Court File and Parties
Date: 2022.03.22 Court File No.: St. Catharines SR20-1847 Ontario Court of Justice
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MARLON AUSTIN, MICHAEL BENNETT, TAYLOR BRENNAN, DYLAN GRIGGS, LUCAS JAMED
Before: Justice Fergus ODonnell
Reasons on standing released on: 22 March, 2022
Counsel: Mr. Darren Anger, for the Crown Mr. Jassi Vamadevan, for the defendant, Marlon Austin Mr. Deepak Paradkar, for the defendant, Michael Bennett Mr. Andrew Burton, for the defendant, Taylor Brennan Mr. Androu Gerges, for the defendant, Dylan Griggs Mr. Harval Bassi, for the defendant, Lucas Jamed1
Fergus ODonnell J.:
Overview
Marlon Austin, Michael Bennett, Taylor Brennan, Dylan Griggs and Lucas Jamed were charged with a series of drug and proceeds offences arising out of two search warrants executed by the Niagara Regional Police in December, 2019. I conducted a non-resolution judicial pre-trial to come up with the trial time estimate. During the date-setting process with the trial coordinator, the parties agreed that I should conduct the trial despite having been the pre-trial judge. The trial coordinator set staggered dates for the trial, reflective of the issues identified and allowing for gaps between the various stages.
From the very outset, the Crown made it clear that the defendants’ standing to challenge various “seizures” under the Charter of Rights was not conceded. Accordingly, the first hearing was set to deal solely with the issue of standing, with a subsequent date set to address the issue of whether or not leave should be granted to cross-examine the affiant, a subsequent date set for any cross-examination that might be authorized, subsequent dates to argue most of the substantive Charter challenges and, finally, dates for trial on the merits depending on the outcome of the Charter challenges.
These reasons deal with only the first issue, namely, has each defendant met the test for standing to challenge the relevant judicial authorizations? I have already ruled on that issue, with these reasons to follow. I found that standing had not been made out for anyone except Ms. Brennan (for whom the Crown conceded standing) and I later ruled that Ms. Brennan had not made out a basis for cross-examination on the areas she sought leave on. After I dismissed Ms. Brennan’s application to cross-examine the affiant on the search warrant for one of the houses, the Crown has stayed the charges against her under s. 579 of the Criminal Code.
I heard argument in stages, with gaps in between: a. In August, 2021 I heard argument on the issue of standing and I subsequently notified the parties that I was not persuaded that any of the defendants other than Ms. Brennan had made out standing in relation to the search warrants for the two houses. As noted above, I accepted that Ms. Brennan had standing in relation to one of the houses searched, not because that had been made out in argument, but because the Crown had conceded she had standing and I did not consider it appropriate to go behind that concession. b. Insofar as there were tracking and data transmission warrants for some mobile phones allegedly used by particular defendants, their standing in relation to those tracking warrants was not controversial. In the lacunae between appearances, the Crown apparently notified defence counsel that it would not be relying on the tracking data at trial in any event. c. Since Ms. Brennan was the only person who ended up with standing (in relation to the warrant for one of the two houses), only she argued the application to cross-examine the affiant. After hearing argument on that issue, I subsequently notified the parties that Ms. Brennan had not made out a basis for leave to cross-examine. d. Ms. Brennan’s argument to challenge the sufficiency of the search warrant for that one house was scheduled to be heard on 14 February, 2022. The Crown served its responding materials on Ms. Brennan’s counsel and provided it to the court at 9 p.m. on Sunday, 13 February, 2022, i.e. thirteen hours before the hearing. The Crown’s response was accompanied by something that looked to me as if it were a Crown draft of a judicial summary of a tear-away appendix to the information-to-obtain. Unsurprisingly, both in light of the timing and in light of Ms. Brennan’s jeopardy if she is found guilty of any of these offences, her counsel was not comfortable arguing the search warrant challenge on such short notice and in light of the Crown summary of the contents of the excised appendix to the information to obtain. It never became clear precisely what this summary was, but that became a moot issue when the Crown stayed the charges in relation to Ms. Brennan.
The Factual Background in Brief
The investigation that led to the defendants’ arrests began in the fall of 2019 and ended with the execution of search warrants at two houses on 10 December, 2019. Although the “active” investigation began in the late fall of 2019, it was based in part on more dated information from confidential informants. In the course of the investigation, on 15 November, 2019 the Niagara Regional Police obtained tracking warrants and transmission data warrants for mobile phones believed to be associated to Mr. Bennett (believed to be the “Black Kevin” named by the confidential informants), Mr. Austin and Mr. Griggs. The two houses were at 35 Wilkerson Street in Thorold (“Wilkerson”) and 9095 White Oak Avenue, Niagara Falls (“White Oak”). The search warrants at those houses resulted in the seizure of 1,125 grams of fentanyl, 683 grams of cocaine, 579 grams of crystal methamphetamine and $3,520 Canadian at Wilkerson and 578 grams of fentanyl, 492 grams of crystal methamphetamine and $21,425 Canadian at White Oak.
