COURT FILE NO.: CR-12-90000247-0000 DATE: 20160615
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Andrew Nisker, for the Crown Respondent
- and -
LIBAN DOUALE and KAMIL FILLI Edward Royle, for Liban Douale Jason Rabinovitch, for Kamil Filli Defendant/Applicant
HEARD: May 24-27, 2016, at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling Re: Charter, s. 8
Introduction
1Kamil Filli and Liban Douale are charged severally and jointly with possession of heroin and cocaine for the purposes of trafficking and possession of proceeds of crime.
2Based on confidential information provided by two confidential sources, CS1 and CS2, combined with the results of other police surveillance, members of the Toronto Police Service drug squad obtained three search warrants: one to search the premises at 3266 Yonge St. in Toronto associated with the defendant Kamil Filli, a second to search the copper coloured 2003 Nissan Murano automobile associated to him, and a third to search the residence at Unit 915, 19 Grand Trunk Avenue in Toronto associated with the defendant Liban Douale.
3Kamil Filli was apprehended immediately before the police actually executed the warrant against the automobile associated with him. He was arrested by police officers while standing next to the vehicle in the parking garage at 19 Grand Trunk Avenue. They arrested him and then in a search incident to arrest, he was discovered to be in possession of 16 g of cocaine in his pocket, 1.84 g of heroin, 1.85 g of marijuana, and $360 alleged by the police to be proceeds of crime.
4Liban Douale was arrested a short time later in 19 Grand Trunk Avenue, Unit 915 when the search warrant was executed at his residence. Police rammed his door. He ran to his balcony and tried to throw about 250 g of heroin over the apartment balcony, but it was retrieved. The execution of that search warrant resulted in the seizure of a very substantial amount of heroin and cocaine from different locations in the apartment and from clothing in the apartment, totaling, all in, about 391.37 g of heroin, 71.49 g of cocaine, $2,100 in cash, a lease indicating Mr. Douale was tenant of that apartment, and a piece of Mr. Filli’s ID. This is the evidence that gave rise to the charges against Mr. Filli and Mr. Douale.
5On this application, Kamil Filli alleges that his arrest and subsequent search violated his s. 8 Charter rights, while Liban Douale alleges that the search of 19 Grand Trunk Avenue, Unit 915, violated his s. 8 Charter rights. Both accused ask this court to exclude any evidence seized pursuant to those searches.
6On April 16, 2014, the decision was made to execute the search warrants. While in the underground parking garage at 19 Grand Trunk Crescent, Mr. Filli was observed by officers Jason Kraeling and Corey Reid approaching a Nissan Murano. It was decided that Mr. Filli should be arrested at that point and searched pursuant to that arrest. The decision to arrest Mr. Filli was based on the strength of the CDSA search warrant, which had been issued. At the time of his arrest, however, none of the search warrants had been executed. During the course of this search, a quantity of narcotics was located in his pocket. A subsequent search of the vehicle was negative.
7As such, Mr. Filli’s challenge is based on a simple and central proposition that while the police did have a search warrant for 915-19 Grand Trunk Crescent, 3266 Yonge Street and the Nissan Murano, they did not have a warrant to search him.
8Notwithstanding that police had obtained the search warrants to search the residence where he lived at 3266 Young St., and to search his vehicle, he claims they did not possess the reasonable and probable grounds to arrest him personally: they did not have a specific warrant for his arrest. Thus, Mr. Filli claims his arrest was presumptively unlawful and that the burden of proof shifts to the Crown to show that police had reasonable and probable grounds, not only to arrest him at that time, but also to perform a search incident to arrest, which yielded the contraband that is alleged against him. Since Mr. Filli says they had no reasonable and probable grounds to arrest him, he claims that the search incident to his arrest was done in violation of his rights under section 8 of the Charter.
9The grounds for the application brought by Liban Douale are different. On April 14, 2014, prior to the issuance of the search warrant, P.C. Annetts of the Toronto Police Service entered the building at 19 Grand Trunk Ave to perform surveillance. The building is a high-rise condominium tower located close to the lakefront and the Gardiner Expressway.
10The officer entered the building without a warrant and went to the ninth floor. She stood outside unit 915 and surreptitiously listened to one side of what appeared to be a telephone conversations occurring inside that apartment. The information she gleaned from what she overheard while standing in the hallway outside unit 915 was the sole and direct cause of the actions that followed. Along with her partner, Officer Annetts then exited the building, waited 20 minutes for Liban Douale to exit, and followed him through the subway system to the food court at College Park. At that location, Officer Annetts then reported that she observed Liban Douale engage in a hand-to-hand drug transaction with an unknown white male, a transaction or exchange that she believed involved drugs being delivered by Liban Douale to the unknown white male.
