COURT FILE NOs. CR-15-30000642; CR-15-90000159-MO; CR-16-40000123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOSEPH BREWSTER, GARY CHEN, HUSSEIN DAYA, KEN MAI, CHRISTOPHER SACCOCIA, DAT QUOC TANG and LARRY YU
Applicants
Michael Passeri and Ron Krueger for the Crown/Respondent
Kim Schofield and Sherif Foda for the accused/Applicants
HEARD: December 12 and 13, 2016
M.A. Code J.
REASONS FOR JUDGMENT
A. OVERVIEW
1The seven Applicants are presently charged with various offences in three Indictments awaiting trial in this Court. The three Indictments are all scheduled for trial on May 1, 2017 when, it is anticipated, the Crown will join them together at a single trial.
2I will not necessarily be the trial judge in this case but I have been designated as the “case management judge,” pursuant to s. 551.7(3) of the Criminal Code. In this latter capacity, I previously heard a large s. 8 and s. 24(2) Charter of Rights Motion brought by 35 Applicants, including the seven present Applicants. That initial s. 8 Motion mainly involved an attack on wiretap authorizations issued by McMahon J. on February 24, April 15, and May 2, 2014. However, it also included an attack on a general warrant, issued by McMahon J. in conjunction with the wiretap authorizations. I substantially dismissed the attack on the wiretap authorizations, with one exception involving the Applicant Tony Huang. I declined to rule on the aspect of the s. 8 Motion that attacked the general warrant, as I held that the record before me was insufficient. I allowed those Applicants who were affected by the general warrant to renew this part of the s. 8 Motion on a further and better record. See R. v. Brewster et al., 2016 ONSC 4133 at paras. 126-132.
3The present Motion before me is a renewal of the earlier s. 8 attack on the general warrant. The Applicants rely on the evidentiary record from the initial s. 8 Motion, as supplemented by a considerable body of further evidence that has now been tendered.
4The general warrant issued by McMahon J. on February 24, 2014 authorized the installation of cameras by the police, to record the movements of certain suspects in the hallways of certain condominium buildings leading to their units. The Applicants allege that there was a failure to make full, fair, and frank disclosure to McMahon J. and that, as a result, the general warrants that authorized camera surveillance should be set aside and the resulting video evidence should be excluded, pursuant to ss. 8 and 24(2) of the Charter.
5It will be recalled that the general warrant provisions of the Criminal Code, enacted as s. 487.01 in 1993, came about in large measure because of the Supreme Court’s decision in R. v. Wong (1990), 60 C.C.C. (3d) 460 (S.C.C.). In that case, the police had installed a video surveillance camera in a hotel room, with the permission and cooperation of hotel management, in order to record images of gambling sessions that were taking place in the hotel room. There was no known warrant that the police could utilize, as they were not wiretapping (there was no interception of oral communications) and they were not seizing “anything” (within the meaning of s. 487). Nevertheless, the Supreme Court held that warrantless recording of video images in a hotel room violated s. 8. The Court went on to admit the evidence of the video surveillance in that case, pursuant to s. 24(2), largely because the police had sought legal advice, had acted in good faith, and “no other investigatory technique was available.” On this latter point, LaForest J. stated the following, speaking for the majority:
On my view of the matter, the courts would be forgetting their role as guardians of our fundamental liberties if they were to usurp the role of Parliament and purport to give their sanction to video surveillance by adapting for that purpose a code of procedure dealing with an altogether different surveillance technology. It is for Parliament, and Parliament alone, to set out the conditions under which law enforcement agencies may employ video surveillance technology in their fight against crime. Moreover, the same holds true for any other technology which the progress of science places at the disposal of the state in the years to come. Until such time as Parliament, in its wisdom, specifically provides for a code of conduct for a particular invasive technology, the courts should forebear from crafting procedures authorizing the deployment of the technology in question. The role of the courts should be limited to assessing the constitutionality of any legislation passed by Parliament which bears on the matter.
