Ontario Court of Justice
Date: 2022 09 27 Court File No.: Thunder Bay - 202922
Between:
HIS MAJESTY THE KING
— AND —
MICHAEL ATTA and DELROY HYATT
Before: Justice E. A. BURTON
Heard on: 20 September 2022
Oral Reasons for Judgment given: 21 September 2022 Written Reasons for Judgment released: 27 September 2022
Counsel: Mr. Haque............................................................................................... counsel for the PPSC Ms. Jeethan.......................................................... counsel for the accused Michael ATTA Ms. Grann............................................................. counsel for the accused Delroy HYATT
BURTON J.:
[1] Mr. Atta and Mr. Hyatt are jointly charged with drug trafficking offences, arising out of the execution of a search warrant on a residence and vehicle in Thunder Bay on 15 November 2019. This is my written decision on their Application for standing to challenge the warrant, having briefly provided them with the outcome orally on the day after the Application was heard.
[2] The Applicants rely on the allegations of the Crown, using the procedure outlined in R. v. Jones, 2017 SCC 60. This process operates such that they are not in a position of having to give evidence contrary to the principle against self-incrimination. In regard to that principle, the court said:
... It is clear that, to the extent possible, the elements of s. 8 of the Charter of Rights and Freedoms - which in itself provides a fundamental principle of justice - should be informed by, and reconciled with the principle against self-incrimination ... that is best accomplished by concluding that counsel for a s.8 Applicant may ask the court to assume as true for s.8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. (@ 31,32)
Facts
[3] In October of 2019, the Thunder Bay Police Service (TBPS) received information about possible drug trafficking occurring at 263 Lincoln Street in the City of Thunder Bay. Information was received from Confidential Informants (CIs), and surveillance was undertaken. As a result of the information gathered, a search warrant was granted for the residence and a black Hyundai Tucson. Michael Atta, Keegan Cresser, and an unknown Black male were identified as people of interest in the Information to Obtain (ITO).
[4] Based on surveillance and information from the CIs, the affiant of the ITO believed that Mr. Atta was at the residence in October of 2019, and that he was selling controlled substances from it. Many people were observed coming and going from that apartment during the period of surveillance, but only Mr. Atta and the unknown male (later identified as Mr. Hyatt), appeared to have any kind of consistent connection to it.
[5] When the warrant was executed, ten people were located inside the apartment, including the Applicants. Two people were released unconditionally. The rest were charged with trafficking in cocaine and fentanyl, and possessing the proceeds of crime. Only Mr. Hyatt and Mr. Atta are before this court for trial.
[6] The Application materials state that the search of the apartment included clothing and bags in the residence, including a packsack and jacket associated to Mr. Atta. Fentanyl, cocaine, nine cell phones, two scales, and over $6,200 in currency were located. Some of the cash was located on Mr. Atta and Mr. Hyatt and others. Scales and some of the drugs were found on others. A key to the Hyundai Tucson was found on the kitchen counter.
[7] The lawful tenant of the residence was one Gidian McKay, who was one of the people charged. He is a friend of Crystal Idzi, who was also charged. Both provided video statements to police, and Mr. McKay testified on this Application. Ms. Idzi’s video was referenced in the Application materials, but was not filed in evidence and she did not testify.
Evidence of Gidian McKay
[8] Mr. McKay watched his video statement and adopted it, then was questioned by all counsel. The video was made about 18 months after the incident, while his charges were still outstanding. He hoped that providing a statement might help his situation. I found Mr. McKay to be both a credible and reliable witness. While he was not particularly happy to be in court, he was cooperative and respectful, he was not difficult or evasive, and he took care to ensure that his answers were clear even when the questions were not. He listened carefully, and I believe did his best to answer honestly. When he didn’t know something, he didn’t know it, and he came across as candid in areas of his testimony that did not cast him in a good light.
[9] Mr. McKay told police that Ms. Idzi had introduced him to two males in August of 2019, whom he knew as “Jay” and “Snoop”, and that he believed Jay’s real name was Michael Atta. For the purposes of this Application, although the evidence is scant, it appears to be accepted that “Snoop” would be Mr. Hyatt. Mr. McKay gave physical descriptions of both, including that they were of African descent.