There are seven counts in the information. Counts 1-4 charge Mr. Austin and Mr. Bennett with possession of fentanyl, crystal methamphetamine and cocaine, all for the purpose of trafficking, and possession of proceeds of crime under five thousand dollars, all relating to Wilkerson. Counts 5-7 charge Mr. Bennett, Ms. Brennan, Mr. Griggs and Mr. Jamed with possession of fentanyl and crystal methamphetamine, both for the purpose of trafficking, and possession of proceeds of crime over five thousand dollars, all relating to White Oak.
The Materials Filed
In advance of the first stage of argument (standing), the defendants collectively filed an application record, which included:
a. Their notice of application. b. Their factum. c. Copies of the informations-to-obtain various warrants and tracking orders. d. Copies of the warrants and tracking orders. e. Copies of warrant rejections.
The defendants’ factum addresses: a. The validity of the tracking warrants. b. The validity of the search warrants including the sufficiency of the grounds to believe both that the offences alleged had been committed and that evidence was likely to be found in the places to be searched. c. Subversion of the prior approval process on the basis of false and misleading material put before the issuing justices. d. Exclusion of evidence under s. 24(2) of the Charter of Rights. e. Cross-examination of the affiant on the informations-to-obtain.
The defendants’ factum does not even mention the issue of standing, which was the sole issue that was to be addressed on the first stage of the trial schedule. The defendants did make oral submissions on the standing issue.
The defendants’ record did not include in their filed materials copies of any materials seized during the searches that might have been relied upon to demonstrate the strength of the various defendants’ connection to the properties that were searched. No reference was made to any such materials before oral argument (given that standing was not even addressed in the defence factum). There was reference to some such materials during argument, further details of which are set out below.
The Crown filed a factum in response to the defendants’ materials, which was a mirror image of the defence materials: it addressed the issue of standing but nothing else. However, while the Crown’s standing factum set out the law relating to standing it did not relate the facts of this case to the governing law. There was no Crown respondent’s record and the first that the court saw of documents or photographs relied upon by the Crown was during the oral argument. The materials provided to the court then included a binder and electronic copies of hundreds of photographs taken during the execution of the two search warrants, although the percentage of the photographs filed on the standing application that were relevant to standing was small indeed.
The Crown did not file any materials in response to the application to cross-examine the informant or on issues such as the validity of the warrants at the time of the first hearing date, although such materials should have been filed at least fifteen days before that date. As noted above, the Crown filed materials on the cross-examination issue the night before the hearing on that issue. At the pre-trial, none of the parties had asked for filing dates to be staggered.
As noted above, the Crown provided its response to Ms. Brennan’s section 8 and s. 24(2) materials thirteen hours before the scheduled hearing, along with a Crown summary of the excised appendix to the information-to-obtain. That application never was heard because the Crown stayed the charges against Ms. Brennan.
There is a separate application record filed on behalf of Mr. Austin for a Charter issue that related only to Mr. Austin and that it was agreed would best be dealt with on a blended basis during any trial on the merits.
The Facts in More Detail As Set out in the Defence Record
The defendants argued, fairly so, that they are entitled to rely on the Crown’s allegations in support of their argument for standing as made clear by the Supreme Court of Canada in R. v. Jones, 2017 SCC 60. Accordingly, among the materials filed by them were the informations-to-obtain in support of the various investigative orders obtained by the police. I shall set out some of those details below, focused more insofar as those details relate to the premises to be searched than to the adequacy of the grounds for belief because this ruling only relates to standing and not to the sufficiency of the informations-to-obtain. a. In the overview of the investigation in the information-to-obtain, the affiant asserts that Wilkerson and White Oak are, “associated to this investigation and the involved parties”. b. “Black Kevin”, allegedly Mr. Bennett,2 has been seen, “frequenting and staying” at both houses. He uses rental cars, including a 2019 Hyundai Tucson. Mr. Griggs has been seen “staying” at White Oak. He is the driver and registered owner of a 2013 BMW sedan. Information and observations about “Black Kevin” selling drugs began in late 2018 and from January, 2019 the police obtained information about him and Mr. Griggs and Mr. Austin selling drugs in Niagara. c. Police have observed “several observed drug deals” involving “Black Kevin” and Mr. Griggs, “which (sic) continual use of the above stated addresses and vehicles”.3 d. Tracking surveillance for the mobile phones attributed to “Black Kevin”, Marlon Austin and Dylan Griggs was authorized starting on 15 November, 2019 and tracking data only became available starting on 19 November, 2019, which was only three weeks before the takedown. Data on that day as set out in the information-to-obtain before me showed only that “Black Kevin’s” and Mr. Griggs’s phones were in the