6Parliament responded to Wong, as noted, by enacting s. 487.01 in 1993. The police sought to rely on this provision in the present case, in order to authorize video surveillance of certain condominium building hallways. Section 487.01 of the Criminal Code applies to “any device or investigative technique or procedure … that would, if not authorized, constitute an unreasonable search or seizure.” It requires that the police satisfy the usual s. 487 search warrant criteria concerning “reasonable grounds to believe,” but it also requires compliance with the s. 186 criterion for wiretapping, namely, whether the warrant is in “the best interests of the administration of justice.” Finally, it requires that there be “no other provision” that could authorize “the technique, procedure or device.”
7The Applicants do not dispute the existence of the “reasonable grounds to believe” criteria, nor do they dispute the absence of any “other provision” that could authorize video surveillance. Their focus is solely on the s. 487.01 criterion concerning “the best interests of the administration of justice,” and on the impact of certain alleged non-disclosure in the initial police Affidavit on that criterion.
8In brief summary, the basic facts relating to this issue are that the police had already obtained the consent of management at two condominium buildings, allowing the police to install hallway video cameras in relation to two suspects. This fact was not disclosed to McMahon J. when the police first sought authorization to wiretap various suspects and to install video surveillance in their condominium hallways. D.C. Clark’s initial Affidavit, sworn on February 21, 2014, is where this alleged non-disclosure took place. In D.C. Clark’s subsequent Affidavit, sworn on April 11, 2014, he did disclose the existence of the earlier warrantless camera installations that were based on consents from condominium management. The first Affidavit was the basis for the first wiretap authorization and general warrant, dated February 24, 2014. The second Affidavit was the basis for the second expanded and renewed wiretap authorization and general warrant, dated April 15, 2014.
9In addition to attacking the general warrant issued by McMahon J., on the basis of the alleged police failure to make full, fair and frank disclosure, the Applicants attacked the consent installation of the two cameras, prior to issuance of the first general warrant. The Crown intends to tender video surveillance images from one of these warrantless camera installations at the pending trial. The Applicants submit that the consent obtained from condominium management, permitting installation of a hallway camera, was insufficient for s. 8 purposes and that a warrant was required.
10Accordingly, there are three main issues on this renewal of the s. 8 Motion: first, whether the warrantless cameras, installed with the consent of condominium management, violated s. 8 of the Charter; second, whether the failure to advert to these prior installations in D.C. Clark’s initial Affidavit violated the duty to make full, fair and frank disclosure on an ex parte application; and third, whether any such non-disclosure was “material” to McMahon J.’s decision to grant the initial general warrant, and thereby violated s. 8 of the Charter. Of course, if any s. 8 violation is found, s. 24(2) issues then arise.
11I reserved judgment on December 13, 2016, at the end of oral argument. These are my Reasons for Judgment on the Applicants’ renewal of their s. 8 Motion.
B. FACTS
(i) The police investigation
12The facts relating to the police investigation are summarized in my Reasons for Judgment on the earlier s. 8 Motion, which included the present attack on the warrantless camera installations and on the general warrants. I do not intend to repeat that summary. Suffice it to say that the police investigation was large and complex and the offences under investigation (mainly, a series of gang-related murders that were committed in busy public places in Toronto) were brazen, dangerous, and extremely serious. The police had abundant reasonable and probable grounds to believe that the offences had been committed and that the wiretaps and general warrants requested would likely yield relevant evidence (with the one exception of Tony Huang, where I set aside the wiretap authorization). The initial wiretap and general warrant was based on three Affidavits that totaled 1420 pages and that named 144 “known persons” as targets or suspects. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 13-26.
13The police investigation involved substantial physical surveillance. Indeed, on one occasion the police had a particular suspect under surveillance on Yonge Street in Toronto (one Peter Nguyen, an alleged member of the Asian Assassins gang) at a time when this suspect was being tracked and then murdered by a number of other suspects who were also under surveillance (including one Philip Phan, an alleged associate of the rival Chin Pac gang). A significant number of the suspects lived in high-rise condominium buildings and the surveillance officers would follow them to and from these buildings. I heard a great deal of evidence on the original s. 8 Motion about police surveillance practices in relation to the common areas of these condominium buildings, in particular, the parking garages, elevators, main entrance lobbies, and hallways. I do not intend to repeat the lengthy summary of that evidence set out in my earlier Reasons for Judgment. Suffice it to say that the police would occasionally follow suspects into these areas, in order to determine their precise residence inside the building (that is, their unit number), or they would look for the suspect’s car in the parking garage in order to determine whether the suspect was at home (in which case they would wait until the suspect exited and could be followed). Sometimes the police did not have the consent or permission of condominium management, when making these warrantless entries into common areas of the buildings, especially at the early stages of the investigation, but eventually consent or permission was obtained in all cases. No condominium management refused to consent to police entry into common areas, when consent was sought. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 63-102.
