Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2021 06 14 COURT FILE No.: 4811-998-19-15007929
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
PAUL SPENCER
Before: Justice Newton-Smith
Heard: March 16, 29 and 30, 2021 Reasons for Judgment released on: June 14, 2021
Counsel: D. MacDonald, counsel for the Crown G. Partington, counsel for the accused Paul Spencer
RULING RE: SECTION 8 OF THE CHARTER
NEWTON-SMITH J.:
[1] Mr. Spencer and Mr. Atovich were originally jointly charged with various offences arising from the execution of two Controlled Drugs and Substances Act, S.C. 1996, c.19 (the “CDSA”) search warrants. One warrant was for 165 Legion Road North, Unit #625, Etobicoke, Ontario and the other was for 2335 Lake Shore Boulevard West, Unit #219, Etobicoke, Ontario. The same ITO supported the issuance of both warrants.
I. History of the Proceedings and the Re-Opening of the Section 8 Litigation
[2] The trial commenced before me on November 12, 2019 with a Garofoli Application brought by Mr. Atovich. Mr. Atovich sought to have all of the evidence seized excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”) on the basis that the searches violated his rights as protected by section 8. Mr. Spencer joined Mr. Atovich in the Application with respect to the Lake Shore residence.
[3] It was the position of the Crown that Mr. Atovich had knowledge and control with respect to both residences and standing to challenge both warrants. There was, and remains, no suggestion that Mr. Spencer had knowledge and control with respect to the Legion Rd. residence. He has standing only with respect to the warrant to search the Lake Shore Blvd. residence. The case against Mr. Spencer stands and falls on the fruits of that warrant.
[4] On August 18, 2020 I ruled on the section 8 and other related issues which were raised by Mr. Atovich (R. v. Atovich, 2020 ONCJ 610). As per that Ruling the warrants were upheld.
[5] On February 9, 2021 the Crown withdrew all of the charges against Mr. Atovich. No explanation was given. Mr. Atovich had been the target of the investigation, and the only one with standing with respect to both searches. All of the Charter litigation to date had been initiated by him and argued by his counsel. Counsel for Mr. Spencer had simply adopted Mr. Atovich’s submissions. No additional issues were raised, or submissions made, on Mr. Spencer’s behalf.
[6] After the case against Mr. Atovich was withdrawn, Mr. Spencer sought to re-open the section 8 litigation. The basis on which he sought to re-open the litigation was that an issue with respect to Mr. Spencer’s section 8 rights vis a vis his residence, 2335 Lake Shore Boulevard, had not been raised. The issue was not frivolous and had a clear impact on Mr. Spencer. I ruled that it was in the interests of justice to allow Mr. Spencer to re-open the section 8 litigation. It was clear to me that counsel for Mr. Spencer had not been participating meaningfully in the litigation while Mr. Atovich’s counsel was in the picture. His failure to raise the issue was clearly an oversight and not a tactical decision.
[7] The issue now being raised by Mr. Spencer relates to his reasonable expectation of privacy in the hallways and perimeters of his residence – unit 219, 2335 Lake Shore Boulevard West. Observations made by the police in the hallways of that apartment building, and of the balcony of unit 219 from the exterior, formed a critical link in the ITO connecting Mr. Atovich, the target of the investigation, to that unit. Absent those observations Mr. Spencer’s residence, and consequently Mr. Spencer, would have played no role in the investigation. Mr. Spencer alleges that those observations were made in violation of his section 8 rights and ought to be excised from the ITO.
[8] The Crown concedes that the Lake Shore warrant is dependent upon those observations, although takes the position that the exterior observations alone could support the issuance of the warrant.
[9] The section 8 issue now being raised by Mr. Spencer is a narrow one and does not impact upon my previous ruling with respect to excision and amplification of the ITO or the judicial summary [1]. On this Application I allowed additional cross-examination of the sub-affiant PC DeSousa. The Applicant, Mr. Spencer, also testified.
