COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Maric, 2024 ONCA 665

DATE: 20240910

DOCKET: C66876, C66481, C66625 & C66873

Coroza, Sossin and George JJ.A.

BETWEEN

DOCKET: C66876

His Majesty the King

Respondent

and

Marko Maric

Appellant

DOCKET: C66481

AND BETWEEN

His Majesty the King

Respondent

and

Vartevar Brounsuzian

Appellant

DOCKET: C66625

AND BETWEEN

His Majesty the King

Respondent

and

Ethan Eckstein

Appellant

DOCKET: C66873

AND BETWEEN

His Majesty the King

Respondent

and

Abdul Shahin

Appellants

Gary Grill, for the appellant Marko Maric

Carter Martell, for the appellant Vartevar Brounsuzian

Brian Eberdt and Lucas Azzopardi, for the appellant Ethan Eckstein

Gregory Lafontaine, for the appellant Abdul Shahin

Xenia Proestos and Brendan Gluckman, for the respondent

Heard: March 20 and 21, 2024

On appeal from the conviction entered by Justice Heather McArthur of the Superior Court of Justice, dated January 11, 2019.

On appeal from the conviction entered by Justice John B. McMahon of the Superior Court of Justice, dated January 11, 2019.

On appeal from the conviction entered by Justice John B. McMahon of the Superior Court of Justice, dated January 24, 2019.

On appeal from the convictions entered by Justice Michael F. Brown of the Superior Court of Justice, dated January 18, 2019.

Sossin and George JJ.A.:

OVERVIEW

[1] Following a large-scale police investigation, the appellants, Mr. Maric, Mr. Brounsuzian, Mr. Eckstein and Mr. Shahin, were charged with various drug-related offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”).

[2] The appellants each brought pre-trial Garofoli applications, challenging the constitutionality of various searches and the interception of private communications conducted under the authority of various wiretap authorizations, general warrants and search warrants.

[3] The application judge dismissed all of the applications: R. v. Maric, 2019 ONSC 4478; R. v. Eckstein, 2019 ONSC 4479; R. v. Shahin, 2019 ONSC 4480; and R. v. Brounsuzian, 2019 ONSC 4481.[^1]

[4] The appellants were tried separately and were ultimately convicted of various offences on the indictment. They now appeal their convictions, arguing that the application judge erred in dismissing their respective applications.

[5] For the reasons that follow, we would dismiss the appeals.

FACTS

[6] In June 2015, the Toronto Police began investigating a man named Kevin Er, who was allegedly the head of a large-scale criminal organization involved in the importation and distribution of controlled substances.

[7] Around the same time, the London Police were investigating Mr. Maric, Mr. Eckstein and Mr. Shahin, whom they suspected of drug trafficking in London.

[8] In April 2016, contact between the two police forces connected Mr. Maric to both investigations. As a result, the Toronto and London investigations became linked.

[9] Throughout the investigation, police obtained various wiretap authorizations, general warrants and search warrants. The details of these authorizations and warrants, which were the subject of the appellants’ applications, are set out below.

(1) The Initial Wiretap

[10] A central part of the Toronto investigation was a confidential informant with knowledge of Mr. Er’s alleged organization (“CHS #1”). CHS #1 identified an individual who purchased large quantities of controlled substances from Kevin Er, known to CHS #1 only as “Marco”.

[11] CHS #1 said that “Marco” was male, Serbian, located in London, and used the phone number 226-985-1847. CHS #1 provided further details about “Marco” and Kevin Er and provided information about “Marco” on specific dates in 2016. The source of CHS #1’s knowledge was provided, which in some cases was firsthand knowledge.

[12] On April 4, 2016, Officer Tait, from the Toronto Police, applied for a Part VI wiretap warrant (the “Initial Wiretap”), relying on the information from CHS #1. The application was granted on April 7, 2016. The Initial Wiretap named 29 individuals: 17 “principal known persons” and 12 “other known persons”.

[13] The Initial Wiretap authorized the monitoring of “any other device…believed on reasonable grounds to be used by any [principal known person]” (the “Resort To Clause”). One of the “principal known persons” listed in the Initial Wiretap was “a male known as ‘Marco’ described as Serbian.”

[14] On April 12 and 13, 2016, Officer Tait searched the Ministry of Transportation of Ontario (“MTO”) database for a photograph of Mr. Maric. On April 13 or 14, 2016 (there was inconsistency on this date between Officer Tait’s evidence and CHS #1’s handler’s notes), CHS #1 was shown this photo of Mr. Maric and identified him as “Marco”.

[15] It is unclear how Mr. Maric came to the attention of the Toronto Police. Officer Tait testified that he heard Mr. Maric’s name through one of the detectives involved in the Toronto investigation, who told him they had received a call from London Police informing them that Mr. Maric, a London drug trafficker, was travelling to Toronto. Although no Toronto Police officer could confirm this call, Officer Pavoni of the London Police confirmed that he made this call on April 14, 2016. However, this phone call occurred after Officer Tait searched the MTO database for Mr. Maric’s photograph. In other words, Toronto Police appear to have somehow become aware of Mr. Maric before London Police reached out.

[16] On April 18, 2016, as a result of this information, Toronto Police began intercepting communications from Mr. Maric’s cell phone. They did not seek additional authorization to do so, instead relying on the Resort To Clause in the Initial Warrant.

(2) The Tracking Warrant

[17] Police surveillance of Mr. Maric led them to identify Mr. Eckstein as a person of interest.

[18] On April 21, 2016, Officer Younan, of the London Police, applied for and was granted a tracking warrant for Mr. Eckstein’s 2008 GMC Acadia (the “Tracking Warrant”). In his Information to Obtain (“ITO”) used to obtain the Tracking Warrant (the “Tracking ITO”), Officer Younan described two meetings between Mr. Eckstein and Mr. Maric.

[19] First, Officer Younan described Mr. Eckstein entering Mr. Maric’s Mercedes on November 19, 2016 (the meeting actually took place November 19, 2015) without anything in his hands. When he left, he was carrying a black backpack. Mr. Eckstein entered a waiting Checker Limousine. Officer Younan described this meeting as short in duration, taking place in a busy parking lot outside a Boston Pizza.

[20] Second, Officer Younan described another instance when, on December 31, 2015, police observed Mr. Shahin meeting with Mr. Maric and a male later identified as Mr. Eckstein. In the Tracking ITO, Officer Younan described Mr. Shahin and Mr. Maric as “kilogram level cocaine dealers.”

[21] Officer Younan also relied on information from CHS #1. The Tracking ITO indicated that CHS #1 provided the following information: (1) Mr. Maric is a high level, kilogram dealer; (2) Mr. Maric uses a male named Ethan Allen Eckstein to deal his cocaine for him; and (3) Mr. Eckstein is a cocaine dealer who delivers cocaine for Mr. Maric to other cocaine dealers. Officer Younan wrote that CHS #1 identified Mr. Eckstein by name.

[22] CHS #1 provided specific dates in 2016, disclosed the source of their knowledge (which in some cases was firsthand), provided specific information about a known associate of Mr. Maric that related to drug trafficking, provided information about Mr. Maric’s drug dealing, provided other information about Mr. Eckstein, and provided the name by which CHS #1 knew Mr. Eckstein.

(3) The General Warrant

[23] On May 3, 2016, Toronto Police applied for and obtained a general warrant authorizing multiple surreptitious searches of five locations (the “General Warrant”), including Unit 304 at 295 Adelaide Street West (“Unit 304”) and the associated storage locker, and Unit 3802 at 85 Queen’s Wharf Road (“Unit 3802”). The ITO used to obtain the General Warrant (the “General Warrant ITO”) was written by Officer Chase. The General Warrant ITO relied on, among other things, information from confidential informants, observations of Mr. Eckstein, Mr. Maric and Mr. Brounsuzian, and a 2013 arrest record for Mr. Eckstein and Mr. Maric.

(a) The Confidential Informants

[24] The General Warrant ITO relied on the same information from CHS #1, described above in relation to the Initial Wiretap.

[25] The General Warrant ITO also relied on information from another confidential informant (“CHS #6”). CHS #6 provided the following information linking Mr. Maric to Mr. Shahin: (1) Mr. Shahin was a male who partners with Mr. Maric; (2) Mr. Shahin and Mr. Maric sell cocaine; (3) further details concerning Mr. Shahin’s and Mr. Maric’s drug dealing; (4) Mr. Shahin lives on Proudfoot Lane; (5) Mr. Shahin sells cocaine and marijuana; and (6) Mr. Shahin and Mr. Maric use stash houses to keep drugs.

[26] CHS #6 also stated that a male by the name of Marko Maric is a large-scale cocaine supplier in London and is capable of selling in the kilogram level. CHS #6 stated that Mr. Maric obtains his cocaine in Toronto where he spends considerable time.

[27] The source of CHS #6’s knowledge in relation to certain information was expressly stated, which in some cases was firsthand knowledge.

(b) The Observations at 85 Queen’s Wharf Road

[28] On April 29, 2016, Toronto Police were informed that Mr. Eckstein had been followed by London Police from London to 85 Queen’s Wharf Road. Officer Ho from the Toronto Police took over the surveillance of Mr. Eckstein.

[29] Officer Ho entered 85 Queen’s Wharf Road, without a warrant. He observed Mr. Eckstein enter the building where he met Mr. Maric in the lobby. Officer Ho followed Mr. Maric and Mr. Eckstein into the elevator. He saw them press the button for the 42nd floor but did not see where they got off because he exited the elevator first.

[30] Officer Ho returned to 85 Queen’s Wharf Road on May 2, 2016, and reviewed security camera footage for April 29. After everyone else got off the elevator, he observed Mr. Maric push the button for the 38th floor, where he and Mr. Eckstein got off and turned left. Officer Ho did not seize the surveillance video.

[31] The General Warrant ITO relied on Officer Ho’s observations to request authorization to surreptitiously enter Unit 3802. However, there was no information in the General Warrant ITO that disclosed any reason to believe that Unit 3802 was the unit visited by Mr. Maric and Mr. Eckstein. The General Warrant ITO did not make note that Mr. Maric and Mr. Eckstein turned left when they exited the elevator, and in any event, Unit 3802 was not located left of the elevator.

