Court of Appeal for Ontario

Date: July 3, 2019

Docket: C64529

Judges: Juriansz, Watt and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Labelle Appellant

Counsel:

• Andrew Furgiuele, for the appellant
• Avene Derwa, for the respondent

Heard: April 17, 2019

On appeal from the convictions entered by Justice P.H. Marjoh Agro of the Ontario Court of Justice on May 6, 2017.

Judgment

Harvison Young J.A.:

Background

[1] The police received information from a confidential informant that an individual named "Rob" was growing marijuana and was in possession of firearms and other weapons at an apartment in Hamilton, Ontario. When the police executed a search warrant at that apartment on July 27, 2016, they discovered the appellant wrapped in a towel having just showered. They also found several firearms, magazines, rounds of ammunition, and other weapons. The appellant was charged with a number of firearm possession offences and breaches of a firearm prohibition order.

[2] The appellant brought a pre-trial application to quash the warrant and exclude the evidence garnered by the search further to his rights under s. 8 of the Canadian Charter of Rights and Freedoms. In particular, the appellant challenged the warrant on the basis that the information from the confidential informant did not satisfy the criteria in Debot: see R v. Debot, [1989] 2 S.C.R. 1140 and so the warrant could not have issued. While the Crown conceded that the redacted ITO could not provide the basis for the authorizing justice to issue the warrant, it relied on the "Step Six" Garofoli procedure to amplify the ITO. Thus, the Crown took the position that the trial judge could find that the warrant could have issued: see e.g. R v. Lowe, 2018 ONCA 110, 358 C.C.C. (3d) 423.

[3] In the course of the Charter voir dire, the Crown conceded that there was "limited to no corroboration" of the confidential informant's tip. Defence counsel was then permitted to conduct a limited cross-examination of the affiant on the ITO. The affiant testified that the only information he was provided in respect of the informant was included in the ITO. Defence counsel also asked whether the police had searched the firearms registry to determine whether anyone associated with the apartment was licensed to own or possess a firearm. The affiant testified that he had not searched the firearms registry.

[4] The defence called just one witness on the voir dire – the appellant's girlfriend Ms. Robins. In examination-in-chief, Ms. Robins testified that she was living at the apartment in July 2016 and, at the time the search warrant was executed, had a licence to possess restricted and non-restricted firearms associated with that address. Thus, from the perspective of the defence, the purpose of her testimony was to establish that someone associated with the apartment was legally allowed to possess firearms, in aid of an argument that the police had failed to take sufficient steps to corroborate the confidential informant's information.

[5] In cross-examination, Crown counsel elicited evidence that the appellant was not living with her at the apartment, had never lived at the apartment, and was renting a room down the street. Ms. Robins explained that the appellant stored most of his belongings at her apartment because the room he rented did not have sufficient storage. At the time that the search warrant was executed, she testified she had moved out of the apartment because of issues with her landlord and because of a violent disturbance at a neighbouring residence.

[6] The parties then made submissions on the validity of the warrant. Towards the end of the Crown's submissions – in the course of advancing argument on s. 24(2) of the Charter – Crown counsel raised for the first time the issue of the appellant's standing to challenge the validity of the warrant. He took the position that it was the appellant's onus to establish standing to challenge the warrant in accordance with R v. Edwards, [1996] 1 S.C.R. 128. The evidence on the voir dire relevant to the issue of the appellant's standing – and, in particular, the evidence of his girlfriend – militated against a finding that the appellant had a reasonable expectation of privacy in the apartment.

[7] The trial judge accepted the Crown's submissions and agreed that the appellant had no standing to challenge the warrant. She found that there was no evidence that the appellant had a subjective expectation of privacy in the apartment. She also found, applying the Edwards factors, that any such expectation would not have been reasonable in the circumstances. The trial judge dismissed the Charter application on this basis, and did not address the merits of the appellant's challenge to the sufficiency of the ITO.