11Apart from his prior criminal record, including two convictions for drug offenses, and the product of surveillance and confidential source information that associates Liban Douale and Kamil Filli, there is no other criminality alleged against Liban Douale that could have informed the issuance of the warrant for the search of his apartment on April 16, 2014.
12Mr. Douale contends that in entering the building and listening to conversations from outside the unit, police were conducting a warrantless search that contravened his rights under s. 8 of the Charter. In addition, Liban Douale asserts that the redacted Information to Obtain (“ITO”) the search warrant and the Judicial Summary of items redacted from that ITO fails to disclose reasonable and probable grounds to believe that an offence had been committed, or that evidence of an offence would be found at Unit 915 at 19 Grand Trunk Ave. Moreover, defence counsel claimed numerous material misrepresentations were made by the ITO affiant and that the ITO omitted facts that should have been made known to the issuing Justice of the Peace, particularly as it relates to Mr. Douale and the circumstances of the alleged warrantless search performed by Officer Annetts.
13In the course of conducting this voir dire, we followed the procedures set out in Step 6 of the decision of the Supreme Court of Canada in R. v. Garofoli. [1] Crown counsel took the position that the ITO, even as redacted, contained more than adequate information on the basis of which the Justice of the Peace, acting judicially, could have issued the warrants.
14Insofar as defence counsel claimed the redacted ITO was insufficient, however, steps were taken to draft and then refine a Judicial Summary of the redacted portions of the ITO, consistent with and as contemplated in the guidance provided by our Court of Appeal in the leading decision in R. v. Crevier. [2] A copy of the final form of that judicial summary as amended and approved by me, and what ended up being the third version of that document, is attached as an Appendix to these reasons.
15At the conclusion of the Charter application, I gave my rulings and findings relative to the separate applications brought by each of these accused. The content of this ruling was read to the applicants in the course of giving my decision on May 30, 2016, but I undertook to provide these written reasons for my rulings, responding more fully to several arguments made on the application, as soon as I was able.
Issues on this application
16The police obtained the evidence against these two applicants on the basis of search warrants applied for and issued by a justice of the peace. Those warrants are presumptively valid, and so the applicants bear the burden of proving that those warrants could not have issued.
17In this application, Mr. Filli asks this court to exclude all evidence seized from him at the time of his arrest in the parking lot at 19 Grand Trunk Ave. Mr. Douale asks the same relative to the evidence found in his apartment, Unit 915, at that same address. Both applicants contend that there were insufficient grounds to obtain a warrant to search 3266 Young St., for the 2003 Nissan Murano vehicle associated with Mr. Filli, or that address at 19 Grand Trunk Avenue. As such, Mr. Filli contends that even if the search warrant was valid, there were no grounds to place him under arrest in the parking lot prior to executing the warrants relative to his residence or his vehicle. Moreover, he claims the burden to show that warrantless arrest was valid rests on the Crown.
18Relative to the warrants themselves, the applicants contend the information presented to the issuing justice did not meet the threshold of reasonable and probable grounds.
19It goes without saying that my role is very limited as a reviewing judge on an application for previously authorized search warrants. It is not my authority to conduct a de novo hearing into the sufficiency of both warrants, and the threshold of my review is not the existence of a prima facie case or even a balance of probabilities. This is not an opportunity for me to substitute my view for the one of the issuing Justice, and it is not a determination of whether I would have issued the warrant, given the presentation of the same evidential record. Rather, the question is whether the issuing Justice could have issued the warrants, given the record that was before him or her, as amplified or excised on review. [3]
20A warrant may issue pursuant to section 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 where the police establish to the satisfaction of a judicial officer (on the basis of a sworn statement) that there are reasonable and probable grounds to believe that there will be a controlled substance or evidence of the offence present in the place or places sought to be searched. The police may, but do not have to establish that there are grounds to arrest any person when seeking a search warrant, as a search warrant constitutes only a further investigative tool, which itself may provide access to evidence giving rise to an arrest. [4]
21The test for setting aside a warrant issued by a judicial officer was stated in Garofoli, above, at paragraph 56, and reaffirmed by the Supreme Court of Canada in R v. Morelli. [5] After noting the direction in R. v. Araujo [6] that the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, Fish J. observed in Morelli, at paragraph 40 that:
The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a Justice of the Peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
22As noted, the review of a search warrant begins from a presumption of validity and the onus of demonstrating the warrant could not have issued lies with the applicant seeking to displace the order. The process requires an assessment of the ITO as a whole, using a practical, common sense and non-technical approach, without parsing its individual elements. [7] The correct question is “whether the respondent has established that there was no basis for its authorization.” [8]
23In this case, since the information said to support the issuance of the warrants relies extensively on a confidential informant source, R. v. Debot [9] requires the issuing justice to consider, on the totality of the circumstances, the extent to which that information is compelling, credible and corroborated by other evidence, in order to determine whether the statutory pre-requisites are met. In considering that totality of the circumstances, the informants’ sources, whether personal or third party, and the detail of the information are to be considered. The reviewing judge is also required to consider indicia of reliability of the confidential informant on the basis of their past performance, or by confirmation from other investigative sources. [10] But Debot also makes plain that any frailty relative to the reliability of the confidential source, and thus their credibility, may be overcome by the strength of the information in terms of it being compellable. This includes, for example, extensive personal detail that could only have come from a person who knew from first-hand information what they reported. Moreover, it is obvious that at some point, every confidential informant is a first-time untested informant, as the two confidential informants were in this case.