(c) The Observations at 295 Adelaide Street West

[32] On April 29, 2016, after the observations at 85 Queen’s Wharf Road, police also observed Mr. Eckstein meet with Mr. Brounsuzian outside 295 Adelaide Street West. This was the first time that Mr. Brounsuzian became known to police.

[33] The General Warrant ITO describes the meeting between Mr. Eckstein and Mr. Brounsuzian twice, in slightly different language.

[34] In the first description, Officer Chase, who drafted the General Warrant ITO, described how the surveillance officer saw Mr. Brounsuzian approach Mr. Eckstein’s car carrying “a large weighted white shopping bag with black dots on it.” Mr. Eckstein got out of the car and the two men went to the trunk. Mr. Eckstein took the bag and placed it in the trunk under the floormat in the spare tire compartment. Both men got into the vehicle and a few moments later, Mr. Brounsuzian got out and went back into the building “carrying a small package in his hand.” Officer Chase describes this interaction as consistent with a drug transaction.

[35] The second description is from the perspective of the 295 Adelaide Street West surveillance video. It describes Mr. Brounsuzian approach Mr. Eckstein’s car with the same type of bag, and leave moments later with a package of paper towels.

[36] Another officer, who was also conducting surveillance at the time, took photographs of this interaction. There is no photograph of both Mr. Eckstein and Mr. Brounsuzian at the trunk. This officer’s testimony revealed that he saw both individuals at the trunk but was unable to take a photograph because of issues with his camera.

(d) The 2013 Arrest Record

[37] The General Warrant ITO also described an occurrence from 2013, where Mr. Eckstein and Mr. Maric were arrested and stated that a kilogram of cocaine had been seized. It noted that there were no convictions related to this arrest on their criminal records and that the outcome of the arrest was unknown. It was later agreed by the parties that charges related to this occurrence were withdrawn and that the substance seized turned out not to be cocaine but rather an adulterant.

(e) The Execution of the General Warrant

[38] On May 4 and 5, 2016, police made entries to Unit 304 pursuant to the General Warrant. They found a handwritten note alleged to be a debt list, a money counter, a gun safe containing lawfully possessed and safely stored firearms, and $130,000 stored between a grey shoe box inside a Metro shopping bag and a brown leather bag.

[39] On May 4, 10, 25 and 26, 2016, police made several surreptitious entries to Unit 3802, where they found among other things, cocaine and cutting agents. On May 10, during one of these entries, police found the same Metro shopping bag and grey shoe box that had been in Unit 304, now empty.

(4) The Search of 595 Proudfoot Lane

[40] As discussed above, CHS #6 had provided information linking Mr. Maric to Mr. Shahin.

[41] At the time of the investigation, Mr. Shahin was paying Emilee Jarvis for the use of Unit 808 in a building at 595 Proudfoot Lane, in London, Ontario. Ms. Jarvis was the registered tenant of Unit 808. 595 Proudfoot Lane is a high rise building of 14 stories with roughly 250 tenants. The building can be accessed by key, fob, or access code.

[42] On May 4, 2016, London Police officers entered 595 Proudfoot Lane and made observations in the common areas of the eighth floor. It is not clear how police gained access to the building. They did not seek a warrant, nor did they coordinate with building management, however, there was some evidence that they had a universal access code for the building so that they could access it in an emergency.

[43] Police observed Mr. Eckstein enter Unit 808 empty-handed and leave the building about 30 minutes later with a black bag. Later that day, they observed Mr. Shahin leaving Unit 808.

[44] On May 16, 2016, Toronto Police applied for and obtained a general warrant to search Unit 808 (the “May 16 Warrant”). The details of the May 4th observations were included in the ITO used to obtain the May 16 Warrant (the “May 16 ITO”).

[45] On May 26, 2016, at approximately 3:53 p.m., the London Police observed Mr. Shahin enter Unit 808 using a key. An individual came to the unit empty handed and left soon after with a black reusable shopping bag. Later, Mr. Shahin left the unit, locking the door behind him.

[46] That evening, at approximately 7:15 p.m., Toronto Police executed the May 16 Warrant. Two officers entered Unit 808 by force, performed a quick search and seized drugs, a firearm and ammunition. They noted, however, that there were further items that needed to be searched and/or seized, such as a cocaine press, a vacuum sealer and packaging.

[47] As a result, at approximately 11:30 p.m., London Police obtained a warrant to search Unit 808 and seize the remaining items. Mr. Shahin was taken into custody that evening.

(5) The Reauthorization and Expansion Wiretap

[48] On May 31, 2016, Officer Tait applied to extend and expand the Initial Wiretap (the “Reauthorization and Expansion Wiretap”). The Reauthorization and Expansion Wiretap was authorized on June 2, 2016.

[49] In the ITO used to obtain the Reauthorization and Expansion Wiretap (the “Reauthorization ITO”), Officer Tait stated that “Marco” had been identified as “Marko Maric” and that, through the investigation into Mr. Maric, several of his criminal associates had been identified, including Mr. Eckstein, Mr. Brounsuzian and Mr. Shahin.

[50] The Reauthorization ITO relied on the observations made during Officer Ho’s warrantless entries to 85 Queen’s Wharf Road and the evidence found in Unit 3802 pursuant to the General Warrant. It also referenced various intercepted communications and an allegation that Mr. Maric was a member of Mr. Er’s criminal organization, based on CHS #1’s original identification of “Marco”.

[51] The Reauthorization ITO added Mr. Eckstein, Mr. Brounsuzian and Mr. Shahin as “principal known persons” and authorized the monitoring of their phones. It also authorized the placement of a listening device and a hidden camera in Unit 3802.

[52] On June 7, 2016, the listening device and camera revealed Mr. Maric and others repackaging cocaine inside Unit 3802.

(6) The June 27 Search Warrant

[53] On June 27, 2016, Officer Chase applied for and was issued a search warrant to search numerous vehicles and residences, including further searches of Unit 304 and Unit 3802 (the “June 27 Search Warrant”).

[54] In support of the search of Unit 304, the ITO for the June 27 Search Warrant (the “June 27 ITO”) referred to the April 29 meeting between Mr. Brounsuzian and Mr. Eckstein and the evidence discovered from the searches of Unit 304 and Unit 3802 pursuant to the General Warrant. It also described meetings between Mr. Brounsuzian and two other associates of Mr. Maric.

[55] In support of the search of Unit 3802, the June 27 ITO referred to the evidence obtained from the listening device and camera installed pursuant to the Reauthorization and Expansion Wiretap.

[56] On June 28, the June 27 Search Warrant was executed. In Unit 304, police found 1.2 kilograms of cocaine and $4,000 in cash. In Unit 3802, police found drug paraphernalia, cutting agents, cocaine and marijuana.

DECISIONS BELOW

[57] Before their trials, the appellants each brought pre-trial Charter and Garofoli applications. As discussed in more detail below, the application judge dismissed all of the appellants’ applications.

(1) The Maric Application

[58] Mr. Maric brought an application challenging, among other things, the Initial Wiretap, the General Warrant, and the Reauthorization and Expansion Wiretap and sought to exclude the evidence obtained through these authorizations under s. 24(2) of the Charter. The application judge dismissed the application.

(a) The Initial Wiretap

[59] With respect to the Initial Wiretap, Mr. Maric did not dispute the general lawfulness of the Initial Wiretap. Rather, he challenged, among other things, whether “Marco” was a properly named person, and whether police had reasonable grounds to believe that “Marco” was Mr. Maric in order to have used the Resort To Clause to intercept his communications.

(i) “Marco” was a properly named person

[60] The application judge found that Officer Tait was full, fair, and frank in the Initial Wiretap ITO, rejecting the argument that he was required to disclose that police had tried and failed to corroborate the phone number of “Marco” and connect that phone number with Kevin Er. He found that there was “no obligation on affiants to anticipate and to explain away in advance every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take.”

[61] The application judge found the information provided by CHS #1 to be compelling and credible. CHS #1 provided specific information about Marco with specific dates and disclosed the source of their information, which in some cases was firsthand. CHS #1 was registered as an informant and had provided information in the past that had led to arrests. CHS #1 had disclosed their motivations and the existence of any criminal record was provided.

[62] Although there was no direct corroboration of CHS #1’s information, the application judge found that “there was a basis for the issuing justice to evaluate the credibility and reliability of CHS #1.” He also found there were reasonable grounds, given the information provided by CHS #1, to believe the interception of Mr. Maric’s communications would assist the investigation.

(ii) There were reasonable grounds to believe that Mr. Maric was “Marco”

[63] The application judge found that there were reasonable grounds to believe that Mr. Maric was “Marco” and therefore that police were justified in relying on the Resort To Clause to intercept his communications.

[64] The application judge rejected Mr. Maric’s submission that the police had fabricated a story about CHS #1 identifying the MTO photo of Mr. Maric as “Marco”. He accepted the evidence of Officer Tait that CHS #1 was shown the photo by his handler and that he positively identified Mr. Maric as “Marco”.

[65] The application judge also rejected Mr. Maric’s argument that even if the photo identification had occurred, it was so weak that it was worthless. He found that in the context of this type of application, the threshold was whether there was reliable evidence for the issuance of the warrant. The photo identification was sufficient to provide reasonable grounds for police to believe that Mr. Maric was “Marco”.

(b) The General Warrant and the Reauthorization and Expansion Wiretap

[66] With respect to the General Warrant, the Crown conceded that the General Warrant was facially invalid in that, while it set out grounds to believe that Mr. Maric had an apartment on the 38th floor of 85 Queen’s Wharf Road, there were no reasonable grounds to search Unit 3802 in particular. The Crown submitted that the evidence obtained through the searches of Unit 3802 pursuant to the General Warrant should be excised from the affidavits in support of the Reauthorization and Expansion Warrant. Mr. Maric argued that after the excision of this evidence, the Reauthorization and Expansion Wiretap could not have been authorized. He also sought to exclude the evidence obtained from Unit 3802 pursuant to the General Warrant under s. 24(2) of the Charter.

