ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-G1005, 12-G1002, 12-G20060, 12-G20061
DATE: 2014/09/16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Issa Cheikhezzein
Applicant
David McKercher, for the Federal Crown
Mark Ertel, for the Applicant
HEARD: September 12, 2014
REASONS FOR DECISION ON APPLICATION TO CROSS-EXAMINE SEARCH WARRANT AFFIANT
PHILLIPS J.
[1] The Applicant, Issa Cheikhezzein, stands charged with multiple drug trafficking and other related offenses. In the course of the investigation leading to those charges, a search warrant was executed at an apartment allegedly used by Mr. Cheikhezzein and others as a “stash house”. Presently, he applies for leave to cross-examine the Affiant police officer who swore the Information to Obtain (“ITO”) which gave rise to the warrant.
Background Facts
[2] These charges are part of the fruits of a large Ottawa Police investigation which commenced in May 2010 into the sale of cocaine, crack cocaine and heroin in the Vanier area. As a result of undercover operations, a particular suspected drug dealer was targeted for surveillance. That surveillance eventually encompassed some of the day-to-day activities of the Applicant.
[3] As a result of their surveillance of the Applicant and an associate, police began to suspect that an apartment within a large apartment building was being used as a place to store drugs. Although investigation had revealed that the Applicant and his associate lived elsewhere, they repeatedly came and went from the apartment building in question at 59 Crichton Street.
[4] The apartment building has multiple floors with multiple apartments on each. Access to its interior is controlled via a buzzer system at the building’s otherwise locked front door. On June 16, 2010, Ottawa Police Detectives Corzato and Calixte somehow entered the building without being invited in by anyone. Once inside, the officers made observations connecting the Applicant to apartment #1.
[5] The observations made on June 16, 2010 involving the Applicant’s connection to apartment #1 at 59 Crichton Street were included in the ITO which formed the basis for the application for a search warrant to search that premise.
Positions of the Parties
[6] The Applicant seeks leave to cross-examine the Affiant, Detective Amyotte and Sub-Affiants (Detective Corzato and Detective Calixte) with respect to their entry into the 59 Crichton Street apartment building on June 16, 2010. The Applicant asserts that the police officers were trespassing that day as they had no permission to enter past the access-controlled locked door. The Applicant says that the police entry into the private property of the lobby and hallways constituted a warrantless search and should be seen as presumptively unreasonable. Arising out of an illegal act, the fruits of such an unreasonable search should be excluded from the basis for the judicial authorization that was before the issuing justice.
[7] The Respondent Crown takes the position that whether or not the police officers were trespassing on June 16, 2010 is immaterial to the issuance of the search warrant. In support of this view, it is asserted that the law preventing unreasonable search and seizure is rooted not in protection of property rights but rather in protection of the personal interest in being free from state interference with respect to one’s reasonable expectation of privacy. As it is often put, the Charter protects people and not places. The Respondent argues that the Applicant had no reasonable expectation of privacy with respect to the lobby, hallways or other common areas of the apartment building and accordingly Mr. Cheikhezzein has no standing to assert any complaint about police activities in those spaces. The Respondent resists cross-examination of the Affiant and Sub-Affiants, therefore, on the basis that questions on the subject of whether the police were trespassing on June 16, 2010 are immaterial and irrelevant.
Legal Principles
[8] The applicable legal principles on an application for leave to cross-examine in this context are clearly set out by the Supreme Court of Canada in R. v. Garofoli 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para 88:
Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defense. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.
[9] This test was affirmed and expanded upon in R. v. Pires; R. v. Lising 2005 SCC 66, [2005] 3 S.C.R. 343 where the threshold was characterized as “not onerous”. Moreover, it was made clear that there is no requirement on a leave application for the accused to demonstrate that the proposed cross-examination will lead to a successful challenge to the authorization. In determining whether the threshold test has been met, the trial judge should not decide the question simply on the basis that other parts of the affidavit would support the authorization. However, despite the low threshold, the Court emphasized that the focus of the analysis at this stage must be narrow and restricted to whether there is a reasonable likelihood that cross-examination will undermine the basis for the authorization.
[10] I note that information that is obtained illegally, including information that is obtained in violation of the Charter, could end up being excised from the ITO in order to ensure that the state does not benefit from the illegal acts of police officers or the Crown. However, the Court must consider if the search warrant could have issued without the illegally obtained information. In this way, a search warrant need not be sacrificed if the ITO contains other facts to support its issuance: R. v. Grant 1993 68 (SCC), [1993] 3 S.C.R. 223 at 251.
[11] It is also noteworthy that a central concern in the context of the granting of leave to cross-examine is whether the proposed cross-examination will unnecessarily add to the prolixity of the proceedings. As well, any risk that cross-examination will undermine issues relating to privilege tilts against leave being granted.