[10] Mr. McKay had only started using drugs a few weeks prior to this meeting, during a rough patch in his personal life, but recognized retrospectively that he was already addicted. Mr. McKay told police and testified that the two males asked to stay at his residence for a couple of days, as they were using another residence for dealing. He initially declined, but then “gave in” when the males “persisted”. At the time of this August meeting, Mr. McKay had been up all night partying, he was drunk and high and craving, he was an addict displaying signs of addiction, and he felt somewhat intimidated even though they weren’t being mean. He knew that he did not want his apartment turned into a trap-house, because it was illegal and because trap-houses tended to get “trashy” and dirty, but he wanted the drugs. Mr. McKay did not recall any specific discussion with the men of what the arrangements would be, but they wanted to come check out his place to see if it was suitable. He believed they were coming over to sleep, on the living room furniture, for a couple of days, and they said they would be dealing elsewhere. Mr. McKay provided Jay with a key to the apartment, knowing it would likely be copied.
[11] Nothing further explicitly was asked, agreed to or arranged, but Mr. Atta and Mr. Hyatt did not in fact leave after a couple of days, and began running their business from the apartment. Mr. McKay became aware that the males were not only sleeping at his residence, but selling drugs from it, sometime in September. Mr. McKay himself did not spend much time there, due to working out of town, and spending time with his family, particularly once the heavy trafficking started. He received crack cocaine at no cost from the Applicants, as much as 5 points, or half a gram, a day when he was there. He bought crack from other sources as well. Mr. McKay wanted the trafficking to stop and asked the Applicants to do so, but he was “brushed off.” He told police that there was a lot of foot traffic at his house, “it was annoying I couldn’t be comfortable in my house.” When asked about calling police if he didn’t want them there, Mr. McKay said “well, I was afraid of them, there were five of them at this point.” When asked whether Snoop and Jay had asked for his permission to stay with him, he responded “They didn’t say live there, they said to be there.” Sometimes a third male, E., stayed there as well. He described them as “nice”, although Snoop could be rude. Mr. McKay mentioned several times that he was not comfortable in his own home.
[12] When asked who was “the boss”, Mr. McKay said not really anyone, but Jay and Snoop were the main ones, they were more in charge than the others. Snoop and Jay spent more time at the apartment than the others, but they would also go home to Toronto or stay in hotels. Snoop and Jay would be at the apartment even when Mr. McKay was not there, but overall he felt they spent only a little more time in the unit than he did.
[13] When Snoop, Jay and Mr. McKay were all at the apartment, they all could let people in. Mr. McKay was the only person to use the bedroom for sleeping – the others “napped” on the couch or chaise in the living room, in between the steady drug deals.
[14] Mr. McKay was asked whether either Applicant kept clothing at his place continuously. He believed they just kept their belongings in backpacks, which they took with them when they left. In the ITO, reference is made to the suspected drug dealers taking their bags with them when they came and left.
Positions of the Parties
[15] Mr. Atta and Mr. Hyatt both take the position that they had a reasonable expectation of privacy in the apartment at 263 Lincoln Street, and the vehicle found outside, and thus have standing to challenge the search warrant.
[16] Mr. Hyatt bases his argument on the following:
- He was present at the time of the search
- He had been consistently present at the apartment since at least August of 2019
- He had permission of the tenant to be there, even when the tenant was not
- He was in possession of a key, and thus had control over access to the unit
- The nature of the activity taking place necessitated a level of control that leads to an inference of an expectation of privacy
[17] Mr. Atta bases his argument on the following:
- He was a named target of the investigation at that location
- He had a key and thus a level of control over the unit
- He regularly occupied the unit over a significant period of time.
- He was identified by police as being the person using the rental vehicle
[18] The prosecution takes the position that neither Mr. Atta nor Mr. Hyatt can assert an objectively reasonable expectation of privacy that would give them standing to challenge the warrant.
The Law
[19] The distinction between the types of privacy protected by s. 8 of the Charter of Rights and Freedoms was recognized by the Supreme Court of Canada in R. v. Tessling, 2004 SCC 67 @ 20 et seq. The three types of privacy protected are personal privacy (one’s body), informational privacy (self-explanatory), and territorial privacy (place).
[20] R. v. Edwards, [1996] 1 S.C.R. 128 is of course the governing case. A claim of an expectation of privacy in a place must be both objectively and subjectively reasonable. Without a reasonable expectation of privacy, the accused has no standing to challenge the search – R. v. Cole, 2012 SCC 53. The subjective expectation is not a difficult test to meet – R. v. Jones @ 60.