general area of the Wilkerson Street and White Oak Avenue respectively.4 e. On 19 November, 2019 a person believed to be Mr. Austin and “Black Kevin” were seen exiting a gym in Niagara Falls. The person believed to be Mr. Austin got in the driver’s seat of a Ford F150. Thirty-three minutes later that truck was seen parked at 35 Wilkerson. f. On 20 November, “Black Kevin’s” phone was located at 9095 White Oak and Mr. Griggs’s phone was located in Wasaga Beach. On the same day, at 11:49 a.m. surveillance of White Oak showed a black Hyundai Tucson that “Black Kevin” was driving the day before in the driveway. About an hour and a half later “Black Kevin” was seen leaving the house and driving off in the Tucson. Later that afternoon the F150 Mr. Austin was driving on the 19th was in the driveway of 35 Wilkerson Street, as was “Black Kevin’s” Tucson. “Black Kevin’s” cellular data showed him in the area for an hour and a quarter starting around the same time. g. On 23 November, 2019 surveillance saw “Black Kevin” attend 9095 White Oak for twelve minutes at 9:56 p.m. Mr. Griggs’s car was in the driveway and mobile phone data showed Mr. Griggs’s phone was at the address. The affiant asserts that Mr. Griggs’s home is in Wasaga Beach and that he attends there regularly. The affiant also expresses his investigative theory that, “9095 White Oak Avenue address is used as a stash for drugs, cash and drug paraphernalia.” h. On 25 November, 2019 at 11:20 a.m. tracking data showed “Black Kevin’s” mobile phone at 35 Wilkerson. i. On 2 December, 2019 surveillance officers saw Mr. Griggs leave 9095 White Oak in his BMW. j. On the same day there were phone communications between Mr. Griggs’s phone and “Black Kevin’s” phone between 3:05 p.m. and 3:10 p.m., during which “Black Kevin’s” phone was at 35 Wilkerson. k. On 3 December, 2019 a surveillance officer saw “Black Kevin” use keys to enter 35 Wilkerson. l. On 5 December, 2019 “Tracking data indicating that Griggs was at 9095 White Oak….” and surveillance officers saw Mr. Griggs leave the house at 3:33 p.m. and attend a meeting with another car in a remote area. m. Mr. Austin’s mobile phone was turned off for most of the time since the tracking warrants, “were received and he has not been observed in the Niagara Region since that time”.5 n. The affiant asserts that Mr. Griggs’s home address is in Wasaga Beach and that the tracking order shows that he, “attends Wasaga Beach regularly and stays there for days at a time. This leads me to believe that Griggs still resides in Wasaga Beach but attends the Niagara Region to traffic drugs, while staying (sic) 9095 White Oak Avenue,” staying in the region for days at a time, spending the “majority of his time at 9095 White Oak Avenue or conducting suspected drug deals.” The affiant also asserts that he believes “Black Kevin” keeps his drugs, etc. in White Oak or Wilkerson or in the vehicles described.
In addition to the evidence relevant to standing arising from the information-to-obtain, I also had further details in support of standing put to me by counsel during oral argument as set out below.
The Submissions of Counsel
In addition to reciting various parts of the informations to obtain, counsel for Mr. Bennett advises that Mr. Bennett was found sleeping at White Oak, where a lot of fentanyl was found. He argues that the Crown’s assertion that the defendants had possession of the drugs means that the Crown cannot dispute the defendants’ standing to challenge any search. This amounts to an assertion that being charged with a possession offence automatically conveys standing, which is clearly not the law.
Counsel for Mr. Austin asserts that the police found a U-Haul document relating to him, as well as a Canada Revenue Agency demand letter and a letter from Capital One, all in the master bedroom along with other documents in other names and money transfers to Guyana and Nigeria. He points out that the information to obtain says the tracking data puts Mr. Austin at Wilkerson on 19 November and 3 December. Mr. Austin attended outside Wilkerson while the police were searching that house and was found to have a key for the front door of Wilkerson.
Counsel for Mr. Griggs points out that a Bell bill and passport for Mr. Griggs were found at White Oaks and it was an agreed fact that on the execution of the search warrant he was seen walking out of the back bedroom.
The Crown
The Crown adduced copies of the leases for each of the properties. Wilkerson had been leased to Omary Ventura as of April, 2019. Based on the driver’s licence filed by the Crown, Omary Ventura appears to be a real person, not a false identity. White Oak had been leased to Paige Brennan, the sister of the erstwhile co-defendant Taylor Brennan, with an occupancy date starting on 26 September, 2019.
The Crown asserted that the Crown and police theory was that 9095 White Oak was a residence used by non-Niagara residents as a base for drug trafficking but that they were not primarily resident there.6 They were nothing other than privileged guests of Taylor Brennan (against whom charges have now been stayed), whose sister Paige Brennan had rented the house for reasons unknown. In the Crown’s view, neither Mr. Bennett nor Mr. Griggs has shown a relationship to White Oak that is sufficient to find standing. (Mr. Jamed did not pursue standing after having failed to attend on day one of the Charter application). Of the people at White Oak other than Ms. Brennan, the closest anyone comes to standing is Mr. Griggs, who has a phone bill addressed to that address. (I note that on the record adduced, it is not clear what that bill is for, i.e. if it is for service to that address, to another address, for a mobile account, whatever). However, the Crown also says he receives mail at Wilkerson.