Analysis
[12] While I agree that the Charter protects people and not places and that the concept of reasonable expectation of privacy is the paradigm through which search issues are analyzed, I cannot agree that the law contains an automatic rule that there is no reasonable expectation of privacy in an apartment building hallway. Certainly, many cases have resulted in such a finding but that does not amount to the establishment of a presumptive exception.
[13] As was noted by the Supreme Court of Canada in R. v. Grant 1993 68 (SCC), [1993] 3 SCR 223 at p.12:
… This Court remains vigilant with respect to searches conducted in relation to criminal investigations, given that the liberty of individuals is ultimately at stake: Baron v. Canada 1993 154 (SCC), [1993] 1 S.C.R. 416. Furthermore, it was indicated in Simmons, supra, that exceptions to the general rule ought to remain ‘exceedingly rare’ in the face of a strong common-law rule against warrantless intrusions onto private property : Eccles v. Bourque 1974 191 (SCC), [1975] 2 SCR 739.
[14] Without a presumption against the reasonable expectation of privacy in an apartment building common area it simply remains that the determination of reasonable expectation of privacy in the hallway at 59 Crichton Street is contextual and can only be made after considering the totality of the particular circumstances (see: R. v. Edwards 1996 255 (SCC), [1996] 1 S.C.R. 128).
[15] To my mind, the treatment of private property rights governing public access to a place could have some relevance in an assessment of anyone’s reasonable expectation of privacy relating to that place. The conduct of the police vis-à-vis those property rights (in this case the law of trespass) could bear on the objective reasonableness of the Applicant’s expectation of privacy in the apartment building hallway. Ultimately, the question will be whether a reasonable person would expect that the investigative technique in question so infringed on personal privacy that it should only be available to agents of the state with some form of judicial pre-authorization.
[16] The principal complaint being pursued by the Applicant is that the Affiant (and by extension the Sub-Affiants) did not adequately outline the warrantless hallway “perimeter search” (i.e. of the apartment hallways and surrounding common areas) of June 16, 2010 in the ITO. Coincidentally, that was one of the issues before the Supreme Court of Canada in R. v. Grant, supra, at p.20:
However, the Respondent further proposed that the warrant ought to be quashed on the basis that the police officer did not mention the warrantless perimeter search of September 7, 1989 in his information. As this Court indicated in Garofoli, supra, atp.1452, ‘the existence of fraud, non-disclosure, misleading evidence and new evidence’ are all relevant to a determination as to whether information expunged of offending data could properly result in issuance of a search warrant. In the case at bar, however, there is no evidence to support the allegation of bad faith on the part of the officer in question. Unlike the situations in R. v. Sismey (1990) 1990 1483 (BC CA), 55 C.C.C. (3d) 281 and R. v. Donaldson (1990) 1990 630 (BC CA), 58 C.C.C. (3d) 294 (B.C.C.A), there is no information to suggest anything other than that the officer inadvertently failed to include mention of the warrantless perimeter search and certainly nothing to suggest a purposeful attempt to deceive the issuing justice.
[17] I take from the Supreme Court of Canada’s treatment of essentially the same argument as the one being advanced before me that issues relating to the good faith (or its opposite) on the part of the police officers (including, of course, the Affiant) could bear on the ultimate analysis of the proposition that the ITO neglected to fully outline the circumstances of the search as having occurred after trespass upon private property.
[18] The bottom line is that this dispute will turn on a balancing of two interests: the yet to be determined reasonable expectation of privacy (if any) that the Applicant had with respect to the free enjoyment of private property, weighed against the societal interest in proper and effective law enforcement. In my view, the circumstances relating to the investigators’ possible trespass upon private property on June 16, 2010 are material and relevant with respect to both sides of that ledger. On the one hand, the perception by the police (or lack thereof) of any legal prohibition standing in the way of their entry into the building could be informative of the objective reasonableness of anyone claiming a reasonable expectation of privacy therein. On the other, the Court’s assessment of the conduct of the law enforcement personnel could involve consideration of issues relating to the presence or absence of good faith on the part of the authorities.
[19] The application is allowed. Cross-examination of the Affiant and two Sub-Affiants will be permitted on the subject of their knowledge of the legal basis for their entry into the apartment building on June 16, 2010 and the circumstances surrounding the extent to which that basis was communicated to the authorizing Justice. There are no privilege issues impacted. I cannot imagine that cross-examination on those subjects of all three officers will take more than 60 minutes.
The Honourable Mr. Justice Kevin B. Phillips
Released: September 16, 2014
COURT FILE NO.: 12-G1005, 12-G1002, 12-G20060, 12-G20061
DATE: 2014/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Issa Cheikhezzein
Applicant
REASONS FOR DECISION ON APPLICATION TO CROSS-EXAMINE SEARCH WARRANT AFFIANT
PHILLIPS J.
Released: September 16, 2014