Court File and Parties

Ontario Court of Justice

Date: November 29, 2018

Court File No.: Ottawa 17-RF1003

Between:

Her Majesty the Queen Respondent

— AND —

Filippo Acciaioli, Samantha Cross, Leonardo Milito, Nicola Pavlovich and Peter Pavlovich Applicants

Before: Justice Matthew C. Webber

Reasons on Project Step s. 8 Application and s. 24(2) Analysis Released on November 29, 2018

Counsel

Mr. Roderick Sonley & Ms. Delinda Hayton — for the Respondent

Mr. Jose Guede — for the Applicant, Filippo Acciaioli

Mr. Biagio Del Greco — for the Applicant, Samantha Cross

Mr. Bruce Engel — for the Applicant, Leonardo Milito

Ms. Jessica Abou-Eid — for the Applicants, Nicola and Peter Pavlovich

Reasons for Decision

WEBBER, J.:

Background

1In March 2015, the Ottawa Police Service commenced an investigation into suspected high scale drug trafficking in the Ottawa-Gatineau region. The investigation was dubbed Project Step. The investigation initially focused on the activities of two men named Joseph Nehme and Lucas Abraham. The overall investigation involved the authorization and execution of multiple tracking warrants; general warrants and Part VI authorizations to intercept communications. Early in the investigation Peter Pavlovich was identified as a suspected drug trafficker and information was obtained that led investigators to believe that he was using apartment "E", located within 691 Bank Street as a stash house.

2In June 2015, investigators sought a general warrant that would authorize covert entries and searches of unit "E" as well as the right to record observations made during such entries on video. The warrant application also requested authorization to covertly install a video camera in the hallway of 691 Bank Street so as to record persons entering and leaving unit "E". The application specifically indicated that the requested video recordings would not include audio.

3On June 30, 2015 a judge of the Ontario Court of Justice ("OCJ") signed a general warrant authorizing the installation of the hallway camera as well as the covert entries into unit "E".

4As a result of the video surveillance conducted within the second-floor hallway of 691 Bank Street pursuant to the June 30 warrant, investigators thereafter sought to add unit "C", located adjacent to unit "E", to a second general warrant. The second general warrant was obtained on August 13, 2015 and was as well signed by an OCJ Judge. Investigators were authorized to conduct and record covert entries thereby into both units "C" and "E". Further, they were explicitly permitted to videotape people entering and exiting both units "C" and "E".

5Multiple general warrants as well as tracking warrants were signed by the same judge of the OCJ in the course of this investigation. The three general warrants that are the direct subject of defence challenge in this proceeding or on this motion or application are the ones that were signed on June 30, 2015; August 13, 2015; and, October 8, 2015.

Position of the Parties

6The Applicants have submitted that the video surveillance as well as the recorded covert entries conducted at 691 Bank Street, authorized by the above noted general warrants, violated their clients' section 8 rights.

7The central thrust of the Applicants' submission is that the general warrant sections of the Criminal Code require that such authorizations be signed by a judge of the Superior Court of Justice ("SCJ") and that an OCJ Judge does not have the statutory authority to sign such warrants.

8More particularly the defence position breaks down as follows:

i. The general warrants dated June 30, August 13, and October 8, 2015, all of which were signed by a judge of the OCJ, should have been signed by a judge of the SCJ pursuant to sections 487.01(4) and (5) and section 552 of the Criminal Code of Canada. It is submitted that these three sections quite specifically address the issue of what courts have jurisdiction to authorize the installation of video surveillance cameras.

ii. The covert entries into units "E" and "C" permitted under the general warrants, given that the specific authorizations included the right to videotape such entries, could only be authorized by a judge of the SCJ.

iii. The original placement of the hallway camera (authorized originally to record the individuals who enter and exit unit "E") captured too much of the common area (hallway) and thus did not comply with the terms of the warrant. The Applicants submit that the camera should have been placed just above unit "E" as opposed to where it was placed, which also captured footage of those entering unit "C". This unnecessarily intrusive aspect of the search compounded its unreasonableness.

iv. The Applicants seek exclusion of all evidence secured via the execution of the general warrants listed above, pursuant to section 24(2) of the Charter.

9The Respondent's position can be summarized as follows:

I. There was and is no reasonable expectation of privacy in the common areas/hallway of 691 Bank Street. The video recording would therefore not constitute a search and the Ottawa Police were not in fact required to obtain a general warrant prior to establishing video surveillance in the hallway. Further, in the absence of a reasonable expectation of privacy the Applicants should be denied standing to challenge the authorizing general warrants.

II. The general warrant issued on June 13, 2015, by a judge of the OCJ, was validly issued under sections 487.01(1) and (4) of the Criminal Code. A judge of the OCJ does have the authority and jurisdiction to issue a general warrant authorizing sustained video surveillance.

III. Should the Court find that the video surveillance portion of the general warrant (hallway surveillance) falls within the jurisdiction of the SCJ, the video recording of the authorized covert entries does not fall under the definition of video surveillance and therefore section 487.01(4) does not apply to these recordings.

IV. Further, if section 487.01(4) does not apply to the video recordings of the covert entries, then this portion of the general warrant is severable from the hallway surveillance portion and falls squarely within the jurisdiction of the OCJ to authorize.

V. Finally, should the Court find that the seizure of any evidence in this case was a result of an unlawful authorization and therefore a Charter breach, such evidence is nevertheless properly admissible under section 24(2) of the Charter.

Analysis

Reasonable Expectation of Privacy / Standing

10The Respondent's initial position is that generally there can be no reasonable expectation of privacy within a shared hallway of a multi-unit residence such as the second-floor hallway of 691 Bank Street and therefore"…. The non-obtrusive observations recorded in the hallway would not constitute a search within the meaning of section 8 of the Charter". Therefore, a warrant would not be required.

11I do not agree that a reasonable expectation of privacy cannot be found in a case such as the one before this Court. In R v. Cheikhezzen, [2014] O.J. No. 5352, Justice Phillips held:

While I agree that the Charter protects people and not places that the concept of reasonable expectation of privacy is the paradigm through which search issues are analysed, I cannot agree that the law contains an automatic rule that there is no reasonable expectation of privacy in and apartment building hallway.

12A review of case law in this area reveals that courts have at times found there to exist a reasonable expectation of privacy in common areas of multi-unit buildings, and at other times not.

13This case involves the installation of a surreptitious camera in the hallway of a privately owned piece of real estate for the purpose of creating a continuous and permanent record of the movements of individuals within the space. The nature of this surveillance is an important factor when assessing the overall context of this case.

14In R v. Brewster, 2016 ONSC 8038, at para. 42, Justice Code drew a distinction between observations made directly by police officers in common areas of multi-unit buildings (a topic which he discussed at length in R v. Brewster, 2016 ONSC 4133 at paras. 111-114), and "permanent seizure by way of video recording, of images that substantially incriminate a suspect in criminal activity." The latter is of course the type of surveillance in issue on the application before this Court. Regarding continuous video surveillance Code, J. held (at para. 42):

…it is more likely that this much more invasive police investigative technique constitutes a "search or seizure" and that it engages s. 8 Charter protections.

