Court Information

Ontario Court of Justice

Date: 2015-03-04

Court File No.: Brampton 13/2204

Parties

Between:

Her Majesty the Queen

— AND —

Siu Hong Ho

Before the Court

Justice: George S. Gage

Heard on: February 25 and March 4, 2015

Reasons for Charter Ruling released on: March 4, 2015

Counsel

Carol Letman — counsel for the Crown

Doug Gosbee — counsel for the accused

Decision

GAGE J.:

Introduction

[1] Mr. Ho is charged with production of marijuana and possession of marijuana for the purposes of trafficking contrary to the Controlled Drugs and Substances Act (hereinafter CDSA) and theft of hydroelectricity contrary to the Criminal Code. He was arrested on these charges on January 14, 2013. At the time of his arrest he was the sole occupant of a residential building in which a substantial marijuana grow operation was situated.

[2] Mr. Ho applies for the exclusion of the evidence of the discovery of the grow operation on the basis that the evidence was secured by reason of an illegal search and seizure.

[3] The application is founded upon an attack on a warrant which authorized a search of the residential building occupied by Mr. Ho at the time of his arrest. Ho was not a named target in that warrant. The named target was a Mr. Saber. There is no suggestion that there is a connection between Mr. Saber and Mr. Ho nor is it suggested that the warrant ought to have named Ho as a target.

[4] The warrant pertained to Criminal Code property and gun charges. The warrant authorized the search of three properties, including the residence occupied by Mr. Ho. In support of the issuance of the warrant it was alleged that Mr. Saber had a connection to the three properties and it was anticipated that guns and/or stolen property might be found in one or more of them.

[5] As I understand his argument Mr. Ho maintains that the warrant should not have named the property he occupied. He proposes that through cross examination of the affiant of the information to obtain the Criminal Code warrant he could establish that the evidence provided in support of the warrant does not establish a viable temporal connection between the property and Mr. Saber.

[6] He submits that absent the authorization contained in the Criminal Code warrant to search the property he occupied the police would not have had cause to approach the residence and would not have thereby come into possession of grounds to believe that a grow operation was situated within the building and hence would not have had the grounds to obtain the CDSA warrant that they were subsequently granted.

[7] The respondent maintains that the applicant lacks legal standing to attack either warrant on the basis that he is not able demonstrate on a balance of probabilities that he has a reasonable expectation of privacy in the premises searched.

[8] This ruling deals exclusively with the threshold issue raised by the respondent.

Factual Foundation

[9] No viva voce evidence was called on the application.

[10] The application was not supported by an affidavit.

[11] The applicant did not testify.

[12] The factual record is derived from the materials filed in support of the application including: the notes of the investigating officers; photos of the inside of the residence taken by the investigating officers; a copy of three bills in the name of Mr. Ho; a copy of the ITO (information to obtain) relating to the CDSA warrant; and a vetted and edited copy of the information to obtain (ITO) the Criminal Code warrant.

[13] For the purposes of the determination of this ruling the following facts can be either established or inferred from the materials filed:

• A Criminal Code warrant authorizing a search of 3888 Brimwood Gate, Mississauga was issued on January 14, 2013;

• The municipal address of 3888 Brimwood Gate, Mississauga was associated with Mouhab Saber through cell phone subscriber information and a motor vehicle licence application in Saber's name;

• On January 14, 2013 at 10:22 pm members of the Peel Regional Police Service (hereinafter PRPS) attended at 3888 Brimwood for the purpose of executing the Criminal Code warrant;

• 3888 Brimwood, Mississauga is a residential single family dwelling building;

• As officers of the PRPS approached the residence they noted condensation on the windows and an odour of fresh marijuana;

• The officers knocked on the front door;

• Mr. Ho answered and opened the front door;

• When the door was opened the odour of fresh growing marijuana became more distinct;

• Mr. Ho was arrested on the charges of possessing and producing marijuana contrary to the CDSA;

• Following the arrest the PRPS officers went through the residence in order to ensure that there were no other occupants, they noted the presence of a marijuana grow operation and they secured the property while they applied for a CDSA warrant;

• The CDSA warrant was executed on January 15, 2013;

• In a statement made on January 15, 2013 at 8:15 am Mr. Ho advised police that he did not reside at 3888 Brimwood Gate, Mississauga and that his home address was 926 Chippewa Drive, London Ontario;

• Inside the subject residence PRPS officers located and photographed a Rogers invoice addressed to Mr. Ho at 18 Olympia Drive, North York, a Capital One Mastercard invoice addressed to Mr. Ho at the Olympia Drive address in North York, and a CIBC Mastercard invoice addressed to Mr. Ho at the same address as the other two invoices. All three invoices were bank stamped as paid on January 14, 2013;

• The observations of the PRPS officers as supplemented by the photographs demonstrate: there was no food in the refrigerator other than a carton of orange juice, a bottle of ketchup and what appears to be a half loaf of bread; there were no clothes in any of the closets; there were no beds and very little furniture; and, apart from the presence of a stereo system, gaming console and TV monitor in the living room, very little indication of human occupation;

• The residence was otherwise occupied by a substantial marijuana grow operation including related equipment;

• Mr. Ho was found to be in possession of a key that unlocked the front door of the residence.

