Ontario Court of Justice

Date: 2022 02 24 Thunder Bay Court File No: 204484-02 and 204484-03

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— AND —

HAMZA JAMA and FELIX AJAYI Applicants

Before Justice D.J. MacKinnon

Heard on: February 17, 2022 Reasons on Motion for Standing released on: February 24, 2022

Counsel: A. Hardiejowski, for the Crown B. Crothers, for the defendant Hamza Jama G. Nagra, for the defendant Felix Ajayi

MacKinnon J.:

[1] This is a motion for standing to challenge the CDSA search warrant issued in this case.

[2] The accused rely on the allegations of the Crown and have not presented any other facts by way of affidavit or viva voce. The accused are allowed to rely on the Crown’s recitation of the facts as set out in R. v. Jones 2017 SCC 60, 2017 S.C.C. 60 so that they are not in a position of having to give evidence contrary to the principle against self-incrimination. In regard to that principle, the court said:

… It is clear that, to the extent possible, the elements of s.8 – which in itself provides a fundamental principle of justice – should be informed by, and reconciled with the principle against self-incrimination … that is best accomplished by concluding that counsel for a s.8 applicant may ask the court to assume as true for s.8 purposes any fact that the Crown has alleged or will allege in the prosecution against him. (para 31,32)

[3] The facts in this case are recited in the application and reply.

Facts Relied On

[4] The situation for each accused is different.

[5] On November 17, 2020, the police obtained a CDSA search warrant for #6-93 Algoma Street in Thunder Bay. On entering the apartment, the police allege that Hamza Jama attempted to run from them, and in doing so threw away a bag onto the floor, which it is alleged contained crack cocaine. He was pulled to the ground and arrested. Two other individuals were also in the apartment including the legal tenant, Alex DeBassige. During a search of the accused, a large quantity of cash was located. He was placed on the couch and his glasses were retrieved.

[6] Another resident in the building, who wanted to remain anonymous, identified apartment #15 as a location which had been taken over by an associate of Mr. Jama, that being Felix Ajayi. Police knew that the occupant of that apartment was Joseph Hachey.

[7] The police attended at the second residence to check on the well-being of the occupant. The door appeared barricaded. Hachey attended at the door and invited the officers in. Two individuals were located inside the apartment including the second accused, Felix Ajayi. Hachey told the police that the other occupants had taken over his apartment and he was hoping that the police would remove them. A condom was found in the toilet allegedly containing cocaine.

Analysis Regarding Mr. Jama

[8] The application for standing of Mr. Jama involves whether he should be granted the right to challenge the search warrant on the basis of territorial privacy.

[9] The distinction between the types of privacy protected by s.8 of the Charter of Rights and Freedoms were recognized by the Supreme Court in R. v. Tessling 2004 SCC 67. In that case the police used an infrared device attached to an airplane to identify the heat in the home of the accused in order to determine if there was a grow-op there. Binnie J. found that s.8 protected;

1. Personal privacy.
2. Informational privacy and
3. Territorial privacy. (see paras 21-23)

[10] Personal privacy concerns the right to be free of interference with one’s bodily integrity. For example, a warrantless strip search is not legal unless it is reasonable, necessary and incidental to arrest where the police have reasonable and probable grounds to believe that a crime has or could be committed.

[11] Informational privacy is the right of each citizen to control the access to, scrutiny of and distribution of any private information, including on social media and cell phones.

[12] Territorial privacy has long been entrenched in British law as the idea that one’s residence or home, no matter how humble, is a “castle” which the state should not enter. The search warrant in this case is legal authorization for the entry of the state into a person’s residence. It must be authorized in advance and the state must justify its issuance.

[13] In the motion actually before the court, Jama claims that he had a right of privacy in regard to Apartment #6 and met the test for standing to challenge the warrant set out in R. v. Edwards (1996), 104 C.C.C.(3rd) 136. In that case, Cory J. found that, “two distinct inquiries must be made in relation to s.8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.” (para 45).

[14] The court goes on to set out some of the factors to consider;

(i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.

[15] In regard to Mr. Jama, the evidence fails to support his claim for standing based on Edwards.

[16] He was present at the time of the search but there is no evidence of control over the property or the ability to exclude others. There are no examples of his territorial control of the residence on the facts before me. His glasses being in the apartment is so sparse of an example of occupation that it does not bear consideration. To accept it as proof of a reasonable expectation of privacy would create the situation where any place a person with glasses is, a territorial privacy interest is created. I reject the presumption suggested by counsel that his presence alone creates an expectation of privacy and triggers an entitlement.

[17] Further, the suggestion is that Mr. Jama was not a legal tenant and may have been in the apartment unlawfully. Due to the paucity of factors supporting that Mr. Jama meets even the basic elements of Edwards in order to support his standing application, I would not accede to the argument that an illegal occupation of a residence for illegal purposes creates any entitlements.

[18] Even if standing to challenge the search warrant on the basis of a territorial entitlement on the criteria in Edwards had been pursued, I would have found against the accused and denied the standing request as the test has not been met.

[19] The accused today seems to have foregone his original argument for standing. He does claim that he should be able to challenge the search warrant under s.8 of the Charter of Rights and Freedoms as the search of his person is the result of the execution of the search warrant.

[20] The cash was found on his person pursuant to his arrest. In the case of the drugs, the package was alleged to have been thrown away by him in the apartment.

[21] Each of these circumstances fall within the personal privacy category identified in Tessling.

[22] While it is true that the police entered the apartment as a result of the search warrant, there is no evidence that Mr. Jama had any privacy entitlement in the apartment. The search of the person of Mr. Jama occurred, on the facts before me, on the basis of his arrest. The proper test for a search related to an arrest under s.8 of the Charter of Rights and Freedoms, is whether the officer had reasonable and probable grounds to believe that Mr. Jama had committed an offence and whether the execution of the search was reasonable in the circumstances.

[23] In regard to the drugs, the facts suggested by the Crown are that an officer observed Mr. Jama throw away the bag containing the drugs. The issue in this regard, if the evidence at trial confirms that the bag containing the drugs was thrown away by the accused, is whether he retained a privacy interest in that bag as spoken of in the case of R. v. Patrick 2009 SCC 17.

Analysis Regarding Mr. Ajayi

[24] It is admitted that the search warrant did not relate to apartment #15 and was not used for entering that location. The police went to apartment #15 to check the well-being of the legal tenant, Mr. Hachey.

[25] There is no evidence of any relationship between Mr. Ajayi and the apartment that would support that he would have a privacy interest there. Mr. Hachey asserted and was known as the legal occupant of the apartment and he invited the police to enter. Significantly, his evidence was that he was suffering under a home invasion – an illegal occupation by the accused.

[26] The search warrant did not relate to #15, there is no evidence supporting any reasonable expectation of privacy in the residence by Mr. Ajayi, and Mr. Ajayi may have been in the apartment committing a home invasion. For these reasons, I would deny him standing.

DECISION

[27] Based on all of the circumstances, I find as follows:

Regarding Mr. Jama:

1. The accused is denied standing in regard to the search warrant for the reasons set out above;
2. The accused remains entitled to question his arrest and the bag containing drugs by other means.

Regarding Mr. Ajayi:

3. The accused, Felix Ajayi, is denied standing to challenge the search warrant as the search warrant does not relate to the apartment he was found in, there is no evidence supporting any privacy entitlement in regard to apartment #15 and any power to control the premises that he may have had was obtained without consent and illegally by the criminal act of home invasion, on the facts before me.

[28] Thank you to the prosecution and counsel for their fulsome arguments on this matter.

Released: February 24, 2022 Signed: Justice D.J. MacKinnon