Garofoli Step 6
24Crown counsel took the position on this application that even as redacted, the ITO was more than adequate to support the issuance of the three warrants. Even as redacted, the tip information provided by CS1 remains very detailed consisting of numerous elements. It includes not only information that plainly and closely associates Kamil Filli with the address of 3266 Yonge St., and with the 2003 Nissan Murano vehicle, but also reveals detailed personal knowledge by CS1 of the modus operandi of Kamil Filli in the conduct of his street-level cocaine and heroin selling business, including pricing for various quantities of drugs. CS1 provides an indication to the police of his or her motivation to provide the information.
25The Crown submitted that the information provided by CS2 is also compelling and corroborated. It relates principally to Liban Douale living at Unit 915 at 19 Grand Trunk Avenue and associating with Kamil Filli, and relative to the fact that Douale has many guests who visit his unit for very brief periods of time.
26The ITO also contains extensive indication of police database checks, non-criminal and criminal cooperation of information provided by the confidential informants, non-criminal and criminal police investigation relative to the targets and the addresses where they resided, and their conduct in the days leading up to the issuance of the warrants. At the conclusion of the ITO, the affiant, D.C Nishikawa, sets out his conclusions on the basis of first the totality of the information provided to them by the two confidential informants that was corroborated by him during investigation, and secondly, based upon his experience as a drug investigator. I note, however, that this was only the fourth time that D.C. Nishikawa had sworn in an ITO in support of warrants to issue, a point I return to later in this analysis.
Application for leave to cross-examine the ITO
27In the course of the Garofoli application, counsel for Mr. Douale sought to cross-examine D.C Nishikawa as affiant. However, as R. v. Sadykov shows at para. 40, cross-examination will be permitted only where it is directed at the credibility or reliability of the affiant. Cross-examination that cannot reasonably be expected to do more than show some of the information that may have been relied upon by the affiant is false, or prove something even less persuasive, is not likely to be useful. It may only be useful if the applicant can raise an inference that D.C. Nishikawa, the person who swore the ITO, knew or ought to have known that information in the ITO was false. [11] Nothing comes even close in this case.
28However, while I found no basis for the defence to cross-examine D.C. Nishikawa or the sub-affiant, D.C. Annetts, relative to her description of the hand-to-hand transaction she viewed at the College Park Food Court, I did grant a very limited right of cross-examination relative to the numbers overheard by D.C. Annetts while she was standing in the hallway of the apartment, and their significance relative to the periods of time during which these events took place. The question was whether those were references to times or locations. It was not surprising to me that no meaningful or relevant evidence arose out of that cross-examination. Nevertheless, I felt it was an appropriate area upon which to permit brief examination insofar as defence counsel claimed it undermined the police officers’ belief in when an anticipated meeting and potential transaction would occur between the police and the accused.
Analysis relative to Kamil Filli
29In the case of Kamil Filli, I am satisfied that the detailed information provided to the police by CS1, information that I find was specific, known to CS1 based on personal experience, and that was corroborated by the police, was credible, notwithstanding that CS1 was otherwise an untested informant.
30The information received from CS1 met many of the hallmarks of compellability, even as redacted. It was very detailed and was clearly based on first-hand information. CS1 provided a complete description of Mr. Filli, knew one of his nicknames, identified the types of drugs that he sold, knew the prices of each drug, had been inside 3266 Yonge St., knew that there was only one entry/exit to the unit, saw the cocaine himself, knew the car Mr. Filli drove, identified him from his police photo and knew some of Mr. Filli’s habits. CS1 clearly knew the target well enough for the reviewing justice to have no concern that the information was a product of rumor or innuendo. Further, the information falls squarely within the kind of information described in R. v. Amare [12] as meeting the “compelling” standard.
31Under the balancing exercise contemplated in the Supreme Court of Canada's governing decision in Debot, I find the information compelling, corroborated and credible, such that the Justice of the Peace acting judicially could have issued the warrant being challenged. The compelling and exceptionally detailed nature of the information as provided by CS1, and as corroborated by the police, plainly clothed that detailed confidential information with a level of obvious credibility that permitted it to meet the test of credibility, notwithstanding that CS1 was otherwise an untested, albeit carded, informant.
