Court File and Parties
Date: April 29, 2019
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Thanh Nguyen, Kevin Tran and Catherine Vu
Before: Justice Louise A. Botham
Ruling on s. 8 Application
Counsel
Christopher Greene & Ildiko Erdei …. for the Public Prosecution Service of Canada
Christopher Tarach ................................................... Counsel for the defendant Nguyen
Angela Ruffo ………………………………………. Counsel for the defendant Vu
Gregory Lafontaine …………………………………….. Counsel for the defendant Tran
Decision
BOTHAM J.:
Background and Search Warrants
[1] On October 23, 2017, search warrants were executed on three apartment units, #2607 Park Lawn Road (Park Lawn location), #411-235 Sherway Gardens Road (Sherway location) and #1205 -2240 Lakeshore Boulevard West (Lakeshore location). One Information to Obtain (ITO) was prepared in support of all three warrants.
[2] The search warrant executed at the Sherway location led to a seizure of fentanyl, heroin, powder cocaine, MDMA, a .32 caliber handgun and some $80,000 Canadian currency. The Crown asserts that Mr. Nguyen was using that location as a stash house and that was the theory set out in the ITO.
[3] Mr. Nguyen has applied to challenge the lawfulness of the seizure of those items from the Sherway location. The Crown submits that he lacks standing to bring that application. Neither Mr. Tran, nor Ms. Vu, assert standing.
Standing Analysis for Thanh Nguyen
[4] In R. v. Edwards, Mr. Edwards was the target of the investigation but a warrant was obtained to search his girlfriend's apartment because he was known to frequent that location, although he had another residence. The Supreme Court of Canada upheld the trial judge's finding that he lacked a reasonable expectation of privacy in the residence and therefore had no standing to challenge the lawfulness of the drug seizure.
[5] At para. 45 of Edwards, the court set out the factors to be considered in assessing a claim of standing:
i. presence at the time of the search;
ii. possession or control of the property of place searched;
iii. ownership of the property or place;
iv. historic 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.
[6] In Edwards the Appellant had been a visitor to the apartment who occasionally stayed over. Although he kept a few personal belongings at the apartment, he did not contribute to the expenses of the home and although he did have a key to the apartment he lacked the authority to regulate access to the premise. The court confirmed that the right to be free from intrusion or interference is a key element of privacy and an important factor in assessing whether the applicant had a reasonable expectation of privacy or was simply a privileged guest.
[7] In R. v. Jones, the court found that the Appellant could rely on facts alleged by the Crown to advance his s. 8 claim. There the issue of standing arose in the context of text messages found on an electronic device, which was not in the Appellant's possession. It was the position of the Crown that the Appellant was in fact the author of those messages and the court found that the Appellant could rely on that fact as proven when advancing his claim for standing. The court then considered whether the Appellant, as author of the texts, had an objectively reasonable expectation of privacy so as to advance a claim for s. 8 relief and determined that he did.
[8] I am satisfied that Mr. Nguyen can rely on facts alleged by the Crown to advance his s. 8 claim. The issue is whether those facts give rise to an objectively reasonable expectation of privacy, so as to establish standing.
[9] The Crown asserts that the son of the lawful owner of the property had allowed Mr. Nguyen to make use of the Sherway location, unit 411. The crown asserts that Mr. Nguyen was using the unit solely as a stash house and in fact resided at the Park Lawn address where he was listed as a tenant.
[10] In R. v. Van Duong, [2018] O.J. No. 610, the Appellants were found to have no standing to advance a claim for Charter relief where they had fraudulently obtained possession of a house with the intention of using it as a methamphetamine lab. Although their physical possession of the house gave them the ability to regulate access, they lacked the legal authority to do so.
[11] The court wrote at para. 7:
"allowing the appellants a subjective expectation of privacy in this instance would confuse the relevant sense of expectation with desire. A person may desire privacy and believe it unlikely that he will be disturbed however that is not the same as expectation of privacy arising from a legal entitlement to be left undisturbed. It is the latter which is considered in a s. 8 analysis."
[12] R. v. Le, 2018 ONCA 56, [2018] O.J. No. 359, Justice Doherty upheld the trial judge's finding that the Appellant had no reasonable expectation of privacy as guest in a friend's backyard. Justice Doherty wrote at para. 52 of the decision:
"Personal privacy equates with a person's right to require that the state leave him or her alone, absent reasonable grounds to justify interfering with that person's privacy. The right to be left alone, when exercised in relation to real property, must, in my view, include some ability, either as a matter of law, or in the circumstances as they existed, to control who can access and/or stay on the property. One cannot realistically talk about a reasonable expectation of privacy in respect of real property without talking about an ability to control, in some way, those who can enter upon, or remain on, the property".