II. The Evidence on the Application
(i) Overview of the ITO
[10] After receiving confidential source [CHS] information about a drug trafficker police commenced an investigation. The target of the investigation was a person identified as Stephen Holtz. It is agreed for the purposes of this Application that the target of the investigation was in fact Mr. Atovich, and that Holtz and Atovich were the same person. The police confirmed that Holtz resided at 165 Legion Road, unit #625. Mr. Spencer was not a target of the investigation nor was his residence.
[11] The ITO also contained information with respect to an ongoing OPP firearms trafficking investigation into “Stephen Holtz”. Mr. Spencer had no involvement in that investigation.
[12] The Lake Shore Boulevard address only came to the attention of the police through surveillance. Most of the ITO is taken up with information pertaining to Holtz. There is no reference to Mr. Spencer in the ITO and he did not become a part of the investigation until the day of the execution of the warrants.
[13] The steps taken to confirm that “Stephen Holtz” was the registered tenant of unit #625, 165 Legion Rd. are outlined in the ITO. Those steps began with the police conferring with property management of the building. The consent of the property manager was sought and obtained to review still footage from the building’s CCTV system and key fob activity with respect to unit 625. On September 27, 2018 the police sought and obtained, “consent to officers involved in this investigation to conduct covert surveillance in the common areas of the building, for the installation of covert cameras in common areas, and to allow officers to view the CCTV system for the building” (ITO para.7).
[14] With that consent, but without a warrant, a covert hallway camera was installed. The ITO contained information derived from it. However, the Crown conceded that all of the images and information derived from the covert camera should be excised from the ITO. [2]
[15] A more detailed summary of the contents of the ITO is contained in my previous section 8 Ruling of August 18, 2020 (R. v. Atovich, 2020 ONCJ 610). For the purposes of this Application the relevant portions of the ITO are those which relate to the surveillance conducted at and around 2335 Lake Shore Boulevard West, unit #219.
(ii) The References to 2335 Lake Shore Boulevard in the ITO
[16] The Lake Shore address did not come to the attention of the police until October 18, 2018. The only two dates of surveillance at that address, October 18 and 23, 2018, are described in the ITO as follows:
On October 18, 2018 surveillance officers observed Holtz just after 7 pm leaving 165 Legion Road North on foot wearing a black knapsack and going to a Metro grocery store and a Rabba convenience store. He was then followed to an apartment building at 2335 Lake Shore Boulevard West where he entered the building and “keyed his way into unit 219”. He could be seen inside the apartment through the windows of the unit and “accessing the balcony area of the apartment” and putting on a jacket. Just after 8:30 pm he was seen leaving the building with an unknown male and walking to a pizza store before returning to 2335 Lake Shore Boulevard West. At 9:45 pm Holtz left “carrying the same black knapsack” and was seen walking into the front doors of a nearby apartment building at 2323 Lake Shore Boulevard West. At the same time the unknown male was seen leaving in a car. At 9:53 pm Holtz was seen leaving the 2323 Lake Shore Boulevard West apartment building and taking a taxi back to 165 Legion Road North.
On October 23, 2018 surveillance officers observed Holtz at approximately 6:13 pm exiting 165 Legion Road North “carrying a thick black satchel” and walking to 2323 Lake Shore Boulevard West. A short time later he was seen walking into 2335 Lake Shore Boulevard West and entering unit 219 with a key. Surveillance officers observed Holtz on the balcony of unit 219 with an unknown male. “Both remained in the unit for a period of time”. “Moments” after surveillance officers observed the lights to 219 shut off the unknown male was seen walking westbound on Lake Shore Boulevard West. “A short time later”, the unknown male was seen returning to 2335 Lake Shore Boulevard West and entering the front door. Holtz was not seen at this time.
[17] The ITO is silent with respect to how the surveillance officers gained entry to 2335 Lake Shore Boulevard for the purposes of conducting surveillance. Nor does it explain where the officers were when they made their observations.