15This conclusion implicitly amounts to a recognition that a reasonable expectation of privacy exists, albeit limited perhaps, in relation to being surreptitiously video-taped by law enforcement in common areas of a multi-unit building. This follows as the absence of such an expectation of privacy would render the videotaping not a search.

16In R v. White, 2015 ONCA 508, the Court of Appeal considered the reasonableness of a claimed expectation of privacy in common areas of a small multi-unit building. The court noted that the reasonableness of such an expectation is determined upon consideration of all of the relevant circumstances in a given case as outlined by the Supreme Court of Canada in R v. Edwards, [1996] 1 S.C.R. 128. While the court was cognizant of the fact that numerous lower court decisions had rejected expectation of privacy claims concerning common areas of multi-unit buildings (para. 44), the court went on to state that:

… The lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit none of them dispositive.

17The court rejected the Crown's categorical submission that residents of multi-unit dwellings do not have a reasonable expectation of privacy in shared common areas and noted that "a more nuanced contextual approach is required" when assessing such privacy claims (para. 43).

18The court in White (supra at paras. 45-48), identified particular considerations that will perhaps be indicative of expectations of privacy in particular common areas. The court noted that the reasonableness of one's expectation of privacy in such areas may be inversely related to the size of the building ie. the larger the building the less reasonable might be one's assertion of an expectation of privacy. The court noted that the presence of a locking/security system, excluding the public from such common areas might enhance the reasonableness of occupants expecting a degree of privacy within the space.

19The common area/hallway on the second floor of 691 Bank Street, where the video surveillance of this case was conducted, can only be accessed from the street by passing through coded security doors. 691 Bank Street is a three-story building. The first floor is occupied by commercial tenants. The second and third floors contain six apartments each. Evidence heard on this Application has established that Canada Post is unable to pass through the secure doors leading to the second and third floors. The evidence further established that there were no pre-existing security cameras on the second or third floor installed by management or owners of the building. Further it is not suggested that the building management or owner were aware in advance that the surveillance camera had been installed let alone that either had consented to its installation. Finally it is important to note that the surveillance engaged in this case was "continuous video recording", a factor that distinguishes it from other scenarios where the subject surveillance involved singular or sporadic observations, made physically by law enforcement, without the use of video cameras.

20This Application is centrally concerned with the installation of surreptitious video surveillance cameras within a private property. Section 487.01 and the general warrant regime created thereunder was Parliament's response to the Supreme Court decisions in R v. Duarte, [1990] 1 S.C.R. 30, and R v. Wong, [1990] 3 S.C.R. 36. The court in Wong was acutely alive to just how intrusive an investigative technique it was and would be into the future for law enforcement to engage in continuous video surveillance of the public. At para. 16 of the court's reasons in Wong, LaForest, J. wrote on behalf of the majority concerning video surveillance:

R v. Sonelli (sub nom. R. v. Duarte) [1990] S.C.R. 30, was predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities will be observed by others, and the risk that agents of the state, in the absence of prior authorization, will permanently record these activities on videotape, a distinction that may in certain circumstances, have constitutional implications. To fail to recognize this is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales in comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. [emphasis added]

21When tasked with assessing whether a reasonable expectation of privacy exists in a given case or not it is necessary to consider and weigh the nature of the intrusion. The above passage from Wong emphasized the intrusiveness of state initiated video surveillance. The intrusiveness of the technique must be appreciated and weighed when assessing whether an applicant could reasonably expect not to be the subject of such an intrusion when in an otherwise private and secure structure or premises.

22Within his concurring reasons in Wong, Justice Lamer C.J.C. wrote at para. 47:

"A person has the right, under section 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity…."

23In R v. Batac, (2018) O.J. No. 383, Justice Dambrot considered whether the applicants in that case had a reasonable expectation of privacy from police initiated video surveillance of their movements in the hallway of their condominium building. That case, as does the one before this Court, concerned a large project level drug investigation. Justice Dambrot reviewed the findings of the Court of Appeal in R v. White, 2015 ONCA 508, and employed much the same analysis to the application before him. In White, the Court of Appeal upheld the trial Judge's conclusion that the respondents had a reasonable expectation of privacy in the circumstances. Notwithstanding some factual points of distinction between the facts in Batac and those before the Court of Appeal in White, Dambrot, J. was"… firmly of the view that the applicants had a reasonable expectation of privacy in the exterior of unit 2301." [Para. 42, emphasis added].

24There are factual points of distinction between the case before this Court and the one before the Court of Appeal in White. However, the points of similarity are at least if not more significant than those found to exist in Batac by Dambrot, J.

1. The building in this case is in fact smaller than the one in White with fewer apartments on each floor and only containing two floors of residential units;

2. The Applicants before this Court did not own unit "E" (or "C") but clearly were only able to access the building and its second floor by use of access codes or alternatively by being buzzed in;

3. Access to the second floor was secured by a locked entrance at the street level. Access can only be gained by use of an access code or by being invited and physically let in by the occupant;

4. The occupants of 691 Bank Street were not in any respect subject to pre-existing videotaping – as distinct from cases where a building's management or owner may have such security measures in place prior to any police investigation. Such that the pre-existence of private surveillance might dilute one's expectation of privacy, no such surveillance existed in this case;

5. Finally, as was also true in Batac"this case does not involve very occasional naked eye observations as did White; it involves ongoing, fully taped observations of the exterior of the condominium unit through the use of a hidden camera that created a permanent recording. (para. 42(5), Batac).

25In the case of R v. Sandhu, 2018 ABQB 112, Antonio, J. analysed the issues of expectation of privacy and standing in a context rather similar to that before this Court. In Sandhu the applicants had sought exclusion of incriminating footage derived from video surveillance cameras installed by police in the hallway of a multi-unit building.

26Justice Antonio noted in Sandhu that the question of whether an applicant has a reasonable expectation of privacy is answered upon a consideration of the totality of the circumstances in a given case (see R v. Edwards, at para. 31). She also indicated however, that the privacy interests engaged in a video surveillance case include an informational privacy dimension as well as a territorial one. I agree. Accordingly, the court noted that in R v. Spencer, 2014 SCC 42, Cromwell, J. outlined four areas of inquiry that may assist in a privacy analysis conducted in the context of an informational privacy claim (para. 18):

1. An examination of the subject matter of the alleged search;

2. A determination as to whether the claimant had a direct interest in the subject matter;

3. An inquiry into whether the complainant had a subjective expectation of privacy in the subject matter; and

4. An assessment of whether the subjective expectation of privacy was objectively reasonable having regard to the totality of the circumstances.

27Ultimately, on the issue of privacy and standing, Antonio, J. found as follows:

"On balance, I conclude that all the accused had a reasonable expectation of privacy in the subject matter of the search. The camera revealed some level of biographical information in circumstances where it was reasonable to expect that information to remain private, and objectively unreasonable for the state to record it. The accused's weak territorial connection attenuates this finding but does not eliminate it. All accused therefore have standing to challenge the search."

