Court File and Parties
Ontario Court of Justice
Date: 2020-01-28
Court File No.: Brampton 18-10439
Between:
Her Majesty the Queen (Respondent)
— AND —
Joshua Ansah (Applicant)
Before: Justice P.T. O'Marra
Heard on: December 19, 2019
Oral Reasons for Judgment on Application provided on: January 20, 2020
Written Reasons for Judgment on Application released on: January 28, 2020
Counsel
Jelena Vlacic — counsel for the Crown
Richard Mwangi — counsel for the accused Joshua Ansah
Reasons for Judgment
P.T. O'Marra, J.:
Introduction
[1] This is an application for the court to determine whether the Applicant, Joshua Ansah, has standing to object to the admissibility of a loaded handgun, ammunition and drugs that were seized from a wooden fence, during the execution of a search warrant at his residence located at 12 Castlehill Road, in the City of Brampton.
[2] If the standing threshold has been established, the Applicant intends to allege that there was a violation of section 8 of the Charter in respect of the search warrant. Conversely, if the court determines that the Applicant did not have a reasonable expectation of privacy in the "place" searched, then a warrant authorizing the search would not have been required.
[3] On the voir dire, the Crown called Constables Wegenschimmel and Mitchell. The Applicant did not testify. The facts on the Application were straightforward and overall uncontested.
Overview
[4] On August 28, 2018, Peel Police executed a search warrant on 12 Castlehill Road, Brampton. Neither firearms, ammunition nor drugs were found in the residence. However, a loaded firearm with ammunition and drugs, which are the subject matter of the charges, were found in two plastic bags wedged in the corner and centre of a wooden 'board-on-board' fence that separated 12 Castlehill Road from a neighbouring rear residence located at 154 Muriland Crescent.
The Facts
[5] The Applicant is charged with several firearm and ammunition related possession and drug possession offences. The Applicant was arrested on November 4, 2018.
[6] During an unspecified date or period, members of the Peel Regional Police Street Level Organized Crime Unit received information from a confidential source that caused them to commence an investigation into a male in possession of firearm(s). Police queries and checks contained in the information to obtain are focused around one primary target, the Applicant.
[7] A search warrant for 12 Castlehill Road, Brampton – the residence of the Applicant – was authorized on August 27, 2018. The Applicant lived at this residence with his parents and two siblings.
[8] 12 Castlehill Road is a detached two-story residential home with a fenced-off rear yard. The rear yard is enclosed by a 'board-on-board' wooden fence that separates the Applicant's yard from the neighbouring yards along Castlehill Road and Muriland Crescent to the rear.
[9] On August 28, 2018, members of the Peel Regional Police Street Level Organized Crime Unit, along with the Tactical Unit, positioned themselves in the vicinity of 12 Castlehill Road in order to execute the search warrant. They approached the door of the residence shortly after 9:30 pm. As they entered, Officers communicated that individuals were fleeing into the backyard.
[10] An officer on scene and the affiant in the Information to Obtain a Search Warrant, Constable Wegenschimmel, changed his location from Castlehill Road to Muriland Crescent. As he did, he saw an individual run between 119 and 121 Muriland Crescent and jump a fence to evade police.
[11] At 11:00 pm Constable Wegenschimmel returned to 12 Castlehill Road to assist in the execution of the search warrant. He testified that after he walked through the house, he decided to retrace the steps of anyone who had fled the residence into the back yard. He walked onto the back deck and into the backyard. When he checked the fence line, he noticed clothing stuffed into the six (6) foot high "board on board" fence at the south west corner of the backyard. The exterior of the fence was open. Constable Wegenschimmel jumped over the fence into the adjourning backyard of 154 Muriland Crescent. On the Muriland-side of the fence he observed a black cloth t-shirt wrapped around a black plastic bag (bag #1) that was sticking out. Below the bag hanging out was a bullet in plain view. To the north of bag #1, along the fence line Constable Wegenschimmel located, wedged into the fence, a light-colored plastic bag (bag #2).
[12] Constable Wegenschimmel contacted Constable Mitchell as he suspected that there was a firearm inside bag #1. Constable Mitchell discovered within bag #1 a loaded Taurus brand 9mm semi-automatic handgun with 5 rounds of ammunition along with 6 rounds of .357 ammunition. Bag #2 contained baggies totalling 28.1 grams of cocaine and 6 Xanax pills.