[18] Under the heading BACKGROUND CHECKS AND VEHICLE/ADDRESS CONFIRMATION the affiant sets out the checks made with respect to the Lake Shore Boulevard address. A Versadex and a Legacy Data Search query revealed that there were no police occurrences on file with respect to unit 219. A Teraview search revealed that the building was owned by South Beach Investments Ltd., who had purchased it in 1968 for $2. The affiant states, “The above search results indicate that the entire building is rental units. There is no information in relation to tenants that can be gleaned from a Teraview query.”
(iii) The Cross-Examination of the Sub-Affiant PC DeSousa
[19] I permitted cross-examination of the sub-affiant PC DeSousa on the original section 8 application with respect to the observations that he made at the Lake Shore address. [3] A further cross-examination was permitted on this Application with respect to the issue of how PC DeSousa entered the building and any communications that he had with building management.
[20] Pictures of 2335 Lake Shore Blvd. were introduced into evidence through PC DeSousa. The building had a main exterior door leading to a vestibule. Inside the vestibule was an intercom security system. Access to the interior of the building was through a second locked door which could only be opened with a key, or remotely buzzed open by a tenant using the intercom security system. Prior to entering the Lake Shore Blvd. building and conducting surveillance PC DeSousa did not speak with building management or make any attempt to acquire permission to enter the building.
[21] PC DeSousa did not have any notes or clear recollection with respect to how he entered the building on either October 18 or 23. He testified that on one occasion he followed a tenant in and on the other he gained entry through an exterior stairwell door. He had no recollection as to which method he used on which day.
[22] On the occasion on which he followed the tenant in PC DeSousa had no recollection as to what words, if any, he exchanged with the tenant. He was in plain clothes and did not identify himself as a police officer.
[23] It was PC DeSousa’s evidence that on the occasion that he entered through the exterior stairwell door he had simply tried the door and found it unlocked. He testified that he “often found”, in older buildings like Lake Shore, side doors that were either not working, left ajar or not properly locked.
[24] PC DeSousa gave several explanations for why he did not seek permission to enter the building and conduct surveillance as had been done at Legion Rd. First, he testified that in smaller older buildings such as Lake Shore, which he described as “very old, very low rise” and “quaint”, there “tends to be an on-site super who knows everyone”, whereas at “larger and newer buildings like Legion Rd. management doesn’t usually deal with tenants”. PC DeSousa testified that he had concerns that speaking with a “super” could compromise the investigation.
[25] When asked if it was his practice to seek permission at new buildings but not old ones, PC DeSousa responded, “the 18th was my first time going in, it was night and I had no opportunity to speak to anyone”. He then explained that the second occasion, the 23rd, was five days later and there was a weekend in the middle. In that time he was busy with other duties and didn’t have the opportunity to speak with anyone to get authorisation. PC DeSousa agreed that he could have delegated the task but didn’t.
[26] PC DeSousa testified to having no recollection as to whether or not there were any signs telling tenants to not let in strangers or otherwise addressing the privacy and security of the building. Prior to entering the building on October 18 and 23 no steps were taken to ascertain how the property was managed and whether there was an on site superintendent or other form of property management.
The Observations on October 18, 2018
[27] PC DeSousa testified that when he entered the Lake Shore building on October 18, 2018 he followed Mr. Atovich to the second floor. At the second floor PC DeSousa concealed himself behind the door to the north stairwell. He chose the spot because it gave him a vantage point of the second floor hallway while shielding him from view.
[28] PC DeSousa testified that he was listening as well as watching. From his hiding spot PC DeSousa could see Mr. Atovich from the waist up. He testified that while he couldn’t see Mr. Atovich’s hands as he walked down the hallway he could hear keys jingling. Once Mr. Atovich was at the door, PC DeSousa testified that he could see him put a key in the keyhole. PC DeSousa testified that it was 7:30 at night and there was no one in the hallway except Mr. Atovich. He testified that he listened to hear any knocking sounds prior to Mr. Atovich entering the unit and heard none.