For Wilkerson, the Crown says it is almost solely a stash house to hold drugs and receive mail. Mr. Austin’s argument for standing is limited because he has a key on the day of arrest and the presence of mail in his name supports the idea that he has been there before.
The Crown presented a volume of hundreds of photographs taken on the execution of the search warrants. A limited number of those photographs is potentially relevant to the standing issue, including the following in relation to White Oak (I note that the record as placed before me in support of the application for standing does not set out much context, e.g. precisely where items were found or who was in which bedroom in the photographs on arrest. I must decide this application on the record before me, the contents of which are determined by the defendants and the Crown. For any given photograph, I may not necessarily know if the item was photographed where found or in another part of the house to which it had been taken for processing. Details like that can matter, are presumably knowable by the parties based on the disclosure in their possession, but have not been put before me.):7 a. Mr. Jamed’s health card. b. A set of keys in an exterior door lock (the record does not say where these keys come from or if they are the keys referred to in argument. I note that this set of keys has many keys on it). c. A November, 2019 Bell Canada bill in Mr. Griggs’s name with the White Oak address. The portion in the record shows only the receipt part of the bill, not what type or location of services it is for. As noted above, the record does not display where in the house this was found. The amount on the bill does not match the amount for Bell services for White Oak on a handwritten expenses summary in a Cambridge note portfolio in a different picture, one that is so fuzzy that the enclosed documents other than the expenses summary are not legible and the provenance/ownership of which have not been made out on the record or in submissions.8 d. A health card and driver’s licence for Mr. Bennett, with the driver’s licence showing an address in Mississauga. This driver’s licence was issued only a month before the search warrant. The record does not show where it was found. e. A wallet containing various cards including Mr. Griggs’s health card and his driver’s licence with an address in Wasaga Beach. f. Mr. Griggs’s passport. Again, precisely where these were found is not before me on the record.
White Oak is sparsely furnished, the bedrooms especially so.
For Wilkerson I have the following photographs (I would say that the photographer for Wilkerson appears to have been more attentive than the photographer at White Oak): a. A receipt in Mr. Griggs’s name, with a Collingwood address, no date obvious, for what appears to be a low-value automotive brake repair job. b. A Hydro One bill in the name of Omary Ventura, addressed to 35 Wilkerson. c. A bill from Speed Automotive (undated) for work on a 2009 Mercedes C-300 in the name of “Dray (Habeeb)”. This is a name I have not heard or seen otherwise in the argument of this case. d. A bill in the name of Jordan Williams dated either 7 December, 2019 or 12 July, 2019 for work on heating/air conditioning at 35 Wilkerson. e. A torn-up U-Haul receipt in the name of Marlon Austin of Gosford Boulevard in North York for a moving van to St. Catharines on 14 July, 2019. f. Money Mart transfers with the name of Marlon Austin from locations in North York and Niagara Falls, transferring money to Nigeria and Guyana in July, 2019. g. A chequebook in the name of Omary Ventura, addressed to an address in Cambridge. h. A TD Bank record of a $250 bank draft to Shahid Tanveer and Rakshinda Shahid on 22 April, 2019 (These are the landlords on the lease for Wilkerson). The next photograph shows a receipt for a $250 key deposit having been paid. i. A Canada Revenue Agency letter dated 4 October, 2019 and addressed to Marlon Austin on Hullmar Drive, North York. j. Lucky Mobile account documents in the name of Paul, address of 2492 Finch Avenue West, North York, dated 31 October, 2019. k. A dental prescription for Adanikie Thomas at the same address on Hullmar Drive, dated 29 October, 2019. No explanation was placed on the record as to who this person is. l. A bill dated 25 July, 2019 from Chelsea Home Furniture for the sale of furniture to Jordan Williams of 35 Wilkerson. m. A piece of Capital One correspondence addressed to Marlon Austin at the Hullmar Drive address in North York. n. An Enbridge bill to Omary Ventura of 35 Wilkerson Street. o. A 407-ETR letter to Blossom Thomas of 35 Wilkerson Street. p. A Hydro One bill to Omary Ventura of 35 Wilkerson, due by 20 August, 2019. q. A part sales order in the name of Dylan Griggs of Wasaga Beach from Clare’s Cycle and Sports from July, 2019. r. A Hydro One letter to Omary Ventura of 35 Wilkerson Street, dated 18 May, 2019.
Wilkerson also appears to be sparsely furnished.