28Having reviewed the four step analysis conducted by Antonio, J. in Sandhu, and having applied much the same analysis in the case before this Court, I as well have concluded that each of the Applicants have standing to challenge the video surveillance search. I will expand on my reasons under the four subheadings outlined in Spencer.

What was the subject matter of the search?

29The subject matter of the search conducted further to the first general warrant was for information about activity inside apartment "E", specifically regarding the storage and trafficking of narcotics. While the search itself was physically of the hallway outside the unit, the information sought was obviously about activities inside apartment "E". It is not an overstatement to say that the search was designed to capture data/information regarding who and how often they accessed the unit as well as what they may have carried in and out of the apartment. Clearly, a dimension of the search was to compare and contrast the data secured via the video surveillance search with evidence discovered during covert searches of the unit(s). Further, given the manner of camera installation – which captured a stretch of hallway encapsulating at least two apartment doors, the search was not limited to the doorway of apartment "E".

Did the claimants have a direct interest in the subject matter?

30The court found in Sandhu, as do I here, that the "camera captured all of the claimants, thereby providing direct information about some of their activities and choices". The court noted that as per R v. Jones, 2017 SCC 60 (at para. 60), when assessing a privacy or standing claim, one can assume as true any fact the Crown intends to allege in the course of prosecution. The Crown's theory in the case before this court is that unit "E", which was initially believed by investigators to be a stash house, was in fact the unit from which drug transactions were transpiring. As the investigation proceeded investigators became convinced that unit "C" was in fact the stash house. The Respondent makes clear at para. 13 of their Factum that the hallway data, secured via the video surveillance, did contribute to the prosecution in so far as it provided evidence of the Applicants exercising control over the subject units. The following movements of the Applicants are noted in the Respondent's factum:

a. Peter Pavlovich was recorded entering unit C 62 times, using a key to lock or unlock the door 16 times, and entering or exiting the unit E 101 times, using a key to lock or unlock the door 15 times.

b. Samantha Cross was recorded entering or exiting from unit E 133 times, using a key 13 times.

c. Leonardo Milito was recorded entering or exiting unit C 14 times, using a key 6 of those times.

d. Filippo Acciaioli "attended 691 Bank Street on June 3rd, 2015 taking a large weighted computer bag into the building. When he left on this occasion he had the computer bag and another coloured cloth bag. Mr. Acciaioli later attended unit E, 691 Bank Street on August 17th. When he arrived, he was carrying a full plastic bag; when he left he was carrying a large beige beach bag. He next attended unit E, 691 Bank Street on August 18th, 2015 with a large package. He [left] less than an hour later with a large cardboard box.

e. Nikola Pavlovich attended 691 Bank Street on June 3rd and 9th, 2015, and attended unit E on July 21st and 31st, 2015, August 6th, 17th, 2015 and September 8th and 17th, 2015. He also attended unit C on July 31st, 2015 and August 6th, 2015. On most of these occasions, he carried a bag to and from the unit he entered.

31Clearly the Crown will rely on the body of surveillance data as evidence of the Applicants' knowledge and/or control over the target units. As well, it is reasonable to expect that the Crown will seek to draw connections between the incriminating evidence ultimately discovered in the units and the respective attendances of the Applicants at the apartments.

32The evidence on this Application established that Ms. Cross in fact resided in apartment "E". Therefore, her proprietary interest in the unit is rather clear. The data summarized above makes clear for the purposes of this Application that Peter Pavlovich was exercising control over both units notwithstanding a lack of evidence that he lived in either. The evidence heard, did establish that Mr. Milito is the son of the building's owner and that at the relevant time he was employed both as a chef in his father's restaurant located on the same property and as a manager/caretaker of the residential units located at 691 Bank Street. Each of these Applicants have, for the purpose of this Application, established a territorial connection to 691 Bank Street. While the remaining Applicants, Nikola Pavlovich and particularly Filippo Acciaioli, have a weaker claim to a territorial connection, I accept that they, as do the other three Applicants, have an interest in the subject matter of the search.

Did the claimants have a subjective expectation of privacy in the subject matter?

33The court in Sandhu noted that the threshold for establishing this step has always been low (para. 37).

34The Applicants can rely on the prosecution theory when addressing the privacy analysis. Accordingly, at this stage they can again rely on the fact that the Crown will in all likelihood assert that the recorded behaviours of each paint a picture that they were knowingly engaged in the drug trafficking commerce being transacted through the premises. Presuming for the sake of the analysis the correctness of the Crown's theory, it appears rather obvious that not one of the Applicants would have expected that their movements in and out of units "E" and "C" were being observed and recorded by law enforcement. I conclude that each of the Applicants would have had a subjective expectation of privacy.

Was the subjective expectation of privacy reasonable in the totality of the circumstances?

35In Sandhu, Antonio, J. concluded that the use of continuous video surveillance over a protracted period of time engaged territorial as well as informational interests. Given the nature and comprehensiveness of the information/data secured via the surveillance I would agree with Antonio, J.'s conclusion in this regard. Therefore, considerations such as the degree of public access; whether the information was already in third-party hands; whether the police technique intruded on privacy; and, whether the technique exposed any biographical information about the claimants should be weighed when assessing the reasonableness of the expectation of privacy. R v. Tessling, 2004 SCC 67 at para. 32.

36The considerations outlined in Edwards need to be considered as well. In this case, the Edwards factors that appear relevant are presence at time of the search and possession or control of the place searched which would include the ability to control or restrict access to others.

37While the second floor hallway is not a "private space" the security that was present rendered it inaccessible to the uninvited public. Further, while not literally a private area, to borrow Antonio, J.'s characterization, the space was "more private than public". There was no history of pre-existing security cameras at 691 Bank Street thus anyone with a familiarity with the property would have had no reason to believe that their movements were being comprehensively filmed by a third party, let alone the police.

38The Applicants have submitted that the cameras revealed biographical data such as a detailed record of their patterns of movement and behaviour to third parties (the police) who otherwise would not possess this information. It is obvious that the purpose of the video surveillance was to advance the investigation of what was going on in units "E" and "C" and who would be implicated in this criminal activity. The very inferences that investigators hoped to support with the video record would have been far less supportable if based on only a handful of physical observations.

39The Crown submitted that the cameras capture otherwise innocuous behaviour in a less than private locale. However in the context of the complex and multifaceted investigation undertaken in this case the video surveillance needs to be appreciated for what it was or investigators hoped it would be. The video surveillance generated a continuous record of movements, over a multi-month period of time. That data could then be linked to other aspects of the investigation. The recording could be played and replayed. Perhaps linkages could be made between individuals and incriminating evidence found in one or the other of the apartments.

40Clearly, continuous video surveillance of this nature is an intrusion on privacy as was recognized by the Supreme Court of Canada in R v. Wong. At para. 36 of the decision, the Court described surreptitious video surveillance as a more pernicious threat to privacy than wiretaps. Specifically, the Court said:

"Part IV [now Part VI] of the Code is designed to set strict limits on the ability of the agents of the state to intercept private oral communications. It does not speak to the very different and, I might add, more pernicious threat to privacy constituted by surreptitious video surveillance."

