and travel with Isenor to the rendezvous where the planned robbery was to take place. The intercept indicated that the robbery was called off because the intended target arrived at the rendezvous with another man. The travel to the scene of the intended robbery and the purchase of the bear spray were observed by police.

[79] The June 6, 2016 ITO contained ample reasonable and probable grounds that Isenor possessed a handgun at the time of the search. In addition to the above referenced evidence, Isenor was present with Bijelic and Flammia during their apparent drug trafficking activity on February 16 and 22, 2016. This activity, as well as the aborted drug dealer robbery of May 19, 2016 suggests that Isenor was a close and trusted associate of Bijelic, Flammia and Boston in their drug distribution and related activities. In the light of his contemporaneous recorded assertion that he always had his handgun with him, it was reasonable for the issuing justice to conclude that Isenor might well be in possession of his handgun at the associated address of the Hayden condominium.

[80] The Hayden condominium was searched on June 9, 2016 pursuant to the warrant authorized on June 6, 2016. Police were looking for Isenor's handgun. Neither Isenor nor the gun were located there. But police did find a firearms cleaning kit, a clip and ammunition. A large variety of contraband drugs in ample supply were also found, as well as 50 kilograms of cutting agent and $26,000.

THE ARREST OF ISENOR AND THE SEARCH OF HIS VEHICLE

[81] Word of the discovery of the drugs and firearm accessories found at Hayden went out to detectives who attended Isenor's parent's residence at 3456 Balsam Road for the purpose of his arrest. His arrest for firearms offences and conspiracy to commit an indictable offence would have been lawfully grounded in the May 19, 2016 intercepts. There was also evidence that wiretaps suggested Isenor's involvement in some impending robbery of another drug dealer. It is clear that the presence of gun paraphernalia in the absence of the gun suggested to the police that Isenor had actual possession of his handgun in his car or on his person. This reasonable inference concerned the police and focused their conduct.

[82] Of course, Isenor could also be arrested for drug offences based on the discoveries at Hayden. Detective Capenor's evidence regarding the grounds for arrest indicated some confusion. It was confusion without consequence. Reasonable and probable grounds existed for Isenor's arrest for all of the offences described in the last paragraph. Capenor certainly had these grounds in mind when he initiated the arrest.

[83] Police attended the Balsam Road address on the morning of June 9, 2016. They saw Isenor drive away from the home in the red Hyundai license BXSP 346 that was first seen in the residents-only section of the Hayden parking lot on May 27, 2016. They determined to stop the vehicle and arrest Isenor as soon as an appropriate opportunity presented itself. Isenor drove to a shopping plaza located at 75 Bayly Road, where his arrest and the subsequent search of his vehicle took place.

[84] The police lost sight of Isenor's vehicle for a short period after it entered the plaza by way of Kitney Drive to the east while they were entering via Bayly to the north. The plaza featured a series of offices and retail shops at its eastern limits running north/south adjacent and parallel to Kitney. At the southern end of those buildings was a six story office building which housed Isenor's doctor. Isenor testified that his doctor's office was his destination. Isenor parked his Hyundai vehicle in a line of cars facing, and parallel to, Bayly.

[85] Detective Capenor called the takedown and performed the arrest. There was considerable evidence called in respect of the distance between Isenor's car and the place of his arrest. This controversy was also reflected in the extensive submissions of counsel. In brief, Capenor, corroborated by Naccarato, initially maintained that the distance in question was 30 feet. Capenor said that the Isenor Hyundai was parked close to the buildings described above and that it was visible from the place of arrest in front of the TD bank. At some length, Capenor seemed to agree that it may have taken him several minutes to locate the Isenor vehicle.

[86] Isenor's evidence was he was arrested 90 metres away from his parked vehicle and that his parked Hyundai was not visible from the arrest scene in front of the six story building at the south end. Detective Corner's testimony corroborated the defendant's evidence in part. He told the court he could not see the place of arrest from Isenor's parked car.

[87] Isenor's evidence had serious credibility issues. I cannot accept his evidence that he did not know that the men challenging him were police because they wore no police markings over top of their plain clothes. This is contrary to the other evidence on this issue. It also defies logic and experience that seasoned officers performing the dynamic arrest of a potentially armed suspect would risk confusion regarding their identity.