32Crown counsel argued, and I agree, that in R. v. Caissey [13] and R. v. MacDonald, [14] warrants were issued with less grounds than those present in the instant case, and both were upheld on appellate review. Both cases hold that the “3 C’s" analysis does not require corroboration of criminality, even if the source is untested or anonymous. Importantly, in Caissey, the source was untested, and in MacDonald, the information was based on an anonymous tip, which is treated as an untested source.
33In Caissey, a first time source provided information about the appellant’s apartment, the name of his roommate, the description of his vehicle, the absence of kids in his apartment, and that he had seen drugs in the apartment within the preceding three days. The police confirmed much of the innocuous biographical information, but were unable to confirm any criminal element of the tip. The warrant was upheld on review at trial, at the Court of Appeal, and at the Supreme Court of Canada.
34In MacDonald, an anonymous tipster provided the following information about the appellant: his alias, height, weight, skin/eye/hair colour, a tattoo on his hand, that he drove a rental car, and lived at either his mother’s or uncle’s house. Further, the informant advised that he had drugs and guns in his home (although the tipster did not know where this home was), that he is known to carry a gun and deal drugs, and that he/she saw him ‘flash’ a gun. The police were able to corroborate much of the innocuous biographical information, but not any criminal element of the tip. They did discover, however, that the appellant had a recent and related criminal record. The warrant was upheld on review at trial, and at the Court of Appeal.
35If the ITOs in this case contain more grounds than either Caissey or MacDonald, as I have found that they do, then plainly, the warrants could have been issued by the Justice here, in particular because the issuance of the warrants in those cases were upheld on appellate review.
36As such, I have found that the information provided by CS1 (and CS2 for that matter) meets the test in Debot, and I am satisfied that the Justice of the Peace, acting judicially, could have issued the warrant as they did relative to the search of 3266 Yonge St. and the copper colored Nissan Murano vehicle, both associated with Kamil Filli.
37Equally, I am satisfied that the arrest of Mr. Filli was entirely lawful as was the search of his person incident to that arrest. Warrants in hand, officers arrested Mr. Filli in the underground garage of 19 Grand Trunk Ave. as he approached the Nissan Murano. He was found with 16g of cocaine, 1.84g of heroin, 1.85g of marijuana and $360.
38Here, however, counsel for Mr. Filli claimed that there was inadequate foundation present in the warrants to arrest him personally, and that those warrants only permitted his residence and car to be searched for evidence. Since there was no warrant present to arrest him personally, his counsel claims that he was arrested without reasonable and probable grounds, and that the search conducted incident to that arrest which yielded the contraband found on his person was unlawful and violated his s. 8 Charter rights. I reject this position entirely.
39As Garton J. observes in R. v. Da Costa [15] at para 63:
Section 495 of the Criminal Code permits an officer to arrest without warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. This section requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must also be justified from an objective point of view. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 at paras. 15-17.
40In that case, defence counsel objected to the use of the Garofoli step 6 procedure in the context of confidential information having been received that did not inform the issuance of a warrant, but rather, a decision by police officers to effect an arrest without a warrant. However, the court rejected that complaint. There was no reason to confine the "step 6" procedure to situations where a prior search or arrest warrant has been obtained. Indeed, in R. v. Learning, [16] Code J. was prepared to follow the "step 6" procedure where the accused, like Mr. DaCosta, was arrested without a warrant but where the grounds for the arrest were contained in the ITO for a search warrant granted after the arrest. Those are the exact circumstances here.
41The same point is made from a different perspective in R. v. Gobire. [17] In that case, like here, the question was whether officers had reasonable and probable grounds to arrest the accused in circumstances where warrants had been issued, even though the arresting officers were not the individuals possessed of that information. At paras. 37-37 Goldstein J. states:
In my view, it is irrelevant that the arresting officers, Smith and Wojtkiewicz, were not the ones in possession of the information. They knew that another officer had reasonable grounds to believe that Mr. Gobire was in possession of a handgun. They were entitled to rely on that.
Even assuming that there was a sufficient temporal connection between the Charter violation and the investigative detention, I do not accept that the investigative detention was a violation of s. 9 of the Charter. The police officers were aware that an independent judicial officer had found that there were reasonable and probable grounds to believe that there was a handgun located in Apartment 1205 and that Mr. Gobire was in possession of that handgun. They were entitled to rely on it. With respect, it is absurd to suggest that they should not have acted on that information. Police officers are not required to second guess whether their fellow officers really do have reasonable grounds. Still less are they required to second guess whether an authorizing justice has properly issued a search warrant. A finding of invalidity in this case is an ex post facto exercise. The actions of the officers must be judged based on what they knew at the time the warrant was in existence.
