ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-0065

DATE: 2015-07-17

B E T W E E N:

Her Majesty The Queen,

Alex Hardiejowski, for the Federal Crown

• and -

Ryan Wilson Christiansen,

Steven M. Hinkson, for the Applicant

Applicant

HEARD: June 22, 2105,
at Thunder Bay, Ontario

Regional Senior Justice D. C. Shaw

Reasons On Issue Of Standing To Assert A Breach of

Section 8 of the Charter of Rights and Freedoms

[1] The applicant, Ryan Christiansen, brings an application for an order quashing a general warrant which authorized entry into Unit 105, 212 Miles Street, Thunder Bay, and for an order under s. 24(2) of the Charter of Rights and Freedoms, excluding all evidence seen inside the address, on the grounds that Mr. Christianson’s rights under s. 8 of the Charter were violated. Mr. Christianson also seeks to quash a search warrant which was issued subsequent to the general warrant, arising from the alleged violation of s. 8 of the Charter.

[2] Counsel for Mr. Christiansen and counsel for the Crown agreed that the application should be heard in two stages. The first stage deals with the applicant’s standing to assert a s. 8 interest in Room 105, 212 Miles Street. These are the reasons on the issue of standing.

Background

[3] During the period of April 2012 to March 2013, police received information from five different confidential informants that Mr. Christiansen was trafficking in cocaine. Police conducted surveillance on Mr. Christiansen from April 2012 to April 2013.

[4] The information from the confidential informants indicated that Mr. Christiansen, together with Tony Napolitano, owned two stores in Thunder Bay - Limited Edition and Naturally Fit - from which they dealt illicit drugs and which were fronts used to launder drug money.

[5] Commencing on March 25, 2013, surveillance was conducted on Mr. Napolitano for three days. He was seen to attend 2012 May Street, Thunder Bay, on two occasions. That address is a commercial building with 18 offices. The stops made by Mr. Napolitano were brief. Police observed him to be driving in a “suspicious” manner and conducting counter surveillance manoeuvers.

Evidence of the Crown

[6] On April 4, 2013, police met with the owner of 212 Miles Street - Michael McNabb. Mr. McNabb gave them a list of tenants and the rooms that each tenant was renting. Room 105 was rented to Tony Napolitano.

[7] On April 9, 2013, police reviewed video surveillance of the front door of 212 Miles Street. At 11:58 am they observed a truck pull into a lot on the west side of the building. The driver got out of the truck. Police identified him as Mr. Christiansen. He was carrying a white banker’s box under his right arm. He went in through the front door of the building. Minutes later, he left the building carrying a smaller orange box, entered the truck and drove off.

[8] On April 9, 2013, the police applied for and were granted a general warrant under s. 487.01 of the Criminal Code. The warrant authorized them to surreptitiously enter Room 105, 212 Miles Street to search for evidence, thus supporting a subsequent application for a Controlled Drugs and Substances Act search warrant at the location in order to seize the evidence.

[9] Acting on the general warrant, the police attended 212 Miles Street. Mr. McNabb gave them the master key and they entered Room 105. It was a single room, 10’ x 14’, with a wraparound deck and a chair. There was no equipment to carry on office business. There were no hangers or closets to store clothes.

[10] Police observed rubber gloves, packaging material, a scale and white powder residue all over the desk and the floors. The gloves were swabbed. A field test, although not a forensic test, indicated cocaine residue on the gloves. Acting under a subsequent DNA warrant, testing indicated that the DNA on the gloves matched Mr. Christiansen’s DNA.

[11] Police observed two empty banker’s boxes in front of the desk. A closed box underneath the desk contained two kilograms of cocaine. There was also loose cocaine totalling almost one kilogram. In a hockey bag in front of the desk, police found approximately 800 Oxycodone pills.

[12] The box that Mr. Christiansen was observed carrying on the video surveillance and the box that contained the cocaine were described by the lead police investigator, Detective Constable Ryan Landgraff, as “similar”.

[13] Detective Constable Landgraff said that he also saw a bag that contained lights. He did not remember seeing a video camera.

[14] In cross-examination, Detective Constable Landgraff advised that police had not swabbed the residue on the desk and the floor. He agreed that protein powder could be similar to the white residue.

[15] Detective Constable Landgraff testified that a key fob for the building was subsequently located at Mr. Christiansen’s residence.

[16] Detective Constable Landgraff said that he was aware that Limited Edition was a clothing store run by Mr. Christiansen and that the business had closed down.

[17] Mr. McNabb testified that in the autumn of 2012 he had rented Room 105 to Tony Napolitano. Mr. Napolitano attended Mr. McNabb’s office, alone, and signed a lease. Mr. Napolitano was the only tenant named in the lease. The rent was $195 per month, plus tax. Following the police entry into Room 105 in April 2013, Mr. Napolitano stopped paying rent and his tenancy was terminated. Mr. McNabb testified that Mr. Christiansen was not a tenant.