[29] After he watched Mr. Atovich enter the unit, PC DeSousa walked out of the stairwell towards the elevator. PC DeSousa testified that he only spent a few minutes inside of the building making observations that day. In cross-examination he agreed that he did go back inside the building “at a later point” that day to walk past the unit and confirm the number, but had no recollection as to how and when this occurred.
[30] Following the observations that he made inside the building, PC DeSousa stationed himself outside of the building in an adjacent parking lot approximately 140 feet away. Using binoculars he made observations of the balcony he believed to be associated with unit 219. He was able to deduce which balcony belonged to that unit from the observations that he had made inside. From his vantage point, and with the aid of the binoculars, he was able to see figures and movement inside the unit as well as what was occurring on the balcony.
The Observations on October 23, 2018
[31] When PC DeSousa made his observations the second time, on October 23, he changed positions. He testified that, “On the 23rd, because of the information I had received and observed on the 18th, I made a decision to go to the south end stairwell so I can have a better eye observation point just in case, you know, there was something being said or something being done at the time, so I would have a better vantage point.” PC DeSousa described himself as being, “crouched down because I didn’t want to be observed”. His hiding spot behind the south stairwell door gave him a better view of the door to unit 219.
[32] PC DeSousa testified that again he was listening as well as watching. He watched Mr. Atovich walk down the hall, saw keys in his hand and saw him, “key his way into the unit” prior to which he did not hear any knocking sounds. Following the observations which he made inside of the building, PC DeSousa went outside and again made observations of the unit and balcony from the adjacent parking lot.
(iv) The Applicant’s Evidence
[33] Mr. Spencer testified on the Application. He first moved into 2335 Lake Shore Blvd. in February of 2000, and signed a lease for unit 219. He testified that he lived there because the rent was cheap and it was the only place he could afford. The unit was a 2 bedroom.
[34] The building was 8 stories. Mr. Spencer guessed that there were approximately 20 units per floor. The main entrance had an unlocked outer door leading into a vestibule. Entrance to the building itself was through the locked interior door of the vestibule. According to the terms of Mr. Spencer’s lease only tenants and persons authorised by a tenant or building management were allowed to enter the building. In October of 2018 there was a sign inside of the vestibule which read, “Think security, open doors only for guests”.
[35] The interior vestibule door closed and locked automatically. If someone without a key wanted to enter the building they needed to be buzzed in by a tenant. The inner lobby also contained a sign reading, “Think security, open doors only for guests”.
[36] Mr. Spencer testified that the exterior stairwell door, which PC DeSousa had used to enter the building on one occasion, was not meant to be used to enter the building. It had no exterior handle and, like the interior vestibule door, closed and locked automatically. Mr. Spencer testified that occasionally tenants propped the door open so that they could load or unload items using the stairwell. If the door was shut it was not possible to use it to enter the building.
[37] In 2016 Mr. Spencer moved temporarily to British Columbia to spend time with his daughter. The move was not intended to be permanent. Prior to leaving Mr. Spencer put the word out at the local donut shop that he was looking to sublet his unit. Mr. Atovich responded with interest and agreed to pay part of the rent in exchange for use of the unit while Mr. Spencer was away. Mr. Atovich’s mother lived in the building next door to 2335 Lake Shore, and Mr. Spencer had known him to live there with her when he was “just a kid”. Mr. Atovich moved into the unit when Mr. Spencer went to British Columbia. The arrangement was informal with no sub lease. While he was gone Mr. Spencer remained solely responsible for the unit as the only tenant on the lease and continued to pay a portion of the rent.
[38] Mr. Spencer returned to Ontario on October 10, 2018 and moved back into his apartment. Mr. Atovich was still there, having paid his share of the rent through to the end of October 2018.
[39] When asked how he felt knowing that the police had entered his building and conducted surveillance, Mr. Spencer testified that he felt, “Unnerved, dismayed, like someone was going around the building spying on me, I didn’t expect it at all, someone creeping around like that …. there is a reason that more expensive buildings have security guards”.