[13] Constable Wegenschimmel agreed that bag #1 was accessible from 12 Castlehill Road to the extent that it could be pulled through the fence. He testified that after he jumped over the fence and was standing on 154 Muriland Crescent he noticed bag #2.
[14] The location and the state of the bags were depicted in photographs 4 through 10, which were taken from both sides of the fence.
[15] Constable Mitchell testified that after Constable Wegenschimmel requested his assistance, that he attended the back yard of 154 Muriland Crescent. He knocked on the front door, but no one answered. He proceeded to the backyard and observed the t-shirt stuffed into the fence near the trees. He thought that he could see a hand gun. Since Constable Mitchell had extensive firearms training, he was tasked to seize the firearm and make it safe. He testified bag #1 was "wedged in pretty good" and that it was stuck in between two (2) boards. He agreed that bag #1 could be accessed from 12 Castlehill Road, but it was safer to remove the items from 154 Muriland Crescent because the bag looked "less wedged in". Constable Mitchell felt that bag #1 had not been there very long as the brass bullet was clean.
[16] With respect to bag #2, Constable Mitchell testified that when he pulled it out from the 154 Muriland Crescent side of the fence, that most of the bag was situated on 12 Castlehill Road side of the fence. Bag #2 was much lighter as it contained the powder cocaine, pills and a scale and it was easier to extract.
Position of the Parties
The Defence
[17] The Defence submitted that the Applicant has a reasonable expectation of privacy of his house and the surrounding property including his fence. The Applicant's subjective expectation of privacy was objectively reasonable. A residential property fence is for the purpose of regulating access as to who is permitted onto the property and who is not. Furthermore, this fence was not a wall but was intricately designed with spaces in between the boards. Although the bags could be seen from both sides, the fence can nevertheless be used to store items. In this case, there was no evidence that the Applicant abandoned any of the property.
The Crown
[18] The Crown submitted that there is no reasonable expectation of privacy of a shared fence. Moreover, the items were located wedged into a fence and accessed from the neighbor's backyard. And as such, there was no reasonable expectation of privacy in his neighbor's backyard as the Applicant has no control over the neighbor's side of the fence nor could the Applicant determine who would get access to the items once placed there. Furthermore, the Crown argued that the Applicant discarded or abandoned the bags in such a way that he can not assert objectively reasonable expectation of privacy to the bags and their contents.
[19] Alternatively, if I find, that the bags were in an area that the Applicant had a reasonable expectation of privacy, the Crown maintains that the expectation of privacy was significantly reduced by the fact that the bags were placed in an open backyard in a mutual fence.
Applicable Legal Principles
Reasonable Expectation of Privacy
[20] Section 8 of the Charter states:
Everyone has the right to be secure against unreasonable search or seizure
[21] The protection against an unreasonable search and seizure is limited to state intrusions where an individual would have a reasonable expectation of privacy. Standing to bring a section 8 Charter claim will turn on an individual's ability to establish a reasonable expectation of privacy in relation to the thing seized and or the placed searched. Section 8 of the Charter protects "people, not places". (See: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 para. 159). However, specific places and things are afforded a privacy interest because that privacy interest stems from the person, not the place or the thing.
[22] In R. v. Edwards (1996), 104 C.C.C. (3d) 136, the Supreme Court held that an individual's reasonable expectation of privacy is assessed and determined on the basis of the "totality of the circumstances" and in particular, considering the following non-exhaustive list of factors:
(i) The presence at the time of the search;
(ii) The possession or control of the property or place searched;
(iii) The ownership of the property or place;
(iv) The historical use of the property or item;
(v) The ability to regulate access, including the right to admit or exclude the others from the place;
(vi) The existence of a subjective expectation of privacy; and
(vii) The objective reasonableness of the expectation.
[23] In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, Justice Binnie wrote that because privacy interest is a varied and wide-ranging concept, the section 8 jurisprudence has evolved to recognize several privacy interests, namely:
(i) personal privacy, involving bodily integrity and the right not to have our bodies touched or explored;
(ii) territorial privacy, involving varying expectations of privacy in the places we occupy, with privacy in the home attracting heightened protection because of the intimate and private activities taking place there; and
(iii) informational privacy, involving "the claim of individuals, groups, or institutions to determine for themselves, when, how, and to what extent information about them is communicated to others. (See: R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211 at para.19)
[24] In Tessling, the Supreme Court adopted a "contextual approach" to the question of an accused's reasonable expectation of privacy by tailoring the inquiry to the circumstances. In doing so, the Court regrouped the Edwards factors into four headings:
(i) The subject matter of the alleged search;
(ii) The claimant's interest in the subject matter;
(iii) The complainant's subjective expectation of privacy; and
(iv) Whether this subjective expectation of privacy was objectively reasonable, having regard for all the circumstances.