(i) The Reauthorization and Expansion Wiretap was authorized

[67] The application judge accepted that there was a violation of Mr. Maric’s s. 8 Charter rights since the General Warrant did not contain reasonable grounds to search Unit 3802. However, even with the fruits of the searches of Unit 3802 excised from the Reauthorization ITO, he found that there was a sufficient basis for the Reauthorization and Expansion Wiretap.

[68] First, the application judge noted that the Initial Wiretap was properly authorized, and that police knew of Mr. Maric and had reasonable grounds to believe that the interception of his communications would assist in the investigation of the offences.

[69] Second, the Reauthorization ITO included Officer Ho’s observations of Mr. Maric and Mr. Eckstein on April 29, 2016, in the lobby and on the 38th floor of 85 Queen’s Wharf Road. It was determined that the fob used to enter the building was for Unit 3802. This provided a sufficient nexus to Unit 3802.

[70] Third, the Reauthorization ITO relied again on the information from CHS #1, which was not only credible, reliable and corroborated, but was also relevant and properly taken into account by the issuing justice of the Reauthorization and Expansion Wiretap. The ITO similarly relied on the information about Mr. Shahin and Mr. Maric provided by CHS #6 who, as noted more fully in the reasons of the Brounsuzian Application below, was also found to be credible, reliable and corroborated.

[71] The application judge was satisfied that the combined force of the circumstantial evidence provided a basis to authorize the Reauthorization and Expansion Wiretap.

(ii) The evidence from Unit 3802 should not be excluded under s. 24(2) of the Charter

[72] The application judge found that despite the breach of Mr. Maric’s s. 8 right, the evidence obtained from the searches of Unit 3802 pursuant to the General Warrant should not be excluded under s. 24(2) of the Charter.

(c) The Evidence from the Wiretaps should not be excluded under s. 24(2) of the Charter

[73] Although he had found that the Initial Wiretap and the Reauthorization and Expansion Wiretap were authorized, the application judge also went on to find that even if they had not been authorized, he would not have excluded the evidence obtained pursuant to those authorizations under s. 24(2) of the Charter, applying the test from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[74] Under the first Grant factor, the application judge found that the seriousness of the state conduct would have been at the low end of the spectrum. The relevant ITOs and affidavits were drafted in good faith, with a belief that there were reasonable and probable grounds. There were no attempts to mislead the issuing justice nor was there any negligence or fraud. This weighed in favour of admitting the evidence.

[75] Under the second Grant factor, the application judge found that the wiretaps would have infringed the privacy of a private resident and private communications, which would be a serious breach of Mr. Maric’s Charter rights. This weighed in favour of excluding the evidence.

[76] Under the third Grant factor, the application judge found that the evidence obtained through the wiretaps was reliable and that society had a strong interest in the adjudication of this case on its merits, which weighed in favour of admitting the evidence.

[77] Following the application, Mr. Maric was convicted of conspiring to traffic cocaine contrary to s. 5(1) of the CDSA.

(2) The Brounsuzian Application

[78] Mr. Brounsuzian’s application challenged the validity of the General Warrant and the June 27 Warrant and sought the exclusion of the evidence obtained from the searches conducted pursuant to these warrants. The application judge dismissed the application.

(a) The General Warrant

(i) The reference to a “small package” should be amplified

[79] With respect to the General Warrant, Mr. Brounsuzian sought excision of the paragraphs referring to the “small package” and Officer Chase’s note that the interaction with Mr. Eckstein at 295 Adelaide Street West was consistent with a drug transaction.

[80] The application judge found that Officer Chase had accurately described the reports of the April 29, 2016 interaction in the General Warrant ITO. The difference between the reference to a “small package” and a “package of paper towels” was due to the source of the information and their relative vantage points. The description of events from the surveillance video was intended to clarify the version of events as seen by the surveillance officer.

[81] The application judge accepted that Officer Chase’s opinion about this looking like a drug transaction did not change as a result of learning that the small package was paper towels. However, he found it was an appropriate circumstance for amplification and substituted “package of paper towels” where the General Warrant ITO referred to a “small package”.

(ii) The 2013 arrest incident should be amplified

[82] The application judge accepted that Officer Chase made a good faith mistake, when referring to the 2013 arrest of Mr. Maric and Mr. Eckstein, by stating that cocaine was found. He amplified the General Warrant ITO to correct that it was an adulterant, not cocaine. The application judge found that Officer Chase acted in good faith in including the arrest in the General Warrant ITO and that he made it clear that there was no basis to believe Mr. Maric or Mr. Eckstein were convicted of any offence. He found it would be appropriate, however, to amplify the General Warrant ITO to indicate that the charges were withdrawn.

(iii) The activity at the trunk was not misleading or inaccurate

[83] The application judge refused to order amplification or excision of the reference to Mr. Eckstein placing the bag from Mr. Brounsuzian in the trunk. The surveillance officer stated that he saw Mr. Eckstein at the trunk twice and in both instances, he placed a bag in the trunk. The application judge found that the General Warrant ITO was not false, inaccurate or misleading in this respect.

(iv) The failure to seize the surveillance video did not breach s. 7 of the Charter

[84] The application judge also refused to excise Officer Ho’s observations of the elevator video from 85 Queen’s Wharf Road. He found that the failure of police to seize and preserve the video did not violate Mr. Brounsuzian’s right to make a full answer and defence, as guaranteed by s. 7 of the Charter.

[85] The application judge held that the onus was on Mr. Brounsuzian to establish a Charter breach and there was no evidence in the record that the failure of Officer Ho to preserve the video was due to inadvertence, negligence or wilfulness. Relying on this court’s decision in R. v. Barnes, 2009 ONCA 432, he found that a failure to adequately investigate a case does not give rise to an independent Charter violation.

[86] The application judge further found, relying on R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, that the Crown’s disclosure obligations only extended to material in its possession and control. The Crown had met its disclosure obligations, so Mr. Brounsuzian had to show actual prejudice in order to establish a s. 7 breach. The application judge held that there was only speculation that the elevator video showed anything other than what Officer Ho testified to and recorded in his report.

[87] Finally, the application judge found that there was no authority for the proposition that the s. 7 jurisprudence on lost evidence extended to evidence in the hands of third parties but not seized by police.

(v) The General Warrant ITO was sufficient to authorize the General Warrant

[88] Overall, the application judge found that the General Warrant ITO, as amplified, provided sufficient grounds to issue the General Warrant.

[89] The application judge reviewed the information from CHS #6 and found that it was compelling, credible and corroborated. The source of CHS #6’s knowledge was stated and, in some cases, was firsthand. CHS #6 was registered as an informant and had provided reliable information to police in the past. Their motive and any criminal record had also been disclosed.

[90] The police had also subsequently corroborated, at least in part, the accuracy of the information provided by CHS #6. For example, Mr. Shahin was found to live on Proudfoot Lane and when he was arrested, he was found in possession of a quantity of currency. Cocaine and marijuana were found in his home.

[91] The application judge also considered the information from CHS #1, and for the same reasons as in the decision in the Maric Application, above, found it was credible, reliable and corroborated. He further considered that CHS #1 and CHS #6 mutually corroborated each other.

[92] Finally, the application judge considered the other relevant evidence in the General Warrant ITO such as the connection between Mr. Eckstein and Mr. Maric through the 2013 arrest and the April 29 surveillance observations, the suspicious behaviour in the elevator at 85 Queen’s Wharf Road that was consistent with a counter-surveillance technique, and Officer Chase’s observations that the interaction between Mr. Eckstein and Mr. Brounsuzian was consistent with a drug transaction in all of the circumstances.

[93] The application judge found that in all of the circumstances, there was a basis upon which the issuing justice could have been satisfied that there were reasonable grounds to authorize the General Warrant for Unit 304.

(b) The June 27 Warrant

[94] The application judge recognized that, in the Maric Application, he had found that the General Warrant breached Mr. Maric’s s. 8 Charter rights with respect to Unit 3802. However, he refused to excise the information obtained from the searches of Unit 3802 from the June 27 ITO, specifically the discovery of the Metro shopping bag and the shoe box that linked Mr. Brounsuzian to Mr. Maric. Applying this court’s decision in R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), the application judge held that “a defendant is only entitled to excision from an … ITO of evidence unconstitutionally obtained in violation of his or her own personal right.” Since Mr. Brounsuzian had no reasonable expectation of privacy in Mr. Maric’s unit, his Charter rights were not engaged, and he was therefore not entitled to any excision.

(c) The evidence from the General Warrant and June 27 Warrant should not be excluded under s. 24(2) of the Charter

[95] Like in the Maric Application, the application judge went on to conduct a s. 24(2) analysis in the event he was wrong, and the General Warrant and June 27 search warrant were not authorized. Applying and balancing the factors in Grant, he found that the evidence should not be excluded.

[96] First, considering the seriousness of the state conduct, the application judge found that while Officer Chase made mistakes in the General Warrant ITO, he acted in good faith, was not negligent and did not intend to mislead. Furthermore, the application judge noted that police had applied for and obtained a warrant from an independent judicial officer prior to any searches, which was “the antithesis of willful disregard for Charter rights.”

[97] Second, he found that any breach of s. 8 in relation to Unit 304 would have a high impact on Mr. Brounsuzian, given that it was his private home.

[98] Third, given the reliability of the evidence found and the importance of the evidence to the Crown’s case, society had a strong interest in trying the case on its merits.

[99] Following the dismissal of his application, Mr. Brounsuzian was convicted of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA. He was sentenced to 4 years and 10 months in prison.

(3) The Eckstein Application

[100] Mr. Eckstein brought a Garofoli application challenging the Tracking Warrant under s. 8 of the Charter, claiming it lacked both a facial and sub-facial basis to show a reasonable suspicion that an offence had been or was going to be committed by Mr. Eckstein and that relevant information could be obtained by tracking his vehicle. He alleged there were various errors, omissions and misleading statements in the Tracking ITO. He also argued that the Tracking ITO was deficient because it relied on information from CHS #1 who was not credible, reliable or corroborated. He sought the exclusion of any evidence obtained through the Tracking Warrant.