III. Law and Analysis
(i) The Position of the Parties
[40] It is the position of the Applicant Mr. Spencer that, in conducting surveillance inside of the Lake Shore building without permission or prior judicial authorisation, PC DeSousa violated the reasonable expectation of privacy which he held with respect to his residence. The observations made from outside the building flowed directly from what the officer had observed inside, and therefore also violated his section 8 rights.
[41] Mr. Spencer submits that all of the observations made as a result of the violation of his section 8 rights should be excised from the ITO. Without those observations the ITO does not contain grounds for the issuance of a warrant with respect to that residence, and therefore cannot stand.
[42] The Crown concedes that Mr. Spencer has some reasonable expectation of privacy in the hallways of his apartment building. However, the Crown submits that the only information gained by the police through the hallway observations was a municipal address, and that Mr. Spencer does not have a reasonable expectation of privacy in his municipal address.
[43] The Crown further submits that, even if the inside observations were made in violation of Mr. Spencer’s section 8 rights, the observations made by the police from outside of the building were not.
[44] The Crown agrees that absent any of those observations the warrant cannot stand, but submits that the outside observations alone can support the issuance of the warrant. Lastly, it is the position of the Crown that, notwithstanding any section 8 violations, the evidence obtained as a result of the search remains admissible under section 24(2).
(ii) Section 8 and the Right to Privacy in Apartment Buildings
[45] Section 8 of the Charter protects the reasonable expectation of privacy of all people living in Canada, regardless of where they live and their socio-economic status. Whether or not that expectation of privacy is reasonable is, however, dependent upon the circumstances. Generally speaking, an expectation of privacy is reasonable in one’s private dwelling. But not everyone is fortunate enough to own a secure private dwelling with exclusive control over the entirety of the grounds. The right to privacy is not dependent upon such privileged ownership and exclusive control. The inquiry into whether an expectation of privacy is reasonable is a nuanced and context specific one.
[46] In R. v. Edwards, [1996] 1 S.C.R. 128, Cory J. enumerated considerations that are relevant to the inquiry, but made clear that there is no mechanical formula to be applied or one determinative factor: Edwards, at para.45.
[47] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, the Supreme Court further grouped the various factors in the contextual analysis 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.
[48] The Ontario Court of Appeal addressed the issue of reasonable expectations of privacy in the common areas of shared buildings in R. v. White, 2015 ONCA 508. In White the Appellant was found to have a reasonable expectation of privacy in the common areas of his condominium building. In rejecting the blanket contention that there ought not to be a reasonable expectation of privacy in the common areas of shared buildings, Huscroft J.A. stated:
There is nothing “perverse” about providing a measure of privacy to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.
[49] In the subsequent decision of R. v. Brewster, 2019 ONCA 942, [2019] O.J. No.6098 (C.A.), Tulloch J.A. summarised the factors derived from White 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.
[50] In Brewster, Tulloch J.A. again found a reasonable expectation of privacy in the hallways of a shared building. While he found the expectation of privacy in shared hallways to be at the lower end of the spectrum, Tulloch J.A. stated that, “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 a building.” Whether the area was under camera surveillance was also a factor to consider: Brewster, at paras 81-87.
[51] In R. v. Saciragic, 2017 ONCA 493, [2017] O.J. No.493 (C.A.), the Court of Appeal considered whether or not a reasonable expectation of privacy exists in one’s municipal address. The Court found that, “A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and ordinarily, it is public information to which many people have access.” No reasonable expectation of privacy was found to exist in a municipal address per se: Saciragic, at para. 32. In Saciragic the information in question was derived from a key fob which the police had legitimately come into possession of during the course of a search of the accused’s vehicle. Using the key fob the police were able to gain information from the building management with respect to which unit the key accessed and that someone matching the accused’s description had exited the elevator on the 11th floor. In Saciragic the police did not conduct covert surveillance to obtain the information.
