Court Information

Ontario Court of Justice

Date: 2019-12-16

Court File No.: Toronto 4811 998 17-15007523

Parties

Between:

Her Majesty the Queen

— And —

James Greeley

Before: Justice W. B. Horkins

Heard on: September 10, October 28, 29, 30, November 1, 5, 2019

Ruling on an Application for the Exclusion of Evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms released on: December 16, 2019

Counsel

Mr. Sean Doyle and Evan Akriotis — counsel for the Crown

Mr. Frank Addario and Mr. James Foy — counsel for the accused James Greeley

Decision

W. B. HORKINS, J.:

Overview

[1] This case involves the seizure of two guns and a quantity of illegal drugs from the home of the accused. The trial to this point has been conducted as a Charter application to exclude the seized items from evidence as a s. 24(2) remedy.

[2] There are three primary areas of concern raised:

1. The search of the accused's home was authorized by a warrant based on information received from a confidential informant ("CI"). The accused submits that the warrant should be quashed because the Information to Obtain ("ITO") fails to provide reasonable and probable grounds.

2. The police covertly entered the accused's apartment building without permission to conduct surveillance prior to the execution of the warrant. The accused submits that these entries were unlawful trespasses and are themselves s. 8 violations.

3. The accused submits that his s.10(b) rights to counsel were violated. The accused was detained and arrested at the time of the execution of the warrant. Although advised of his rights to counsel, access to counsel was held off and not facilitated, perhaps for several hours, perhaps altogether.

[3] The more complex of these issues, and the issue that featured most prominently in the hearing of this application is the question of whether the ITO, based on CI information, contained sufficient material to provide reasonable and probable grounds for the warrant to issue. The original ITO has now been redacted to protect the privilege of the CI. The redacted portions have been summarized, and Crown counsel has withdrawn other portions from consideration that could not be safely disclosed.

[4] The s. 10(b) issue which arises from the delayed access to counsel seemed to be a secondary concern during the hearing of the evidence on this application. However, the Court of Appeal issued its judgment in R. v. Noel just as submissions were being made in this matter. That case, having very similar facts, elevated the significance of the 10(b) issue considerably.

Factual Overview

[5] The factual overview necessary to understand the basis of my conclusions is summarized below.

The Commencement of the Investigation

[6] In early September 2017, the police received information from a CI that the accused was dealing drugs from his apartment. The police started to prepare a warrant application based on the information they received from the informant.

[7] While the warrant application was being prepared, and in the interests of seeking corroboration of some of the information received from the CI, an officer went to the accused's apartment building to investigate. The building is a low-rise, controlled access, residential building. The officer had no memory of how he entered the building, but it was clearly without permission. He went up to the floor and to the door of the targeted unit. He listened at the door for a minute or two to determine if anyone was home. He heard nothing and left. A warrant was issued later that same day, September 11th. That warrant expired and was replaced before being executed.

[8] The next day, the officer went back into the apartment building and listened again at the door for a couple of minutes. He heard nothing and left.

[9] On the morning of September 20th another officer went into the building to try to determine whether the accused was there. The earlier warrant had expired. There was no indication that anyone was present in the apartment. Later that same day, another officer went in to listen at the door. He detected no indication of the accused being there. That evening a fresh warrant was issued. An officer went into the apartment building again. There was still no indication that the accused was there. Surveillance of the apartment continued.

[10] On September 22nd the accused was sighted at the building. The police waited for him to leave in his vehicle, for which they also had a warrant. A group of officers followed the accused. He stopped at another address several blocks south of his apartment. When he returned to his vehicle and began to drive back north, he was stopped by the squad following him. It was 11:01 pm.

[11] At 11:18 pm, officers entered the accused's apartment using the keys they had seized from him at the roadside. The warrant was executed, and, amongst other things, two firearms were discovered in a duffle bag under a bed. One gun was a loaded sawed-off shotgun. The other was an unloaded TEC-9 semi-automatic handgun. The search was completed at approximately 12:30 am and the officers left and went to 41 Division where the accused was being held in custody.

The Arrest and Detention of The Accused

[12] The accused was detained at the roadside at 11:01 pm and advised of his rights to counsel. He indicated that he had a lawyer. He was turned over to transporting officers but held at the roadside until 11:34 pm, pending completion of the search taking place at his apartment. Once the guns were discovered, the accused was promptly advised of the gun charges and re-read his rights to counsel.