14At a certain point in the investigation, the police sought access to video surveillance tapes that were kept by condominium management in some of the buildings. As previously noted, the police also sought permission to install police cameras in certain hallways of two buildings. They spoke to property management, when seeking access to surveillance tapes and/or permission to install cameras. There was both evidence and admissions from the parties in relation to this further aspect of the police investigation. Once again, that evidence and the relevant admissions are summarized in my Reasons for Judgment on the earlier s. 8 Motion. The point that is relevant to the present s. 8 Motion is that consent to install cameras was granted on November 28, 2013 in relation to the building located at 18 Valley Woods Road, and a similar consent was given on January 20, 2014 in relation to the building at 38 Joe Shuster Way. I will describe this latter permission or consent in greater detail below, as it is central to the present Motion. The suspect at the Valley Woods building was Buck Tran and the suspect at the Joe Shuster building was Ken Mai. The camera was installed, in each case, in the hallway near the elevator leading to the suspect’s individual unit. Consent was obtained from senior property management officials, it appears, in the case of the Valley Woods building. Consent was obtained from both senior property management officials and from the condominium board, in the case of the Joe Shuster building. It can be seen that both of these camera installations pre-dated McMahon J.’s issuance of the first general warrant on February 24, 2014. Once again, the relevant facts are summarized in my Reasons for Judgment on the earlier s. 8 Motion. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 87-102.
15One final aspect of the police surveillance in this case that should be mentioned is that it was dangerous. As already noted above, the suspect Peter Nguyen had been tracked and executed by his rivals while actually under police surveillance. Not only were some of the suspects armed, and willing to commit murders, but they were alleged to be organized members of relatively sophisticated criminal gangs, engaged in a lucrative drug trade and determined to protect their unlawful business and their territory. This made conventional physical surveillance particularly difficult, especially inside common areas of condominium buildings where surveillance officers could easily be detected. As I explained in my Reasons for Judgment on the earlier s. 8 Motion (R. v. Brewster et al., 2016 ONSC 4133 at paras. 59 and 68-9):
… there was evidence in the Affidavits of multiple cell phones being used by the known targets of the investigation. There was also compelling evidence that the known targets were conscious of police surveillance and that they engaged in concerted counter-surveillance tactics, including changing their cell phones, aggressively challenging and evading undercover surveillance officers, using and changing multiple rental vehicles, using multiple residences or premises, using false identification and false addresses, and possessing "counter surveillance devices … capable of undermining the proper functioning of surveillance equipment."
I have reviewed all of the Affiants' references to physical surveillance and there is no question that the vast majority involved following cars and suspects at public locations away from their residences. The observations made inside the common areas of multi-unit buildings represent a very small percentage of the total surveillance evidence. Furthermore, most of these observations in common areas were made inside underground parking garages. There are very few observations made in elevators or hallways.
The testimony of the surveillance officers on the s.8 Motion confirmed this overall pattern to the surveillance evidence. For example, D.C. Frigon testified that the time spent inside the common areas of a multi-unit building was minimal compared to the time spent outside these buildings. He explained that it is risky to conduct surveillance inside the common areas of a building as you are more likely to be detected. In any event, the surveillance officers' main task was to follow the targets and determine their associations. D.C. Wahidie similarly testified that the time spent in the common areas of multi-unit buildings was a tiny percentage of the overall time spent conducting surveillance. Finally, Det. Sgt. Johnston confirmed that total surveillance time outside of buildings is very long whereas it is minimal inside buildings. He also confirmed that it is dangerous to conduct surveillance inside a building and that officer safety was a real concern in this case, given that the targets were very surveillance conscious and given that one homicide had already taken place while a target was under police surveillance. [Emphasis added.]