41Members of our society rightfully presume that they are free to go about their daily business without the risk that their every move is being surreptitiously recorded.

Conclusion on Reasonable Expectation of Privacy

42Upon consideration of all of the circumstances of this case and with assistance from the instructive analyses conducted in White, Sandhu and Batac, I have concluded that each of the Applicants in this case had a reasonable expectation of privacy over the subject matter of the search, that is, with regard to the surreptitious video surveillance of the hallway. Accordingly, I have also concluded that each of the Applicants has standing to challenge the search and therefore as well, the general warrant. However, it must be noted that the expectation of privacy enjoyed by the Applicants over the common space, while existent, was attenuated.

Can a judge of the OCJ sign a general warrant which authorizes sustained surreptitious video surveillance?

43There is clearly some disagreement surrounding the correct answer to this question. The Applicants and Respondent in this case are in total disagreement as to the answer. The Applicants have highlighted the case of R v. Edwardsen, 2017 BCSC 1578, as supportive of their position. Interestingly, the Federal Crown in that case, while prosecuting offences under the Controlled Drugs and Substances Act, submitted to the court that only a Superior Court Justice can issue a general video warrant under s. 487.01(4). Thus, there even appears to be some disagreement amongst federal prosecutors as to how one correctly interprets the jurisdictional implications of the general warrant sections of the Criminal Code.

44In Edwardsen (supra), the accused, as do the Applicants on this Application, sought to quash a general warrant which permitted video surveillance on the basis that it was issued by a Provincial Court judge without regard to the part VI wiretap provisions incorporated into the general warrant regime by sections 487.01(4) and (5). However, on the facts of the case investigators had concluded that the warrant was improperly obtained and therefore decided not to rely on any of the evidence obtained via the warrant. Consequently, the jurisdictional issue of concern here received limited treatment within the court's reasons.

45Justice Punnett did say enough in Edwardsen however, to communicate that he was of the view that a general warrant permitting video surveillance must be signed by a Judge of the Superior Court of Justice. At para. 42 of the reasons, the court noted with apparent approval"… The Crown concedes that only a Superior Court Justice can issue a general warrant under section 487.01(4)."

46At para. 43 the Court further held:

A judge who issued the general warrant authorizing video surveillance in circumstances where a person has a reasonable expectation of privacy must be satisfied that the affiant has demonstrated "investigative necessity". The affidavit sworn in support of this warrant did not address "investigative necessity".

47Justice Punnett's reference to "investigative necessity" indicates that he was referencing s. 186(1)(b) of the Criminal Code for what need be satisfied for a judge to sign a general warrant permitting video surveillance. Presuming this to be the correct approach, and I believe it is, then one looks to s. 185(1) where the issue of jurisdiction is addressed. Section 185(1) reads as follows:

An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of the Superior Court of criminal jurisdiction or a judge as defined in section 552 …

48During submissions on this Application, both the Applicants and Respondent have placed emphasis on the Ontario Court of Appeal's decision in R v. Zhu Shi Li, 2013 ONCA 81. The trial judge in that case, Justice Pedler, had found that a general warrant authorizing video surveillance needed to be authorized by a judge of the Superior Court. While Justice Watt's reasons on the subject are obiter, they provide the only appellate level consideration of the jurisdictional issue that I am aware of and accordingly deserve reflection. The following is an extract from those reasons:

[93] Sections 487.01(4) and (5) make specific provision for warrants that authorize video surveillance. Those provisions are in these terms:

(4) Video surveillance – A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.

(5) Other provisions to apply – The definition "offence" in section 183 and sections 183.1, 184.2 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 194 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of active peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.

[94] Section 487.01(4) contains no language that expressly or by necessary implication limits the authority to grant a general warrant authorizing video surveillance to one or the other category of judicial official described in s. 487.01(1). A video surveillance warrant, as the introductory words of s. 487.01(4) make clear, is a species of general warrant"a warrant issued under subsection (1)". It follows that, on its face, s. 487.01(4) would permit either a provincial court judge or a judge of the superior court of criminal jurisdiction to issue a general warrant authorizing video surveillance, for our purposes, a "video surveillance warrant".

[95] Section 487.01(5) incorporates by reference several provisions in Part VI and makes these provisions applicable to video surveillance warrants issued under s. 487.01(4)"with such modifications as the circumstances require". Like s. 487.01(4), nothing in s. 487.01(5) expressly limits the authority to issue a video surveillance warrant to judges of the superior court of criminal jurisdiction. Some, but not all of the incorporated provisions, those related to conventional authorizations, refer only to judges of the superior court of criminal jurisdiction. But others, like the consent authorization provisions in ss. 184.2 and 184.3 permit the alternatives in issuing authorities for which s. 487.01(1) provides.

49The Applicants have submitted that the reasons in R v. Li (supra) should have made it clear to law enforcement that the jurisdiction of an OCJ judge to sign a video surveillance warrant was very much an open question. Accordingly, the Applicants submit that it was incumbent on law enforcement to avoid the possibility of taking their application before the wrong court – and that this would have been avoided if the application had been brought before a judge of the Superior Court of Justice.

50The Respondent submits that the reasons reproduced above in fact provide numerous comments supportive of the right of an OCJ judge to sign a video surveillance general warrant. Therefore, the police cannot be faulted for resorting to the OCJ even if this Court were to find that, jurisdictionally, they should have in fact gone before the SCJ. I agree with the latter submission of the Respondent.

51Having toiled with the enabling sections of the Code that touch on this jurisdictional question I would have to concede that the answer is not an obvious one. The police can hardly be faulted for deciding to take their initial general warrant Application before a justice of the OCJ. Further, multiple subsequent general warrant applications were brought before the same judge and signed each time. This would have, if anything, only reaffirmed in the minds of the police that they were before the right court.

52As noted above, the extract from the decision in R v. Li, is obiter. The jurisdictional issue was not actually an essential part of the argument put before the Court. Therefore Watt, J. wrote, at para. 105:

…[in] the absence of full argument on the issue render[s] it unwise and unnecessary to fully determine the correctness of the trial Judge's conclusion about the authority to issue a general warrants that include video surveillance. It is enough to say that the issue must await another day, another case, and full argument.

53Section 487.01 was Parliament's response to the Supreme Court's decision in Wong (supra) and the difficulties that arose in the case as a result of the Criminal Code not containing a provision capable of authorizing video surveillance of the public by police. However, the general warrant provisions were drafted not only to address the video surveillance issue, but as well to ensure that the "Wong scenario" did not repeat itself in the context of some other investigative technique not elsewhere addressed in the Code or some other Act of Parliament. Accordingly s. 487.01(1) contemplates Judicial authorizations for"….any device or investigative technique or procedure or to do anything…."