[13] In this case, Mr. Nguyen had been observed on October 16th to enter 235 Sherway Gardens Road carrying a bag and to exit a short time later with a different bag. On October 17th, he was observed in the underground parking lot of the building entering a car and driving away. Later that day, he and Ms. Nguyen returned to the building and parked in the visitors' section of the underground parking garage. Sometime later, they were seen with another male, again in the underground parking garage. There was evidence that he had used the elevator to access the 4th floor, where Unit 411 is located. He was seen to enter and later exit Unit 411 on October 23, 2017. Certainly one reasonable inference to be drawn from that observation was that he had some means of accessing the unit, such as a key.
[14] There is no evidence beyond these observations to delineate the time period during which Mr. Nguyen had been accessing the unit. The ITO asserts that the son of the unit's owner had advised building security earlier in the year that a friend would be staying in the unit. It would appear that the security guard had identified Mr. Nguyen as the friend who had been using the unit.
[15] There is also evidence that other persons may well have had some ability to access Unit 411. On October 14, 2017, a fob associated to Unit 411 was used by an unidentified male to enter the front lobby door. On October 17th at 1:55 p.m., Mr. Tran was observed to access the front lobby door using a fob, again associated with Unit 411.
[16] This case differs from the facts of R. v. Van Duong to the extent that Mr. Nguyen may well have obtained access to the property legitimately in the sense of having been given permission to make use of it. That permission does not in my view, establish that he had control over it.
[17] He was not on the lease and presumably the permission to access the property could be withdrawn at any time. One can only assume that the owner or his son could have lawfully entered the property as they chose. I see this case as on all fours with the court's statement in Van Duong, that a person's desire for privacy and belief that he will not be disturbed is not the same as an expectation of privacy arising from a legal entitlement to be left undisturbed. I am not satisfied that the Applicant has standing to advance a claim for Charter relief.
[18] If I am incorrect in that assessment, I have considered the application on its merits.
Merits of Sherway Location Search (Alternative Finding)
[19] The ITO used to obtain a warrant to search all three locations has been redacted to protect the identity of the confidential source who provided much of the information relied on by the affiant. The Crown, conceding that the ITO had been redacted to a degree that would not support the issuance of a warrant, prepared a judicial summary with respect to those edits.
[20] In the course of submissions relating to the sufficiency of the judicial summaries, I reviewed the unredacted ITO. I am satisfied that the judicial summary is sufficient to allow all three applicants to make meaningful submissions with respect to the adequacy of the ITO. In the course of my reasons, where I make reference to information which was before the issuing justice, I am referencing only the unredacted information set out in the edited ITO and the judicial summaries. I am satisfied that the judicial summary as it now exists is sufficiently detailed to allow me to assess the sufficiency of the information before the issuing justice without recourse to any redacted details.
[21] In submissions, Mr. Nguyen conceded that the source for the confidential information, described as a carded informant who had provided reliable information in the past, could be said to be credible.
[22] The details of the tip, as amplified in the judicial summaries, suggest that the information provided was compelling. The target, Mr. Nguyen was characterized as a distributor of high volumes of cocaine. The source provided information about the quantities handled and how Mr. Nguyen came to possess them. The issuing justice was told about the nature of his drug operation and details concerning his current possession of cocaine and the quantity. The issuing justice was given details concerning how Mr. Nguyen was expected to obtain cocaine in the near future and the timing of that.
[23] There were weaknesses in the information provided to the issuing justice. During the process of preparing a final judicial summary, it was conceded by Crown counsel that the issuing justice was never advised as to whether the source's information concerning Mr. Nguyen was first hand or second hand, or whether Mr. Nguyen was actually known to the source. Nor was any information provided with respect to the nature or duration of their relationship. The absence of any information as to the basis of the source's knowledge might well be a factor detracting from the reliability of the information. However there was surveillance carried out and it did corroborate salient aspects of the source's information.
[24] The source had said that Mr. Nguyen would have a stash house for the narcotics. The officers through surveillance followed him to the Sherway location and confirmed that he had been given access to a unit at that address and observed him to visit the building on three occasions from October 16th to 23rd.
[25] On each occasion he stayed a relatively short period of time, usually leaving or arriving with a different package or bag. As well he was observed on other occasions by surveillance officers to engage in behavior which was consistent with drug trafficking.
[26] The case law is clear that a deficiency in one aspect of reasonable grounds can be supplemented by strengths in others. I accept that the information provided was credible and compelling and in my view the deficiencies caused by an absence of information as to the source of the confidential informant's information was compensated for in this case by the surveillance evidence.
[27] Counsel for Mr. Nguyen has submitted that there was reason to believe that the Applicant Nguyen was not in fact the Thanh Nguyen initially described by the confidential source and that therefore there existed no grounds to believe that the Applicant Nguyen was involved in the large scale distribution of drugs, as asserted in the ITO. I do not agree.