[8] The parties agreed to apply the evidence from the voir dire to the trial proper. The Crown called additional evidence from the investigating officers, the appellant's mother and an Ontario Works employee. The Crown also conducted a further examination of the appellant's girlfriend. The Crown's position – based on all the evidence at trial – was that this was "[the appellant's] apartment, with the [appellant's] possessions, including the [appellant's] guns". The Crown argued that Ms. Robins' evidence – to the extent it suggested the unit was her apartment – should be disbelieved. When asked by the trial judge how the Crown could take this position in light of the position it had taken on the voir dire with respect to the appellant's standing to challenge the warrant, Crown counsel responded that "the Crown's position has always been that it's [the appellant's] apartment". He explained that the Crown had only taken the position that the appellant lacked standing on the voir dire because the appellant had called evidence that negated standing.

[9] The trial judge found the appellant guilty on all counts other than one (count 5 relating to the possession of a prohibited weapon) with respect to which the parties agreed that there was insufficient evidence.

[10] The trial judge found that although the appellant's girlfriend was the legal tenant named in the lease, the appellant was a "very frequent occupier" of the apartment. She noted that, based on evidence led at the trial proper, the appellant had a key along with unrestricted access to the apartment. Thus, the trial judge found that the appellant had "unrestricted access to all parts of the unit and exercised some control over the premises and its contents". The trial judge also found that while the appellant's girlfriend had purchased the firearms seized from the apartment, she had abandoned possession and custody of the firearms to the appellant. Thus, she found that the Crown had established the elements of knowledge and control over the firearms necessary to ground a finding of guilt on the possession of firearms charges.

The Appellant's Submissions

[11] The appellant's primary argument on appeal is that the trial judge erred in holding that he did not have standing to challenge the warrant because the evidence on the voir dire did not establish he had a subjective as well as a reasonable expectation of privacy in the apartment. The appellant relies on the Supreme Court of Canada's decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 which was released seven months after the trial judge's decision.

[12] Jones held that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts on a voir dire. On the strength of Jones, the appellant argues that he was entitled to rely on the Crown theory to establish facts that would have been sufficient to establish standing to challenge the warrant. The appellant says he is entitled to test the warrant and a new trial should be ordered.

The Respondent's Submissions

[13] The Crown disagrees. It submits that Jones is distinguishable on the facts of this case for two reasons. First, it submits that Jones applies only where the defence does not otherwise call evidence relevant to the issue in dispute. Here, the evidence called by the appellant on the voir dire negated standing, as Ms. Robins testified that the apartment was hers and that the appellant was only an occasional guest. The appellant could not rely on the Crown theory that the apartment was his, because that would put the trial judge in the position of "ignoring" the evidence tendered on the voir dire in favor of an unproven Crown theory/assertion. It would also put defence counsel in the position of taking inconsistent positions on the voir dire (i.e. the appellant's girlfriend's evidence should be disbelieved) and on the trial proper (the appellant's girlfriend should be believed). In the Crown's submission, the rule in Jones applies only when the defence does not call any evidence touching on the accused's standing (i.e. a subjective and reasonable expectation of privacy).

[14] Second, it submits that because Jones is a case about informational privacy and, because of the circumstances, it more directly engaged the accused's right against self-incrimination. In Jones, the s. 8 issue arose out of text messages whose content effectively confirmed that Mr. Jones had trafficked in firearms as charged. By contrast, this is a case about territorial privacy. The appellant could establish a reasonable expectation of privacy in the apartment (for example, by admitting it was his apartment) without admitting possession of the firearms. The respondent also argues that, in any event, the warrant could have issued and that the evidence would not have been ultimately excluded under s. 24(2) of the Charter.

Analysis

[15] For the following reasons, I am satisfied that Jones governs this case. The appellant was entitled to rely on the Crown theory – and, in particular, the Crown's position that this was the appellant's apartment, not his girlfriend's apartment – to establish facts in furtherance of his s. 8 Charter claim. The trial judge erred in not allowing the appellant to so rely on the Crown theory. This error infected the trial judge's analysis of whether the appellant had a subjective and objectively reasonable expectation of privacy in the apartment, such that he could challenge the validity of the warrant. I would therefore allow the appeal and order a new trial.

(a) The Supreme Court of Canada's Decision in R. v. Jones

[16] Since the Supreme Court of Canada's decision in Jones is, in my view, dispositive of this appeal, it is helpful to review that decision in some detail.