The Law

[14] The seminal jurisprudence in relation to the issue of standing is the decision of the Supreme Court of Canada in R v. Edwards. The decision endorses the following principles:

• Section 8 of the Charter protects people, not places;

• The right to challenge the legality of a search depends on the accused establishing that his personal rights to privacy have been violated;

• Section 8 mandates two distinct areas of inquiry: first, does the accused have a reasonable expectation of privacy; and, second, if he has such an expectation, was the search conducted reasonably;

• A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances;

• The factors to be considered in assessing the totality of the circumstances may include but are not restricted to:

  • Presence at the time of the search
  • Possession or control of the property or place searched
  • Ownership of the place searched
  • Historical use of the property
  • Ability to regulate access, including the right to admit or exclude others
  • The existence of a subjective expectation of privacy
  • The objective reasonableness of the expectation

[15] The level or quality of the expectation need not be high or profound so long as it is reasonable. The jurisprudence supports a liberal approach to the protection of privacy.

[16] The burden of establishing a reasonable expectation of privacy lies with the applicant on a balance of probabilities. At this stage of the inquiry the court, where possible, should interpret the evidence and draw inferences on the basis most favourable to the position of the accused.

The Principles Applied

Presence

[17] Mr. Ho was clearly inside the house when the police knocked on the door. He answered the door.

Possession or Control of the Place

[18] At the moment that the police arrived Mr. Ho was the only occupant of the house. He had a key that was capable of unlocking the front door. At that moment Mr. Ho was in possession of the house and its contents and he was controlling entry.

[19] One crucial aspect of this factor that is unclear is whether his possession and control was lawful – in the sense of being lawfully obtained. The circumstances under which he acquired possession of the key are unknown.

[20] The extent to which Mr. Ho exercised possession or control in relation to the subject premises at times other than the evening of January 14, 2013 is likewise unknown however the absence of clothing, the absence of bedding, the lack of sustenance, his assertion that he resides elsewhere and the general absence of signs of permanent human habitation are all strong indicia that Ho's possession and control was at best temporary and intermittent.

Ownership

[21] Ho is not the owner of the property. He is not a tenant. The court has no evidence as to how he acquired the key and therefore cannot reasonably infer that he was in occupation of the property with the consent or knowledge of the owner.

Historical Use

[22] Evidence of historical use can buttress a claim of expectation of privacy. In Edwards there was evidence that Mr. Edwards had a relationship with the tenant of the subject apartment for a period of three years and during that time he made frequent use of the apartment. Historical use was a central feature of Justice Abella's dissent from the majority determination of expectation of privacy.

[23] In this case there is no evidence of historical use of the property by Mr. Ho. According to his own statement his residence is in London. His bills are sent to an address in North York. The presence of invoices with different dates in Mr. Ho's name might in other circumstances support an inference that Ho was making use of the property on days other than the date upon which he was arrested but the fact that all three invoices were paid on the same date he was arrested substantially undermines that inference.

Ability to Regulate Access – Right to Admit or Exclude

[24] At the moment that the police arrived Mr. Ho was the only occupant of the house. He answered the knock and opened the door. To that extent he had the ability to regulate access on that date at that time. His ability to do so at other times and the extent to which he may have shared that ability with others at those times is unknown.

[25] The significance of the fact that he was in possession of a key is impossible to assess without knowing how he came into possession of the key or how many others were in possession of a key.

Subjective Expectation of Privacy

[26] Mr. Ho did not give evidence. He did not file an affidavit. There is no evidentiary confirmation that he had a subjective expectation of privacy. I take it to be axiomatic that he did not wish to have his activities in the subject property detected and revealed but is that the equivalent of an expectation of privacy?

[27] I would suggest that the totality of the circumstances as they relate to this factor indicate that Mr. Ho had no subjective expectation of privacy. To the extent that this house was available to him he did not use it as a residence, or home, or repository of important personal documents, artifacts or possessions. His use was strictly horticultural and it appears that to the extent that it was possible he distanced himself from connection to or identification with the property – no clothes, no bedding, no personal effects, no toiletries, combined with intermittent occupation. The only reasonable conclusion that arises from these circumstances is that Mr. Ho expected that the use of the house as a greenhouse would be eventually be discovered and when that happened he hoped to be absent and expected that if he was absent his connection to the venture would not be detectable.

Objective Reasonableness of the Expectation

[28] Assuming for the moment that Mr. Ho had a subjective expectation of privacy in the premises at 3888 Brimwood Gate in Mississauga I find that such expectation cannot be objectively sustained as reasonable in circumstances where his use and occupation is mostly unknown and intermittent at best, he has no ownership or other legal interest, he has no known history of use of the property, and there is no evidence of exclusive or even semi-exclusive ability to regulate access.

Conclusion

[29] The applicant has not established on a balance of probabilities that he had a reasonable expectation of privacy in relation to the property searched. He therefore lacks standing to attack the reasonableness of the search.

[30] The application is therefore dismissed.

Released: March 4, 2015

Signed: "Justice George S. Gage"