[13] The accused was taken to 41 Division for booking. He was booked in at 11:38. He was again advised of his rights to counsel but told that he would have to wait for the drug squad officers to provide him with a phone call. He gave the booking Staff Sergeant the name of his lawyer. At 11:58 he was taken to a room to await the investigating team. The escort officer was instructed to hold off access to counsel until the drug squad team arrived. The investigating drug squad team arrived at 41 Division at 1:11 to convene a debriefing session.

[14] One officer gave evidence that at 1:15 he placed a call to the lawyer the accused had identified. The officer making that call had no notes of making the call and was unable to recall what response he received when he made it, however, clearly, he did not reach the lawyer. He said that he might have left a message.

[15] An hour and a half later, at 2:48, a call was placed to duty counsel. Some uncertain time later, the accused was seen to be on the phone with someone. Again, the officer giving this evidence had no notes regarding this call. The reliability of such evidence in the absence of notes is questionable. A good guess would be that duty counsel had called back; but on the record before me that's all it would be, a good guess. There is in fact no clear evidence that the accused was ever put in touch with counsel.

[16] No evidence was elicited from the accused after being arrested on the gun charges.

[17] On this evidence the Crown understandably concedes the obvious violation of the accused's rights to counsel but argues against the exclusion of the evidence pursuant to s. 24(2).

Analysis of the 10(b) Issue

[18] On November 1st, just as I was receiving submissions from counsel, two significant judgments were issued considering the issue of the police holding off on facilitating access to counsel. My colleague Justice Band released R. v. LD and The Court of Appeal issued its judgment in R. v. Noel.

[19] In LD, the accused was deliberately held incommunicado by officers of the Toronto Police drug squad for approximately 20 hours while interrelated warrants were being executed. That 10(b) violation led to the exclusion of the evidence in question.

[20] Justice Band includes in his reasons an extract from R. v. Wu, a 2017 judgment of Justice Di Luca, which is a useful and comprehensive summary of the current law regarding s. 10(b) of the Charter. For ease of reference, I include that summary here and rely on it:

(b) Applicable Legal Principles

29 In Wu, supra, at paras. 75-78, Justice Di Luca provides a useful and comprehensive summary of the state of the law regarding s. 10(b) of the Charter at the time of this investigation:

75 Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, at para 42:

[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

76 The right to counsel is broken down into informational and implementational components. The informational component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementational component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel: see R. v. Bartle, (1994), 92 C.C.C. (3d) 289 at 301 (S.C.C.).

77 The case law has recognized that the implementational duties can be delayed in circumstances of urgency or danger. The genesis of the authority to delay the implementational component of the right to counsel is found in R. v. Strachan at para 34, where Chief Justice Dickson found that a two-hour delay was justified in a case where police were executing a search warrant at home where guns might be present. He explained:

The combination of an arrest in the accused's home, the presence of two unknown people, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true that the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. In my opinion, Constable Bisceglia was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus, I would say that the violation of s. 10(b) did not occur when Constable Bisceglia initially prevented the appellant from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the appellant to telephone a lawyer. I would hold that the denial of counsel began at that point.

78 The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75.

b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:

i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras 276-8, and R. v. Learning, at para. 75;

ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122;

[21] Instructing myself from the above, I find that the denial of the accused's right to access counsel commenced at the point when the search of his apartment was completed. Prior to that point in time, the holding off was justified on investigative and safety concerns.

[22] The facts of Noel are strikingly similar to the facts of the case before me:

• the police had a warrant based on confidential information;
• the accused was a suspected drug dealer;
• Mr. Noel was arrested in his home and within minutes he was read his rights to counsel;
• he immediately asked to speak to a lawyer;
• no steps were taken to facilitate his right to counsel;
• no one took charge of facilitating his access to counsel;
• one hour and 20 minutes after his arrest a call was placed to duty counsel. There was no definitive evidence that duty counsel ever called back; and
• there was no definitive evidence that the accused ever spoke to counsel at all.

The one distinguishing feature between the cases is that here we are considering the admissibility of guns instead of drugs.