[28] Mr. Nguyen's physical description was consistent with the description provided by the source. He was identified by the source from a MTO photograph. The source had previously stated that the target, Thanh Nguyen drove a black Honda. Although Mr. Nguyen was observed during this investigation to drive a green Honda, he did in fact have a black Honda registered to him. In addition, the source had provided a phone number for the target, Thanh Nguyen which in fact was the phone number provided by Mr. Nguyen to the Park Lawn property management. I am satisfied that it was reasonable to believe that the Applicant Nguyen was in fact the Thanh Nguyen described by the confidential source.
[29] I do agree that there appears to have been no reason to include in the ITO that Mr. Nguyen had been seen driving a vehicle which had previously been driven by Brian Wu, a person who had been charged in an unrelated drug investigation. Nor do I see any relevance in the details of Mr. Wu's charges to the issues before the issuing justice. I certainly would excise those portions of the ITO, however their absence does not detract from the grounds put forward for a warrant to search the Sherway Gardens address.
[30] I am satisfied that there were grounds to issue the warrant and as such, were I to have found that Mr. Nguyen had standing to challenge the search, his application to do so would not have succeeded.
Standing and Merits for Lakeshore Location Search
[31] Ms. Vu and Mr. Tran have applied to challenge the search of the Lakeshore location. Ms. Vu resides there and in fact is the listed tenant at the residence. The Crown has conceded that Mr. Tran has standing to join Ms. Vu in her application.
[32] The redacted portions of the ITO related primarily to the grounds to believe that Mr. Nguyen was involved in the large scale distribution of drugs. Through surveillance of Mr. Nguyen the police came to believe that he was using Unit 411 at the Sherway location as a stash house. During their investigation, they accessed CCTV footage from that location and observed Mr. Tran entering the front door of the lobby of the Sherway location at 1:55 p.m. on October 17th using a fob which was connected to Unit 411. CCTV footage also shows him with Thanh and Linda Nguyen entering elevator #1 in the same building at 3:07 p.m.
[33] All three were seen by surveillance officers to exit the elevator in the underground parking lot and enter a parked Honda. They were followed a short distance to the Sherway Gardens Mall where Mr. Tran was seen to enter a grey Acura and drive away.
[34] The attendance by Mr. Tran at the Lakeshore location with Mr. Nguyen, coupled with evidence that he used a fob associated with Unit 411 to access the Lakeshore building, does provide a basis to believe that he was connected in some way with the location characterized in the ITO as a stash house.
[35] I see as more problematic whether grounds existed to support the police belief that drugs, offence related property or evidence of criminal activity would be found in Ms. Vu's residence.
[36] The ITO discloses that the address listed on Kevin Tran's driver's license is 570 Lolita Gardens, Unit 332, Mississauga, Ontario. The ITO also asserts at para 81 that Kevin Tran is associated to 2240 Lakeshore Boulevard West, Unit 1205. The ITO then sets out the basis for that assertion.
[37] On October 18th the police had attended the Lakeshore location and confirmed that the Acura they had observed being driven by Mr. Tran had been registered several times with security to park in the underground parking. The unit associated with this parking pass was rented by Catherine Vu.
[38] On October 19, 2017, Mr. Tran was observed with a woman leaving the underground parking garage of the Lakeshore location. He was observed to drop her off and return to the visitor's parking at the Lakeshore location and park his Acura. All of that information was included in the ITO.
[39] On October 18, 2017, DC Gajraj had conducted Versadex checks on the license plate associated with Mr. Tran's Acura. Those checks disclosed that he had received parking tickets for parking on private property (the Lakeshore address) on September 3rd, 28th, October 4th, 9th and 15th. Those tickets were issued between 2 a.m. and 4 a.m. There were two other parking tickets issued for an address just south of the Lakeshore building. None of that information was included in the ITO.
[40] The Crown seeks to amplify the grounds in the ITO with that information.
Amplification Evidence Analysis
[41] The Crown submits that when an affiant for a search warrant inadvertently omits something that would have strengthened the warrant, the court can look at that omitted information to determine whether or not that warrant would have issued, referencing the SCC's decisions in Araujo and Morelli. I do not read either of those authorities as defining amplification evidence that broadly.
[42] In R. v. Araujo at para. 59, the court writes "amplification cannot go so far as to remove the requirement that the police make their case to the issuing justice…on the other hand to refuse amplification entirely would put form above substance…where the police had in good faith made some minor, technical error in the drafting of their affidavit materials".
[43] In R. v. Morelli, Justice Fish, at para. 42 confirmed the limited scope of amplification evidence, reminding reviewing justices that amplification evidence is not a means for the police to adduce additional information so as to authorize retroactively a search that was not initially supported by reasonable and probable grounds.