[25] In Tessling and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, the Court introduced a series of additional factors to consider when determining whether the expectation was objectively reasonable, including:
(i) the place where the alleged "search" occurred;
(ii) whether the subject matter was in plain view;
(iii) whether the subject matter had been abandoned;
(iv) whether the information was already in the hands of third parties;
(v) whether the police technique was intrusive in relation to the privacy interest;
(vi) whether the use of the evidence gathering technique was itself objectively reasonable; and
(vii) whether the technique exposed any intimate details of the respondent's lifestyle, or information of a biographical nature. (Tessling, at para. 32, per Binnie J.; Patrick, at para. 27.)
[26] The focus of the inquiry on standing in this case is whether there is a territorial privacy interest that both extends to and includes a shared fence.
The Law of Abandonment of the Expectation of Property
[27] If, an item has been lawfully abandoned by an individual, the individual who abandoned the item no longer enjoys the protection of section 8 of the Charter. There exists no constitutionally protected privacy interest in the abandoned item. (See: R. v. Dyment, [1988] 2 S.C.R. 417 at para. 31.)
[28] The question of abandonment is a question of fact. Not every discarded item whether it be on an individual's property or not, will automatically be said to be abandoned. In Patrick, the police reached into the accused's property and took from the garbage cans which were located just inside his property line without a warrant. The Supreme Court upheld the trial judge's decision to declare that there was no violation of the accused's section 8 Charter rights. The Court found that the accused did everything that was required to rid himself of the items taken as evidence. (See: Patrick, paras. 25 and 55.)
[29] As the Crown stated in its factum, the key determination will lie in the factors set out in Edwards. In other words, did the individual act in such a way to lead an objectively reasonable person to conclude that the continued privacy interest in the item was reasonable in all the circumstances.
[30] In R. v. Stevens, 2012 ONCA 307, a somewhat analogous case, the police obtained information that the accused was a drug dealer and had a firearm and ammunition in his apartment. The police executed a stealth search in the middle of the night. But before they entered the residence, the police saw someone throw an item out the window from inside the apartment, which was a white sock. The accused was the only occupant of the apartment. The police recovered the sock, which contained a handgun. The trial judge found that there was no violation of the accused's s. 8 rights under the Charter. The Court of Appeal dismissed the accused's appeal and stated at para 8:
Having thrown the handgun out the window into a neighbour's yard, the appellant no longer had any reasonable expectation of privacy respecting the gun. He no longer had possession or control over the gun; instead, he attempted to divest himself of possession or control of it. Indeed, he gave up the ability to regulate access to it when he threw it away. Furthermore, he offered no evidence of any subjective expectation of privacy in it. The absence of these factors was sufficient for this court to hold that the accused's s. 8 rights were not engaged in R. v. Nesbeth, 2008 ONCA 579, [2008] O.J. No. 3086 (Ont. C.A.) at para. 22, leave to appeal to the S.C.C. refused, R. v. Nesbeth, [2009] S.C.C.A. No. 10 (S.C.C.). See also R. v. B. (L.), 2007 ONCA 596, [2007] O.J. No. 3290 (Ont. C.A.); and R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034 (Ont. C.A.).
Analysis
[31] Does the Applicant have a subjective expectation of privacy in his fence, and is that expectation reasonable?
[32] The police were on the property of 12 Castlehill Road, and therefore, seized the bags pursuant to a search warrant of the "home". However, an individual's reasonable expectation of privacy extends to sheds, curtilages, and to the property lines and to a certain extent to shared computers, text messages, chats or common areas, parking garages and hallways. (See: R. v. Yu, 2019 ONCA 942, R. v. Nurse, 2019 ONCA 260 and R. v. White, 2015 ONCA 508, [2015] O.J. No. 3563) However, for some of those locations and places, the expectation of privacy can be significantly reduced when compared to the privacy interests of the individual's house or residential unit.
