Ontario Court of Justice

Date: May 10, 2023

Between:

HIS MAJESTY THE KING

— AND —

DEVANTE MOORES

Before: Justice Louise A. Botham

Ruling on Issue of Standing

Counsel:

Faiyaz Alibhai & Sara Gardezi …...... for the Public Prosecution Service of Canada Ravin Pillay ……………………………..… Counsel for the Applicant Devante Moores

BOTHAM J.:

[1] On April 2, 2022 a search warrant was executed at 25 Esplanade, Unit 2415 which led to a seizure of 139 kilograms of cocaine, 97 kilograms of crystal methamphetamine and a quantity of Canadian Currency.

[2] Mr. Moores has applied to challenge the lawfulness of the seizure of those items from the 25 Esplanade, Unit 2415. The Crown submits that he lacks standing to bring that application.

[3] In R. v. Van Duong, (2018) O.J. No. 610, the Appellants were found to have no standing to advance a claim for Charter relief where they had fraudulently obtained possession of a house with the intention of using it as a methamphetamine lab.

[4] This is really the basis upon which the Crown asserts that the applicant lacks standing to challenge the lawfulness of the search at 25 Esplanade, given that it is the Crown’s theory that he used false documentation to secure the lease for Unit 2415.

[5] Our Court of Appeal in Van Duong, in upholding the decision of the application judge on the issue of standing, rejected the defence argument that the trial judge had focused solely on the fact of the fraud in assessing standing. At para 6, the Court states,

The application judge canvassed all the applicable factors from Edwards and concluded that they overwhelmingly led to the conclusion that the appellants lacked standing. Although the appellants had possession and control of the house, the significance of this was undermined by the elaborate fraud used to obtain possession. With respect to historical use of the property, the appellants' use of the house, for the month that they had possession, was not as a residence, but a meth lab, to be later discarded. The appellants' ability to regulate access to the property was limited: although they had the physical ability to admit and exclude others, they had no legal right to do so. Instructively, Mr. Van Duong testified that if others had arrived, insisted on staying, and calling the police, he would have fled.

[6] I understand the reasoning behind the decision of Van Duong, I do not think that it changes the analysis in Edwards, namely that the determination of whether the claimant has a reasonable expectation of privacy requires an examination of the totality of the circumstances. R. v. Edwards (1996), , 1 S.C.R. 128 at para 31.

[7] In Edwards the Appellant had been a visitor to the apartment who occasionally stayed over. Although he kept a few personal belongings at the apartment, he did not contribute to the expenses of the home and although he did have a key to the apartment, he lacked the authority to regulate access to the premise. The Court confirmed that the right to be free from intrusion or interference is a key element of privacy and an important factor in assessing whether the Applicant had a reasonable expectation of privacy or was simply a privileged guest.

[8] At para. 45 of Edwards, the Court set out the factors to be considered in assessing a claim of standing:

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

[9] I am satisfied that Mr. Moores can rely on facts alleged by the Crown to advance his s. 8 claim.

[10] In this case, Mr. Moores was observed by the police in the underground parking at 25 Esplanade on the two occasions that the location was under surveillance. CCTV footage shows that he entered and exited the elevator on the 24th floor on numerous occasions. It is the Crown theory that he was attending Unit 2415 on those occasions. While under surveillance he was observed to be in possession of large bags which the Crown alleges contained narcotics which had been stored in Unit 2415. When arrested he had a key to Unit 2415. He was also in possession of the only two fobs associated with that unit. One of the fobs had been used on 53 separate occasions to enter the parking garage at level P2 between March 22nd and 29th 2022.

[11] Mr. Moores was present at the time of the search. He appeared to possess the only mechanism to enter the residence, since he had the key and both fobs associated with the residence. There is no suggestion that anyone else had the ability to access the residence or had accessed the residence. There is no basis to believe that anyone else had the ability to interfere with his use of the property. The lease may have been obtained using fraudulent identification but that would also suggest that there was no lawful tenant who could revoke access to the apartment. The lease had been signed in 2021 and it is the Crown’s theory that that was at the Applicant’s behest which would suggest a long standing or historical use of the property.

[12] I am satisfied on a balancing of all the circumstances that his subjective expectation of privacy was objectively reasonable.

Released: May 10, 2023

Justice Louise A. Botham