The Structural and Legal Background
Proceedings Generally
- It is sometimes useful before assessing an issue to step back and approach it from the basics. Every legal process will have its own structure. One or other of the parties will bear the burden, in the criminal process, typically the Crown or the defendant.9 Who bears the burden matters, sometimes dramatically so. The person bearing the burden will have to satisfy a particular standard. That standard matters, sometimes dramatically so. For an investigator to obtain certain orders or warrants she may have to make out reasonable suspicion. For other warrants or orders she may have to demonstrate reasonable grounds for belief. For some steps in the course of a trial a party may have to make out its position on a balance of probabilities. For other steps, such as the voluntariness of a statement or the final issue of guilt, the Crown will have to prove its point beyond a reasonable doubt. The first two standards outlined above matter, but neither of them is tremendously demanding. Proof on a balance of probabilities is a materially higher standard, i.e. has the party made out its proposition as being more likely than not likely? It bears noting that this is the standard of proof that a party to civil litigation would have to prove in order to prevail. Parties ignore the burden and the standard at their peril. A party must make its point based on the available and admissible evidence relevant to that point, which obviously must be put before the court deciding the issue, ideally reflected in the facta and the application records filed in advance of the hearing.
The Application For Standing
It is obvious that when the issue of standing is disputed, an applicant for Charter relief bears the onus of proving he or she has standing and must do so on the balance of probabilities. In this case, therefore, there was a significant burden on each defendant to prove that he or she had standing to challenge the relevant search, seizure or invasion of privacy. This is what they have failed to do. Given that the issue of standing is not even mentioned in the defendants’ joint factum and given that the Crown had made it clear from the outset that standing was disputed, it almost seemed that the defendants took standing for granted. This, one should never do.
Whether or not a defendant has standing to challenge a state intrusion of privacy will be very much fact-, context- and evidence-dependent. There are various ways in which the state might intrude upon a person’s privacy including personal privacy, locational privacy and informational privacy. The analysis of a defendant’s standing may vary from one context to the other, and there may be certain “evidentiary” shortcuts available to the person claiming standing to assert a section 8 Charter breach. For example, the defendant may rely on the Crown’s theory of its case in aid of his or her argument for standing. In many cases there will be no need for direct evidence from a defendant to demonstrate the existence of a subjective expectation of privacy. And so on. However, none of those short-cuts changes the fact that the onus is on the person claiming Charter protection to make out his or her standing, and to do so to the fairly-high standard of the balance of probabilities.
It bears remembering that while the expansion or contraction of Charter rights is not necessarily a zero-sum calculation, it often will be. Determinations such as the scope of standing, the reasonableness of a search, the remedy for an 11(b) delay or the application of s. 24(2) of the Charter, to name only a few, do not arise in a vacuum. There is obviously tremendous social value in the courts sending a message that compliance with Charter values matters, but the courts should never lose sight of the fact that an overly expansive interpretation of privacy rights will often benefit a defendant at the expense of his or her alleged victim or victims in the case of certain crimes, including opioid trafficking. In short, the determinations the courts make are not some mere abstract, intellectual determinations; rather they affect the rights of real people and not only the real people who appear as defendants but the real people who are victims of crime every single day. Recognizing a broader and broader “reasonable expectation of privacy” over time, is not a cost-free undertaking.
There is a significant body of law in this country that sets out the process for determining if a particular defendant enjoys a reasonable expectation of privacy or standing in particular circumstances. One of the most fundamental decisions is the decision of the Supreme Court of Canada in R. v. Edwards. In that case the unfortunate Mr. Edwards was lucky enough to be a privileged guest, with a key, in his girlfriend’s apartment where a controlled substance was found, but not privileged enough that he had standing to challenge the search. In that case, still highly relevant today, Cory J. set out the following propositions:
As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.
A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (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.
The Edwards court made it clear that this list is not exhaustive and that other factors may be relevant to the existence of a reasonable expectation of privacy.
In assessing the present defendants’ claims to a reasonable expectation of privacy, one can note, mimicking some of the considerations looked at in Edwards:
i. Mr. Bennett and Mr. Griggs were present at the search (of the particular residence they were found in). Mr. Austin was not; he arrived during the search of Wilkerson.
ii. Possession or control of the property: “Black Kevin” (Mr. Bennett) was seen to enter Wilkerson using a key on one occasion during surveillance. Mr. Austin had a key for Wilkerson on the day of the arrest. Mr. Austin had a key to Wilkerson when he arrived during the search (there is a separate Charter application in relation to Mr. Austin’s arrest and search, to be blended with the trial proper). There is no evidence in the record before me of whether or not Mr. Bennett or Mr. Griggs had keys to either house on the day of the arrest. The possession of a key is only one factor and not necessarily determinative; the unfortunate Mr. Edwards had a key but that was insufficient to confer standing. People may have keys for a variety of places for which they do not have a reasonable expectation of privacy, for example cleaning personnel or a person doing a favour for a friend. As for control of the property, the record before me is effectively silent. Given where the onus lies, I cannot presume a defendant to have had control in the absence of evidence. The precise relationship of each defendant to the property is not made out. I have no basis upon which to quantify a defendant’s connection or control of the property other than a slim number of examples of their mere presence there.
iii. Ownership of the property or place. There is no evidence that Wilkerson or White Oak is owned by any of the defendants. To the contrary, the leases show them to belong to other parties entirely. None of the defendants is listed as a lessee of the properties. There is no evidence of the nature, extent or duration of a defendant’s relationship with the lessees, if any.