[33] I have not come across any jurisprudence in Canada that deals directly with the expectation of privacy of a fence. However, the Manitoba Court of Appeal in R. v. Le 2011 MBCA 83 discussed whether the backyard including a garden was included in the search warrant and the curtilage principle. Although the issue has not been raised in this application whether the fence is included in this search warrant obtained pursuant to section 478.1 of the Code, the analysis is helpful in determining the issue of a reasonable expectation of privacy in a fence. In Le, after a night club shooting the police obtained a search warrant for the home of the accused, and a handgun was located by the police under a rock in a flower bed of the backyard of the home. As the handgun was being removed, a hand search in the dirt was conducted, and a clip for the gun, with a bullet inside, was found. The evidence at trial established, by comparison with one of the bullets found in the victim's body, that the handgun was the murder weapon. The accused was convicted of first-degree murder after trial by a judge and jury and he was sentenced to life imprisonment without eligibility for parole for 25 years. The accused appealed his conviction. The Court of Appeal dismissed the appeal and upheld the Trial judge's conclusion that the scope of the warrant permitted the police to search a flower bed in the yard and rejected the argument that the police required a second warrant to disturb the soil of flower bed. Trial judge concluded that there was no breach was established under s. 8 of Charter and the evidence was not excluded.
[34] Whether the term "dwelling house" contained in the warrant was narrower than the term "premises" was a significant issue in the appeal, the warrant in this case here only refers to the term "home". I am satisfied that the backyard and the fence are included in the term "home" as the Manitoba Court of Appeal indicated at para. 93-96:
93 In my opinion, a review of the case law leads to the conclusion that the term "dwelling-house" is narrower than the term "premises." This also accords with common sense. In any event, even if it could be said that the warrant here was restricted to the appellant's residence at 39 Southlawn Stroll, the curtilage principle can properly be relied upon to extend the scope of the warrant to include the land immediately surrounding the building, including the flower bed in the contiguous fenced backyard. [my emphasis added]
94 As noted earlier, I have been unable to find any cases involving a search warrant for "premises" identified by a civic address where a search of the grounds surrounding the house has been successfully challenged. Robertson is the authority closest on point. Interestingly, in all of the factually similar cases reviewed above, the evidence was admitted either directly or pursuant to s. 24(2) of the Charter.
95 In my opinion, it can safely be said that in Canada, a warrant for premises identified by a civic address includes, at the very least, the curtilage or grounds around the primary or main building on the property. On the facts here, this includes the flower bed located in the back of the fenced-in area, which the exhibits indicate could fairly be described as typical of many residential backyards found in the City of Winnipeg.
96 The warrant here, in my opinion, extended to the flower bed. The search was not akin to a warrantless perimeter search or other warrantless entry into the appellant's yard, as the appellant argued.
[35] In R. v. Kelly (1999), 132 C.C.C. (3d) 122 (N.B. C.A.), the police found freshly uprooted marijuana plants under camouflage netting along the perimeter of a clearing about 30 feet from the accused's residence. However, this ground search was conducted without a warrant. The court concluded that the clearing was part of the curtilage of the accused's dwelling-house - and hence there was an expectation of privacy. The ground search was therefore unreasonable. Notwithstanding, the evidence obtained was ultimately admitted under s. 24(2) of the Charter.
[36] There was no evidence led in this case as to how, when or who placed the two bags inside the fence. There could be an inference drawn that the bags were discarded or hidden as individual(s) fled the house out the backdoor and jumped over the fence. However, in my view, that is not the only reasonable inference. The bags may have been secreted in their locations on purpose before the arrival of the police. In my opinion, that assessment does not bear on determining the key issue of whether a resident (i.e. The Applicant) of the home has a subjective expectation of privacy and that expectation is objectively held. It bears repeating that the right protects people and not the place.
[37] The Crown's argument, however, is not without merit. Certainly, placing an object within the shared fence that is accessible by a neighbor, can signal to that neighbor and or their guests on the other side of the fence that the objects are accessible. By doing so, a certain degree of control is lost. However, that interpretation may not be accurate. For example, if the property owner was working on a garden or raking leaves adjacent to a shared "board on board" fence, leaned a hoe or a rake against the fence and the tool slipped through the fence and thus, sticks out onto the neighbor's property, is there still a subjective expectation of privacy reasonably held? I think there could be. The property owner has not divested himself of his tool, even though it may be accessible by the neighbor. There must be evidence that the Applicant did something to divest himself from the bags, similarly found in the Patrick decision. In my view, when examining the totality of the circumstances, there is territorial privacy in a shared fence.