[18] On the signing of the lease, Mr. McNabb gave Mr. Napolitano one key for the main entrance and one key for Room 105. A couple of months later, Mr. Napolitano asked for another set of keys for a “Brian”.

[19] In cross-examination Mr. McNabb said that Mr. Napolitano told him that the room he was renting was for videography, that he did television commercials and that he had lights and cameras.

[20] Mr. McNabb said he did not go into Room 105 while it was rented to Mr. Napolitano and that he had no idea who used the room.

[21] It was suggested to Mr. McNabb, in cross-examination, that he may have been mistaken in his evidence that Mr. Napolitano had requested a key for “Brian” when in fact it could have been for “Ryan”. Mr. McNabb said he was sure he had been told “Brian” and that is what he wrote down and what his wife put in his computer. While conceding that anybody can make a mistake, Mr. McNabb said he seriously doubted that he had made a mistake on the name “Brian”.

Evidence of Mr. Christiansen

[22] Mr. Christiansen filed an affidavit and gave oral evidence. In his affidavit, Mr. Christiansen deposed:

• in 2012 he owned a retail business called Limited Edition and a health store called Naturally Fit. Tony Napolitano was his partner in both businesses.

• in or about 2012, Mr. Napolitano rented a storage unite at Room 105, 212 Miles Street on behalf of the businesses so they could store inventory for both Limited Edition and Naturally Fit.

• in 2013, they closed Limited Edition and kept some of the excess inventory at Room 105. They sold some of the clothing from his girlfriend’s residence.

• Room 105 belonged to both him and Mr. Napolitano and was paid for equally by both.

[23] In his oral evidence, Mr. Christiansen testified that he had authorized Mr. Napolitano to deal with the landlord of room 105 to store inventory for Naturally Fit and Limited Edition. No one else was to use the room.

[24] In cross-examination, Mr. Christiansen said that Limited Edition was a clothing store for teenagers and young adults. Inventory was stored in Room 105. He said that there was no clothing in Room 105 in April 2013 because the business had shut down in March 2012. Remaining clothing was being sold out of Kijiji or at yard sales, although he still had some girls’ shoes at his home and there was still some clothing at Naturally Fit.

[25] Mr. Christiansen said that Naturally Fit sold proteins, vitamins and health supplements. It is still in operation. Inventory for Naturally Fit was stored in Room 105.

[26] Mr. Christiansen testified that on April 10, 2013, he went to Room 105 to drop off what he assumed were supplements for Naturally Fit. He said he did not look in the box. He left the box on the counter or the floor. (I assume that his reference to April 10, 2013 meant the same day that the police said they saw him on video surveillance enter 212 Miles Street, namely, April 9, 2013.)

[27] Mr. Christiansen said that he had seen lighting equipment in Room 105, for photography, but on the day in question he did not notice it. It had been in a bag, stored somewhere in the room.

Submissions

A. The Applicant

[28] Mr. Christiansen submits that he has standing to assert s. 8 rights in Room 105, 212 Miles Street.

[29] Mr. Christiansen submits that he and Mr. Napolitano were business partners. They agreed to rent Room 105 as a storage area. Mr. Napolitano’s role was to obtain the room on behalf of both of them, as an adjunct of their business arrangement. The room was a storage unit for the jointly held stores, Naturally Fit and Limited Edition.

[30] Mr. Christiansen submits that his expectation of privacy in the room was equal to that of Mr. Napolitano. Mr. Christiansen submits that he did not need to be a named lessee to have a privacy interest in the room.

[31] Mr. Christiansen submits that he and Mr. Napolitano had equal access to the room, they paid the rent equally, they attended the room equally and they equally had the ability to regulate who came to the room.

B. The Crown

[32] The Crown submits that Mr. Christiansen has no standing to bring his application asserting a s. 8 interest in Room 105.

[33] The Crown submits that Mr. Napolitano was the only tenant of the room and that it was only Mr. Napolitano who, at law, could regulate entry to the room.

[34] The Crown submits that although Mr. Christiansen had a key to the room, he did not have a right to control access to the room.

[35] The Crown notes that Mr. Napolitano authorized Mr. McNabb to provide a second key to the room for “Brian”, not for Mr. Christiansen.

[36] The Crown submits that because the room was used only for storage, it attracted a low expectation of privacy as compared to a dwelling house, citing R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, at para. 113. The Crown notes that, in fact, the police found nothing in the room that related to inventory from either Naturally Fit or Limited Edition.