[88] Exhibits 3 through 3d were Google aerial photographs of the parking lot taken well after the matters described in evidence. These photographs displayed a 20 metre scale which was helpful in determining the distances involved. Witnesses were invited to mark the locations with their view of where the vehicle was parked and where the arrest occurred. On examination of the aerial photographs submitted in evidence and the consideration of all of the relevant evidence, I gauged the likely distance between Isenor and his vehicle at the time of his arrest to be in the range of 40 – 45 metres.

[89] All of this is of secondary interest. Detective Capenor's evidence reflected an attempt to minimize the distance between the arrest location and the parked vehicle. Isenor sought to exaggerate that distance. Both witnesses seemed to place inordinate importance on the proximity of the parked vehicle to the scene of arrest.

[90] It is common ground that Isenor's arrest occurred after he left the vehicle and before he reached his destination on foot. There is no suggestion that there were any events intervening between his exit from the vehicle and his arrest.

[91] The application of the doctrine of search incident to arrest with respect to motor vehicle searches is not dependent on intimate physical proximity of the suspect and the vehicle. An appreciable distance between the arrest and the vehicle searched is a factor to be considered and explained.

[92] Attend to the language used by the Chief Justice of the Supreme Court in Her Majesty the Queen v. Caslake, [1998] 1 S.C.R. 51 at para. 25:

If the law on which the crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra, (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need to have reasonable and probable grounds. However, they must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However that inference may be rebutted by a proper explanation.

[93] See also Her Majesty the Queen v. Nolet, 2010 SCC 24.

[94] I find that the reason there was some distance and delay between the arrest and the vehicle search because the police briefly lost track of Isenor's vehicle when it entered the shopping plaza via Kitney. It was clearly their intention to affect Isenor's arrest immediately after his vehicle came to a stop. The police demonstrated a single minded determination to search Isenor's vehicle as soon as he was arrested. This was their plan when they began to follow Isenor from Balsam Road and they executed that plan as soon as they located Isenor's parked vehicle after his arrest. It scarce matters that they took several minutes to do so.

[95] The Supreme Court has long recognized the police authority to search a person and their immediate environs incident to their arrest. In Cloutier v. Langlois, [1990] 1 S.C.R. 158, at page 180 the Court held:

. . . it seems beyond question that the common law as recognized and developed in Canada holds that the police have the power to search a lawfully arrested person and to seize anything in his or her possession or surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or to provide evidence against him.

[96] The reasonable police concern regarding a suspected 9 mm handgun in Isenor's vehicle trunk stemmed from the moment that they were aware of his boast about it on the wires. The police became particularly energized that morning when they found 9 mm handgun accessories and ammunition but did not locate the handgun itself during the search of Hayden.

[97] The police were clearly focused on the prospect that Mr. Isenor had a firearm in the vehicle. It is apparent that their central concern from the moment Isenor left the Balsam Road address in the Hyundai was to affect his arrest and locate that firearm. Detective Capenor's first demand on arrest was with respect to the suspected firearm. The search of the vehicle was clearly for the purpose of acquiring evidence of criminal offences for which the suspect had just been legitimately arrested. There was also a legitimate concern both for public and police safety.

[98] The arrest was lawful. Reasonable and probable grounds for Isenor's arrest was certainly available on the basis of CDSA charges, robbery and conspiracy to commit an indictable offence and possession of a restricted firearm in a motor vehicle. The arrest was certainly not a pretext but a reasonable and necessary exercise of police powers.

[99] The arrest itself was conducted in a reasonable manner. Although this issue was not argued in submissions, some comment is appropriate. The arrest itself had a dynamic character. The police had reason to be concerned that Isenor was actually carrying his handgun at the moment of arrest. Detective Capenor may well have used some rough and ready language in getting the suspect's attention and extracting his compliance. Capenor himself suggested that pushing Isenor from a kneeling to a prone position on the pavement may have been unnecessary. There is no suggestion that Isenor was otherwise roughly handled. There is no evidence that Isenor was injured.

[100] I am satisfied that the arrest was lawful. This search has clearly been demonstrated to be incident to arrest. Although reasonable and probable grounds for search are not a necessary factor for the court to consider, they certainly existed in this case. The search was also carried out in a brisk, efficient and reasonable manner. I find that the Crown has satisfied their onus to establish that this search was lawful exercise of police powers.

[101] The applications are dismissed in their entirety.

Released: July 3, 2018

Signed: Justice M.S. Block