[101] Mr. Eckstein also challenged the searches of Unit 3802 pursuant to the General Warrant and the June 27 Warrant, arguing that he had a reasonable expectation of privacy in the unit.

[102] The application judge dismissed the application.

(a) The Tracking ITO was Sufficient

[103] The application judge found that the Tracking ITO disclosed reasonable grounds to issue the Tracking Warrant. Officer Younan was full, frank and fair in the Tracking ITO and any errors were made in good faith and were not intended to mislead. This was not a circumstance where the officer left out certain facts in order to achieve a desired outcome. Any facts left out were immaterial and not omissions at all.

[104] The application judge found that the information from CHS #1 was compelling, credible and corroborated. CHS #1 provided specific, detailed and first-hand information. They were known to police and had provided reliable information in the past. CHS #1’s motivations for providing the information were disclosed, they were cautioned about providing false/misleading information and any criminal history was disclosed. Their information was corroborated by the police observations of the Boston Pizza parking lot meeting on November 19, 2015, as well as other investigative steps taken by police to test the information. While these steps did not involve physical observations, alongside the November 19 observations, they were sufficient to corroborate CHS #1’s information.

(b) There Was No Reasonable Expectation of Privacy

[105] The application judge applied the factors set out by the Supreme Court in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45, that should be considered in assessing whether there is a reasonable expectation of privacy:

(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.

[106] Applying these factors, the application judge found that there was no violation of Mr. Eckstein’s s. 8 rights in relation to the searches of Unit 3802.

[107] While accepting Mr. Eckstein’s subjective expectation of privacy, the application judge held that, on the record before him, Mr. Eckstein’s subjective expectation was not objectively reasonable. Mr. Eckstein was not a tenant and was not paying rent – he was, at most, “an exceptionally privileged guest” in the unit.

[108] As Mr. Eckstein’s s. 8 Charter rights were not engaged, the application judge held that he had no standing to challenge the searches of Unit 3802 pursuant to the General Warrant or the June 27 Warrant.

[109] At trial, Mr. Eckstein was convicted of trafficking in cocaine, contrary to s. 5(1) of the CDSA. He was sentenced to 4 years and 3 months imprisonment, less 9 months’ credit, for a total sentence of 3.5 years.

(4) The Shahin Application

[110] Mr. Shahin argued, among other things, that the police observations on May 4 in the eighth-floor hallway of 595 Proudfoot Lane were made in breach of his s. 8 Charter rights. The application judge disagreed, finding that Mr. Shahin had no reasonable expectation of privacy in this circumstance.

[111] The application judge distinguished this case from R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where this court found that an accused had a reasonable expectation of privacy in common areas of his building.

[112] In White, a police officer, surreptitiously and without a warrant, entered the common areas of a building where the accused owned a unit, which led to a seizure and drug charges. The officer entered the locked building through a defective door without any owners’ prior consent or knowledge, walked through the hallways, listened at the accused’s door, observed the comings and goings at the accused’s unit, and viewed the accused’s storage locker in the common storage area. The results of these observations were included in the ITO used to obtain a search warrant for the accused’s unit. The affiant of the ITO did not inform the issuing judge that the investigating officer had entered the locked building without permission. The accused applied successfully to exclude that evidence under s. 24(2) of the Charter on the basis that the police violated his rights under s. 8.

[113] On appeal, this court held that the trial judge did not err in finding that the accused had a reasonable expectation of privacy in the common areas of his condominium building. In its analysis, the court relied on the factors set out in Edwards, at para. 45.

[114] The court held, at para. 41, that there was no categorical rule for common areas in multi-unit buildings and that a nuanced, contextual approach is required. Relevant factors in White included that the building was small enough that a stranger’s presence would be noteworthy and that “[a]lthough the [accused] did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas several times without permission or invitation and investigating at their leisure”: at paras. 46-47.

[115] The application judge held that the situation before him, involving observations of the eighth-floor hallway, was distinct from the multiple police entries in common areas, observation of the inside of a storage locker and eavesdropping of conversations inside a condominium unit at issue in White.

[116] The application judge adopted the words of Huscroft J.A. in White, at para. 44, that the reasonable expectation of privacy analysis is contextual:

[T]he lesson from Edwards is that a reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.

[117] In this case, the application judge, applying Edwards, relied on the following factors:

a) [Mr. Shahin] was not the owner of unit 808. The evidence was that he paid Ms. Jarvis for the use of the apartment.

b) 595 Proudfoot Lane is a high-rise building of 14 stories, with roughly 250 tenants. Any number of persons could have been in the common areas at any time.

c) There was no evidence of a security system other than a key, fob or access code required to access 595 Proudfoot Lane. There was no evidence of exceptional security measures such as in R. v. Batac [2018] O.J. No. 383 at para. 42 to limit access to the floors of the apartment building suggesting a heightened expectation of privacy in certain areas.

d) The nature of the police observations were unobtrusive. They were naked eye observations of the eighth floor hallway by the police. There was no evidence that the observations included observations inside the apartment unit.

[118] The application judge also considered the information that was ultimately revealed by the police observations: R. v. Saciragic, 2017 ONCA 91, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 106. He observed that a physical address alone does not reveal intimate details about one’s personal choices or way of life, and is publicly available information. In this case, Mr. Shahin was using an apartment building with common areas and there was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others, or that these observations would not be divulged to the police.

[119] Finally, the application judge concluded that the fact that the police did not have the consent of property management to enter 595 Proudfoot Lane did not, as a result, provide Mr. Shahin with a reasonable expectation of privacy in the eighth-floor hallway of the building. The application judge accepted the evidence of Officer Pavoni that the reason the police did not approach property management was based on the experience the police had on two prior investigations.

[120] After the dismissal of his application, Mr. Shahin was convicted of conspiracy to traffic cocaine and possession of cocaine for the purpose of trafficking, contrary to ss. 5(1) and (2) of the CDSA. He was sentenced to 5 years, less 20 months’ credit, for possession for the purpose of trafficking conviction, and 40 months concurrent for the conspiracy to traffic cocaine conviction.

[121] Following his conviction and sentencing, Mr. Shahin brought a s. 11(b) Charter application. This application was dismissed on April 17, 2019, with written reasons provided on October 16, 2019.

[122] Mr. Shahin initially appealed from both the Garofoli decision and the s. 11(b) decision. However, at the outset of the appeal hearing, Mr. Shahin advised that he was pursuing only a single ground of appeal relating to the Garofoli application decision.

ISSUES ON APPEAL

[123] Mr. Maric raises the following issues on appeal:

1. Whether the application judge erred in finding that “Marco” was a known person at the time of the issuance of the Initial Wiretap and therefore that police could rely on the Resort To Clause in relation to “Marco”;

2. In the alternative, whether the application judge erred by reversing the burden in relation to the question of whether the police could have properly targeted Mr. Maric as a person named in the Initial Wiretap;

3. Whether the application judge erred in finding that, once the fruits of the prior warrants were excised from the Reauthorization ITO, there was sufficient information to support the issuance of the Reauthorization and Expansion Wiretap; and

4. If the Initial Wiretap and Reauthorization and Expansion Wiretap were not properly authorized, whether the evidence obtained as a result of these authorizations should be excluded under s. 24(2) of the Charter.

[124] Mr. Brounsuzian raises the following issues on appeal:

1. Whether the application judge erred in declining to excise evidence from the General Warrant and June 27 Warrant that Mr. Brounsuzian claims was inaccurate, misleading, or unconstitutionally-obtained;

2. Whether the application judge erred in his s. 7 analysis, with respect to the elevator surveillance video, by:

a. Placing the burden on Mr. Brounsuzian to show unacceptable negligence;

b. Characterizing the issue as a “failure to adequately investigate” rather than a “failure to preserve evidence”; and

c. Relying on cases where the lost evidence belonged to third parties and was never in the possession of the police or Crown;

3. Whether the application judge erred in finding that the General Warrant and June 27 Warrant were sufficient;

4. Whether the application judge erred in declining to excise information from the June 27 Warrant obtained through the breach of Mr. Maric’s s. 8 Charter right;

5. Whether the evidence should be excluded under s. 24(2).

[125] Mr. Eckstein raises the following issues on appeal:

1. Whether the application judge erred in dismissing Mr. Eckstein’s Garofoli application because:

a. The police observations from November 19, 2015, did not amount to a reasonable suspicion;

b. The police observations from December 31, 2015, did not amount to a reasonable suspicion;

c. The information provided by CHS #1 was not credible, compelling or corroborated.

2. Whether the application judge erred in finding that Mr. Eckstein had no reasonable expectation of privacy in Unit 3802.

[126] Mr. Shahin raises the following issue on appeal:

1. Whether the application judge erred in finding that Mr. Shahin had no reasonable expectation of privacy in the common areas of the eighth-floor hallway of 595 Proudfoot Lane.

ANALYSIS

(1) The Maric Appeal

(a) The application judge did not err in finding that Mr. Maric was a known person at the time of issuance of the Initial Wiretap and therefore did not err by relying on the Resort To Clause

[127] In the application, Mr. Maric argued that Officer Tait was not “full, frank and fair” in the ITO filed in support of the Initial Wiretap authorization. He submitted that Officer Tait was obliged to, but did not, advise the issuing justice that the police had attempted but failed to corroborate the phone number of “Marco” and had attempted but failed to find any connection between that phone number and Kevin Er.

[128] In response to this argument, the application judge found that:

There was no material omission on the part of Officer Tait in failing to advise the issuing justice of the failure of the police to corroborate the number 226-985-1847 or to connect it with Kevin Er. Officer Tait testified that he did not advise the issuing justice because he thought it was obvious. I accept his evidence on this point. The obligation on the affiant is not to commit the error of material non-disclosure. There is no obligation on affiants to anticipate and to explain away in advance every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take. Nor in my view was the affiant required to outline to the issuing justice all of the evidence the police did not have. [Citations omitted].

At paragraph 225 of the affidavit Officer Tait made it clear that he had not yet been able to identify who “Marco” was. In my view, Officer Tait was full, frank and fair in the information he provided to the issuing justice in his affidavit of April 4, 2016. He was not intending to mislead the issuing justice. He was acting in good faith.

