Court of Appeal for Ontario

Date: 2017-10-10

Docket: M48288 (C64301)

Brown J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Dat Quoc Tang Appellant

Counsel

Andrew Burgess, for the appellant

Amy Alyea, for the respondent

Heard: September 21, 2017

Endorsement

I. Overview

[1] The appellant, Dat Quoc Tang, was charged with ten drug trafficking offences as part of two investigations into Toronto-area gang activity known as "Project Battery" and "Project Rx." Charges were laid against 34 other accused as part of the investigations.

[2] Code J. heard a global motion brought on behalf of all accused under s. 8 of the Canadian Charter of Rights and Freedoms challenging the legality of the issuance of various wiretap authorizations and general warrants by McMahon J. during the investigation. Code J. dismissed the motion.

[3] As a result, the appellant entered a plea of not guilty to one count of possession of heroin for the purpose of trafficking and one count of trafficking a controlled substance for the benefit of a criminal organization. He did so without contesting allegations contained in two agreed statements of fact. The appellant was found guilty of the two offences by McMahon J. on April 6, 2017; the Crown withdrew the remaining charges.

[4] The appellant was sentenced on the morning of September 21, 2017 to seven years' imprisonment, less credit for four months' pre-sentence custody.

II. Positions of the Parties

[5] The appellant seeks judicial interim release pending the hearing of his appeal on terms similar to those attached to his interim release prior to sentencing.

[6] The Crown opposes the application for two reasons. First, the Crown submits the appellant has failed to establish his grounds of appeal are not frivolous. Second, the Crown takes the position the detention of the appellant is necessary in the public interest because he was convicted of very serious offences and his grounds of appeal are weak.

III. Has the Appellant Established That His Appeal Is Not Frivolous?

A. The Governing Standard

[7] The bar for establishing that an appeal is not frivolous is "very low": R. v. Oland, 2017 SCC 17, at para. 20. As described by Watt J.A. in R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: "An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established."

B. The Grounds of Appeal

[8] The appellant's grounds of appeal concern findings Code J. made in the two sets of reasons he released on the global s. 8 motion: R. v. Brewster, 2016 ONSC 4133 (the "Surveillance Decision") and 2016 ONSC 8038 (the "Camera Decision").

The Failure to Disclose Information About the Operation of Mobile Device Identifiers

[9] As his first ground of appeal, the appellant contends Code J. erred in characterizing as non-material the omission of the police to include in the ITO affidavits certain information about the workings of a surveillance technology known as a mobile device identifier ("MDI"), also known as a "Stingray". The MDI mimics a cell phone tower and has two functions. First, it can identify a specific phone by revealing its International Mobile Subscriber Identity (IMSI) and International Mobile Equipment Identity (IMEI) numbers. The former attaches to the SIM card placed in a cell phone; the latter to the individual phone. Second, a MDI can track phones with known IMSI and IMEI numbers. The MDI does not intercept private communications; it identifies serial numbers associated with all cell phones in the vicinity where it is deployed. As a result of this impact on all nearby phones, a standard general warrant minimization clause requires an operator to activate a MDI for not more than three minutes at a time, and allow a two minute rest period between activations.

[10] The appellant argues the ITO affiant failed to disclose three material pieces of information to the issuing justice: (i) the MDI has a tracking function, as well as a location identification function; (ii) the MDI has two modes of operation, one of which can interrupt calls for up to two minutes; and (iii) the decision of the field operators not to follow the minimization clause but, instead, to replace the two minute rest period with the switching of frequencies every three minutes.

[11] Code J. acknowledged the three deficiencies in the affidavits were omissions, but concluded they were not material ones in the sense that had they been fully explained to the issuing justice, they would have made no difference to the issuance of the General Warrant or to its minimization term.

[12] The appellant argues that Code J. erred in so concluding, given how intrusive the MDI technology can be. He submits the omissions in the ITO affidavits were material and constituted a failure of the affiants' duty to make full, fair and frank disclosure.

[13] Code J. described this aspect of the global s. 8 motion has having a "relatively narrow compass" because the general warrant authorizing the use of the MDI device only had an impact on seven intercepted calls made by one accused. The appellant was not that accused.

Warrantless Searches: Surveillance in Underground Parking Lots and Covert Hallway Cameras

[14] The appellant's second ground of appeal involves the failure of the police to disclose to the issuing justice information about two investigative techniques they had used before seeking judicial authorizations: (i) the physical surveillance of common areas of the condominiums, primarily underground parking lots; and (ii) the installation of covert hallway cameras with the consent of the buildings' property managers or boards of directors.