42Defence counsel sought to persuade me that the burden to show the existence of RPG falls to the police relative to Mr. Filli, but that ignores, as Code J. observes at paragraph 7 of R. v. Haye [18], that in circumstances like these, the question is really whether the accused’s rights under s. 9 of the Charter have been violated, and in that case, the burden falls to the accused:
In terms of the various burdens on the Charter Motion, the parties agree that the s. 8 search was warrantless and so there is an initial burden on the Crown to establish a lawful basis for the search. The Crown met this burden by establishing that Haye was under arrest for possession of cocaine at the time and that the police relied on common law powers to search for drugs incident to the arrest. See: R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.). The real issue then became whether the s. 9 arrest was lawful. It is agreed that the burden is on Haye to establish, on a balance of probabilities, that P.C. Regan lacked reasonable grounds to make the arrest and thereby violated s. 9. I agree with this analysis of the respective burdens and that it is, therefore, the s. 9 violation that is critical to the case. See: R. v. Bush (2010), 259 C.C.C. (3d) 127 at para. 74 (Ont. C.A.); R. v. B.(L.) (2007), 227 C.C.C. (3d) 70 at para. 60 (Ont. C.A.).
43The arrest of Mr. Filli here was an adjunct to the purpose for which the police sought authorization to enter the premises at 3266 Yonge Street and Mr. Filli’s vehicle, namely to search. Having obtained judicial authorizations to enter and search, and thus given that they would have lawfully been in Mr. Filli’s home and have lawfully searched his vehicle seconds later if he had not been apprehended first, in my view, the police were entitled to effect his arrest based on a subjective belief by the officers in the existence of objective grounds as founded in the warrants. As such, I have found that the drugs and other contraband found on his person were lawfully obtained. His Charter rights were not violated or breached by that action.
44Even if I am wrong in reaching this conclusion, and his arrest was not lawful, the validity of the warrant, the obtaining of the warrant, and its compliance with the Debot requirements would cause me to find that such a breach would be of a sufficiently low level to amount effectively to a mere technical breach under the first branch of the analytical tests under R. v. Grant. [19] The low-level nature of that breach would favour the admission of the evidence.
45On the second leg of the Grant tests, I accept that Mr. Filli had a privacy interest to be secure against unreasonable search and seizure. However, even if that privacy interest was violated, and I have found that it was not because the arrest and search was lawful, it was at worst as a result of a low-level technical breach. Further, that breach must be viewed and assessed in the context of the validity of the underlying warrants to search his residence and his vehicle. Nevertheless, if the search of Mr. Filli was unlawful under the second leg in Grant, his privacy interest was not violated severely in any event since the contraband was found merely as a result of a pat-down, and not any sort of physically intrusive search.
46On the third branch of the Grant tests as it relates to Mr. Filli, the real evidence seized and its value to the charges against him, weigh strongly in favor of its admission. In the absence of that evidence, the charges against Mr. Filli, serious charges of possession of heroin and cocaine for the purposes of trafficking and possession of proceeds of crime, cannot and would not proceed. As such, the third leg of the tests in Grant favor the admission of the evidence.
47On balance, after considering and balancing the three tests I am required to consider under Grant, I would not exclude the evidence against him at trial. However, that finding is based on the assumption that there is a Charter breach in the first place, and as I have indicated above, I found there was no Charter breach when police officers arrested and searched Kamil Filli prior to executing the search warrants. I have found instead that his arrest and the search incident to that arrest that produced important real physical evidence are lawful.
48On this basis, I dismiss the application of the defendant Kamil Filli to exclude the evidence on the basis of an alleged Charter violation against him.
Analysis relative to Liban Douale
49Turning to Liban Douale, however, I reach exactly the opposite conclusion. The key to this determination is my finding that the police obtained the only incriminating evidence against Liban Doual as a direct result of an unlawful search. I find that Liban Douale had a reasonable expectation of privacy in the common areas of 19 Grand Truck Avenue, which includes the hallway outside his door located away from the heavy traffic common areas of that large multiple unit residential building, and notwithstanding that the building was still being finished. Security systems were in place from the outset. Police officers could not have gained entry to the building without having requested to do so, or having slipped in when the door was open. The presence of the security system was designed to protect the privacy interests of the residents of the building from the moment the very first resident began to occupy it.
50In my view, the decision of our Court of Appeal in R. v. White [20] controls and is directly on point. I find that while the decision of the British Columbia Court of Appeal in R. v. Webster [21] advanced by Crown counsel is relevant, it is also distinguishable, and in any event, the White decision is the more recent decision by the Court of Appeal of this province. As such, it seems plain to me that it is the better and more compelling authority.