[21] In assessing the objective reasonableness of the subjective belief, R. v. Edwards lays out a number of criteria for consideration:
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.
[22] Invited guests may have a reasonable expectation of privacy in a host’s property, although not necessarily the same level of expectation as the host – R. v. Le, 2019 SCC 34. The Le case did not definitively decide this point, but sent the matter back for a new trial. In R. v. Sangster, 2021 ONCA 21, the accused was an invited occupant of the residence, but had so little control over it that he was found to have no expectation or entitlement to privacy. Likewise, Mr. Edwards was a regular welcome guest in his girlfriend’s apartment, but he was determined to have no standing.
[23] The issue of “lawful possession” has come up in a number of contexts, although not specifically in the home-takeover context with which we are dealing (I use the word “take-over” rather than “invasion” deliberately). In R. v. Blazevic, 2011 ONSC 7217 the judge relied on R. v. Lauda, [1998] 2 S.C.R. 683 in finding that the driver of a stolen jeep had no reasonable expectation of privacy in the jeep because he was not in lawful possession of it. See also R. v. Crocker, 2009 BCCA 388 (leave to appeal refused 2009 S.C.C.A. No. 466) at paras 85-86, cited recently in R. v. Grant, 2021 ONCJ 465, and R. v. Greer, 2020 ONCA 795.
[24] The Lauda decision is also referenced in Drug Offences in Canada dealing with territorial privacy. This tome of course is not binding, but it does provide a helpful path to interpretation. At section 35:8 it states:
Care must be exercised in the analysis. Not every entry into or onto property will necessarily invoke a reasonable expectation of privacy. Whether a person has a reasonable expectation of privacy in a place will typically depend on whether he or she was in lawful possession and control of the property and able to exclude others. Mere presence at the time of the search will not ordinarily suffice; for example, an uninvited guest with no right to, or interest in, property has no reasonable expectation of privacy: R. v. Crowe, 2021 SKCA 66, at paras. 41-43. That is not to say that an invited guest could never have a reasonable expectation of privacy; in some circumstances, an invited guest may well have a reasonable expectation of privacy in the host's property: R. v. Le, 2019 SCC 34, in obiter, at para. 137. An individual who is trespassing on property, or who obtains possession of property by fraud, does not have any reasonable expectation of privacy in the property: R. v. Lauda (1998), 129 C.C.C. (3d) 225 (S.C.C.); R. v. Van Duong, 2018 ONCA 115.
[25] In R. v. T.I., 2021 ONSC 2608, Akhtar J. confirmed that Edwards remained the governing law on reasonable expectation of privacy and cited Van Duong regarding the difference between a “reasonable expectation” and “wanting” privacy:
33 …. In my view, there is a difference between wanting privacy and having a subjective expectation of it.
34 In Van Duong, the appellants obtained a piece of residential property through fraudulent means and converted it into a laboratory manufacturing methamphetamine. When police executed a search warrant, a month later, the appellants attempted to flee and were arrested. The trial judge, applying Edwards, held that the appellants had no standing to bring a s. 8 Charter claim.
35 The Court of Appeal for Ontario upheld the decision. At para. 7, the court discussed the distinction between "desired" privacy and an "entitled" expectation of privacy:
Although the Application judge found that the appellants had a subjective expectation of privacy, even this seems too generous to the appellants. Allowing the appellants a subjective expectation of privacy, in this instance, would confuse the relevant sense of expectation with desire. "Expectation" can be ambiguous between two meanings, only one of which is relevant to s. 8 analysis. In the first sense, a person has an expectation of privacy where he desires privacy and believes it is unlikely, as a matter of fact, that he will be disturbed. In the second sense, a person has an expectation of privacy where she believes she will be undisturbed because she is entitled to be left undisturbed. In s. 8 jurisprudence, subjective expectation is used in this latter sense.
Analysis
[26] The case law establishes two kinds of occupants – those who are legitimate (Edwards, Sangster, Le), and those who are not (Lauda, Van Duong, T.I.). Legitimate occupants may have some level of expectation of privacy. Illegitimate occupants do not. In the case at bar, while Mr. McKay acquiesced and handed over a key, the Applicants were not legitimate occupants. Acquiescence or capitulation is not the same as consent. It would be contrary to the law to permit an accused to manufacture an expectation of privacy by gaining non-consensual occupation of another person’s home through coercion, extortion, exploitation, fraud or other victimization of the homeowner.