(iii) Application to the Facts
[52] As apartment buildings go 2335 Lake Shore Blvd is not large, it is more on the smaller end of a mid-sized building. The units are all rentals. While Mr. Spencer did not have an ownership interest in the building he had lived there for 18 years. As he explained in his evidence, the rent was cheap and he could not afford to live elsewhere in the City of Toronto. He kept the apartment even when he went away for extended periods.
[53] The building security was set up such that entrance to the building required a key. The only other legitimate way to gain entry to the building was to be buzzed in by a tenant or management. There were signs in both the vestibule and the inner lobby which read, “think security, open doors only for guests”. There were no security cameras monitoring activity within the building. The terms of Mr. Spencer’s lease stipulated that only tenants, their guests and persons authorised by management were allowed in the building.
[54] It was reasonable for Mr. Spencer to expect that strangers, including the police, needed permission to enter the building. It was also reasonable for him to expect that people would not be hiding in stairwells to observe the comings and goings with respect to his unit.
[55] PC DeSousa did not have permission to enter the building. Both times that he entered the building he did so surreptitiously. One time he followed a tenant and the other time he entered through a stairwell door that was supposed to be locked. While in his evidence PC DeSousa suggested that he must have simply tried the stairwell door and found it open, it is clear from the picture of the door and Mr. Spencer’s evidence that this was not possible. The door opened outwards and had no outside handle. The only way that PC DeSousa could have got in through that door was if someone had left it propped open or the locking mechanism was broken.
[56] As was the case in White, the officer “took advantage of defects in a security system in order to enter the building and conduct surveillance”.
[57] On both occasions that he entered the building PC DeSousa hid himself in the stairwell so that he could make observations without being seen. On the second occasion he positioned himself closer to the unit to get a better vantage point from which he could see and hear activity around the unit. The officer looked and listened as he crouched in the stairwell. The hallway was quiet and empty enough that PC DeSousa could hear keys jingling as Mr. Atovich walked from the elevator to the apartment. The building was also small enough that from either end of the hallway PC DeSousa could hear the key in the lock and was able to detect the absence of any knocking.
[58] Again, as was the case in White, the officer, “hid near the [Applicant’s] unit in an attempt to eavesdrop or witness something”. The only significant distinction between this case and White is that in this case the officer did not hear anything from inside of the unit. PC DeSousa was, however, attempting to acquire more than simply information about a municipal address. The officer was watching and listening to see who accessed the apartment and how, and any other information that he could glean from his vantage point. He then used the information gained to set up observations from the exterior of the building, using binoculars to look into the unit and observe activity on the balcony.
[59] I find that in the particular circumstances of this case, Mr. Spencer had a reasonable expectation of privacy in the common areas of his apartment building. And while that expectation of privacy may be more attenuated in common areas such as the front lobby, it was less so in the upstairs hallway outside of his unit.
[60] Once inside the building PC DeSousa did not simply stroll down the hall. On the two occasions that PC DeSousa surreptitiously entered the building he hid in the stairwell for the purpose of conducting surveillance. In so doing he was conducting a warrantless search. The Crown does not suggest, and rightly so, that PC DeSousa was operating under an implied licence to knock. Again, as was the case in White, the officer took care to conceal his presence in the building. Similarly, there is no suggestion here that the circumstances were exigent, nor was the officer responding to a complaint.
[61] The searches violated Mr. Spencer’s section 8 rights.
(iv) Excision and the Balance of the ITO
[62] Given that the observations made inside of the building at 2335 Lake Shore Blvd. were the result of a section 8 violation they must be excised from the warrant.
[63] It is the position of the Crown that the observations made by PC DeSousa outside of the building are separate and ought not to be excised.