iv. Historical use: this is an example of a case in which it may be risky for a defendant to rely on the Crown’s disclosure alone at the standing stage. This was a brief investigation with only intermittent surveillance reflected in the record placed before the court, principally the information to obtain. The number of occasions on which any individual defendant can be placed at either residence is extremely small and the duration of their attendance is likewise scantly made out on the record. The actual tracking data were not part of the record before me, but such data has in the past been relied upon to demonstrate arrival and departure times in relation to a particular place, thus establishing that a given defendant (or at least his phone) spent X out of Y nights at a residence over a given period. I have no such record before me.
v. The ability to regulate access: the applicants have placed nothing in the record before me to support a conclusion that they had any ability to regulate access.
vi. The existence of a subjective expectation of privacy: again the record is silent. In the absence of some evidentiary basis (for example an utterance) I cannot presume that a subjective expectation of privacy existed because that would be circular. The onus is on the defendants to create the record whereby the cumulative effect of all considerations leads to a finding that a reasonable expectation of privacy existed.
vii. The reasonableness of that expectation of privacy: the reasonableness of an expectation of privacy depends on the totality of the circumstances, which depends on the record placed before the court and other criteria deemed to be relevant (including the Crown’s theory). Assuming any of the defendants had a subjective expectation of privacy, the reasonableness of that expectation would depend on the various factors set out in Edwards, very few of which have been established to any level on the record before me.
It must never be forgotten on a standing application that, unless standing is conceded, the burden is on the defendant and the burden is on the balance of probabilities.
In addition to the very limited surveillance and tracking material and the proper scope of reliance on the Crown’s theory in accordance with Jones, I have considered the various items seized from the residences that have a specific link to each defendant. What can be said of those items, including correspondence, identification, etc. is that they establish some link between the specific defendant named in the documents and the specific house they were found in. The force of that link, whether standing alone or in conjunction with the other relevant evidence on standing is, however, not particularly strong, especially when one keeps the standard of proof in mind.
The general lack of context in relation to those documents further weakens the standing argument. With some exceptions, it is not entirely clear where they were found. One exception is some documents photographed in a kitchen drawer; another is a purse and driver’s licence in a laundry basket. The presence of documents will be one relevant detail, but their number, their location, their currency, etc. also count into the equation. It is entirely plausible that a person could, for example, have a key to a house and have some personal documentation there, but actually have only a minimal connection to that place, perhaps only as a brief and transitory visitor whose reasonable expectation of privacy would be diluted relative to a full-time resident. Even the Bell bill in Mr. Griggs’s name addressed to Wilkerson has only limited force: “a single swallow does not a summer make”. The overall volume of documents in people’s names is rather sparse. Obviously, my task is not to look at each item in isolation but to look at the cumulative effect of all the bits and pieces. However, when surveillance, tracking, documents, keys, Crown theory, etc., etc. add up to only a very few bits and pieces the cumulative effect may be stronger than any piece standing alone, but it remains weak. And proof on a balance of probabilities is not a standard that tolerates weakness. It is a rather robust standard.
In argument, counsel took issue with the Crown’s reliance on certain comments about standing from the Ontario Court of Appeal’s decision in R. v. Le, 2018 ONCA 56, pointing out that the Crown had referred to the Court of Appeal Le judgment rather than the Supreme Court judgment, R. v. Le, 2019 SCC 34, in particular that the Supreme Court majority in Le spoke of the need for a normative rather than categorical approach to standing.
There is a number of reasons why I am unmoved by this argument. The first is this. It is clear from paragraph 5 of the Supreme Court majority’s judgment that the majority is dealing with Le as a section 9 issue, not a section 8 issue. Where detention is the issue rather than search of premises, standing is highly unlikely ever to be a live issue, for obvious reasons. After all, when it comes to one’s liberty of movement, how could the person involved not have standing? (leaving aside the separate issues of whether any detention was arbitrary, etc.)
Second, even if the obiter comments of the Supreme Court majority at paragraphs 135-137 purported to impose upon trial courts a sea-change in the law of standing for section 8, they are the comments of a three-judge majority on a five-judge panel. The Supreme Court does not change the law in such a fashion. Indeed, if a decision of that court were envisaged as likely effecting a major change to the law of standing, it is highly unlikely that the case would be assigned to a panel of only five, given the Supreme Court’s long history of judgments on standing.
Third, to the extent that the Supreme Court majority in Le comments about the importance of normative analysis of Charter issues, I do not understand that to be a ground-breaking proposition. Neither do I take the Le majority to be dismissing the relevance of categories in courts’ analysis of standing arguments. It would seem to me that judicial interpretation of standing would suffer if it were to hew entirely towards the normative approach (which may provide less guidance and unstructured subjectivity) or if it were to hew entirely towards the categorical approach, because pigeon-holing alone runs the risk of losing sight of what the Charter seeks to achieve. Rather, it is the duet of these two interpretative tools that best serves the objective. As I have said, I do not consider this to be ground-breaking. Indeed, while Edwards sets out various criteria for assessing a reasonable expectation of privacy, the very language of reasonable expectation of privacy is itself normative.