[15] First, a small portion of the surveillance conducted by the police prior to the authorizations involved the police entering common areas of condominium buildings, primarily underground parking lots, to conduct surveillance. Initially, the police entered without permission. As the investigations progressed, they secured consent from the condominiums' property managers to enter common areas.

[16] Code J. described the information obtained from such searches as factually insignificant and of a relatively minor amount. He concluded that when conducting the surveillance the police were not acting unlawfully and "they did not violate s. 8 by conducting limited physical surveillance in the common areas of multi-unit buildings." He held there was no reasonable expectation of privacy in non-obtrusive observations made in the underground parking lots, elevators or hallways of large, multi-unit condominium buildings. Code J. concluded, at para. 114 of the Surveillance Decision:

I am satisfied that the physical surveillance carried out in this case in the common areas of multi-unit buildings did not amount to a "search." Accordingly, s. 8 of the Charter was not engaged. I am also satisfied that the detailed circumstances surrounding this surveillance were not "material" to issuance of the wiretap authorization and the related General Warrants and did not need to be set out in the Affidavits.

[17] The appellant submits Code J. erred in so finding. Although the appellant acknowledges that the determination of whether a reasonable expectation of privacy exists turns on the specific facts of a case, he argues that the frequency and duration of the police entries into the common areas distinguish the present case from those in which no reasonable expectation of privacy in common areas was found. The appellant also contends the case law has not been unanimous on the question of s. 8 protection in common areas of multi-unit buildings.

[18] Second, prior to seeking the authorizations from McMahon J. the police had installed surveillance cameras in the common hallways of three buildings pursuant to consents obtained from the property managers or condominium board. The cameras generated evidence of the comings and goings of the suspects of the investigation, either in the hallway leading from an elevator to a unit or in the hallway coming from a unit to an elevator. The appellant contends the police did not make full and frank disclosure of the prior installations of hallway cameras to the issuing justice on the initial application for a general warrant to install more cameras. As a result, the warrant authorizing the installation of cameras should be set aside and the resulting video evidence excluded pursuant to ss. 8 and 24(2) of the Charter.

[19] Code J. observed there was little guidance in the case law on whether the warrantless installation of cameras in the hallways of condominiums with the consent of the building's property manager or board of directors infringed s. 8 of the Charter. He held s. 8 was engaged on the basis that the surreptitious video recording in common areas of multi-unit buildings constituted a search or seizure. Code J. was satisfied the police obtained a sufficient consent to install the cameras and a warrant to install them was not required because of the reduced privacy interest engaged. He concluded the installation of the cameras did not violate s. 8 of the Charter.

[20] Code J. went on to find the police failed to comply with their duty to make full and frank disclosure by not mentioning the prior installation of hallway cameras in the affidavits in support of the general warrants. However, he concluded the non-disclosure was not material in the circumstances.

[21] The appellant argues Code J. erred in so finding. In addition, the appellant contends Code J. erred in concluding the property management staff had the authority to cooperate with an ongoing investigation and consent to the police entry into common areas. The appellant submits the consents of the buildings' boards of directors were required.

The Naming of the Appellant as a Known Person

[22] The final ground of appeal advanced by the appellant is that Code J. erred in finding there was sufficient evidence to name him as a Known Person in the renewal and expansion authorizations granted by the issuing justice.

[23] Code J. relied on the combination of three pieces of evidence to support his finding: (i) information from a confidential informant that the appellant was a heroin dealer; (ii) the appellant's longstanding history of association with the Asian Assassins gang, including his arrest and charge on "five relatively serious criminal incidents" between 2003 and 2006; and (iii) recent evidence inferring the appellant's current association with alleged members/associates of the Asian Assassins.

C. Analysis

[24] Dealing first with the last ground of appeal, given the low threshold to satisfy the statutory test for naming a "known person," I am not persuaded this ground of appeal is "not frivolous."

[25] The same cannot be said for the other grounds of appeal. Code J. characterized the MDI issues as "somewhat novel s. 8 issues" involving, as they do, a new investigative technology. As to the grounds relating to the warrantless surveillance, the determination of whether a reasonable expectation of privacy exists often turns on the specific circumstances. At issue on this appeal is the extent to which a reasonable expectation of privacy exists in the common areas of large, multi-unit condominiums. I cannot say that issue is a frivolous one. Accordingly, I am satisfied the appellant has established his appeal is not frivolous.