54While a video surveillance warrant might be regarded as a species of general warrant as described by Watt, J., it does not follow that all such warrants can be signed by both Provincial Court judges and judges of the Superior Court. Within s. 487.01(5), Parliament quite specifically made particular provisions of the Part VI wiretap sections applicable to video surveillance warrants. This legislative act alone singled out video surveillance warrants and ensured that they will be treated differently than general warrants authorizing the use of other"… devices, investigative techniques or procedures" contemplated by s. 487.01(1).

55Within the specific sections that Parliament chose to incorporate into s. 487.01 and thus into the mechanics of how video surveillance warrants would be managed were sections 183.1, 184.2, 185 and 186.

56Section 183.1 deals specifically with the type of consent that is sufficient for consideration under any provision otherwise contained within Part VI. Inclusion of this section indicates that Parliament viewed the presence or absence of consent as potentially important. Within the Part VI provisions, the issue of consent is centrally important to the definition of authorizations issued under s. 184.2(2) and is as well the central characteristic that distinguishes s. 184.2 authorizations from s. 185/186 authorizations. Another significant distinguishing factor between the two types of intercept authorizations is jurisdiction. If the originator or recipient of the communication consents to the intercept then a Provincial court judge can sign the authorization. If neither party consents to an intercept, then sections 185 and 186 apply and the authorization can only be signed by a SCJ judge or a section 552 judge. It is somewhat more difficult to envision scenarios where parties to video surveillance will consent as compared to participants in a wiretap. There is of course the situation where a landlord or building management might consent.[1]

57By purposely incorporating sections 184.2, 185 and 186 into the general warrant sections, Parliament must have envisioned two types of video surveillance warrants. This interpretation is further supported by the fact that a judge must be satisfied, prior to authorizing a search pursuant to sections 185 and 186, that the proposed technique is necessary to the investigation. The pre-condition of investigative necessity does not apply however to authorizations issued under s. 184.2.

58In R v. Li, Watt, J. notes that while s. 487.01(5) does incorporate multiple wiretap sections and makes them applicable to video surveillance warrants issued under s. 487.01(4), subsection (5) indicates that these sections will apply "…with such modifications as circumstances require." The Court then says that like section 487.01(4), nothing in s. 487.01(5) expressly limits the authority to issue a video warrant to judges of the superior court of criminal jurisdiction. (Para. 95)

59After some consideration, I find that the "modifications as circumstances require" passage contained in s. 487.01(5) cannot be understood in such a way that it might accomplish the whole scale alteration of the scheme that Parliament put in place for video surveillance general warrants. The passage from s. 487.01(5) reads as follows:

The [enumerated Part VI sections] apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though the reference in those provisions to interceptions of private communication were read as references to observations by peace officers by means of television cameras or similar electronic devices ….(emphasis added)

60The very text of this passage leads me to conclude that the type of modifications contemplated by Parliament were slight alterations in the wording of the wiretap sections that would readily transpose those sections into the functional equivalent of the video surveillance sections. The phrase"modifications as the circumstances require", would need be interpreted in such a way as to alter the existing articulations of jurisdiction or perhaps to eliminate the relevance of consent to surveillance, if the OCJ is to have the jurisdiction to sign video surveillance warrants of the type found in this case.

61When attempting to interpret legislation, courts cannot rely on the wording of the statute exclusively. In Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the Supreme Court cited the following extract from Elmer Driedger in Construction of Statutes (2nd ed. 1983, at p. 87) as best encapsulating the ideal approach to statutory interpretation:

Today there is only one principle or approach, namely, the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

62The drafting of s. 487.01 illustrates that Parliament intended video surveillance warrants to be treated much the same as intercepts. I interpret the incorporation of the Part VI provisions into (4) via the language in (5), as an effort to accomplish as much. A plain reading of the sections within s. 487.01 is consistent with this conclusion. Why otherwise are the Part VI provisions incorporated into the provisions?

63The very structure of s. 487.01, wherein video surveillance is treated separately and distinctly from the other investigative techniques referred to, is also consistent with the above conclusion.

64A plain reading of the phrase"… With such modification as circumstances require…", in the context within which it appears, would militate against stretching the reach of such modifications to where they could alter pre-existing articulations of jurisdiction.

65Finally, if the OCJ was to have equal jurisdiction to authorize video surveillance warrants, such would render the incorporated Part VI provisions superfluous.

66For all of the reasons stated above, I conclude that general warrant #1 (June 30th, 2015), which authorized the surreptitious video surveillance outside of apartment "E" at 691 Bank Street, should have been signed by a judge of the Superior Court of Justice. I conclude that a judge of the Ontario Court of Justice did not have the statutory jurisdiction to sign this authorization.

The reasonableness of the video surveillance search

67Reasonableness in this context is assessed by determining whether the search was "authorized by law""whether the authorizing law was reasonable", and finally"whether the manner of the search was reasonable".

See R v. Evans, 104 C.C.C. (3d) 23 (S.C.C.) at para 16-17, 21-25, 47-48; R v. Collins, 33 C.C.C. (3rd) 1 (S.C.C.) (p. 14).

68Given my finding that the June 30 general warrant permitting video surveillance could not be signed by a judge of the Ontario Court of Justice, the search was not authorized by law. The video footage captured as a result of the installation of the surreptitious camera was therefore obtained in breach of s. 8 of the Charter.

69The Applicants did not challenge this general warrant based on any identified inadequacy in the grounds contained within the ITO. Their challenge was centrally focused on the jurisdictional ground discussed above. However, my review of the ITO, in light of the findings I have made, raised one issue that ultimately has little if any impact on the ultimate analysis yet does require mention.

70If the application for the general warrant had been brought before a Superior Court judge, as I find it should have been, that Judge would have to have been satisfied that the preconditions in s. 186(1) had been met before the warrant could issue. Accordingly, the ITO would need satisfy the judge that the use of surreptitious video surveillance was an investigative necessity. The issue of "investigative necessity" was not addressed within the ITO. This deficiency is unsurprising given the police were operating on a belief that they could properly secure the warrant without referring to the preconditions contained in s. 186. This deficiency in the ITO however, ultimately has no compounding effect on the unreasonableness of the search or on the eventual assessment of the seriousness of the breach.

71The investigators brought their second general warrant Application on August 13, 2015. On this occasion they sought to add apartment "C" to the surveillance authorization. They also sought authorization to conduct covert entries into unit "C". Even though investigators were bringing this second application under s. 467.01(4) [as they did the first one] the issue of investigative necessity was addressed generally within this ITO. The language used to express necessity was understandably not designed to address the specific requirement contained in s. 186 but the content of the paragraph was nevertheless quite capable of satisfying the precondition. The relevant portion of the ITO is located at para. 7.14 and reads as follows:

Due to Pavlovich being very conscious of police conduct surveillance, the limited number of people who have access to the apartments within the building, the close ties that Pavlovich has with the Milito family who own the apartment building and the limited ability of the police being able to conduct physical surveillance within the common areas of the apartment building, I believe that using a video device in the common hallway for apartments C and E at 691 Bank Street will provide information that would be unattainable without compromising the investigation.