51Occupants of multiple unit residential buildings have privacy rights just as do the owners of single residential homes. This point is emphatically reinforced in the decision in White. As noted by the Court of Appeal at paragraph 51:
There is nothing "perverse" about providing a measure of privacy protection 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.
52I also understand and accept that the expectation of privacy may diminish as the size of the building and the number of its occupants increases, but this reasonable expectation of privacy does not disappear or become meaningless. The Court of Appeal stated at paragraph 48:
…the fact that a relatively large number of people may have access to a building's common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated.
53Moreover, in my view, the notion of a privacy interest in the common areas of a building must be looked at contextually in the manner described in R. v. Edwards. [22] When looked at from that perspective, it seems clear that residents in a large multiple unit residential building that is in some respects the equivalent of a small town, must benefit from a higher expectation of privacy in the areas immediately adjacent to their apartments. That is, they should have a higher expectation of privacy on the perimeter of their residence, than they do with respect to the multiple common areas located in such buildings where gymnasiums, exercise rooms, party rooms, convenience stores, restaurants, massage studios, and other common amenities of all residents are located: see R. v. Kokesch. [23]
54These officers entered into that building without authorization and without invitation. They did not simply remain in the true common areas of the building down on the first or second floor, but instead, they immediately went to the hallway of the ninth floor and stood outside of Mr. Douale's unit which was located there, and while there, heard a conversation. That conversation was the sole cause and activating element for all of their further surveillance of him.
55Crown counsel argues that they could just as easily have sat outside of the building at 19 Grand Trunk Ave. and waited for Mr. Douale to emerge at some point, and then followed him to the food court at College Park and observed the hand-to-hand transaction. Had that happened, there would be no dispute that that surveillance was entirely legal and that that evidence could not have been the product of a Charter violation, and it could easily have been used as information to support the issuance of a warrant to search his apartment. That, however, is not what happened.
56But for overhearing Liban Douale’s conversation while P.C. Annetts quietly and surreptitiously stood outside of his apartment, it is entirely speculative to consider that the police officers would have waited and observed the front of the building in the expectation of Liban Douale exiting and going to someplace, and then followed him.
57The sole cause for the subsequent observation of the alleged hand-to-hand transaction in the College Park food court was Officer Annetts overhearing what Mr. Douale said on the phone. She overheard that conversation as a result of being in the building pursuant to a warrantless search that violated his reasonable privacy expectations in the common areas of his building.
58As in R. v. Kokesch, even if there may have been a low expectation of privacy in the wide open general common areas of the building located at number 19 Grand Trunk Avenue, those areas that I mentioned previously, and all of the other common facilities and amenities that were available to the residents, I again emphasize my finding that the expectation of privacy relating to his own hallway must necessarily be greater, because that is the perimeter of his own home, just as Kokesch recognized that police may not stand on the perimeter of a private residence to obtain incriminating evidence against the resident without obtaining a search warrant.
59Further, it was solely the product of that unlawful search that gave rise to the subsequent observations of alleged incriminating conduct. As I have indicated, the product of that unlawful search is the sole evidence that informs the subsequent conduct of the police officers in this case. This can be differentiated from a situation like that found in R. v. Labelle [24] where evidence was held to be admissible against White’s co-accused, despite the exclusion of the evidence gathered by the officers who entered into White’s building and obtained information unlawfully. In Labelle, unlike in White, the Court of Appeal upheld the trial judge’s finding that there was sufficient evidence obtained lawfully from informants and through surveillance by other officers outside the building, separate and apart from the excluded evidence gathered during the unlawful search in White’s building.unlike other groups of officers who may have been surveilling other target persons as in a case like R. v. Labelle, which I find to be distinguishable and inapplicable here. It is purely speculative and untenable in my view and makes a nonsense of the violation of the accused’s privacy right to suggest that the officers might otherwise have simply waited outside the building (like the officers in Labelle) to see if Liban Douale exited and then have followed him to the food court at College Park to see whether he conducted a transaction as it appears he did. They only followed him there because of the information that they obtained illegally. “But for” this information, no subsequent allegedly criminal actions would have been observed.
60In light of this conclusion, I would excise those parts of the ITO that are included in paragraph 18, up to but not including paragraph 18(g) and following. Further, I find that it was a serious, even if unintentional, omission on the part of P.C. Nishkawa as he prepared only his fourth ever ITO, that he did not tell the Justice of the Peace in the ITO how P.C. Annetts had obtained the information that led to the surveillance of the alleged hand-to-hand transaction at the College Park food court.