[17] In Jones, the appellant was convicted of a number of drug and firearm offences. The Crown's case with respect to the firearm trafficking charges depended largely on text messages between a phone used by the appellant (registered in his spouse's name) and a third-party, which the police had obtained through a production order under s. 487.012 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Production Order"). The text messages discussed the potential sale of a firearm. Thus, the text messages were inculpatory in the sense that they tended to show that the author of the text messages was illegally trafficking in firearms. The Crown adduced the text messages to prove that Jones was the author of the inculpatory text messages and had offered to transfer a firearm, contrary to s. 99 of the Criminal Code. The police had also relied on the text messages to obtain further authorization to intercept communications and search warrants (the "Authorizations"), which generated evidence relevant to the trafficking in marijuana and possession of proceeds of crime charges.

[18] Mr. Jones brought a pre-trial application to exclude the text messages on the basis that the Production Order violated his s. 8 Charter right. He also sought to exclude the evidence obtained through the further Authorizations, on the basis that they were obtained based on information collected under the Production Order. Importantly, Mr. Jones did not lead any evidence that he had authored the text messages: Jones, at para. 6. Rather, he argued that he was entitled to rely on the Crown's theory that he was the author of the text messages, which in turn established a subjective expectation of privacy in the contents of the message. As a practical matter, this would avoid Jones having to admit authorship of the text messages on the voir dire to establish a subjective expectation of privacy, which was tantamount to an admission of the actus reus of the offence on the trial proper: Jones, at paras. 16, 23. In contrast, the Crown argued that the burden remained with the claimant on a Charter voir dire and that this will most often require the claimant to call evidence to ground standing and the Charter breach. Thus, the appellant could not rely on the Crown theory to establish a subjective expectation of privacy: Jones, at para. 19.

[19] The trial judge in Jones held that the appellant did not have standing to challenge the Production Order. She found that there was no evidence that the appellant had a subjective expectation of privacy in the text messages, or any evidence to suggest that such an expectation was objectively reasonable. This court upheld that finding on appeal. It noted that the appellant had not testified at trial or led any evidence as to his subjective expectation of privacy. Thus, it was open to the trial judge to find as fact that the appellant lacked a subjective expectation of privacy. In other words, both lower courts held that the appellant's s. 8 Charter challenge failed because he never established that he authored the messages: Jones, at para. 15.

[20] The Supreme Court of Canada reached a different conclusion. Writing for a majority of the court, Coté J. held that that appellant was entitled to rely on the Crown's theory to establish that he authored the text messages and, in turn, to establish a subjective expectation of privacy in the messages. Justice Coté summarized her main conclusion on this point, at paras. 9, 32-33, in the following terms:

I conclude that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. In this case, Mr. Jones should have been permitted to rely on the Crown allegation that he authored the Text Messages, and his subjective expectation of privacy in the subject matter of the search is accordingly established.

In my view, 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. In other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. Alternatively, the court may encourage prosecutors to be forthright in regards to their theory.

The preceding lays out an exception to the rule that a Charter applicant "bears the burden of persuading the court that [his] Charter rights or freedoms have been infringed or denied". Mr. Jones is entitled to rely on this exception because, as explained above, Ontario Crown counsel tendered the Text Messages to prove that he was the author of their inculpatory contents, and admitted in the voir dire that the evidence was "very clear" in that respect. Pursuant to the Crown's theory, then, he should have been presumed to be the author of the Text Messages for the purposes of his s. 8 application. [Citations omitted.]

[21] Justice Coté indicated that the foregoing exception to the general rule that the applicant bears the burden of proof on a Charter application is justified on the basis that to preclude Mr. Jones from relying on the Crown theory that he authored the text messages would place him in an intolerable "Catch-22". He could either admit that he was the author of the text message on the Charter voir dire (in aid of seeking standing to challenge the validity of the Production Order and Authorizations) or forego challenging the admission of evidence tendered to prove he was the author in the trial proper: Jones, at para. 18. In Mr. Jones' case, the admission that he authored the text messages was tantamount to an admission of the underlying offence: Jones, at para. 23.