72I am satisfied having read the various ITO's, that investigators could well have included the equivalent of para. 7.14 in their first general warrant Application, had they known that the issue had to be addressed. They were in possession of all of the necessary information to draft 7.14 at the time they drafted the ITO for the first warrant. The absence of specific treatment of investigative necessity in the June 30 Application does not compound the nature of the breach. The police had sufficient information to satisfy the conditions precedent contained through sections 185 and 186 if they had known that it was required to do so.

The Applicants' submission regarding camera placement

73The Applicants have submitted that the specific "placement" of the hallway camera renders the search more unreasonable. As a result of the specific location where the camera was placed, it captured footage of people not only entering and exiting unit "E" but also unit "C".

74A general warrant authorizing the installation of video surveillance does require that the issuing justice turn his or her mind to conditions that will ensure that the privacy of the person, or others, is respected as much as possible. The statute does not contain a list of particular conditions, it only requires that the judge include such conditions as he or she deems advisable to accomplish this end.

75With respect to the video of persons entering and exiting unit "E", conditions designed to contain the invasion privacy were included in the warrant. These conditions were as follows:

• The device will not record observations across the threshold of the doorway into unit "E";
• The camera must be installed to minimize observations of those persons not involved in the enumerated offenses;
• The recordings on the device will only be viewed by peace officers;
• No audio will be captured by the recording device.

76The evidence on this Application establishes that from the vantage point where the camera was installed, it did capture images of those entering both units "E" and "C". The two units are located adjacent to one another. The camera was aimed down the length of the hall past unit "C" to unit "E". One consequence of looking down the hall as it did is that the camera, which filmed across the doorway and not through it, in no respect breached the threshold of the entrance.

77No application was brought in this matter to cross-examine the affiant. Further, there is no evidence that even suggests that the camera was placed where it was to purposefully breach or circumvent the terms of the authorization. The truth of the matter is, the recording of the door to apartment "C" only became an issue because, to the surprise of the investigators, it turned out that the targets of the investigation were using that apartment as well as apartment "E".

78I agree with the Respondent's submission that the requirement contained within the warrant that the installation 'minimize' the recording of those not involved in the investigation, represented an implicit recognition that some such people would, in all likelihood, be captured by the recording. In fact, when one reflects on the nature of the surveillance, it is virtually impossible to envision innocent third parties not getting caught up in it.

79In assessing the significance of the fact that the doorway to unit "C" was recorded, one must remember that the recording takes place at a location where those recorded had a diminished or attenuated expectation of privacy. The diminished expectation of privacy must have a concomitant effect on an assessment of how significant or not it was that the camera captured a wider swatch of the hallway than was perhaps contemplated by the warrant.

80As a result of these considerations I conclude that the placement of the camera adds little if anything to a consideration of the unreasonableness of the search.

Jurisdiction to sign the covert entry portion of the general warrant / severability of covert entry portion of warrant from the remainder

81The Applicants have submitted that the covert entry authorization into apartment "E" also required the signature of a judge of the Superior Court. The argument was premised on the fact that the covert entry authorization also permitted that such entries be video-taped.

82I reject his submission for two reasons.

83Section 487.01(4) specifically addresses circumstances where a television camera or other similar device is used to"… observe any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy…." [emphasis added].

84The covert entries, by definition, were to occur when no one was in the apartment. The permitted use of a video camera during the search was for the purpose of creating a reliable record of that which the officers were otherwise observing with their own eyes. The video recording in the circumstances is more appropriately thought of as digital note-taking. It is most definitely not digital surveillance and would not be subject to the Part VI provisions incorporated into 487.01(4) by ss. (5).

85Secondly, the Court of Appeal in R v. Ha, 2009 ONCA 340, specifically dealt with covert searches such as those authorized in this case. The court found that such searches were easily encompassed by the words"investigative technique""practices", and "do anything described in the warrant", contained in s. 487.01(1). (Para. 33)

86The Respondent submits that if the portion of the general warrant that authorizes the covert searches is not subject to (4) and (5) of s. 487.01, and if the grounds asserted for such searches were sufficient to grant authorization for them, then this portion of the general warrant can rightfully be severed from the video surveillance portion and upheld in its own right.

87I agree that this portion of the warrant can be severed from the video-surveillance portion and upheld.

88Justice Martin held in the case of R v. Paterson, [1985] O.J. No. 28, at para. 26:

"The doctrine of severability has been applied to search warrants where the bad part can clearly be separated from the good."

89In Paterson the court found there to have been a clear line of demarcation between the good parts of the warrant and those parts that were impugned. The two aspects of the warrant were not interwoven.

90The same doctrine was referenced in the case Edwardsen (supra), in the context of video authorizations. There the court held at para. 46:

…In respect to the issue concerning validity arising from the erroneous, separable video authorization, I noted that an invalid portion of the warrant does not mean that the entire authorization should be quashed." R v. Whitaker, 2008 BCCA 174 .

91In the case before this court the only thing wrong with the video surveillance warrant was that the application was brought before the wrong court. Otherwise the sufficiency of the grounds were all but conceded. The only other ground of challenge was the camera placement which has been dealt with above. The placement issue has no bearing on the initial covert entry warrant into apartment "E".

92It is proper on these facts to sever the portion of the June 30 general warrant which authorized covert entry into unit "E" and to uphold this portion of the warrant as having been both lawful and reasonable.

93The authorization to covertly enter this unit was renewed within the August 13, 2015 general warrant as well as in the October 8, 2015 general warrant. There has been no challenge to the sufficiency of the grounds to authorize these entries and the OCJ Justice had the necessary jurisdiction to authorize such entries.

94Nothing occurred over the course of the investigation or within the subsequent warrant applications themselves that in any way diminished the grounds to covertly enter unit "E". Therefore, the repeated authorizations to enter unit "E" remain valid. The evidence observed or secured during these entries is therefore admissible.

95On August 14, 2015 officers entered unit "E" and discovered the following, all of which is admissible in the trial of these charges:

a. Items belonging to Samantha Cross;

b. One bedroom of the two bedrooms contained two sofas that appeared to be strictly used for drug transactions;

c. Within this bedroom was:

i. A money counter;

ii. Shrink wrap;

iii. Packaging material;

iv. A bag contained approximately $40,000 – $50,000 bundled Canadian currency;

v. Four individually packaged ½ lb bags of marihuana inside a Tupperware container;

vi. A kilo press form inside a toolbox.

Section 24(2) Analysis – Video Surveillance – June 30 General Warrant

96The hallway surveillance search was not authorized by law and amounted to a section 8 Charter breach. The court must therefore consider whether, in the circumstances of this case, the admission of the video surveillance evidence would bring the administration of justice into disrepute. This requires the court to assess and balance the effect of admitting the evidence secured in breach of the Charter against society's confidence in the administration of justice. In so doing, the court must address the three lines of inquiry outlined in R v. Grant, 2009 SCC 32 ; [2009] 2 S.C.R. 353 at para. 68-70.