[129] On appeal, Mr. Maric argues that the information received from CHS #1 was not capable of identifying him as “Marco”. Mr. Maric points to CHS #1’s identification of at least 15 people and how, with one exception (“Marco”), CHS #1 was able to provide details about: where they resided; what they did for a living; their vehicle’s license plate numbers; insight into their personal relationships; and that none of the other confidential informants said anything about a “Marco”. CHS #1, knew only that Kevin Er had a male Serbian purchaser in London, named “Marco”, who used the phone number 226-985-1847.

[130] We would reject this argument. Section 186(4)(c) of the Criminal Code provides that:

(4) An authorization shall

(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used.

[131] Section 185(1)(e) similarly requires that the affidavit in support of an authorization specify “the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence”.

[132] As this court held in R. v. Hafizi, 2023 ONCA 639, 168 O.R. (3d) 435, at paras. 59, 60 and 103, leave to appeal refused, [2023] S.C.C.A. No. 500, the threshold for naming a known person in a wiretap authorization is a “modest” or “low one”. And, as the Supreme Court held in R. v. Chesson, 1988 CanLII 54 (SCC), [1988] 2 S.C.R. 148, at p. 164, the test for naming a person at the application stage and the test for naming a person in the authorization are the same: See also Hafizi, at para. 83. As the Supreme Court explained in Chesson, again at p. 164, if the existence of a person is known, and if there are reasonable grounds to believe that interception of their private communications may assist the investigation, that person must be named in both the ITO and the authorization:

How is it to be decided whether a particular person is known or unknown for the purposes of Pt. [VI] of the Code? In my opinion, the answer to this question is to be found in Pt. [VI] itself. The starting point is [s. 185(1)(e)] of the Code, which sets out the two pre-conditions to be met before a person may be lawfully identified and named in an authorization and thus be a known person. The first and most obvious condition is that the existence of that person must be known to the police. Second, and equally important, however, is the additional requirement that the person satisfy the standard of being one “the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence”. If at the time the police apply for a judicial authorization a person meets both these criteria, he will be a known person and therefore, if the interceptions of his communications are to be admitted against him, he must be named in the authorization as a target for interception. If he is not named his interceptions are not receivable, since there is no authority to make them. A “known” person, then, for the purposes of Pt. IV.1 of the Code is one who satisfied the two criteria in s. 178.12(1)(e). [Emphasis added].

[133] It is important to emphasize that the police are required, by statute, to identify all those whose existence they are aware of, even if they do not know their proper or full names: R. v. Chung (2008), 2008 CanLII 12705 (ON SC), 231 C.C.C. (3d) 484 (Ont. S.C.), at para. 41; Singh v. United States of America, 2010 ONSC 4332, at para. 32; R. v. Degady, [1996] O.J. No. 2011, (Ont. Gen. Div.), at paras. 14-20, 31-34, aff’d, [2001] O.J. No. 3429 (Ont. C.A). In such cases the common practice would be to, as the affiant did here, use various known descriptors and information in order to identify the known person as best they can.

[134] Mr. Maric argues, pursuant to this court’s decision in R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at paras. 70-71, leave to appeal refused, [2012] S.C.C.A. No. 496, that investigators must know the identity of the person in order for them to be named as a “known” person. While investigators must identify “known” persons, this does not mean a person cannot be identified without a full or legal name. Rather, identity can be established on the basis of other factors or combination of factors, such as a nickname, physical description, or other indicators: See Singh, at para. 32; Chung, at para. 41; Degady, at para. 37. And, just because the affiant here did not know as much about “Marco” as he did about others whose private communications may be intercepted does not mean “Marco” was not “known”. Otherwise, the police would never be able to target for interception a person whose name they did not know, frustrating law enforcement’s ability to use this investigative tool: Degady, at paras. 35-37.

[135] We see no error in the application judge’s conclusion that the issuing justice could have issued the initial authorization naming, as a known person, “a male known as ‘Marco’ described as Serbian” from London, Ontario. “Marco’s” existence was known, and he met the “may assist” threshold, which meant the affiant had no choice but to name him in the authorization: Hafizi, at para. 37.

[136] What Mr. Maric is effectively asking us to do is reformulate the applicable test by reading into the Criminal Code’s provisions a requirement that core biographical information be known and included in the ITO before someone can be identified in an authorization. There is no need or basis on which to do this.

[137] The question for us is whether there was some reliable information upon which the issuing justice could have concluded that “Marco” existed: Chesson, at pp. 365-66. And, as the application judge found, after considering the Debot factors, the information concerning “Marco” was compelling, credible and corroborated.

[138] Mr. Maric argues further that objectively, the police did not have reasonable grounds to believe that he was “Marco”, and therefore could not have used the Resort To Clause in para. 5(m) of the Initial Wiretap. To start, the application judge found as a fact that CHS #1 identified Mr. Maric by photograph. There is no reason to interfere with this finding of fact, which is due a high degree of deference: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262, at para. 10.

[139] Mr. Maric is wrong to suggest that the test for identification is correctness. This, in our view, is an impossibly high standard. The appropriate standard is reasonable grounds to believe, which the application judge found was met: Consider Hafizi, at paras. 121-23. Given CHS #1’s information concerning “Marco”, the fact “Marco” was a large scale purchaser of drugs from Kevin Er, and CHS #1’s post-authorization identification of Mr. Maric via photograph, the police were entitled to rely on the Resort To Clause. That is to say, the police had reasonable grounds to believe that “Marco” was Marko Maric.

(b) The application judge did not reverse the burden in relation to the question of whether the police could have properly targeted Mr. Maric as a person named in the initial wiretap

[140] Mr. Maric argues that the application judge effectively required him to prove that the police did not hold a reasonable belief that “Marco” was Mr. Maric. We disagree. As discussed, the application judge accepted that, post authorization, CHS #1 viewed a photograph of Mr. Maric and identified him as “Marco”, which was to reject Mr. Maric’s argument that the police had fabricated this evidence. In other words, as opposed to reversing the burden of proof on the Garofoli application, the application judge simply found that Mr. Maric had not established the fraud or misrepresentation he had alleged.

[141] As the application judge did not reverse the burden of proof, we would reject this ground of appeal.

(c) There were sufficient grounds post-excision for the Reauthorization and Expansion Wiretap

[142] Mr. Maric argues that the application judge erred in finding that, once the fruits of the General Warrant related to the search of Unit 3802 were excised from the Reauthorization ITO, what remained was insufficient to support the issuance of the Reauthorization and Expansion Wiretap. What remained, which the application judge found sufficient to support the warrant, included:

1. the fact that Mr. Maric existed, and had been seen by Officer Ho with Mr. Eckstein, including in the lobby and on the 38th floor at 85 Queen’s Wharf Road;

2. the fob used to enter the building was for Unit 3802; and

3. CHS #1’s tips, which the application judge accepted to be credible, reliable and corroborated.

[143] Mr. Maric argues that these facts “could never be sufficient for a Part VI authorization”, characterizing the various CHS #1 tips as uncorroborated and “sufficiently dissimilar” (such that they don’t corroborate each other). He argues further that the limited surveillance in relation to 85 Queen’s Wharf Road is equally consistent with an innocent trip to Toronto.

[144] We disagree. In addition to the facts noted above, the police had reliable information from two credible informants, CHS #1 and CHS #6, that Mr. Maric was trafficking cocaine and had identified the condominium unit used by Mr. Maric as a stash house. It was therefore open to the application judge to find there were sufficient grounds, post-excision, to support the Reauthorization and Expansion Wiretap.

[145] Moreover, not only did CHS #1 provide compelling and reliable information in support of the Initial Wiretap, thereafter confirming that Mr. Maric was indeed “Marco”, but CHS #6 identified Mr. Maric as someone who partnered with Mr. Shahin to traffic cocaine. It is worth noting that CHS #6 had firsthand knowledge of Mr. Shahin’s drug dealing, disclosed the street where Mr. Shahin lived with his parents, provided Mr. Shahin’s phone number, told the police that Mr. Shahin and Mr. Maric used stash houses, and that Mr. Maric spent a fair amount of time in Toronto where he purchased his cocaine. The Crown submits, and we agree, that the information obtained from CHS #6 was corroborated. The police had also observed Mr. Maric, Mr. Shahin, and Mr. Eckstein meet at a Boston Pizza in London on April 27, 2016. Later, when executing the May 16 Warrant on May 26, 2016, the police found a handgun, ammunition, and drugs at an address associated with Mr. Shahin and Mr. Eckstein.

[146] Further, as noted above, the police observed Mr. Maric and Mr. Eckstein meet in the lobby of 85 Queen’s Wharf Road and observed on video Mr. Maric press an incorrect floor number in the presence of others. Only after everyone had exited the elevator, did he press the button for the 38th floor (believed to be a countersurveillance technique).

[147] The application judge reasonably concluded that there was a basis upon which Mr. Maric could have been named as a known person in the Reauthorization and Expansion Wiretap. We would therefore reject this ground of appeal.

(d) Section 24(2) of the Charter

[148] Given our conclusions above there is no need to address Mr. Maric’s final ground of appeal which is, if either the Initial Wiretap or the Reauthorization and Expansion Wiretap were not authorized, the evidence should be excluded under s. 24(2).

[149] That said, we see no basis on which to interfere with the application judge’s s. 24(2) analysis or with his decision to admit the evidence. His finding that the police, relying on a presumptively valid authorization, acted in good faith throughout, is owed deference, and he otherwise undertook a careful balancing of the Grant factors.

(2) The Brounsuzian Appeal

(a) The application judge did not err by declining to excise evidence from the General Warrant and June 27 Warrant that Mr. Brounsuzian claims was inaccurate, misleading, or unconstitutionally obtained

[150] Mr. Brounsuzian broadly argues that the application judge erred by amplifying and excising information in order to correct errors and misleading passages in the ITOs.