[23] The Court of Appeal found that the violation of the accused's rights to counsel by failing to facilitate contact with counsel was very serious. The Court excluded the evidence and acquitted the accused.

[24] My reading of the judgment has the Court equating significant delay in facilitating access to counsel with the outright denial of access. The Court gave concrete examples of why immediacy in facilitating access to counsel is crucial:

[23] The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.

[24] For example, an arrest and the search of one's home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1144.

[25] Detention also raises questions of immediate importance relating to the detainee's rights during detention, including the right against self-incrimination: Bartle, at p. 191; R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4.

[26] Beyond this, the right to counsel is also important in providing "reassurance" and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[25] In Noel the Court found as a fact that no one took charge of ensuring that the accused could speak to counsel as he had requested. The evidence before me leads to the same conclusion. The most charitable conclusion that I can reach in this case is that everyone thought, or assumed, that someone else would look after the obligation to put the accused in touch with counsel. The Court of Appeal was very critical of what it considered to be a "somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay." The conduct was characterised as "carelessness". I reach the same conclusion in the context of the evidence in the case before me.

[26] The Court found that the police conduct in Noel was a serious breach, having significant impact on the accused's Charter-protected interests. "Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide." Again, I am compelled by the evidence before me in this case to draw the same conclusion.

[27] In Noel the Court of Appeal decided that it was necessary to exclude the evidence in order to preserve the long-term interests of the administration of justice. The Court had this to say:

[34] We are mindful of the impact of excluding necessary, reliable evidence in this serious prosecution on the repute of the administration of justice. However, this was a clear violation of a well-established rule. The law around s. 10(b) is clear and long settled. It is not difficult for the police to understand their obligations and carry them out. Furthermore, it is troubling that the police in this case could not provide any reasonable explanation for the delay, nor could they even say whether Mr. Noel did, in fact, speak to counsel. As noted by Brown J. in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44: "… exclusion has been found to be warranted for clear violations of well-established rules governing state conduct".

[35] We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel's right to consult counsel without delay. Given the collection of facts in this case, we conclude that the evidence must be excluded, notwithstanding that doing so undermines the Crown's case against Mr. Noel.

[28] These same conclusions are compelled by the facts of the case before me.

[29] The facts are sufficiently indistinguishable that I consider myself bound by the result in Noel. The s. 24(2) Grant analysis in this case is essentially the same as in Noel and the evidence must be excluded.

[30] I have reached this conclusion with some considerable reluctance. The exclusion of illegal guns ought not to be done lightly.

[31] In Omar the Supreme Court of Canada approved of and adopted Justice Brown's dissenting judgment in our Court of Appeal. Justice Brown made two points in his reasons. First, that the trial judge was correct in concluding that the Charter offending conduct in that case was undertaken in good faith and "would not fall on the more serious end of the spectrum". He found that the trial judge's finding on that point was both correct and entitled to deference. His second point was that when considering the exclusion of illegal guns, by their very nature they should be treated differently than other forms of evidence. The societal concerns with illegal guns should carry significant weight in the s.24(2) balancing process. He highlights that guns should not be treated as "fungible as any other piece of evidence". The message simply put is that it makes a significant difference in the 24(2) analysis that the evidence sought be excluded is an illegal gun.

[32] Justice Brown expressly acknowledges that there is no "firearms exception" that immunizes guns from exclusion under s.24(2), however, he makes it vividly clear that the societal interests in seeing gun cases tried on their merits weighs very heavily against exclusion. My reading of Omar is that the relatively lower end seriousness of the Charter violation was countered, and overtaken, by the serious nature of the evidence, an illegal gun, and that under those circumstances the Grant analysis favoured admitting the evidence.

[33] In the case before me, the fact that what is to be excluded are illegal guns does weigh strongly against exclusion. However, unlike Omar, where the Charter infringing conduct was not pegged at the higher end of the spectrum of seriousness, in this case, the Charter infringing conduct is at the high end of the spectrum. The conduct in this case is strikingly similar to Noel and the Court of Appeal strongly condemned such conduct. Taking instruction from Noel I must consider the Charter violation in this case to fall at the very serious end of the spectrum. Therefore, the seriousness of the offending conduct here weighs heavily in favour of exclusion.