61The failure to include that information and to specifically note that the police officers had no authorization at that time to enter the building, meant that an important piece of information was not present in front of the Justice of the Peace that could, and I believe would, have been a serious and important factual element in determining whether or not the warrant to search Liban Douale's apartment should have been issued. This is not to say the warrant could not issue without that information, but simply the fact that the Justice was unaware of those circumstances leaves open the question as to whether he or she would have issued the warrants on the basis of the ITO information, excluding those facts.
62I do not accept the proposition advanced by defence counsel that absolutely every bit of factual information that could bear on the Justice’s assessment of whether the warrant should issue must be set out in the ITO. However, it is incomprehensible to me that the police could not have understood that their presence in that building that day without invitation or authorization was a serious matter. It is a serious omission to not tell the Justice of the Peace everything that related to those observations and their ultimate product because it leaves the underlying and unspoken presumption that the police lawfully entered the building and were acting lawfully when they obtained that information, when the decision in White plainly shows they were not.
63Once this key information is excised from the ITO, the ITO contains nothing but information of association, potentially innocent association between Liban Douale and Kamil Filli, and the information that visitors come and go to Mr. Douali’s apartment, that Kamil Filli’s vehicle is seen frequently at 19 Grand Trunk Ave., and that Liban Douale and Kamil Filli see each other. Beyond that, there is the reference to Liban Douale's prior criminal record but his record alone could not have supported the issuance of the warrant absent some evidence of criminality that was credible and corroborated and that did not result from a breach of Liban Douale's Charter rights. On its own, absent the excised material, I find that the warrant could not reasonably have been issued by the Justice of the Peace, and as such, that the search of Mr. Douale’s residence was a warrantless search.
64On the Grant analysis, plainly I regard the breach as serious. A fair reading of the decision in White shows that the Court of Appeal regards such breaches as serious. Numerous specific passages in White demonstrate the seriousness with which the appeal justices viewed the breach and support this conclusion. But it is plain to me that the privacy right is meaningless if the information obtained as a direct result of its violation, i.e. what Officer Annetts heard, is excised and excluded, but the incriminating evidence, i.e. the hand-to-hand drug transaction she saw that which would not have been obtained observed but for the original information having been obtained unlawfully, is nevertheless includable in evidence at his trial.
65The breach is serious under the first test under Grant because it involves an unlawful entry into the perimeter areas and precincts of his home, and that strongly favours exclusion of the evidence. Under the first test in Grant, it would undermine confidence in the administration of justice to allow the admissibility of evidence against an accused person that is ultimately the product of an unlawful search. It is also a strong breach because of the failure to advise the Justice of the Peace of how the information was obtained.
66On the second test in Grant, the breach obviously violates the most fundamental privacy interest of an individual in the privacy of their own home and its precincts. That factor under the second leg of the tests also favors exclusion.
67Under the third test, it is true that the public has a strong interest in cases like this proceeding to trial, and there is no question that significant quantities of heroin and cocaine discovered on the execution of the search is real and compelling evidence, and frankly the only evidential foundation upon which the charges can proceed against Mr. Douale. The exclusion of that evidence guts the Crown's case against him, which favors the inclusion of the evidence at trial.
68Nevertheless, upon balancing all of the three tests, and having regard to the strength of the admonition provided by our Court of Appeal in White, I find that it would bring the administration of justice into disrepute if the evidence seized on the execution of Liban Douale's apartment at 19 Grand Trunk Ave. were to be admitted against him at this trial. As such, Liban Douale's motion to exclude that evidence from his trial based upon a breach of his Charter rights and under section 24(2) of the Charter is granted. The evidence is excluded in this case, recognizing as I do, that it will end any possibility of the prosecution continuing its case against Mr. Douale.
69I have recorded all of these reasons as given orally in this more or less verbatim final ruling, while also including further supporting discussion and authority for the conclusions I reached orally at that time. While I recounted the bulk of my reasons, for reaching these conclusions orally, it is important that I complete a proper set of written reasons, which includes the legal arguments made by Crown counsel and case references, and also the legal argument and case references relative to Mr. Filli’s application. I was unable to complete that in the days immediately following the hearing, but all of those points are addressed or at least referenced in these, my reasons.
Michael G. Quigley J.