1. The seriousness of the Charter infringing State conduct

97The s. 8 breach in this case resulted from the fact that the Ottawa Police applied for and secured the general warrant permitting video surveillance from a judge of the OCJ instead of a judge of the SCJ. The application that was made on June 30, 2015 was reviewed by an experienced OCJ judge and granted. Each of the specific requirements of s. 487.01 were specifically addressed by the affiant in the application. The investigators continued to believe that the OC J had jurisdiction to sign the general warrant. As much is apparent by the fact that applications to renew, and somewhat expand upon, the warrant were brought back before the same judge in August and October 2015. Notably, these subsequent applications were granted without issue.

98In R v. Li (supra at para. 99), Watt, J. described the parameters within which State conduct is assessed under Grant as existing along a continuum. The continuum he said:

"…encompasses the inadvertent and minor at one end, and the reckless, flagrant and deliberate at the other."

99There is nothing about the police conduct in this case that could conceivably attract the characterization of it amounting to a wilful, flagrant or reckless disregard for the Charter. An unintentional and reasonable misstep is more likely an appropriate characterization.

100Much of this application has focused on the proper interpretation of s. 487.01. When considering the issue of whether a provincial judge has jurisdiction to authorize video surveillance, I was quite aware of the fact that the Court of Appeal's reasons in R v. Li (supra), while perhaps obiter, communicated an inclination to find different than I have on this issue. The point being, investigators in this case faced an uncertain legal terrain. Their obvious belief that they were entitled to make the application to an OCJ judge was a reasonable one. The reasonableness of their belief would understandably have been fortified by the fact that the application was granted. The content of the ITO put before the judge was in no respect challenged as being less than candid or complete. There is nothing about the police conduct surrounding the general warrant that would tend to bring the administration of justice into disrepute. The conclusion reached by the Supreme Court in its section 24(2) analysis in R v. Spencer, 2014 SCC 43 , [2014] 2 SCR 212 (at para. 77), fits the facts of this case equally as well as it did that case. The Court held:

In short, the police were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose. There is no challenge to any other aspect of the information to obtain the search warrant. The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.

101A consideration of this first Grant factor militates strongly in favour of the admission of the evidence.

102Prior to moving on to the second consideration in Grant, I will make a further observation regarding my conclusion on the conduct of the police. This analysis will ultimately go on to consider the admissibility of evidence derived from the second and third general warrants signed by the OCJ judge in August and October 2015. A Grant analysis will need be addressed with respect to evidence obtained from those warrants.

103Central to a consideration of the seriousness of state conduct is to appreciate what was going on in the minds of the officers when the impugned act or conduct occurred. In this case the state of mind of the affiant and investigators regarding the general warrant application was one of complete good faith. Throughout the second and third general warrant applications this characterization remains appropriate. There is nothing in the evidence that would provoke me to alter this characterization of the police conduct when addressing the Grant analysis in relation to the second and third warrants. Accordingly, this portion of analysis will apply, intact, to the subsequent Grant analyses and thus will continue to strongly militate in favour of admission of the evidence.

2. The impact of the Charter infringing conduct on the applicants' Charter protected interests

104It must be recalled here that the relevant Charter protected interests are the attenuated right of privacy interests of the Applicants while in the hallway of 691 Bank Street. Ms. Cross and arguably Peter Pavlovich, had a strong privacy interest regarding their movements inside unit "E". If the cameras had breached the threshold of that unit and recorded movements within it, contrary to the terms of the warrant, the consequent s. 8 breach would have had a significant impact on their privacy interests. However, the breach here – a breach created by a jurisdictional misstep and no more – was a violation of their attenuated or diminished expectations of privacy within the hallway.

105The impact of a Charter breach must be assessed in light of the Charter interest that was affected. As was the Charter interest diminished or attenuated regarding hallway movements, so must the impact of breaching such rights be assessed as diminished or attenuated. In light of the Applicants' reduced expectation of privacy over their movements in the hallway of 691 Bank Street I conclude that the second Grant consideration, on the facts of this case, is either neutral on the issue of admissibility or that it tends to support admission.

3. Society's interest in an adjudication on the merits

106The evidence is both reliable and important to the Crown's case. The breach that occurred here in no respect undermines the reliability of the video footage. Society's interest in having a case tried on its merits at the times comes into conflict with its interest in having a justice system that is beyond reproach. This however is not such a case. The third Grant factor clearly favours admission of the evidence.

Conclusion on Section 24(2) Analysis – June 30 Warrant

107Balancing the three factors discussed above, exclusion of the evidence on the facts of this case would bring the administration of justice into disrepute. The video footage derived from the June general warrant is admissible at trial.

August 13th and October 8th General Warrants

108Police sought and secured general warrants for 691 Bank Street on August 13 and October 8, 2015.

109The central difference between these warrants and the June 30 warrant was that police now realized that unit "C" was as well, being frequented by targets of the investigation. This realization was a direct result of the hallway video surveillance permitted under the June warrant.

110The August 13 general warrant and thereafter the October 8 warrant permitted investigators to record the individuals entering and exiting unit "C" (as well as unit "E" which remained in place from the first warrant) and to conduct covert entries and searches of unit "C" and "E".

111There is no dispute that the inclusion of unit "C" was only made possible because of the video surveillance. That video surveillance has now been determined to have been secured by an unlawful search – in violation of s. 8 of the Charter. Subject to the Respondent's submission that this Court could distinguish the cases of R v. Wiley, [1993] S.C.J. No.96; R v. Grant, [1993] S.C.J. No.98; and, R v. Plant, [1993] S.C.J. No.97, the hallway surveillance evidence that implicated unit "C" must be excised from the informations to obtain the subsequent general warrants.

112The Supreme Court held at para. 20 of R v. Wiley (supra) that:

"This court has determined that police may not rely upon facts within an information which was obtained in a manner contrary to the Charter."

113This was a complex investigation and included multiple judicial authorizations beyond simply the three general warrants being discussed. On our last attendance in court on this matter, I required counsel to provide detailed submissions on how they believed the Court's ruling on the first general warrant affected subsequent authorizations and specifically which authorizations they felt were so affected. Ultimately the Applicants submitted that once the unit "C" observations were excised from the informations to obtain the August 13 and October 8 general warrants, that there would remain insufficient grounds to authorize covert entries into that unit. I agree with that submission. The entirety of the information the police had implicating unit "C" was derived from the hallway surveillance. Once paras. 6.141-6.150; 6.157-6.163; 6.173, 6.175, 6.178, 6.182, 6.184, 6.186, 6.200, 6.202, 6.10-6.221, 6.230 and 6.247 are excised from the ITO's there remains no information that even identifies unit "C" as a target address.

114Therefore, the portions of the warrants that authorized covert entries into and searches of unit "C" are quashed and the searches consequently amount to breaches of section 8 of the Charter. The admissibility of that evidence is therefore subject to a s. 24(2) analysis.

115The Applicants agree however, that the excision would not affect any of the remaining warrants that were granted by the OCJ judge after the June 30 general warrant. This concession refers specifically to tracking warrants dated July 23, 2015; August 7, 2015; August 13, 2015, September 18, 2015 (x3); October 5, 2015; and, October 8, 2015 (x2).