[151] In the application, Mr. Brounsuzian sought excision of the General Warrant ITO and June 27 ITO paragraphs that mentioned a “small package” and Officer Chase’s opinion that the April 29, 2016 meeting between Mr. Brounsuzian and Mr. Eckstein was consistent with a drug transaction. He submitted that these passages gave the misleading impression that the “package” he received was payment for drugs, rather than what the surveillance photographs revealed it to be: a package of paper towels. Mr. Brounsuzian also sought amplification to cure a discrepancy between Officer Chase’s description of the meeting and that of a surveillance officer who witnessed the meeting and who testified that Mr. Brounsuzian did not hide the gift bag in the trunk, as stated in the General Warrant ITO. Mr. Brounsuzian’s complaint was that the impugned ITOs improperly suggested that the bag contained something he knew to be illicit. Lastly, Mr. Brounsuzian argued that the ITO’s reference to Mr. Eckstein and Mr. Maric’s arrest in 2013 should be amplified to say that neither was found in possession of cocaine, and that all charges were withdrawn.

[152] The application judge, who accepted Officer Chase’s explanation for the General Warrant ITO’s two different descriptions of the meeting – which was that he was simply summarizing information from two different sources – held that amplification was appropriate and substituted a “package of paper towels” where the General Warrant ITO mentions “small package”. The application judge also agreed that amplification was necessary to clarify that what was seized during the 2013 arrest (when Mr. Maric and Mr. Eckstein were charged) was an adulterant or “cocaine cut” rather than cocaine itself. The application judge further agreed that the General Warrant ITO should be amplified to indicate that the charges were withdrawn. The application judge made the same findings with respect to the June 27 ITO. The application judge came to these conclusions on the basis that both errors were made in good faith and were not attempts to mislead the issuing justices.

[153] To begin, it is important to note that a subfacial challenge to a warrant has to do with what the affiant knew or ought to have known: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 77, leave to appeal refused, [2017] S.C.C.A. No. 81. That is to say, the reviewing justice’s task is not to determine whether the allegations underlying the warrant are ultimately true – a question for trial – but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds at the time the affidavit was sworn: Paryniuk, at para. 77; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 121-23. In performing this task, it is crucial that the reviewing justice keep in mind the important distinction between the affiant’s knowledge and the knowledge of others involved in the investigation, and that, unless something is amiss, the affiant is entitled to rely on information received from other investigators: World Bank Group, at para. 123; R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 82.

[154] At a Garofoli hearing, erroneous information will only be excised when the affiant knew or ought to have known that the information relied upon was wrong: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at paras. 51-52. And, again, an affiant can rely on information provided by other investigators. As explained by Cromwell J.A., as he then was, in R. v. Morris, 1998 NSCA 229, 134 C.C.C. (3d) 539, at p. 568, amplification of evidence “is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained.” Said otherwise, unless inaccurate information is included in a deliberate attempt to mislead the issuing justice, the reviewing justice may amplify the ITO. An example of the proper use of amplification is found in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, where the Supreme Court held that where an affiant misattributes information from two confidential informants, the proper remedy was to correct the misattribution, not to excise the information given that there was no deliberate attempt to mislead: Araujo, paras. 7, 56, 59 and 61. A reviewing justice has broad discretion when deciding whether to excise or amplify: R. v. Duncan, 2021 ONCA 673, at para. 14. And, as with any other discretionary decision, just because, as an appellate court, we might have exercised our discretion differently (by excising and not amplifying) does not mean appellate intervention is warranted: R. v. Feizi, 2022 ONCA 517, at para. 11.

(i) The application judge did not err by declining to excise information about the 2013 arrests

[155] We see no basis on which to interfere with the application judge’s decision to not excise all information related to the 2013 arrests.

[156] First, there is no dispute that in 2013, Mr. Eckstein and Mr. Maric were arrested and charged in London. The application judge recognized that the parties admitted this fact. When admissions of fact have been made, “as matter of law, a trial judge is obliged to accept those facts”: R. v. Rudder, 2023 ONCA 864, 169 O.R. (3d) 561, at paras. 44-45. In any event, neither the reviewing judge, nor this court, has the authority to excise correct information: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 28, leave to appeal refused, [2010] S.C.C.A. No. 84.

[157] Second, to the extent the information was erroneous (by referencing a kilogram of “cocaine” rather than a kilogram of cocaine “cut or adulterant”) the application judge reasonably found that this was the result of a good faith drafting error and properly cured by amplification. Significantly, Officer Chase made it clear in the General Warrant ITO that, despite attempts to confirm one way or the other, he did not know whether the charges led to convictions. In fact, since Officer Chase did not know that the charges had been withdrawn at the time he swore the affidavit, the application judge likely erred by amplifying the General Warrant ITO to include that information.

(ii) The application judge did not err by declining to excise the April 29, 2016 observations of the bag exchange

[158] In our view, it was open to the application judge to decline to excise from the General Warrant ITO the April 29, 2016 observations of Mr. Brounsuzian’s meeting with Mr. Eckstein, the transfer of the shopping bag, and Mr. Eckstein’s placement of a bag under the floor mat in the rear spare tire compartment.

[159] Mr. Brounsuzian argues that Officer Chase’s reference in the General Warrant ITO to those observations, as found in a surveillance report prepared by another police officer, were misleading. This is because police surveillance photos purportedly show that Mr. Eckstein was alone when he concealed the bag in the trunk area. According to Mr. Brounsuzian, the General Warrant ITO is misleading because it suggests that he was involved with the hiding of this “suspicious” bag when he was not even with Mr. Eckstein when the concealment occurred.

[160] The application judge found that the ITOs were not misleading or false in this respect. As we explain below, the application judge’s conclusion on this issue is owed deference. We would therefore not disturb it.

[161] Again, the focus at a Garofoli hearing is on what the affiant knew or ought to have known at the time the ITO was sworn; which is not to be measured against the truth, but against the affiant’s reasonable belief: Paryniuk, at para. 77. It is important to remember that the affiant, Officer Chase, relied on the surveillance report prepared by another investigating officer. Officer Chase accurately summarized the information received in that surveillance report and he was entitled to rely on these observations in the affidavit: Ahmad, at para. 82; R. v. Clarke, 2016 ONSC 351, at para. 34, citing R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 52. Officer Chase simply could not have known that Mr. Eckstein made two trips to the trunk and placed two different bags in it, or that it was another bag and not the white shopping bag with black dots that he placed under the mat in the rear spare tire compartment. As Officer Chase did not know, and could not have known this, it was not open to the application judge to excise this information.

[162] Contrary to what Mr. Brounsuzian seems to be suggesting, the application judge was not required to view this as a neutral or innocuous interaction or to discard the evidence, given the totality of factors: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 72-73. And, while someone walking into their apartment building with paper towels is not, on its own, suspicious, it was reasonable to conclude that in the totality of these circumstances this interaction was indeed suspicious: MacKenzie, at para. 71. The bottom line is, the application judge accepted Officer Chase’s evidence finding as a fact that he did not intend to mislead the issuing justice, and that it was appropriate to amplify by replacing the references to a “small package” with “package of paper towels”.

[163] We must not focus too narrowly on any one observation and avoid losing sight of the overall context of this exchange. Indeed, when assessing whether reasonable grounds existed, a court must take a common sense approach and consider the ITO as a whole: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 82. That context for the General Warrant ITO includes the fact that the police knew from a confidential informant that Mr. Maric and Mr. Eckstein had been working together; that there was a longstanding relationship between the two; that they had both been charged with drug-related offences in 2013; that on April 29, 2016, Mr. Eckstein drove from London to 85 Queen’s Wharf Road; and that from there Mr. Eckstein drove to Mr. Brounsuzian’s apartment where Mr. Brounsuzian exited his apartment and gave Mr. Eckstein the bag in exchange for a roll of paper towels. Even if one were to dismiss entirely what Mr. Eckstein did at the trunk of the car, the weight of all this information leads plausibly to an inference that this was a drug transaction.

[164] There is no basis to interfere with the application judge’s decision to not excise information from the General Warrant ITO and June 27 ITO or with his decision to amplify the information described above, which did not materially impact the grounds for the search warrants.

(b) The application judge did not err in his s. 7 analysis

[165] Both the General Warrant ITO and the June 27 ITO rely on Mr. Eckstein’s meeting with Mr. Maric at 85 Queen’s Wharf on April 29, 2016, prior to Mr. Eckstein’s meeting with Mr. Brounsuzian. The June 27 ITO states that when Mr. Eckstein and Mr. Maric initially boarded the elevator, they selected the 42nd floor, but when all the other occupants exited, they selected the 38th floor, where they exited. This was described in the ITOs as a counter-surveillance technique.

[166] The affiant, Officer Chase, received this information from Officer Ho, who had viewed the elevator surveillance footage, but failed to obtain it. The video was never disclosed to Mr. Brounsuzian, despite his requests for production.

[167] The application judge found there to be no violation of s. 7 and therefore refused to excise the information:

The onus is on [Mr. Bounsuzian] to establish a Charter breach. In my view, there was no evidence on the record before me that the failure of Officer Ho to preserve the elevator video was due to inadvertence, negligence or wilfulness. A failure to adequately investigate a case does not give rise to an independent Charter violation. See R. v. Barnes, 2009 ONCA 432 (Ont. C.A.) at para. 1. The Crown in this case has met its disclosure obligations…The [Stinchcombe] regime of disclosure extends only to material in the possession or control of the Crown. The law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain.

[168] Mr. Brounsuzian submits that the application judge committed three errors in finding no s. 7 violation: 1) by placing the burden on him to show unacceptable negligence; 2) by characterizing the issue as a “failure to adequately investigate”, rather than a failure by police to preserve evidence which the police knew to be relevant and expressly relied upon; and 3) by relying on cases where the lost evidence belonged to third parties and was never in the possession of the police or Crown.

[169] In our view, these complaints are all interrelated and can be addressed together.