[34] Apart from what I consider to be the controlling precedent of the 24(2) analysis in Noel, I would have rejected the application to exclude the guns in this case. However, given the entirety of the clear and strong language in Noel, the fact that the excluded evidence is a gun is not an overpowering counterweight to the other "Grant" factors which weigh strongly in favour of exclusion. To find otherwise in this case would effectively invoke a firearms exemption; the apocryphal "s.24(3)" exemption immunizing gun cases from Charter scrutiny.

[35] Having reached this conclusion and determined that the accused's application must succeed, my analysis of the warrant issues is somewhat academic. However, my findings may be of assistance to counsel, and others, and so I include them here.

The Validity of the Search Warrant

General Principles

[36] The review of a search warrant begins from the premise of presumed validity. The onus of establishing invalidity is on the party challenging the warrant. The scope of the review is narrow. It is not a de novo hearing.

[37] In this case the review is an assessment of whether the sworn application, the ITO, is capable of supporting the issuance of the warrant. Deference is owed to the issuing Justice and if the grounds to issue the warrant are legally sufficient then the presumption of validity governs.

[38] In Garofoli, Justice Sopinka stated the standard of review:

The Reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence, new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[39] A warrant based on information from a confidential informant must be based on reliable information. The accepted framework for assessing a minimum level of reliability in such cases has frequently been referred to as "the three C's": Are the grounds set out in the application compelling, credible and corroborated?

[40] This warrant was issued based substantially on the information received from the CI, supplemented with very minimal surveillance seeking confirmation of the information received. In conducting the assessment of the grounds for issuance of the warrant, I am entitled to consider the record before the issuing justice, the ITO and the redacted portions that have been summarized, minus certain noted paragraphs that cannot be disclosed and are therefore not relied upon by the Crown in support of the warrant.

[41] Following this analytical approach, I am satisfied that that there was a sufficient foundation before the issuing justice to conclude that there were reasonable grounds to belief that drug trafficking was being currently conducted by the accused and that the activity probably involved both his residence and his vehicle.

[42] Extreme caution must be exercised in referencing the redacted contents of the ITO supporting the assessment of the "three C's" in this matter. For the purposes of this ruling I can safely say that I agree with, and adopt in support of my own conclusions, the submissions of Crown counsel set out at paragraphs 12 and 13 of the Crown's factum:

a. Details concerning the nature of the information conveyed by the confidential source appear at paragraph 22(a) of the unredacted ITO;

b. The investigative checks and physical surveillance efforts of the police appear at paragraphs 23-25 of the unredacted ITO;

c. Particulars concerning the basis of the confidential source's information are contained at paragraphs 33-34 of the redacted ITO and have been summarized by the Crown. As the judicial summary makes clear, the strength and weakness of the source's information would have been apparent to the issuing justice;

d. Further particulars relating to the corroboration done by police appear at paragraph 36 of the unredacted ITO, as well as at paragraph 35 and 37 of the redacted ITO.

e. Details about the motivation for the confidential source in giving information to the police appear at paragraph 43 of the redacted ITO, and details of his or her involvement or non-involvement in the criminal justice system, and information relating to a criminal record, if any, appear at paragraphs 41 and 42, respectively, of the redacted ITO.

f. Further particulars about the investigative checks and surveillance done by the police appear at paragraphs 45, 47 and portions of paragraph 48 of the redacted ITO and unredacted ITO;

g. Details about the currency of the confidential source's information appear in paragraphs 46 and 48 of the redacted ITO; moreover, the strengths and weakness of the source's information that is particularized at paragraph 48 would have been apparent to the issuing justice;

h. Further particulars concerning the investigative checks and surveillance done by the police appear at paragraph 49 of the redacted ITO.

[43] The apparent positive past performance of the CI also provided some assurance of credibility.

[44] The investigators were able to corroborate at least some of the information provided by the CI. Granted, much of what was confirmed was information available to just about anyone in the public; the so called "telephone book" information. However, at this stage of an investigation confirmation of actual observed criminality is not expected or required. The police attempted further surveillance of the accused's residence and vehicle with very limited results.

[45] The necessarily redacted details in the ITO have been summarized and they do provide sufficiently compelling information contributing to the reasonably based conclusion of the issuing justice that grounds existed to issue the warrants in question.