[38] There may be abandonment inferred from the conduct of an individual, however, there was no evidence led on this point. There was information that he was a resident and therefore had a connection to the residence.
[39] The bags that were located were not readily observable until Cst. Wegenschimmel was present in the back yard at 12 Castlehill Road. He agreed that the police had searched the house, garage and the fence. The bags were not solely accessible and discoverable from 154 Muriland Crescent, but rather from both properties.
[40] The items were concealed, wrapped in clothing and plastic. There was an effort to wedge the bags securely into the fence. Cst. Wegenschimmel agreed that the bags were stuck "pretty good" in the fence and that they did not just fall out of the fence when touched. He testified that when he removed bag #1, he needed to twist and pull the bag out. Based on the circumstances, in my view, it seemed that it is more likely than not that the bags were not thrown away as someone was fleeing but rather a degree of effort was made to conceal.
[41] To determine if the Applicant had a reasonable expectation of privacy, I now turn to the Edwards factors that need to be addressed. Based on the totality of the circumstances I conclude the following:
What was the subject matter of the search?
[42] In my view, it is important to make a distinction between items seized and the subject matter of the test. The subject matter in the case here, was the residence, the backyard and the fence that were searched, not necessarily the resulting gun, ammunition and drugs that were located and seized. (See: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 at para. 14.)
Was the Applicant present at the search?
[43] The Applicant was not present in the house nor in the backyard when the police located both bags.
Did the Applicant have a direct interest, control and or ownership in the subject matter?
[44] The Applicant was a resident of the house, who lived with his parents and siblings. He was the primary target of the search warrant and police investigation. He had control over the house, the backyard, the garage and the fence. Therefore, the Applicant had a direct interest in the residential property.
Did the Applicant have a historical use of the property?
[45] There was no evidence presented during the voir dire regarding this issue. In other words, there was no testimony regarding what, if any, surveillance and observations the police made of the Applicant in forming the requisite grounds for the Information to Obtain. I have not seen the contents of the Information to Obtain the search warrant, however, the police satisfied a judicial officer to issue the search warrant for the property and the intended target was the Applicant. Based on both common sense and experience, the police must have observed the Applicant's use of the property.
Did the Applicant have the ability to regulate access, including the right to admit or exclude others from the place?
[46] A fence, by definition, is designed to regulate access of who gets in and gets out. The fence completely encased and surrounded the rear yard of 12 Castlehill. The fence was designed with spaces in between the boards, in which the bags were stored. The Applicant has the right to expect there will be no intrusion on to his property which was enhanced by the fence.
Was there an existence of a subjective expectation of privacy?
[47] The Applicant did not testify on the voir dire, but in my view, it may be presumed that unless the contrary is shown in a particular case, the area of the backyard including the fence and its contents are regarded by the residents as private. This expectation is rooted in the ancient law of trespass and finds its modern justification in the intimacies of personal and family life. (See: Tessling, at para. 38.)
[48] As I have already mentioned, although the bags were exposed to the neighbor's side of the fence, they were not exposed to any member of the public. In my view the Applicant had not abandoned his privacy interest in the bags.
Was the Applicant's expectation of privacy objectively reasonable having regard to the totality of the circumstances?
[49] The Applicant's belief and expectation of privacy was objectively reasonable since he did have control over his residence, backyard and fence. A fence that encompasses property signals to trespassers to stay out. The police required a lawful search warrant to enter both the residence and the backyard in order to search and seize. The bags were positioned in a way that made it difficult to readily both observe and seize. The neighbor may have been able to access the bags, but they were still accessible from the Applicant's side of the fence, and therefore were not abandoned. Finally, it must be stated that there is an aspect of a common element to the fence. A shared fence which is positioned on the exterior or edge of the property is exposed to the public much more so than the interior of a house and garage. The Applicant had a reasonable expectation of privacy in the fence, although it is at the lower end of the spectrum and is reduced since the bags were placed in an open yard in a shared space and to a certain degree exposed to his neighbour. (See: Yu, Supra.)
Conclusion
[50] I have concluded based on the Edwards factors and the totality of the unique circumstances of this case, that the Applicant has established a basis for standing to allege a section 8 Charter breach.
Released: January 28, 2020
Justice P.T. O'Marra