It creates a false dichotomy to place the categorical analysis and the normative analysis in opposition to one another. The two approaches are, to the contrary, allied in their pursuit of a common goal, i.e. a concept of privacy that is consistent with Charter values in a world that is in some ways changing, in other ways less so. The digital universe has changed by orders of magnitude within living memory and will continue to do so and it is an example of where a broad analysis is particularly crucial because that environment does not fit well within the pigeonholes of the past. The territorial realm of privacy, however, while not immune from normative analysis, does not necessarily change under it. There is no reason why the outcome should change for territorial privacy under the normative analysis because the open-ended considerations applied in the categorical system in fact reflected normative values.
One of the principal concerns of the normative analysis is that achieving the common goal of protected privacy can be impeded if one proceeds uncritically on an inflexible and pigeon-holed type of analysis. That does not mean that what has gone before is wrong, just that it may have to be re-examined and may in some contexts lead to a different outcome: one does not throw out the baby with the bath water. It bears remembering that decades ago when the principled approach to the admission of hearsay replaced the categories-based exceptions to the hearsay rule, many of the traditional exceptions survived transition into the new order. That is because, to a large extent, “categorical” and “normative” are often more branding changes than sea changes; many, perhaps most, analyses will lead to the same conclusion under both doctrines.
Going back through the history of standing jurisprudence, arguably, the grandparent of all in relation to locational privacy is the Supreme Court’s decision in [R. v. Edwards, 1996). The Edwards court cited, at paragraph 30, comments of Dickson J. (as he then was) in Hunter v. Southam about how one should approach the question of the existence of a reasonable expectation of privacy. The words quoted, some thirty-five years before Le in the Supreme Court, strike me as a normative analysis (I say this not out of any disrespect for the Le majority, only to reinforce that counsel’s suggestion that Le is something new is not in my opinion a sound conclusion).
I note also that in R. v. Labelle, 2019 O.J. No 3461, the Court of Appeal for Ontario continues to recognize the Edwards analysis as a valid approach (see paragraph 31 of that decision).
In sum, then, the obiter comments of the Supreme Court majority in Le strike me, again with no disrespect to their authors, as being neither here nor there in relation to the task before me, because they are already part of the established approach.
I have pointed out earlier that the defendants rely on the Crown’s allegations as set out in the disclosure documents in support of their application for standing. Of course, where standing is disputed, any such documents must be placed before the court (or agreed upon as facts) in order for them to be relied upon. In this case the defendants have filed, as I have noted, the informations to obtain sworn by the police.
While the defendants’ entitlement to rely on the Crown’s investigative theory or disclosure is unquestioned, the fact is that the force of that material will vary from case to case (I have commented on this earlier in relation to the very limited surveillance done in this case). Some cases will run for months and months and the informations to obtain filed by the defendants in support of standing will be a rich source of evidence in support of the defence assertion that they have proved standing on a balance of probabilities. In some cases, the defendants will be able to file material beyond what is in the informations to obtain, such as notes of police surveillance or wiretap interceptions not reflected in the most recent information to obtain (i.e. in a period between the last judicial authorization and the arrests), or additional details that were not germane to getting the judicial authorizations but were nonetheless observed by the police. It is also open to a defendant, cognizant that proof of any issue on a balance of probabilities is a significant burden and one not to be taken for granted, to file additional material (e.g. if they are on the lease to a property or are the registered owner of it, or perhaps affidavit material from the defendant or a third party on issues relevant to standing, even if such affidavits may be uncommon).
In some cases, however, and this is one, the prior police observations as set out in informations-to-obtain, disclosure and the like, may not be as powerful a resource for the defendants on standing because the investigation has been relatively short and police observations of each defendant in relation to a particular location or locations may be quite limited. In any given case, some defendants may not even have been on the police radar in the period leading up to the take-down day. While this may (or may not depending on the totality of the evidence after arrest), reflect a weaker case for the Crown when it comes time to prove the Crown’s case at trial, the defence must measure precisely what information it can distill from the Crown’s disclosure in support of its argument for standing. It may well be that the available evidence is too slim to support the burden, in which case each defendant would have to make a strategic decision about whether or not to file additional material (if available) or to run the risk of an unfavourable finding on standing.
It is also important in analyzing standing and defence reliance on the “Crown’s theory” not to overstate the impact of the Crown’s theory on the standing issue. Put bluntly, if the Crown’s theory is that a defendant is using a certain place as a stash house for guns or weapons or for people being trafficked or whatever, that is not the equivalent to standing, although it may be one of the building blocks of standing. In R. v. Labelle, [2019] ONCA 557, the Court of Appeal for Ontario made the following observations that are relevant here:
[31] This approach does not create automatic standing in territorial privacy cases. The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space: see Edwards, at para. 45; see also R v. Reeves, 2018 SCC 56, at para. 28. Here, the appellant could rely on the Crown’s position that the apartment searched was his residence in advancing his s. 8 claim. This was relevant both to establishing a subjective expectation of privacy and the objective reasonableness of that expectation. While possession or control of the place searched and/or ownership of the place searched are significant factors in the Edwards analysis (particularly in respect of the search of a residence), they are not by themselves determinative of whether an accused has a reasonable expectation of privacy in a particular place.