[22] Similarly, Coté J. noted that a relatively modest evidentiary foundation is required to establish a subjective expectation of privacy. Indeed, a subjective expectation of privacy can be presumed or inferred in the circumstances, absent a claimant's testimony or admission at the voir dire: Jones, at para. 21. Against this modest evidentiary foundation, a rule that would require Mr. Jones to testify or make an admission to gain standing on the Charter application, while compromising his defence of the substantive charges, sits uneasily alongside the principle against self-incrimination: Jones, at para. 29. Moreover, it is unfair to allow the Crown to argue that there is sufficient evidence proving Mr. Jones' authorship of the text messages beyond reasonable doubt at trial, while arguing that Mr. Jones has not discharged his burden of establishing authorship or a subjective expectation of privacy in the contents of the text message on the voir dire. While it is true that the burden is on the claimant in the context of a s. 8 Charter application, that application arises in the context of the Crown's prosecution: Jones, at para. 26.

(b) Jones Applies to the Case at Bar

[23] Turning then to the issue of whether Jones applies to the case at bar, I do not agree with the respondent's submission that Jones only applies in circumstances where the accused leads no evidence on the voir dire. It does not make sense as a matter of principle to restrict Jones as the Crown urges this court to do. To accede to such an argument would significantly curtail the utility of Jones and risk placing an accused in the same dilemma that Jones seeks to obviate.

[24] The overriding point of Jones is that an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order assert standing to challenge the reasonableness of a search. As Coté J. recognized, at para. 26, it is fundamentally unfair to the criminal accused to permit the Crown to adopt inconsistent positions across the voir dire and trial proper:

As the intervener Criminal Lawyers' Association of Ontario argues, the Crown should not be permitted to say there is sufficient evidence proving Mr. Jones' authorship of the messages beyond a reasonable doubt at trial, but argue that he has not discharged his burden on the balance of probabilities in the voir dire. The Crown is right to argue that it is the accused's s. 8 motion. But that motion arises within the Crown's prosecution. And it is the Crown, as a quasi-minister of justice, that is charged with ensuring the overall fairness of that prosecution. Therefore, as between the accused and the Crown, it is more fitting that the Crown be restrained from adopting inconsistent positions. [Emphasis in original.]

That is exactly what happened here. During the voir dire the Crown took the position that the appellant had not established a subjective and/or reasonable expectation of privacy because his girlfriend testified that he was no more than an occasional visitor and then at the trial argued that it was, in fact, the appellant's apartment.

[25] I appreciate that the Crown takes the position that, here, the problem arose from the defence's decision to call the appellant's girlfriend on the voir dire. It did so because it thought that she had crucial evidence relevant to assessing whether the ITO disclosed reasonable and probable grounds for the warrant, unrelated to whether the appellant had a subjective and/or objectively reasonable expectation of privacy in the apartment. It elicited this evidence in direct examination. The evidence inconsistent with the appellant's assertion of a subjective and/or objectively reasonable expectation of privacy – and the Crown's own theory that the apartment was the appellant's residence – was elicited by the Crown in cross-examination.

[26] While Jones arose in circumstances in which the accused led no evidence on the Charter voir dire, I do not read the decision as being limited to that situation. In this vein, Coté J. indicates that "an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire" (emphasis added): at para. 9. Justice Coté reiterates this notion at para. 32, where she writes, "in other words, where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements" (emphasis added). Here, the appellant seeks to rely on the Crown theory to establish, for the purpose of s. 8, that the apartment was his apartment. The appellant tendered his girlfriend's evidence not to establish that it was his apartment, but rather to establish that she had a licence to possess firearms in furtherance of his attack on the sufficiency of the ITO. The Crown then elicited testimony inconsistent with its own theory that it was the appellant's apartment on cross-examination. In these circumstances, the appellant cannot fairly be said to have "tendered" evidence relevant to his subjective and reasonable expectation of privacy in the apartment.

[27] Moreover, holding Jones does not apply in such a situation would place the defence in the very type of tactical dilemma that Jones seeks to obviate. The defence would be required to weigh calling witnesses and leading all evidence relevant to asserting a Charter breach (in addition to those facts disclosed by the Crown theory) against the risk that the Crown would elicit evidence in cross-examination inconsistent with the accused asserting a subjective and/or objectively reasonable expectation of privacy. In that event, and if the Crown's position on this appeal were to be accepted, the practical effect would be to force the accused to (1) take the stand on the voir dire (to provide evidence to establish a subjective and/or objective reasonable expectation of privacy); or (2) concede the s. 8 claim to focus on his or her substantive defence to the charges. That places the defence in the position of having to choose between most forcefully litigating the accused's Charter rights, on the one hand, or the accused's underlying guilt with respect to the substantive offences, on the other.