Decision

[37] Before the court can make a finding that there has been an unreasonable search and seizure in violation of s. 8 of the Charter, the party asserting the clam must satisfy the court that he or she has standing to make the application. The question here is did Mr. Christiansen have a reasonable expectation of privacy in respect of Room 105. That assessment must be made in light of the “totality of the circumstances”. See R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 31; R. v. Cole, [2012] 3 S.C.R., at para. 39.

[38] In Edwards, at para. 45, the Supreme Court of Canada outlined a non-exhaustive list of factors to be considered in determining whether an accused has a reasonable expectation of privacy:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership or control 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.

[39] In Edwards, the accused asserted a privacy interest in the apartment of his girlfriend where a significant amount of drugs was found. The court found that the accused had demonstrated no expectation of privacy in the apartment. His girlfriend was the legal tenant. He was described by his girlfriend as “just a visitor” who stayed over occasionally. The accused kept a few personal belongings at the apartment, but he did not contribute to the rent or household expenses. Although only the accused and his girlfriend had keys to the apartment, the accused lacked the authority to regulate access to the premises. The girlfriend could admit anyone to the apartment whom the accused wished to exclude, and could exclude anyone when the accused wished to admit.

[40] In its submissions, the Crown relies heavily on the fact that Mr. Napolitano was the only named tenant in the lease of Room 105 and, therefore, like the girlfriend in Edwards, only Mr. Napolitano had legal authority to regulate access to the premises.

[41] I agree that this is a significant factor in assessing Mr. Christiansen’s standing. However, on an overall assessment of the evidence in the context of the Edwards criteria, I am satisfied that there is a basis for Mr. Christiansen’s contention that he has the right to challenge the validity of the general warrant because of his expectation of privacy in Room 105.

[42] In R. v. Pugliese, 1992 O.J. No. 450 (C.A.), (cited at length with approval in Edwards), Finlayson J.A., at paras. 11-15, held that s. 8 is available to confer standing on an accused who had a reasonable expectation of privacy in the premises where the seizure took place, even though he had no proprietary or possessory interest in the premises or the articles seized. Although property rights do confer privacy rights in a given case, s. 8 of the Charter is directed to the protection of the security of the person, not the protection of his property. The true test of a protected constitutional right under s. 8 of the Charter is whether there is a reasonable protection of privacy.

[43] The ability to regulate access to the premises is an important factor, but it is only one factor to take into account.

[44] The evidence of the Crown and Mr. Christiansen is that Mr. Christiansen and Mr. Napolitano were business partners in Naturally Fit and Limited Edition. Mr. Christiansen testified that the arrangement to rent Room 105 was an arrangement as between business partners for the purposes of their business. Both Mr. Christiansen and Mr. Napolitano had keys to Room 105. The police located Mr. Christiansen’s key at his home. It is reasonable to infer that Mr. Napolitano gave the key to Mr. Christiansen, regardless of whether Mr. Mr. Napolitano told Mr. McNabb that he needed a second key for “Brian”. Mr. Christiansen used his key to gain access to Room 105 on April 9, 2013, when he was captured on surveillance tape going into 212 Miles Street. Police also saw Mr. Napolitano enter and leave 212 Miles Street. There is no evidence that anyone other than Mr. Napolitano and Mr. Christiansen had access to Room 105.

[45] It was Mr. Christiansen’s evidence that Room 105 was used for storing inventory for the businesses he jointly owned by Mr. Napolitano. As such, it would be reasonable to conclude that although Mr. Christiansen was not a tenant named in the lease, he would have some degree of control of the premises including who would be allowed access. On his evidence, he would be more than “just a visitor”.

[46] Although the privacy in a storage room may not use rise to the level of a private home, nevertheless I agree with the submission of the defence that the purpose of putting items in a secure storage area is to prevent other persons from having access to those items thereby creating an expectation of privacy. That expectation would both be subjective to Mr. Christiansen and objectively reasonable. On Mr. Christiansen’s evidence, the items stored for the businesses were owned jointly by him and Mr. Napolitano.

[47] As stated in R. v. Buhay, [2003] 1 S.C.R. 63, at para. 24, the Supreme Court of Canada has adopted a liberal approach to the protection of privacy. It extends not only to homes, offices, hotel rooms, lockers and personal items, but to information we choose to keep confidential, and particularly to that which is kept under lock and key.

[48] Because Mr. Christiansen has met the threshold of standing, his application shall proceed to the second stage of whether an order should be granted quashing the general warrant. By consent of counsel given at the hearing of the issue of standing, the second stage of the application is adjourned to August 26, 2015 at 1:30 pm.

___”original signed by”

The Hon. Mr. Justice D. C. Shaw

Released: July 17, 2015

COURT FILE NO.: CR-14-0065
DATE: 2015-07-17

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

• and -

Ryan Wilson Christiansen,

Applicant

REASONS FOR JUDGMENT

Shaw R.S.J.

Released: July 17, 2015

/mls