[46] I agree with the submission of Crown counsel that all of the foregoing taken together could satisfy the issuing justice that the reasonable and probable grounds threshold was met. This body of information satisfies the constitutionally required minimum foundation for the issuance of a warrant.

The Trespass Issue

[47] A significant issue was raised by the accused that the covert pre-warrant entries into the accused's apartment hallway were unlawful trespasses, s. 8 breaches in and of themselves, and as such they both taint the warrant and add accumulated weight to the 24(2) argument for exclusion of the evidence ultimately seized.

[48] The accused also submits that the non-disclosure of certain entries breached the obligation on the applicant seeking a warrant to make "full, fair and frank" disclosure of their pre-authorization investigative conduct.

[49] The accused submits that these entries are serious unlawful invasions of privacy. Crown counsel took the contrary position; that they were entirely appropriate investigative conduct or, in the alternative, relatively meaningless, or "mundane" infractions.

The Evidence

[50] The pre-search entries to the accused's apartment building are described at 7 to 10 above. For ease of reference I include here a table from the Crown's written submissions on this issue.

[51] There has been considerable debate in the caselaw about whether the residents of multi-unit residential buildings enjoy a legally recognized "reasonable expectation of privacy", (REP), in the common areas of a shared residential building.

[52] R. v. Yu (aka Brewster) is a very recent decision of our Court of Appeal. In fact, the judgment was delivered after the initial submissions were made in this case. The case is helpfully on point and counsel provided supplemental written submissions on the issue.

[53] The instructions from the Court of Appeal on this particular issue are at paragraphs 67-69 and at paragraphs 81:

67 I turn now to the issue of reasonable expectation of privacy in the common areas of a multi-unit dwelling. The existence of a reasonable expectation of privacy is determined against the totality of the circumstances. The Supreme Court of Canada stated in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, that the various factors in this contextual analysis can be grouped into four lines of inquiry:

1. The subject matter of the alleged search;

2. The claimant's interest in the subject matter;

3. Whether the claimant had a subjective expectation of privacy in the subject matter; and

4. Whether the subjective expectation of privacy was objectively reasonable.

68 This court expanded on this analysis in the context of the reasonable expectation of privacy in common areas of a multi-unit dwelling in White. The court laid out the following factors that are relevant to the level of expectation of privacy in common areas of multi-unit buildings:

• Degree of possession or control exercised over the common area by the claimant;
• Size of the building: the larger the building, the lower the degree of reasonable expectation of privacy in common areas;
• Security system or locked doors that function to exclude the public and regulate access; and
• Ownership of the property.

69 In my view, these factors lead to different conclusions depending on the type of common area accessed by the police, which in this case relates to the parking garage and the hallways. I conclude that the appellants did not have a reasonable expectation of privacy in the parking garages, but they did have such an expectation of privacy in their hallways, albeit a diminished one. I address first what I consider to be the subject matter of the search, and then explain why I conclude that the appellants had no reasonable expectation of privacy in relation to the garages but did have a reasonable expectation in the hallways.

81 … 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.

82 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.

83 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.

84 Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person's residence, such as the end of a particular hallway of a particular floor of the building. Even in those less-frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.

86 The only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed. As soon as they open their door, or exit their unit, it is reasonable to expect that they may be observed, with that level of expectation increasing the closer they get to the main areas of the building or to any security cameras.

87 On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas.

Application to the Facts in this Case

[54] As far as the purpose of the entries is concerned, the situation before me is the same as was described in Yu:

…what the police were really after in the preliminary hallway entries was basic information such as the fact of residency in the building and the unit number of a suspect. This is information that would be available to the police and in public view if, for example, the police followed someone home to a detached house. A person's physical address is not personal information that attracts Charter protection: R. v. Saciragic, 2017 ONCA 91.

[55] In our case, there were only a few entries made over a short period of time. My interpretation is that the Court of Appeal would consider the entries in this investigation to have been "mundane", in the sense that they are relatively low-level invasions of privacy.

[56] I conclude that the accused did have a reasonable expectation of privacy in the common hallway outside of his own suite in the apartment building. The pre-search entries and hallway walk-bys conducted by the police without permission breached Mr. Greeley's s. 8 rights. These entries were relatively low-level invasions of his privacy.