A defendant may in a given case have standing in relationship to a place used to store materials or conduct operations, but the precise nature of a person’s use of and relationship to a location (or a type of technology) matters in determining whether or not that person can be said, on a normative analysis, to have a reasonable expectation of privacy, which is the foundation for standing. Likewise, the implicit or explicit assertion in informations to obtain or disclosure that a person is using a place as a stash house is not the same as the Crown asserting or being taken to concede that that person lives in that house (either short- or long-term, or full- or part-time) or owns that house, has control of that place, has a reasonable expectation of privacy in that place, etc. As with all things evidentiary, nothing should be taken for granted.
I have considered the selection of standing cases put forward or commented on by the parties.10 The reality, of course, is that standing cases, like many others will end up being heavily factually dependent: do the established facts establish on a balance of probabilities, a relationship sufficiently strong between a given defendant and a given residence such that it can support a reasonable expectation of privacy for that defendant and that residence?
Conclusion
I have looked, at length and in detail, at all of the bits and pieces of evidence in the record before me in relation to each of the defendants who have sought standing to challenge the search warrants. The strength of the argument of each defendant obviously varies somewhat from the strength of the argument for others (some, clearly, have no connection whatsoever to one of the houses and only one defendant, Mr. Bennett or “Black Kevin”, is charged in relation to the seizures at both houses). In no case, however, does any of these defendants present a case that comes close to establishing a reasonable expectation of privacy on a balance of probabilities.
It is for these reasons that I dismissed the defendants’ application for standing.
Released: 22 March, 2022
Footnotes
Footnotes
- Mr. Jamed failed to attend court on the first day of trial, which was set aside for argument on the issue of whether or not each of the defendants had standing to challenge various investigative orders obtained by the police during the investigation. A warrant was issued for his arrest and he rejoined the proceedings thereafter. He was not present when the issue of standing was argued, but declined the opportunity to argue that issue after he reappeared and agreed that the trial should continue in relation to himself and his co-defendants despite his absence and the provisions of s. 650 of the Criminal Code.
- Throughout these reasons I stick to the appellation “Black Kevin” simply because that is the name used throughout the information-to-obtain. It does not appear that the police learned who “Black Kevin” really or allegedly was until the takedown day.
- In fairness to the affiant, this particular quote is from an overview, not the detailed body of the information-to-obtain. However, this language is so vague as to be meaningless and of no value, whether it is being weighed in relation to proving standing or in relation to the sufficiency of the grounds for issuance of the warrant. The same observations apply to the descriptions in the previous paragraph. In truth, when the actual details of the observations are set out, they appear to be much more modest in number and scope than the descriptors used by the affiant.
- This is an example of a detail that has investigative value to the police but that is not, given the lack of precision, helpful on the issue of standing.
- Quotations are from the information to obtain used to obtain the search warrants for Wilkerson and White Oak.
- The test for standing would not require the defendants to prove a place was their primary residence, although ability to prove that would presumably confer standing. The question before me is whether the defendants have proved, on a balance of probabilities, a sufficient connection to a particular search location such that they could reasonably have an expectation of privacy in that place.
- Some of the photographs are also out of focus. Unless one of the parties has clarified the contents of such photos, I treat them as irrelevant.
- These are presumably knowable details from the disclosure that would be made available in a case like this. If they are not discernible from the disclosure, presumably if one or other of the defendants asserts that this portfolio (or any other item that is not obviously the property of a particular person) is theirs and is relevant to their argument on standing, it is open to that defendant to create a record supporting that fact. That has not been done. This is only one example. I stress that, while it may be open to me to speculate that a given item is associated to the same room as an item of more obvious ownership (e.g. a driver’s licence), in a ‘nearby’ photograph, that point was not argued and, if it had been argued, it would have amounted to speculation on the record before me. Speculation has no place in a reasoned application of a legal standard. I also note that in the series of photographs various incriminating or other items are reasonably proximate to the identity documents of more than one defendant, thus particularly clearly demonstrating the hazards of drawing conclusions about what is associated to what without a proper record. Finally, it would presume an attention to detail and methodical approach on the part of the photographer, which may or may not be the case; for example, I note that a significant number of the photographs fall shy of attention to detail in other aspects, such as focus.
- In some criminal processes, third parties may be involved.
- The defence relies on R. v. Madbouli, 2017 ONSC 2890. The portion of that judgment dealing with standing and including the relevant facts amounts to seven lines, net of citations. I do not mean that as a criticism of the author since brevity on a particular issue is often a great skill. However, nothing in Madbouli persuades me that the defendants in this case have met the burden established in the governing authorities to make out standing on a balance of probabilities.