Released: June 15, 2016
Appendix 1: R. v. Garofoli Step 6 Judicial Summary
SUPERIOR COURT OF JUSTICE ONTARIO (Toronto Region)
BETWEEN:
HER MAJESTY THE QUEEN Respondent —and— Kamal Filli and Liban Douale Applicant(s)
APPROVED JUDICIAL SUMMARY. FINAL V. 3 – INFORMATION TO OBTAIN THE SEARCH WARRANTS FOR 3266 YONGE STREET, 2003 NISSAN MURANO VEHICLE, ONTARIO MARKER AND 19 GRAND TRUNK CRESCENT #915
Background of the Investigation
| Page | Para | Summary of redactions |
|---|---|---|
| 5 | 1 | The specific date affiant received information from the handler of information received from CS1 |
| 5 | 1 (a)-(d) | Paragraph 1 (a)-(d) contains the following redacted information: • The nickname of the target • How long CS1 has known the target • Detail that confirms how CS1 knows and is able to identify target • Outlines details of the modus operandi of the target’s drug dealing. |
| 5 | 1 e) vi. | Nothing more can be released |
| 5 | 1 e) ix. | Details of the location of drugs in the unit. |
| 5 | 1 f) | Details about CS1’s personal knowledge of the target and target address. |
| 5 | 1 g) | The target’s nickname and details of the target’s vehicle and use of the vehicle. |
| 6 | 1 h) | Details of CS1’s personal knowledge of the target. |
| 6 | 1 i) | Details of the modus operandi of the target’s drug dealing at the target address. Details of an individual associated to the target. |
| 6 | 1 j) | Further details of CS1’s personal knowledge of the target. |
| 6 | 1 k) | Further details of CS1’s personal knowledge of the target. |
| 6 | 1 l) | This paragraph contains the following information: • The quantity and location of the cocaine and heroin that CS1 observed; • The specific date CS1 made this observation; • Other details of what CS1 observed on that date. |
| 6 | 1 m) | Details of the modus operandi of the target’s drug dealing and the date CS1 had a drug related interaction with the target. Details of what CS1 observed are redacted and cannot be released. |
| 6 | 1 n) | Date that CS1 had a drug related interaction with the target and details of that interaction. |
| 6 | 1 o) | Details of the modus operandi of the target’s drug dealing operation. |
| 6 | 1 p) - r) | This paragraph contains the following information: • The target’s nickname; • The price the target charges for heroin; • The way the heroin is packaged; • The price the target charges for cocaine; • The way the cocaine is packaged; • The price the target charges from crack cocaine. |
| 7 | 2 d) | Outlines details of the modus operandi of the target’s drug dealing. |
| 7 | 4 | This paragraph contains the following information: • The date DC Oh obtained the intellebook photo of Mr. Filli; • The gender of CS1; • The nickname of the target. |
| 9 | 6 | This paragraph is no longer redacted except the date |
| 12 | 13 | • Details of an interaction CS1 had with the target on a day in March at 3266 Yonge St., including price and quantity of the drugs. • Details of CS1’s observations at 3266 Yonge St. • Further information about the target’s drug dealing operation. • The source of CS1’s knowledge of the drug dealing operation. • Further details of CS1’s personal knowledge of the target. |
| 12 | 14 | Details of the police investigation that led to the identification of Liban Douale. |
| 13 | 17(a)-(d) | • Date affiant spoke to handler about new information provided from CS2. • Time frame in which guests are at the unit within a 24-hour period. |
Grounds to believe that offences have been committed [25]
| Page | Para | Summary of redactions |
|---|---|---|
| 17 | 2 | This paragraph contains the following information: • Gender of CS1; • Nickname of Mr. Filli; • Length of time CS1 has known Mr. Filli; • Details about CS1’s contact with Mr. Filli. |
| 17 | 3 | This paragraph contains the following information: • The type of information provided by CS1; • The quantity of heroin, crack cocaine and powdered cocaine that Mr. Filli was trafficking. |
| 17 | 4 | Repeat of vetted info from elsewhere in ITO |
| 17 | 5 | Repeat of vetted info from elsewhere in ITO |
| 18 | 6 | Time frame that guest are at the unit. |
| 18 | 8 | Repeat of vetted info from elsewhere in ITO. |
Grounds to believe items to be searched for will be at the location to be searched [26]
| Page | Para | Summary of redactions |
|---|---|---|
| 20 | 2 | Outlines details of the modus operandi of Mr. Filli’s drug dealing. |
| 3 | Outlines details of the modus operandi of Mr. Filli’s drug dealing. | |
| 4 | Repeat of vetted info from elsewhere in ITO. |
Conclusion [27]
| Page | Para | Summary of redactions |
|---|---|---|
| 23 | 2 | Summary of details provided by CS1 of Mr. Filli’s drug dealing operation. |
| 3 | Details provided by CS1 of Mr. Filli’s drug dealing operation. |
Appendix D
CS1
- The details about CS1 criminal convictions is no longer redacted, and confirms that CS1 does not have any convictions for Obstructing Justice, Obstructing a Peace Officer, Deceipt or Public mischief;
- Untested informant;
- Type of consideration sought or reason for providing information to the police;
- CS1 is a carded informant with the Toronto Police Service.
CS2
- Source of CS2’s first hand knowledge of the targets;
- Untested informant;
- Whether or not the CI has a criminal record;
- Type of consideration sought or reason for providing information to the police.