[44] In Morelli, unsubstantiated assertions concerning the propensity of certain offenders were put forward as a basis to believe that child pornography would be found on Mr. Morelli's computer. The crown sought, through amplification to provide further information to justify the basis for those assertions. Justice Fish, writing for the majority determined that the initial failure to provide an evidentiary basis for those assertions did not appear to be a mere 'minor technical error' that could be corrected through amplification.
[45] Similarly, in this case, it was incumbent on the affiant to set out the grounds which supported his belief that Mr. Tran might store drugs or other relevant evidence at Ms. Vu's apartment. The failure of the affiant to include evidence which the Crown asserts would have strengthened the case for the issuance of a search warrant, cannot be characterized as a minor technical error and in fact would amount to a retroactive attempt to justify the grounds for the search.
[46] The standard for review of a search warrant is whether the record which was before the authorizing justice, as amended through the reviewing process, could provide a basis for the issuance of the authorization sought. The test is not whether I would have issued the warrant but whether an authorization could have been issued.
[47] I am well aware that as a reviewing justice, I am not to substitute my opinion for that of the issuing justice but after much thought I cannot conclude that there was information to support a credibly based belief that relevant evidence would be found at the Lakeshore address.
[48] Ms. Vu had arranged several times to have a parking pass issued to Mr. Tran to allow him to park at her building. One reasonable assumption might well be that he had been issued a parking permit because he was spending the night. However that does not of itself suggest that Mr. Tran was anything other than an occasional guest at Ms. Vu's home.
[49] The assumption that he would leave drugs or any of the other items sought in the warrant in such a location does not rise above the level of speculation and therefore I am not persuaded that evidence set out in the ITO establishes one of the statutory preconditions of the issuance of a search warrant, namely reasonable grounds to believe that the items sought would be located in Ms. Vu's home.
[50] The Crown can therefore not rely on the search warrant to justify the lawfulness of the search. The search was therefore unreasonable and violated the Applicants' rights under s.8 of the Charter.
Admissibility Analysis Under R. v. Grant
[51] The admissibility of the seized evidence is governed by the factors set out by the SCC in R. v. Grant. Specifically, the nature of the state conduct that led to the Charter offending conduct and the need for the courts to disassociate itself from it, the impact of that conduct on the applicants' protected interests and the societal interest in having matters determined on their merits. The ultimate issue is whether, having considered those three factors, the long term reputation of the criminal justice system would be better served through the admission or exclusion of the evidence.
[52] Notwithstanding the arguments put forward by both Applicants I am not satisfied that there is any basis to find that the police did not act in good faith. They applied for and obtained a warrant to search the address. There is no suggestion of inaccuracy in the information provided to the issuing justice or that it was misleading. Although portions of the ITO were redacted, there is no suggestion that they did not make full disclosure to the issuing justice. They cannot be said to have acted negligently or in ignorance of their constitutional obligations. When I consider all of the relevant circumstances of the police conduct, I am satisfied that this factor supports inclusion of the evidence.
[53] The Applicants' privacy interests were however significantly impacted by the Charter offending conduct. Ms. Vu's home was entered and searched without her consent. Her arrest flows solely from that conduct. Although Mr. Tran's expectation of privacy may have been less as a guest in her home, the Crown has conceded that he did have a sufficient expectation of privacy to advance his claim for Charter relief and that expectation of privacy was similarly breached by the police conduct. I am satisfied that there was a significant impact on the Applicants' Charter protected interests which supports an order for exclusion.
[54] The third line of inquiry, namely society's interest in having cases adjudicated on their merits favours the admission of the real evidence seized at Ms. Vu's residence.
[55] In the 2010 Court of Appeal case of R. v. Blake, Justice Doherty considered how best to balance the three competing interests where the nature of the state conduct and society's interest in an adjudication on the merits militate strongly in favour of admitting the evidence and the impact on the Appellant's s. 8 rights points strongly toward exclusion.
[56] He writes at para. 32 and 33:
"I find compelling the argument that the exclusion of reliable crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice….Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests. I can see none."
[57] In Blake the warrant was redacted to protect confidential sources and the remaining content could not support its issuance while in this case the actual grounds provided for the search of Ms. Vu's residence were insufficient to support the issuance of a warrant. Notwithstanding that difference in the nature of the s. 8 breach, I see nothing to distinguish this case from the analysis in Blake. The police accurately set out the information that they believed supported a search warrant and a warrant was granted.
[58] Had I found impropriety or even inattention to constitutional standards in the police conduct, I would have been persuaded that it was enough to tip the scales in favour of exclusion given what I believe to have been the severe impact on the Applicants' privacy interests. However much as in Blake, I am persuaded that in the absence of such impropriety, the exclusion of this evidence would have a long term, negative effect on the reputation of the administration of justice and it will be admitted.
Justice Louise A. Botham