[170] Mr. Brounsuzian asked the application judge to excise Officer Ho’s May 2, 2016 observations of the 85 Queen’s Wharf Road security video capturing Mr. Maric and Mr. Eckstein in the elevator on April 29, 2016. Recall that Officer Ho observed the two press the 38th floor button only after everyone else exited the elevator and after having previously pressed the 42nd floor button, which was characterized in the ITOs as a counter-surveillance technique. Mr. Brounsuzian argued that, because the video was not preserved, and because the police relied on it, Officer Ho’s observations must be excised. Mr. Brounsuzian further argues that the failure of the police to preserve the video interferes with his right to make full answer and defence, per s. 7 of the Charter.

[171] In R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257 (C.A.), at para. 4, application for leave to appeal dismissed, [2001] S.C.C.A. No. 131, citing R. v. B(F.C.) (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 (N.S.C.A.), at p. 547, leave to appeal refused, [2000] S.C.C.A. No. 194, this court affirmed that:

a) The Crown has an obligation to disclose all relevant information in its possession.

b) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.

c) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

d) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

e) In its determination of whether there is a satisfactory explanation by the Crown, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

f) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 rights.

[172] As the application judge found, there was no evidence in the record to suggest that the failure of Officer Ho to preserve the video was due to negligence. Further, in accordance with this court’s reasons in Barnes, the application judge found that a failure to adequately investigate a case does not give rise to an independent Charter violation: Barnes, at para. 1. This is determinative. As such there is no need to address the remaining factors discussed in Bradford.

[173] Mr. Brounsuzian is essentially asking us to radically expand the Crown’s disclosure obligation by imposing a duty that goes well beyond the established scope of first party records in its possession. The bottom line is, the police have no duty to obtain, disclose or preserve records that are in the possession of another: McNeil, at para. 22; R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236, at para. 103, leave to appeal refused, [2020] S.C.C.A. No. 214. It is important to remember this court’s longstanding direction to not turn Garofoli pre-trial admissibility hearings into a trial of the allegations: Sadikov, at para. 86, citing Ebanks at para. 21; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 43, 64. Which is to say, at a Garofoli hearing the ITO is to be measured against the affiant’s reasonable belief at the time, and not against what we might later learn to be objective truth. For that reason, apart from the fact that it was never in the state’s possession, the video was irrelevant to the issues to be decided on the application. Officer Chase was entitled to rely on Officer Ho’s reported observations of the elevator recording: Ahmad, at para. 82. On the facts of this case, to excise the information would be to say that Officer Chase had to investigate what he had learned from Officer Ho, which he was not obliged to do. Furthermore, it is significant that Officer Ho’s observations were, to some extent, corroborated when subsequent police investigation revealed that Mr. Maric’s condo unit was indeed on the 38th floor.

(c) The General Warrant and the June 27 Search Warrant could have been issued on the amplified record

(i) General Warrant

[174] We would not disturb the application judge’s finding that on the amplified record there continued to be a basis upon which the General Warrant could have issued.

[175] There was compelling, credible and corroborated information from CHS #6 that Mr. Maric and Mr. Shahin were involved in an ongoing cocaine trafficking scheme. Two informants identified Mr. Maric as a drug trafficker who obtained his supply in Toronto. Mr. Maric and Mr. Eckstein had both been charged with drug related offences three years earlier in London. And surveillance confirmed that Mr. Maric, Mr. Eckstein and Mr. Shahin were associates engaged in behaviour consistent with drug trafficking.

[176] Furthermore, on April 26, 2016, the police observed Mr. Eckstein drive from London to a restaurant parking lot in Toronto, where he received a white box during a trunk-to-trunk exchange. The police then observed Mr. Eckstein perform what they believed to be countersurveillance manoeuvres on his trip back to London. On the following day, April 27, 2016, the police observed Mr. Eckstein, Mr. Maric and Mr. Shahin meet at a Boston Pizza in London. The police observed Mr. Eckstein exit the restaurant to retrieve a reusable grocery bag from his car and then return to the restaurant.

[177] On April 29, 2016, Mr. Maric and Mr. Eckstein employed a counter-surveillance technique in the 85 Queen’s Wharf Road elevator (by pressing the wrong floor number and waiting for everyone else to leave before pressing a different floor number where they exited). Then, later that same day, Mr. Eckstein drove from 85 Queen’s Wharf Road to Mr. Brounsuzian’s condo building, 295 Adelaide Street, where the bag/paper towel exchange happened.

[178] Based on all of this information, the application judge reasonably found that the General Warrant could have issued.

(ii) The June 27 Search Warrant

[179] Pursuant to the General Warrant discussed above, the police observed inside Unit 304, Mr. Brounsuzian’s condo, a large gun safe and money counter. Inside the safe was $130,000 in cash, three rifles and a pistol (secured with a trigger lock), pistol magazines, a reusable Metro grocery bag, and a shoebox filled with cash. This, together with the searches of Unit 3802 – where police located bricks of cocaine, a hydraulic press and several kilograms of an adulterant – support the application judge’s finding that the June 27 Search Warrant could have issued. As will be explained below, the application judge was correct not to excise information obtained as a result of the Unit 3802 searches and they support his finding on the validity of the June 27 Search Warrant.

(d) Excision for one is not excision for all

[180] In his application, Mr. Brounsuzian argued that the information obtained as a result of the searches of Unit 3802 should also have been excised in Mr. Brounsuzian’s case. As discussed above at para. 94, the application judge held that an accused is only entitled to excision from an ITO of evidence unconstitutionally obtained if that evidence was obtained as a result of a violation of their personal Charter rights. Per the application judge, Mr. Brounsuzian was not entitled to excision of this information from the June 27 ITO because it was obtained as a result of the breach of Mr. Maric’s Charter rights.

[181] We see no basis to interfere with the application judge’s refusal to excise the police observations of the empty reusable Metro grocery bag and Nike shoebox found inside Unit 3802, which linked Mr. Brounsuzian to Mr. Maric.

[182] We agree with the application judge that this court’s decision in Chang is the leading authority. Mr. Brounsuzian suggests that while Chang precludes someone from relying on non-accused third parties’ rights for excision, the decision does not go so far as to prohibit reliance on the breach of a co-accused’s rights, where the issue has been or is to be decided in that same proceeding. In support of his position, Mr. Brounsuzian relies on several lower court decisions, including R. v. Guindon, 2015 ONSC 4317; R. v. Hamid, 2019 ONSC 5622, 448 C.R.R. (2d) 198; and R. v. Colegrove, 2022 NSSC 132, 511 C.R.R. (2d) 171.

[183] The lower court cases cited by Mr. Brounsuzian are not determinative. Indeed, a competing line of trial-level jurisprudence takes issue with the proffered cases: R. v. Singh, 2024 ONSC 1302, at paras. 134-147; R. v. Frenn, [2021] O.J. No. 2511 (O.C.J.), at para. 49; R. v. Ritchie, 2016 ONSC 1092, at para. 49; R. v. Kang, 2020 BCSC 1151, at para. 197. The cases relied upon by Mr. Brounsuzian are not binding on this court and sit uncomfortably against the appellate jurisprudence on this subject.

[184] As this court explained in Chang, where there is no evidence that impugned information was obtained as a result of a breach of the accused’s personal Charter rights, there is no basis for excision: Chang, at paras. 35-41. Said otherwise, the enforcement of Charter rights must be personal to an accused. As the Supreme Court held in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, 26 O.R. (3d) 736, the Charter protects people and not places: Edwards, at para. 45. Put simply, as Mr. Brounsuzian had no reasonable expectation of privacy in Unit 3802, he did not have standing to challenge the search conducted there, nor seek a remedy: Edwards, at para. 51; R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at para. 44; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.

[185] In the cases relied upon by Mr. Brounsuzian, the courts seem to have been motivated by the view that the police should not be able to benefit from unlawful conduct, thereby limiting the application of Chang to those cases where the reviewing judge would have to conduct a discrete inquiry into the alleged breach of third-party rights: Guindon, at paras. 4, 6; Hamid, at para. 48. In our view, this conflicts with our jurisprudence on standing, and with the basic principle that Charter enforcement is limited to the applicant's personal rights.

[186] Accordingly, we see no error with the application judge’s conclusion that this court’s decision in Chang limits automatic excision to information obtained in breach of an accused’s personal Charter rights. Chang was binding on the application judge and he was required to follow it. Furthermore, Chang is a decision of three members of this court. Only a panel of five judges of this court can overrule Chang, but the appellant did not seek the appointment of an enlarged panel. Therefore, it would not be appropriate for us to revisit the outcome in Chang.

(e) Section 24(2) Charter

[187] Having found no error in the application judge’s conclusion that both warrants could have issued, there is no need to address s. 24(2). That said, there is no basis on which to interfere with the application judge’s s. 24(2) analysis or with his discretion to admit the evidence. This decision is owed deference.

(3) The Eckstein Appeal

(a) The application judge did not err in dismissing the Garofoli application

[188] Mr. Eckstein argues that the application judge erred in dismissing his Garofoli application. More specifically, Mr. Eckstein argues that the application judge erred in finding that the police observations from November 19, 2015, and December 31, 2015, as described at paras. 19-20 above, gave rise to a reasonable suspicion, and by finding that information from CHS #1 was credible, compelling and corroborated.

[189] In assessing this ground of appeal, it is important to remember that the role of a reviewing justice is different from that of the issuing justice: Araujo, at para. 51; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. While the issuing justice is tasked with determining whether the application satisfies the test for issuance, a reviewing justice asks whether there was any basis upon which the issuing justice could have granted the application: Paryniuk, at para. 43; Araujo, at para. 54. And this court’s role is simply to assess whether the reviewing justice applied the correct legal test and properly considered the relevant evidence. Mr. Eckstein, by advancing the same arguments that were rejected by the reviewing justice, ignores these different roles.

[190] Here, it was open to the application judge to find that there was a basis upon which the issuing justice could have issued the tracking warrant. Section 492.1 of the Criminal Code requires an authorizing justice be satisfied “that there are reasonable grounds to suspect that an offence has been or will be committed” before issuing a tracking warrant. It is important to remember that reasonable grounds to suspect is a lower standard “than a belief upon reasonable and probable grounds”: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. On the standard of reasonable suspicion, the objective fact must merely “be indicative of the possibility of criminal behaviour”; the evidence need not itself consist of unlawful behaviour or “be evidence of a specific known criminal act”: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35. On the evidence before the issuing justice, there was a basis to find that the standard for issuing the warrant was met.

