Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 2020-01-13 DOCKET: C65127

Before: Simmons, Watt and Miller JJ.A.

BETWEEN: Her Majesty the Queen, Respondent AND: Greg Roy, Appellant

Counsel: Frank Addario and James Foy, for the appellant J. Sandy Tse, for the respondent

Heard: October 23, 2019

On appeal from the conviction entered on December 11, 2017 by Justice Laurie Lacelle of the Superior Court of Justice, with reasons for ruling on pretrial application reported at 2017 ONSC 6020; 397 C.R.R. (2d) 139.

Reasons for Decision

[1] Police suspected drugs were being produced at a rural residential property. They set up static surveillance from two locations: a neighbouring farmer’s field and a ditch across the road from the front of the property. On two occasions, the police heard gunshots. On one occasion, police saw the appellant holding a rifle, and on the other they observed a woman who they believed to be the appellant’s spouse firing a rifle from behind the residence.

[2] The police obtained a warrant to search the house for weapons. Finding marijuana plants and psilocybin mushrooms, they suspended their search to obtain an additional warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”), to search for drugs.

[3] Ultimately, the police seized 52 firearms, 28 kg of psilocybin mushrooms, and over 800 marijuana plants. The appellant was charged with various firearms and narcotics offences. He brought a pretrial application to exclude the evidence, arguing: (1) the surveillance was a violation of his right to be secure against unreasonable search or seizure under s. 8 of the Charter; (2) the first search warrant was invalid due to misrepresentations, the searches of the property were consequently illegal and the second warrant could not have issued; and (3) the evidence obtained as result of the searches should be excluded under s. 24(2) of the Charter. The trial judge dismissed the application and the appellant was convicted on the basis of an agreed statement of facts. He was sentenced to five years imprisonment.

[4] The appellant largely renewed the arguments advanced below, and argued that the trial judge erred in the s. 8 analysis and in not excluding the evidence. An appeal against sentence was abandoned.

[5] For the reasons that follow, the appeal is dismissed.

Issues

[6] On appeal, the appellant raises the following issues:

1. The appellant’s s. 8 rights against unreasonable search were violated by the police surveillance;
2. The initial search warrant was not validly issued;
3. The police surveillance was an abuse of process; and
4. The evidence obtained ought to have been excluded under s. 24(2) of the Charter.

Analysis

A. Section 8 and the police surveillance

[7] Section 8 of the Charter states that every person has “the right to be secure against unreasonable search or seizure.” Police activity does not constitute a search, for the purposes of the s. 8 guarantee, unless that activity interferes with a reasonable expectation of privacy. Neither will it offend s. 8 if the search “is authorized by a reasonable law and carried out in a reasonable manner”: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18.

[8] R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, catalogues various lines of inquiry that can guide the s. 8 determination. These need to be tailored to the circumstances of the particular case. The application judge followed R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, in identifying four salient inquiries: (1) an examination of the subject matter of the alleged search; (2) a determination of whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the subjective expectation was objectively reasonable: Spencer, at para. 18.

[9] The application judge concluded that the subject matter of the search was “what could be seen and heard on the [appellant’s] property from his neighbour’s.” Contrary to the appellant’s submission, the application judge did not make the error of characterizing the subject matter of the search as the appellant’s property itself. The reasons are clear, when read as a whole, that the purpose of the surveillance was to observe the appellant outside his house to establish whether he was engaged in the production of controlled substances. The application judge readily concluded that the appellant had a privacy interest in what happened on his lands, and that he had a subjective expectation of privacy. The only matter in dispute was whether his expectation of privacy was reasonable.

Objective reasonableness of expectation of privacy

[10] The application judge concluded that the appellant had no reasonable expectation of privacy in the circumstances. The appellant argues that the application judge erred in her application of the relevant factors. As explained below, we disagree.

[11] In assessing whether the expectation of privacy was reasonable, the appellant submits that the following factors from Tessling are applicable: a) the place where the alleged search occurred; b) whether the subject matter was in public view; c) whether the police technique was intrusive in relation to the privacy interest; and d) whether the surveillance technique exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature. We consider each of these in turn.

a) The place where the “search” occurred

[12] The appellant argues that the application judge erred by focussing on the fact that the police were located on lands that were not under his control: the neighbour’s field and the ditch across the road. On the evidence before the application judge, it was unclear whether the ditch was located on public or private lands. Because the application judge doubted that the appellant could advance a s. 8 claim with respect to observations made either from public land or private land that (unlike the farmer’s field) the appellant had no authority to enter or use, the application judge chose to put the appellant’s case at its highest, and assume for the purposes of analysis that “all the observations supporting the grounds for the firearms warrant were made from [the neighbouring farmer’s] parcel of land.”

[13] We agree that little if anything turned, on the facts before the application judge, on whether the police made their observations from public land or private land. For the purposes of assessing whether there was a reasonable expectation of privacy, what is salient is what the police were viewing, not whether they were standing on public land or a neighbouring farmer’s field. The fact that the appellant lacked control over the lands where the police were standing was not highly probative of the question whether he had an expectation of privacy in his conduct in the open areas outside his house.

b) Whether the subject matter was in public view

[14] The appellant argues that the subject matter of the search was information about the appellant (his activities) that was not exposed to the public view. He relies on R. v. White, 2015 ONCA 508, 325 C.C.C. (3d) 171, in which this court held that residents of a small residential condominium building had a reasonable expectation that police would not trespass into the common areas of the building (stairwells, hallways) and listen through poorly insulated walls to people conversing in their apartments.