IV. The Public Interest

[26] The public interest criterion in s. 679(3)(c) of the Criminal Code consists of two components: public safety and public confidence in the administration of justice: Oland, at para. 23.

[27] There is no suggestion in the present case that the appellant's release would jeopardize public safety. He complied without incident with the terms of his bail pending his trial and sentencing.

[28] The public confidence criterion requires balancing several factors: the seriousness of the offence; the strength of the grounds of appeal; public safety; and flight risks.

[29] Dealing first with the seriousness of the offence, the appellant was convicted of possession of heroin for the purpose of trafficking and trafficking a controlled substance for the benefit of a criminal organization. The Oland framework for considering applications for bail pending appeal assumes the appeal judge will have the benefit of the trial judge's reasons for sentence in which the factors going to the seriousness of the crime will have been addressed: at para. 38.

[30] That did not occur on the present application. The appellant had "pre-booked" a 2:30 p.m. time slot on September 21, 2017 for hearing his application for judicial interim release pending appeal, as permitted by s. 7.2.2(3) of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (1 March 2017). The sentencing reasons were delivered orally on the morning of September 21, 2017. However, the appellant did not file a transcript or synopsis of the sentencing reasons.

[31] Such an approach by counsel is not helpful. The appellant bears the burden of establishing each s. 679(3) criterion on a balance of probabilities: Oland, at para. 19. The absence of sentencing reasons creates a gap in the evidentiary record. Accordingly, I cannot accept the submission of appellant's counsel in her affidavit that he was a "relatively peripheral target" of the larger police investigation or counsel's submission at the hearing that the appellant was at the "low end" of the investigation. I will proceed on the basis the appellant was convicted of very serious drug offences, as reflected by the lengthy sentence he received.

[32] Oland calls on the appeal judge to examine the grounds identified in the notice of appeal "with an eye to their general legal plausibility and their foundation in the evidence": at para. 44. Given that the appellant rests his reasonable expectation of privacy arguments on the recent decision of this court in R. v. White, 2015 ONCA 508, 325 C.C.C. (3d) 171, it would not be appropriate to comment on those grounds in any detail. Suffice it to state, the main grounds of appeal are founded in the evidence and are not frivolous.

[33] There is no concern that the appellant is a flight risk or poses a threat to public safety.

[34] When balancing the relevant factors as part of the public confidence analysis, one must recall the observation of the Supreme Court in Oland, at para. 29, that "[r]arely does this component play a role, much less a central role, in the decision to grant or deny bail pending appeal." In the present case, the seriousness of the offence points in the direction of the enforceability interest, while the absence of flight risk or threat to public safety points towards reviewability. I regard the non-frivolous nature of the main grounds of appeal as somewhat neutral. In the end, this is a close case, but overall the factors favour reviewability.

[35] Accordingly, I grant the application.

[36] That said, the conditions of bail pending appeal must reflect the strong enforceability interest in this case. Counsel provisionally agreed on the terms of release. I accept all of their proposed terms, except for proposed Condition 13, which states: "Pursue the appeal diligently." The strong enforceability interest in this case requires imposing a stronger obligation on the appellant to bring his appeal on for a timely hearing.

[37] To give effect to the strong enforceability interest, I shall fix a date for perfection of the appeal as a condition of bail pending appeal. I recognize this appeal is only one of several related appeals that seek to review the Surveillance and Camera Decisions. Yet, slightly over six months have elapsed since the appellant was convicted. The appellant has had ample time to begin the process of securing the materials from the 2016 hearings before Code J. for inclusion in his appeal book. The appellant proposes as a term of bail a surrender date of January 12, 2018, from which I conclude the appellant should be in a position to perfect his appeal by that date. Accordingly, Condition 13 of the order granting this application shall read as follows:

13. PERFECT the appeal by January 12, 2018. If you do not perfect the appeal by that date and seek an extension of this order, you must include in your extension application materials an explanation for your failure to perfect by January 12, 2018, together with a detailed plan for perfecting the appeal, which itemizes the remaining steps for perfection and commits to fulfilling each step by a specified date.

[38] I have placed my fiat on the draft order provisionally agreed to by counsel, as amended by this endorsement.

David Brown J.A.