[191] CHS #1, who had in the past provided reliable information to the police, told them about Mr. Eckstein’s history as a drug trafficker. CHS #1 identified Mr. Eckstein and Mr. Maric as cocaine dealers and advised that Mr. Eckstein would deal and deliver drugs for Mr. Maric. The issuing justice was provided all of the relevant details equipping him to properly assess the sufficiency and reliability of the information provided. It is simply wrong to characterize Officer Younan’s suspicion and belief that tracking Mr. Eckstein’s vehicle would assist in the investigation, as being based on a single observation, i.e., Mr. Eckstein exiting Mr. Maric’s vehicle with a backpack outside the Boston Pizza on November 19, 2015. This suspicion, instead, was also based on the information received from CHS #1 who had firsthand knowledge that Mr. Eckstein was a cocaine dealer.

[192] Mr. Eckstein further argued, with respect to the receipt of CHS #1’s information, that the judicial summary created by the application judge did not provide him with sufficient information to challenge this evidence as part of the Garofoli application. This argument must similarly be rejected. As Watt J.A. explained for the court in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 87-90, leave to appeal refused, [2016] S.C.C.A. No. 432, a judicial summary is meant to be general, not detailed, and need only make an accused aware of the nature of the redacted information, not its substance and “not its details.” The judicial summary appropriately responded to these requirements and enabled Mr. Eckstein to challenge CHS #1’s information, including by arguing that there was no physical surveillance taken. In our view, the judicial summary was sufficiently detailed to provide Mr. Eckstein the ability to make full answer and defence, while preserving confidential informant privilege.

[193] Furthermore, there is no basis to disturb the application judge’s assessment of the Debot factors, and his ultimate conclusion that CHS #1 was credible and that their information was compelling and corroborated.

[194] In our view, the observations of Mr. Eckstein conducting a suspected drug transaction on November 19, 2015, corroborated the information received from CHS #1.

[195] We would therefore reject this ground of appeal.

(b) The application judge did not err in finding no reasonable expectation of privacy

[196] In his analysis of Mr. Eckstein’s reasonable expectation of privacy, the application judge referred to the following non-exhaustive factors set out by the Supreme Court in Edwards, at para. 45:

(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.

[197] In Edwards, these factors were used to consider whether the subject of a search had a reasonable expectation of privacy in his girlfriend’s apartment, in which he was described as “just a visitor.” According to the Supreme Court, Mr. Edwards demonstrated no expectation of privacy in his girlfriend’s apartment since he contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.

[198] In this case, Mr. Eckstein argues that the application judge erred in concluding that, as “an exceptionally privileged guest,” he had no reasonable expectation of privacy. He submits that the application judge erred in rejecting categorically that a guest could have an objectively reasonable expectation of privacy.

[199] Mr. Eckstein relies principally on the comments made by the majority of the Supreme Court, in obiter, in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 137:

We are of the view that a case can be made that invited guests can, in some circumstances, have reasonable expectations of privacy in their host’s property. The determination of when, and to what extent, these guests have a reasonable expectation of privacy will be fact and context specific. However, the analysis must always focus on s. 8’s fundamental concern with the public being left alone by the state, the normative approach to discerning the parameters of privacy rights, and the fact that s. 8 provides protection to those who have diminished or qualified reasonable expectations of privacy.

[200] The Supreme Court resolved the appeal in Le on s. 9 Charter grounds. Thus, any comments on s. 8’s application to house guests were made as a passing reference. Indeed, the majority stated expressly, at para. 135, “[w]e agree that, clearly, the protective scope of s. 8, as applied to house guests, is not being decided in this case.” Further, as set out in the excerpted passage above, even where a s.8 issue involving house guests is before a court, “[t]he determination of when, and to what extent, these guests have a reasonable expectation of privacy will be fact and context specific.” In our view, this passage from Le cannot be the basis for a finding that the application judge erred in his analysis in this case are in error.

[201] Mr. Eckstein also relies on R. v. Ali Farah, 2020 ONSC 7157, 471 C.R.R. (2d) 345, at para. 116, where the subject of a search had a qualified expectation of privacy as a guest in a residence when considering the totality of the circumstances through a normative lens as described in Le.

[202] The Crown argues that Mr. Eckstein’s argument is answered by the Supreme Court’s decision in Edwards itself, which the Crown characterized as standing for the proposition that “using another person’s property to store one’s drugs does not imbue the owner of the drugs with a reasonable expectation of privacy.” According to the Crown, the facts of this case are on all fours with Edwards, and there was no reason that the application judge was required to arrive at a conclusion opposite to the outcome in Edwards.

[203] Neither Le nor Ali Farah was available to the application judge. That said, we would not accept that the application judge purported to make such a categorical statement in this case, as argued by Mr. Eckstein. He did not state an understanding of the law that guests could not have an objectively reasonable expectation of privacy. Rather, he concluded, on the totality of circumstances in this case, and in light of the various factors and an analysis of those factors set out in Edwards, that Mr. Eckstein had no such reasonable expectation of privacy.

[204] We see no error with the application judge’s analysis of the legal principles governing the reasonable expectation of privacy arising from Edwards, or his conclusions in light of the circumstances of this case. As a result, the application judge correctly found that the searches in this case did not violate Mr. Eckstein’s s. 8 Charter rights.

(4) The Shahin Appeal

[205] Mr. Shahin argues that the application judge erred in finding that Mr. Shahin did not have a reasonable expectation of privacy in the common areas of the eighth-floor hallway of 595 Proudfoot Lane. Therefore, he argues, the May 4 search involving the eighth-floor hallway violated s. 8 of the Charter.

[206] Mr. Shahin argues that the application judge did not apply the approach mandated by this court to determine whether he, as a resident, had a reasonable expectation of privacy, instead equating a lack of ownership to a lack of reasonable expectation of privacy.

[207] According to Mr. Shahin, in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 61, the Supreme Court held that “the fact that a person knows [he] will be observed by others, including by strangers, does not in itself mean that [he] forfeits all reasonable expectations of privacy in relation to observation.” In Jarvis, which did not involve a s. 8 Charter issue, the Supreme Court found that female high school students had a reasonable expectation that they would not be recorded in the common areas of their school.

[208] Applying this principle in this case, Mr. Shahin contends that the fact that he may have been observed by the approximately 250 other tenants of 595 Proudfoot Lane does not preclude a reasonable expectation of privacy as the application judge suggested. He also relies on this court’s decision in R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, [2020] S.C.C.A. No. 38, in which the court found that residents of a building with over 300 units had a reasonable expectation of privacy in the common areas.

[209] We reject this submission. The question in this case is not whether a resident might also have a reasonable expectation of privacy over certain common areas in certain circumstances, but whether Mr. Shahin had a reasonable expectation of privacy in relation to the eighth-floor hallway of 595 Proudfoot Lane.

[210] The application judge’s reliance on White demonstrates his understanding that a reasonable expectation of privacy could arise over the common areas of an apartment building or condominium complex, but that context was important. While the application judge did not have the benefit of this court’s decision in Yu, we do not see the analysis in Yu as inconsistent with the application judge’s reasoning. In Yu, Tulloch J.A. (as he then was) described, at paras. 81-83 and 87, the privacy interests in common areas generally in these terms:

The hallways are a different story. Under the White framework, in my view, the appellants had a reasonable expectation of privacy in the hallways of their respective buildings, although it was at the low end of the spectrum. White establishes that a contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas.

Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.

The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.

On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. [Emphasis added.]

[211] Considering the contextual factors, the application judge concluded, on the totality of evidence, that such an expectation did not arise in this case. While the application judge notes the fact that Mr. Shahin was a resident rather than the owner of the unit, there is no indication in his reasons that this distinction was determinative of his finding with respect to a reasonable expectation of privacy not arising in these circumstances. There were other distinguishing facts in the record on which the application judge relied, as set out above, including the absence of strict security features, and the unobtrusive observations of the police officer.

[212] Mr. Shahin further argues that there is no requirement in the case law for “exceptional security measures” and that simply locking out non-residents from the building enhances the reasonable expectation of privacy.

[213] We do not read the application judge’s reasons as requiring strict security measures in order to establish a reasonable expectation of privacy. Rather, he considered the type and quality of security measures and noted that there were no exceptional security measures that would heighten any expectation of privacy. In Yu, for example, the strict security measures were a key factor in finding that there was a reasonable expectation of privacy in the condominium hallways. Furthermore, the application judge took into account that police did not have permission from building management to enter the building but found that this did not provide Mr. Shahin with a reasonable expectation of privacy.

[214] Finally, Mr. Shahin challenges the application judge’s finding that the observations made by police were unobtrusive because they were made by the naked eye and did not include observations inside the unit. He argues that there was no evidence about how the observations were made and that the application judge’s analysis fails take into account the proximity of the hallway to the unit.

[215] In our view, absent evidence to the contrary, there was no error in the application judge’s inference that the observations were made with the naked eye. Furthermore, there was no error in his finding that the nature of the observations was unobtrusive. Notably, the application judge found that “there were no particular circumstances that would indicate a reasonable expectation of privacy in [Mr. Shahin’s] connection to unit 808.” Police observations only included his comings and goings from the unit, which, as the application judge noted, could have been observed by others.

[216] We see no error with the application judge’s analysis of the legal principles or conclusions in light of the circumstances of this case. Those conclusions were available to him on this record. As a result, the application judge correctly found that the search in this case did not violate Mr. Shahin’s s. 8 Charter rights.

DISPOSITION

[217] For these reasons, we would dismiss the appeals.

Released: September 10, 2024 “S.C.”

“L. Sossin J.A.”

“J. George J.A.”

“I agree. Coroza J.A.”

[^1]: While the applications resulted in separate, written decisions, the application judge dismissed all the pre-trial Garofoli applications together, recognizing there was overlap in issues of fact and law given the submissions of counsel and the evidence admitted on the applications. The appeals were heard together over two days. For clarity, and to avoid unnecessary duplication, the appeals are addressed together in these reasons.