[15] White is distinguishable from the present case. There is a significant difference between the nature of the police surveillance in White and the surveillance here. In White, police exploited a faulty door lock to enter a small, multi-unit residential building. They set up surveillance in a hallway and stairwell steps from the door to the appellant’s apartment. From there they could, unaided, overhear conversations on the other side of the poorly insulated walls.

[16] In this case, the police were outdoors and a considerable distance from the appellant’s house. The ditch location was on the other side of a public road. Their location in the farmer’s field was approximately 200 metres away. They could not overhear conversations. Even with binoculars, they could not see into the house beyond the silhouette of figures immediately in front of a window. They were not able to discern any activity that would have been taking place inside of the house. For the purposes of this stage of the analysis, nothing turns on the fact that the police were trespassing on a neighbour’s property. What is salient from White is not that the police were trespassing on common property, but their proximity to the residential apartment and the access it gave them to private conversations.

[17] Furthermore, as the Crown points out, even if the ditch itself was located on private property, which is unclear on the record, everything that could be seen and heard from the ditch could also be seen and heard from the road in front of it, which was indisputably public land.

[18] What gave rise to the search warrant was the sound of the discharge of firearms – a sound which could scarcely have been concealed – together with the observation of persons either firing a rifle or subsequently holding a rifle. What the police were able to observe from the lands surrounding the house was observable to anyone who happened to be in the area, either on the road or on the neighbour’s open field.

c) Whether the surveillance technique was intrusive in relation to the privacy interest

[19] The surveillance technique was audio and visual observation of anything happening outside of the appellant’s house and out-buildings. As the application judge found, the information that the police were able to obtain about the appellant was at the lower end of what is protected by informational privacy: it could yield “no information about the [appellant’s] communications, core biographical data, activity taking place within his home, or other highly personal information.”

d) Whether the surveillance technique disclosed personal information

[20] What triggered the application for the first warrant was the sound of the discharge of a firearm – something that could scarcely be concealed – coupled with visual observations of persons outdoors either firing a rifle or holding a rifle. These were bare observations of physical acts. There was no personal information obtained.

Conclusion on objective reasonableness of expectation of privacy

[21] The application judge concluded that the expectation of privacy was not reasonable in all the circumstances. Her analysis of reasonable expectation of privacy was sound. Although the appellant may have believed he would not be observed by anyone because there would not ordinarily be anyone outside of his rural home, the ultimate question is whether anyone owed him an obligation not to observe him – from a distance of up to 140 metres – fire a rifle from his porch. The application judge made no error in canvassing the four Tessling factors and coming to the conclusion that she did.

B. Failure to make full and frank disclosure in the ITO

[22] As a second ground of appeal, the appellant argues that the initial search warrant was not validly issued because the police failed to make full and frank disclosure in the ITO of illegal investigative conduct: the fact that they trespassed in entering the neighbouring farmer’s field to set up surveillance.

[23] The appellant argues that the application judge made two errors in finding that the search warrant was validly issued. First, she accepted that it was relevant to the issuance of the warrant that the police had acted in good faith by obtaining legal advice that the trespass was authorized by s. 25.1 of the Criminal Code. Second, she concluded that even if the reliance on the erroneous legal advice had been disclosed, the issuing justice would have issued the warrant anyway.

[24] We do not agree that the application judge erred in either respect. The fact that the police had trespassed ought to have been disclosed. Nevertheless, failure to disclose was not a material omission. The misconduct was neither intentional nor terribly serious. The application judge made no error in concluding that the search warrant would have issued in any event had the affiant attested that some of the observations had been made from a neighbouring property, and the officers believed, on the basis of legal advice, they were entitled to be there.

C. Abuse of process

[25] Similarly, the appellant argues that the trespass – and the reliance by the police on s. 25.1 of the Criminal Code – constitutes an abuse of process. The appellant contends that the proceedings should therefore be stayed.

[26] Again, there is no dispute that the police trespassed and that they acted on erroneous legal advice in so doing. A stay of proceedings, however, does not automatically follow. As the Supreme Court noted in R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, at para. 47, “[a] police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice.”

[27] The trespass, it bears repeating, was not into the appellant’s home, or even onto his lands, but onto an adjacent farmer’s field. There is nothing about such a trespass, consequent to faulty legal advice, that would shock a community’s conscience or sense of fair play.

[28] The application judge made no error in this respect.

D. Section 24(2)

[29] Although we do not accede to the appellant’s submission that his rights against unreasonable search or seizure were violated by the police surveillance, the Crown concedes that application judge correctly found two other breaches of s. 8 of the Charter. These were delayed reporting to a justice and the service of a defective warrant on the day of the search. The application judge characterized these errors as “minor”, “technical”, “an oversight”, and the product of inattention. The appellant concedes that these breaches fall at the lower end of Charter breaches.

[30] The application judge conducted the appropriate s. 24(2) analysis as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Deference is owed to that analysis, and we find no basis to justify engaging in a rebalancing.

DISPOSITION

[31] The appeal is dismissed.

“Janet Simmons J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”