[64] The exterior observations amount to nothing more than that on two occasions Mr. Atovich was seen to enter the building, where he remained for a period of time. On both occasions Mr. Atovich went out onto the balcony of a unit. On the first occasion he left the building with another man to get pizza and returned for a period of time before leaving and eventually returning to his residence. On the second occasion Mr. Atovich was in the company of another man while out on the balcony. After the lights in the unit went out the other man was seen leaving the building. While the police did not see Mr. Atovich leave on that occasion, he was seen returning to his residence later that evening.
[65] There was no information with respect to how Mr. Atovich entered the building on either occasion. The database checks conducted by the affiant with respect to the 2335 Lake Shore Blvd building, and unit 219, yielded no meaningful information other than that the building was entirely rental units.
[66] The information contained in the ITO with respect to which unit Mr. Atovich visited came from the interior observations. To surmise that the officer would have been able to deduce which unit Mr. Atovich visited without having made those observations amounts to improper amplification of the record.
[67] Furthermore, the exterior observations do not provide the necessary information to ground a belief that Mr. Atovich had access to a unit in the building over which he had enough control to store contraband.
[68] Without the interior observations, at most the ITO contained information that Mr. Atovich went to 2335 Lake Shore Blvd. on two occasions, and spent a period of time in a unit there in the company of an unknown male before returning home. It was the information that Mr. Atovich accessed a unit with a key that was essential to the belief that 2335 Lake Shore Blvd. unit 219 was his stash house.
[69] Absent that information the ITO does not contain the grounds necessary for the issuance of a search warrant for that residence.
(v) Section 24(2)
[70] Having found that the search of 2335 Lake Shore Blvd. was not authorised by law, I must now decide whether admission of the evidence obtained as a result of that search would bring the administration of justice into disrepute. In order to do so I must consider and balance the three factors outlined by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 3 S.C.R. 353, at para. 71. The onus is on the Applicant on a balance of probabilities.
Seriousness of the Breach
[71] The affiant did not include in the ITO any information about how PC DeSousa gained access to the building or how the surveillance was conducted inside the building.
[72] PC DeSousa testified that he was aware of the Trespass to Property Act and that it was his practice in newer and larger buildings to approach property management and seek their permission before entering a building and conducting surveillance. This was done at 165 Legion Rd., the primary target of the investigation and other residence for which a warrant was obtained. However, when it came to 2335 Lake Shore Blvd. PC DeSousa did not make any attempt to seek permission to enter the building and conduct surveillance.
[73] While PC DeSousa testified that he thought he had the authority to follow Mr. Atovich into 2335 Lake Shore, he never explained what that authority was. He also gave varying explanations for why he didn’t seek consent. It was the evening and no one was around, even though he never looked. It was an older building and he was concerned that the superintendent would interact with the tenants, even though he made no investigation into how the building was run. He didn’t have time over the 5 days between the two surveillance dates because he was busy with other aspects of the investigation, even though he could have delegated the task.
[74] When PC DeSousa answered questions about why he did not seek consent to enter 2335 Lake Shore Blvd. he spoke about his general practices and referred in generalities to “older smaller” buildings versus “newer larger” ones. He did not speak about the particular circumstances of the Lake Shore building, but rather about his practice generally when it came to older less modernised, and clearly less affluent, buildings. He had no knowledge of the particular circumstances of that building as he had made no investigation into it.
[75] No steps were taken to make any inquiries whatsoever as to how the building was run and whether seeking permission to enter would in fact potentially compromise the investigation any more so than at 165 Legion Rd. There was nothing exigent about the circumstances and no implied consent.
[76] White was an Ontario Court of Appeal decision from 2015. This investigation took place in the fall of 2018. PC DeSousa ought to have been aware that, absent exigent circumstances, consent, actual or implied, was required to enter the building and conduct surveillance. The fact that it was his practice in newer and larger buildings to seek permission, as was done at 165 Legion Rd, is evidence of PC DeSousa’s awareness of his Charter obligations. It was clear from his evidence that if the building was set up such that getting in without permission was difficult he would seek permission, but if he could find a way in without permission he wouldn’t bother.