[28] The Crown also argues that Jones is distinguishable from the present appeal because it concerned an informational privacy interest arising from the text messages, rather than a territorial privacy interest. This is significant, in the Crown's submission, because of the relationship between the implicated privacy interest and the actus reus of the relevant offence. In Jones, admitting authorship of the text messages for the purposes of the voir dire was tantamount to admitting guilt on the underlying offences of trafficking in firearms. Here, however, a finding that the appellant had a reasonable expectation of privacy in the apartment (based on the assertion that it was, in fact, the appellant's apartment) would not have, in and of itself, established knowledge and control of the firearms which the police recovered during the search sufficient to meet the requisite standard of proof at the trial proper. The Crown therefore argues that to allow an accused to rely on the Crown theory to establish a reasonable expectation of privacy in a territorial space would risk creating "automatic standing", contrary to Edwards.

[29] Again, I do not agree. There is no suggestion in Coté J.'s judgment in Jones that it was intended to apply only to informational privacy claims, or only to allow an accused to assert a subjective expectation of privacy. At several points in her analysis, she refers to s. 8 claims generally: see Jones, at paras. 9, 26, 32-33. To the extent that Coté J. couched some of her analysis in reference to whether Mr. Jones could rely on the Crown theory that he was the author of the text messages to establish a subjective expectation of privacy (see paras. 19-21), I understand that to be because that was the specific issue raised in Jones.

[30] Similarly, while the "dilemma" was particularly acute in Jones because proof of authorship of the text messages was tantamount to proof of the underlying offences, a similar dynamic arises in territorial privacy cases. Here, while a finding that the apartment was the appellant's residence was not coterminous with a finding that he possessed the firearms, it would certainly go a long way to establishing the appellant's knowledge of, and control over, the firearms.

[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.

[32] For these reasons, I conclude that Jones is applicable to this appeal. I do not believe that the trial judge would have adopted the approach that she did, had she had the benefit of Jones at the time of trial. Nonetheless, the trial judge erred in not allowing the appellant to rely on the Crown theory that it was his apartment in support of his s. 8 claim. This error infected the trial judge's analysis as to whether the appellant had a subjective and objectively reasonable expectation of privacy.

(c) A New Trial is Necessary

[33] The appellant submits that a new trial is necessary because the trial judge's error compromised trial fairness. The appellant argues that the Crown's position on the voir dire that the apartment was Ms. Robins' apartment was a "last-minute switch" from its position that the apartment was the appellant's residence. It then reverted to its original position on the trial proper. The appellant submits that, had he been granted standing to challenge the warrant, it is not a foregone conclusion that the ITO would have met the Debot criteria.

[34] The respondent takes the position that, had the trial judge found that the appellant had standing, the warrant would have withstood Charter scrutiny. The respondent argues that a full evidentiary record and full argument was made below, such that this court is positioned to determine the validity of the warrant. It argues that the warrant does not violate s. 8 of the Charter and, in any event, the evidence would have been admitted under s. 24(2).

[35] I do not agree with the respondent that this court should conduct the s. 8 analysis. First, Jones has changed the law since the voir dire was held before the trial judge. It may be that the parties would now make different choices in their conduct of the voir dire and trial proper in light of Jones.

[36] Second, the voir dire proceeded as a "Step 6" Garofoli hearing, which is procedurally complex. The respondent acknowledged as much in stating that it "reserves the right to request the panel review the unsealed ITO and make submissions that the information in the ITO met the Debot standard". In this sense, the court does not have a complete evidentiary record, nor the benefit of full argument, before it at this point.

[37] Third, the trial judge did not conduct any analysis as to the merits of the appellant's Charter application because of her conclusion that the appellant did not have standing to raise a s. 8 claim with respect to the warrant. It is inconsistent with this court's role as an appellate court to conduct that analysis at first instance.

Disposition

[38] The appellant and Crown submit that an acquittal should be entered on Count 4 on the indictment because it relates to the same firearm as Count 5 which was withdrawn at trial with the consent of the Crown for insufficient evidence. I would agree.

[39] For the foregoing reasons, I would allow the appeal and order a new trial on the remaining counts.

Released: July 3, 2019

"D.W."

"A. Harvison Young J.A."

"I agree R.G. Juriansz J.A."

"I agree David Watt J.A."