[57] These s. 8 breaches were committed at a time when a reasonable interpretation of the then existing legal authorities would likely condone the conduct. One reasonable interpretation of the 2016 trial level ruling in Yu (Brewster) could be that, in most instances, the occupants of a multi-dwelling residential building have little or no reasonable expectation of privacy in the common hallways of the building. This was obviously the belief of the police at the time of this investigation and understandably was the position of the Crown prior to the Court of Appeal issuing its reasons in Yu.

[58] As I have already observed, the seriousness of the conduct is relatively low.

[59] The impact of the conduct on the Charter-protected interests of the accused was moderate. Sanctity of the home is a very significant constitutional value. However, the police in this case did very little when they visited the hallway outside Mr. Greeley's apartment unit. They stopped and listened outside of his door. All that they were initially seeking to obtain was confirmation of the "phone-book" information given by the CI and subsequently, whether their target was at home. They took no photographs, made no recordings and installed no cameras.

[60] The conduct engaged in, in this case, should not, in and of itself, trigger exclusion of the evidence later seized pursuant to the warrant. Any failure to disclose these entries to the issuing justice would not amount to a failure to provide full, fair and frank disclosure. Fully advising the issuing justice would not have led to the warrant being declined.

[61] Having said that, this conduct was Charter-infringing and so is a factor to consider in a balancing of factors in the ultimate 24(2) analysis.

The s. 24(2) Analysis

[62] Section 24(2) of the Canadian Charter of Rights and Freedoms provides for a remedy to address Charter violations by excluding evidence where admitting it would bring the administration of justice into disrepute.

[63] In R. v. Grant, the Supreme Court provided a framework of analysis organized around balancing three primary considerations:

1. the seriousness of the violation;

2. the impact of the violation on the accused's Charter-protected interests; and

3. society's interest in the adjudication of the case on its merits.

[64] Exclusion of evidence, which may be a fatal blow to the prosecution, especially in a case such as this, involving guns and drug trafficking, may provoke immediate criticism from the public. However, the phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the administration of justice.

[65] As Justice Band observed in the case of L.D.: "The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system."

[66] In summary:

• The unauthorized covert entries to the accused's apartment hallway during the initial investigative stages of this case were minor and immaterial s.8 breaches.

• The warrant used to search the apartment was validly issued.

• The warrant was executed in a reasonable fashion.

• The detention and arrest of the accused was lawful.

• That police conduct at the time of the arrest and initial roadside detention did not amount to a s.9 or 8 violation.

• The accused was advised of the reason for his detention and his rights to counsel, however, the continuing failure by all concerned to facilitate access to counsel was a gross violation of the accused's right to access counsel.

[67] The s. 8 breach involving the unauthorized, covert entries to the apartment hallways plays a very small role in the balancing assessment of the need to grant a s. 24(2) remedy. The nature of that conduct, although moderately serious, pales in comparison to the 10(b) violation and was done in good faith, with relatively little impact on the accused's privacy rights.

[68] The s. 10(b) breach in this case mandates exclusion of the evidence seized from the Greeley apartment. This result, unpalatable as it may be, is dictated by the decision in Noel. The facts of the s.10(b) violation in Noel are essentially indistinguishable from the violation in the case before me.

[69] As in Noel the accused did not give evidence on the application. I had no direct evidence from the accused concerning the impact of the breach on his Charter-protected interests. The Court in Noel commented on the assessment of the impact of the Charter breach in the absence of evidence from the accused:

[27] Mr. Noel was not required to offer direct evidence about why he required access to counsel without delay. He asked to speak to counsel promptly but that right was denied. In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as "quite neutral" in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay.

[70] The breach evidenced before me was of an essential Charter right in circumstances where the significant nature of the impact on the prisoner during the events can be, as in Noel, assumed.

[71] I am compelled to conclude that, in the interests of the long-term reputation of the administration of justice, the Court must disassociate itself from the s.10(b) violation of this accused's rights to counsel by excluding the evidence seized from his home.

Conclusion

[72] The Application is granted, and the evidence seized pursuant to the warrant is excluded.

Released: December 16, 2019

Signed: "Justice W. B. Horkins"