116The Applicants have not specifically sought the exclusion of the hallway surveillance recording from the August 13 / October 8 general warrants. Admissibility of that evidence would as well be dependent on s. 24(2) analyses. However my findings on 24(2) in relation to the first package of video surveillance footage would of necessity replicate itself in relation to the subsequent warrants. The factors relevant to each of the three Grant considerations, in the context of the hallway surveillance, would remain constant. Thus the video footage evidence is ruled admissible at large.

117The legal and factual terrain did shift somewhat with respect to apartment "C" however.

118The Respondent did submit on the last day of submissions that the issue of standing deserved specific attention regarding unit "C". I have already granted all Applicants standing to challenge the general warrants on the basis of their present albeit, attenuated expectations of privacy from state initiated video surveillance in the hallway. Of the five, it does appear however, that there is virtually no evidence connecting Ms. Cross or Mr. Acciaioli to unit "C". While I might have been inclined to find that these two Applicants did not have standing to challenge the unit "C" searches specifically, in light of my conclusions on the s. 24(2) analysis the issue is somewhat moot.

119The police conducted covert entries into unit "C" on August 14, August 18, August 25, and September 9, 2015. The following is a summary of that which was observed in the apartment on those occasions.

August 14, 2015

a. No furniture inside the apartment;

b. Digital scale with cocaine residue in the kitchen;

c. Cocaine kilo wrapper on the microwave;

d. Buffing agents and packaging material;

e. 6 individual packaged quantities of marihuana in the kitchen drawer;

f. 2 individual packages of cocaine in a separate kitchen drawer;

g. 2 grocery bags containing a total of approximately $100,000 Canadian currency inside the microwave;

h. Approximately 30 – 40 empty cocaine kilo wrappers with the marking "F/R" on them;

i. A box with bundled Canadian currency totally approximately $210,000 and a black Puma bag totaling approximately $140,000 inside the closet;

j. A hydraulic press which is used to re-press cocaine;

k. Two 5 gallon pails of buffing agents and packaging material;

l. Numerous mason jars containing several different sample types of marihuana;

m. A bag that contained several individual bags of cocaine totaling 229 grams;

n. 2 money counters.

August 18, 2015

a. The bags with approximately $100,000 in Canadian currency which were seen on the previous entry were no longer present;

b. The box containing approximately $210,000 was no longer present;

c. The black leather Puma bag was still there and contained approximately $140,000 in Canadian currency;

d. A re-usable grocery bag labeled "Fruiterie 440" located in the living room closet containing 8 individual kilograms of cocaine that were labeled "F/R".

August 25, 2015

a. The black Puma bag that was seen containing approximately $140,000 CAD on August 18th, 2015, was located inside unit "C", now containing two new separate kilograms of cocaine. They were again labeled "F/R" and "#36";

b. Within the Fruiterie 440 grocery bag were five kilograms of cocaine;

c. Buffing agents were located inside a pail with a scale;

d. Different packages of cocaine were located in the kitchen;

e. No currency was located inside the apartment.

September 9, 2015

a. The Fruiterie 440 re-usable grocery bag was still in the bedroom and contained four kilograms of cocaine that were marked with the same numbers from the previous entry;

b. A black backpack with approximately $150,000 bundled Canadian currency;

c. Buffing agent;

d. A parking ticket for the GMC Acadia owned by Peter Pavlovich issued in the area of 6400 Rue De Lotbiniere in Montreal.

Section 24(2) analysis with respect to evidence discovered in unit "C"

Seriousness of State conduct

120There is no reason to assess the state conduct in relation to securing the second and third general warrants as being any different than was found in respect to the first warrant. The conduct of the police exemplified the utmost in good faith. Their belief that they could secure the warrants before and OCJ judge was a reasonable one. The reasonableness of their application was affirmed by the judge granting the warrant. The bona fides of their good faith and the reasonableness of their belief was confirmed by successful second and third applications before the same judge for the same warrant. Consideration of this first Grant factor would still militate strongly in favour of the admission of the evidence.

Impact on Charter protected rights

121The Applicants did not lead evidence specifically addressing expectations of privacy regarding unit "C". As per R v. Jones (supra), the Applicants can rely on the Crown's theory to establish an adequate expectation of privacy to challenge the search. However, under such circumstances the Applicants cannot claim an expectation of privacy beyond that which would naturally flow from the Crown's theory.

122The Crown and police theory regarding unit "C" is that it was used exclusively as a stash house. When police did enter the unit their observations supported this theory. Upon entry, they discovered the apartment to be full of evidence consistent with ongoing drug trafficking but as well, to be devoid of any furniture. The apartment was not being lived in. Thus, when assessing the expectation of privacy that might be attached to this unit, it is proper to treat unit "C" as a storage facility or stash-house as opposed to a residential address. The direct consequence of this characterization is to find a lessened expectation of privacy in connection with that location. The impact on the Charter protected right must be commensurately diminished.

123In light of this finding at best, a consideration of the second factor in Grant would tend softly in favour of exclusion. I am more inclined to hold, as I did in relation to the hallway surveillance, that the impact is sufficiently attenuated that ultimately, it is neutral on the issue of admission or exclusion.

Society's interest in an adjudication on the merits

124The evidence located within unit "C" is obviously essential to an adjudication of the case on its merits. The evidence is clearly both relevant and reliable. The evidence is obviously an important part of the prosecution's case. The evidence as well, is indicative of the seriousness of the offense being prosecuted. All of these observations favour admission of the evidence. Finally, the nature of the breach in no way undermines the reliability of this evidence. (Para. 81 – 84 of Grant)

125This third consideration strongly favours admission of the evidence.

126Again, a balancing of the factors leads me to conclude that all evidence observed or secured as a result of the covert entries into unit "C" is ruled to be admissible at trial. If anything, its exclusion would on the facts of this case bring the administration of justice into disrepute.

127I do need to briefly comment on a submission made by the Respondent. The Respondent submitted that the Grant, Wiley and Plant doctrine, that police cannot rely on unconstitutionally obtained evidence when seeking a warrant, was arguably inapplicable to this case. The premise of the submission was that the trilogy arose from fact scenarios where the underlying Charter breaches were serious in nature. The Respondent submitted that because the breach in this case was shrouded in good faith and could be described as an honest and reasonable mistake on the part of the police, that it was not necessary to excise all information or evidence derived from such a breach from subsequent warrant applications.

128This submission was considered at some length by Justice Code in R v. Jaser, [2004] O.J. No. 6424, at paras 24-33. As I conveyed during oral submissions, the argument has some allure and deserves consideration. However, as did Code, J. conclude in Jaser (at para. 33), that argument will need be brought before a higher court. There is ample authority for this court to treat the traditional understanding of the doctrine as binding.

Final Ruling

Released: November 29, 2018

Signed: Justice Matthew C. Webber

1I am aware of the decisions that have held that consent of this sort, on the right facts, can obviate the need for a warrant. While there may well be a strong argument that sustained video surveillance, even if this consent exists, should be authorized under s. 184.2 to be lawful, this is not the place to have that discussion given that there is no form of consent present on the evidence before me.