[27] I am therefore not satisfied that either accused has established standing in relation to either the vehicle or the apartment.
[28] Dealing with the vehicle first, there is very little evidence on this Application connecting either accused to it. It was not rented in either of their names. The key was found on the kitchen counter, in an apartment with several people in it. According to the ITO, various vehicles had been associated to the address at different times during the surveillance, with this one being the most recent. A man believed to be Mr. Atta was seen driving it, but the identification was uncertain. The evidence presented does not place either accused in the vehicle when the warrant was executed, in possession of its key, in control of its movement or contents, or provide any means by which one could conclude that either one had any expectation of privacy in it.
[29] Both Mr. Atta and Mr. Hyatt’s situations meet some of the Edwards criteria with respect to the apartment.
- Both were present at the time of the search
- Both had some measure of control over the property searched, including a key
- Their historical use of the apartment dates back to August, approximately 13 weeks
- They had some ability to regulate access, primarily who came into the apartment
[30] Overall, however, I am not satisfied that they have met their burden to establish that they have standing to challenge the search of the apartment, for the following reasons.
[31] The Applicants did have a key and could come and go, and allow people in and out. However, they were not the only people to do so. While exclusive control is not an Edwards criterion, it is important that Mr. McKay also retained control over the apartment. When present, he could also say who came and went. There is no evidence that the Applicants could exclude people whom he wanted to come in. This is analogous to the visitors’ control in Edwards, Sangster and Le.
[32] After three months of occupancy, Mr. McKay didn’t even know the Applicants’ proper names. Neither Applicant had an ownership interest in the apartment, nor did they pay rent or contribute to its utilities. They were itinerant occupants, who did not live there permanently or consistently – they stayed in hotels, and went “home” to another part of the province from time to time, relinquishing any limited control they may have had over the residence. They did not use the bedroom, and only napped in the living room between drug deals. The evidence establishes that the Applicants took packsacks of belongings with them when they came and went, even just to get food, which indicates that they did not trust that the apartment was a safe place. They did not have a subjective expectation of privacy.
[33] Most importantly, Mr. Atta and Mr. Hyatt were not consensual, legitimate guests of the tenant of the apartment, and thus objectively had no reasonable expectation of privacy. They were not welcome guests, they were not invited, they were not wanted. Mr. McKay did not want them there in the first place and he did not want them to stay. He capitulated because his addiction was exploited, when he was drunk and high and tired and craving. He told them “No” and they persisted until he “gave in.” He was initially exploited, and then intimidated into allowing their activities to continue. I do not believe that the initial conversation included any discussion of an expectation of privacy, as at that time the Applicants told Mr. McKay they were only looking for a place to sleep for a couple of nights. The manner of their entry and occupation of the apartment was such that they ought to have expected the police to turn up at any moment.
[34] I find that the Applicants were not privileged or even consensual guests of the residence who could reasonably expect privacy on any basis. They didn’t expect it subjectively, based on the fact that they took their bags with them when they came and went. They couldn’t have expected it objectively, based on the manner in which they obtained and maintained access. Procuring occupation through exploitation by trafficking illegal drugs to an addict gives them no more rights than gaining it through some other illegal means, such as threats, violence or fraud. The end result is the same: their occupation of the residence comes from capitulation rather than consent. The manner, duration and nature of their occupation did not give rise to any entitlement of privacy.
[35] Those who strong-arm their way into another person’s home by extortion, exploitation, trafficking, intimidation, actual violence, fraud or other illegal, illegitimate means cannot have a reasonable expectation of privacy, because they are not there with consent. While Mr. Atta and Mr. Hyatt may have hoped to not be disturbed once they took over Mr. McKay’s residence, they had no right or entitlement that would amount to an objectively reasonable expectation in that regard. Furthermore, they did not subjectively believe it themselves. If they were expecting privacy, their expectations were neither subjectively nor objectively reasonable. Their Applications are dismissed.
Released: Written reasons sent to counsel by email on 27 September 2022 Signed: Justice E. A. BURTON