[77] Charter breaches that are the result of a pattern of ignoring constitutional rights, or a deliberate decision to do so, are more serious than fact-specific oversights. Even where a breach is unintentional, if it reflects an “unacceptably negligent approach to safeguarding” Charter rights there can be no finding of good faith: R. v. Griffith, 2021 ONCA 302, at paras 63-66.
[78] People who can afford to live in the kind of buildings where the officer would seek permission to enter are not more deserving of privacy than those, like Mr. Spencer, who cannot afford such amenities. While the officer testified that he thought he had the authority to follow Mr. Atovich in to the Lake Shore building, the fact that in another kind of building he would have sought permission suggests that he was less concerned with what authority he may have had in a building where he could get away without seeking it. Simply put, PC DeSousa took advantage of the fact that 2335 Lake Shore was a smaller, more run down and less expensive building. The kind of building that Mr. Spencer could afford to live in. This increases the seriousness of the violation and militates in favour of exclusion of the evidence.
Impact of the Breach
[79] Consideration of this branch of the Grant analysis requires, “an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” The more intrusive the breach, the more serious the impact. The more serious the impact, the more the admission of the evidence would undermine the right in question: Grant, at para.76.
[80] Mr. Spencer’s expectation of privacy in the hallway was attenuated by the fact that other residents, their guests and maintenance people could be present and observing. However, the officer here did not simply walk down the hallway and make an observation in passing. He hid himself in the second floor stairwell in order to look and listen and make observations about the comings and goings from the unit. Similarly to Brewster, the officer had stationed himself at “the end of a particular hallway of a particular floor” in order to get as close to Mr. Spencer’s unit as he could without being seen. He got as close as he could get without being in the unit. Using the observations that he made in the hallway he stationed himself outside where he had a vantage point of the unit and used binoculars to attempt to see into it. The observations that the officer made were pivotal to the granting of the search warrant for the Lakeshore unit and lead directly to the violation of Mr. Spencer’s privacy in his home.
[81] While the breach itself occurred in the hallway where Mr. Spencer’s expectation of privacy was attenuated, it was causally connected to the search of his home where his expectation of privacy was far from attenuated. This factor militates in favour of the exclusion of the evidence.
Society’s Interest in Having the Case Adjudicated on its Merits
[82] As stated by Tulloch J.A. in Brewster, “The underlying principle here is the truth-seeking function of the criminal trial process and whether the criminal justice system would be better served by admission or by exclusion, considering the seriousness of the offence. While these are important factors to be weighed in the balance, they cannot be skewed in such a way that they overwhelm the s.24(2) analysis.”: Brewster, at para.153.
[83] Recently in R. v. McColman, 2021 ONCA 383, where the evidence in question was real evidence essential to the Crown’s case, Tulloch J.A., again addressing the third branch of the Grant analysis, stated that:
While there is no question that the exclusion of the evidence would undermine the truth-seeking function of the trial, society has a vital interest in having a justice system that is above reproach. As I alluded to above, officers are not above the law, and conduct that tests the limits of their authority should not be condoned by this court. On balance, I agree with the summary conviction appeal judge that inclusion of the evidence would bring the administration of justice into disrepute.
[84] In considering the reliability of the evidence and its importance to the Crown’s case, it is clear that this is real evidence essential to the Crown’s case. The charges are serious and involve guns and large quantities of drugs. However, I find that, in the particular circumstances of this case, to allow this factor to outweigh the clear disregard for the rights of people living in lower income housing and the impact upon their privacy rights would, on balance, adversely affect the repute of the justice system.
IV. CONCLUSION
[85] All of the evidence obtained as a result of the search of 2335 Lake Shore Blvd. unit 219 will be excluded.
Released: June 14, 2021 Signed: Justice A. Newton-Smith
[1] My Ruling with respect to Judicial Summary, Excision and Amplification of the ITO was released on April 21, 2020 [2] See above Ruling [3] Ruling released February 14, 2020