(ii) The alleged non-disclosure in D.C. Clark’s initial Affidavit
16In this context, D.C. Clark sought a general warrant in his February 21, 2014 Affidavit, permitting installation of cameras in the common hallways of the targets’ condominium buildings. He used forward-looking language, without disclosing the two past grants of permission from condominium management, or the results to date of these two prior installations. He also suggested minimization terms, in order to protect certain privacy interests. The relevant parts of his Affidavit are as follows (at paras. 633-640):
I am requesting a General Warrant to authorize peace officers to enter covertly or otherwise the common areas of the multi-unit buildings referred to in paragraph 4 of the Authorization, and subject to the terms and conditions listed in the Authorization, install, maintain, or remove any video recording equipment. Investigators plan to capture the recording of principal known persons and unknown persons on these surreptitious video cameras.
There is no other provision in law that permits this investigative technique.
It is proposed that peace officers will install hidden video cameras to monitor the movements of the principal known persons entering and exiting the named locations.
Investigators plan to have the cameras installed in a manner which minimizes the exposure of private places. With regards to buildings in which the principal known persons reside in, the installed cameras will be placed to capture the common areas of the building as opposed to being placed in an area that points directly into any private unit. These cameras will not have the ability to capture audio.
The installation, maintenance, and removal of these video cameras will require access to rooms or other area that are not part of the common area. An example of these areas would be the building telephone room, electrical room, or other maintenance rooms. Officers will not enter private dwellings in the building for the purpose of installing, maintaining, or removing video cameras.
I am aware that due to technological factors, the video will [not] be subject to live monitoring. Because of this, unknown persons will be subject to being captured on video in these common areas. These common areas are accessible to any person within the building and therefore I believe that the expectation of privacy is not [as] high as it would be in a private area.
Therefore, I am requesting that this General Warrant authorize investigators to capture the principal known persons and unknown persons on video in the common areas of the multi-unit buildings listed in paragraph 4 of the proposed Authorization. Only peace officers will observe these recordings.
After the completion of the Project Battery investigation, the recorded video will be subject to editing before being disclosed. The editing will minimize the disclosure of video that captures unknown persons. Peace Officers will retain the original un-edited copies of the video.
17When McMahon J. issued the wiretap authorization and general warrant three days later, on February 24, 2014, he imposed certain minimization conditions in relation to the video surveillance cameras, as follows (at para. 6(h)):
In respect of observations made pursuant to s. 487.01 of the Criminal Code in the common areas of multi-unit buildings in paragraph 4a:
a. all observations described in paragraph 2 shall be made only by a peace officer
b. the television cameras or similar electronic devices shall be installed so as to minimize capturing any observations within private units
c. no such observation device shall have the ability to capture any audio
d. no live monitoring is required for these observations
18I granted leave to cross-examine D.C. Clark, on the earlier s. 8 Motion, in relation to his failure to disclose the two consent installations of police surveillance cameras at Ken Mai’s and Buck Tran’s condominium buildings. D.C. Clark testified that he was aware of these two consent camera installations. His understanding of the law was that “you definitely needed to have permission to install the camera … to be able to go on the property to install it. And as long as you had the permission from the building management, then you could install the camera.” He explained his failure to disclose the two consent installations to McMahon J. in the following terms:
“Because there probably hadn’t been any information gleaned from these cameras … that I would put into the ITO”;
“Because in this ITO I’m looking for a general warrant to be able to install these cameras in the future for any other addresses that we may identify”;
“Because one of the reasons why we requested this surreptitious video camera just so that if the building management was uncooperative and didn’t want us with that, we would have a warrant in place to be able to install that camera”;
“I’m looking for lawful authority to be able to install the camera. If the building management says no, then, what other recourse do I have? The only other recourse I have is to get a general warrant to be able to go on the property and install it”;
When asked why he disclosed the consent installations in his second Affidavit, sworn some six weeks later on April 11, 2014, but not in his first Affidavit, he testified: “But some of this information isn’t coming to me like live, right, so my only logical explanation would have been the timing of the information. If you look at when the first authorization was authorized, I mean the authorization was done well ahead of the date that it was authorized. And hence, since it happened kind of on the borderline when the paper [the Affidavit] was finished, the first opportunity I got to put it in, I did. … Like from my recollection, this was coming just as we were like finalizing. It was, it was on the borderline. When you write these papers [Affidavits], you kind of have a cut-off date of when you have to stop writing, and then, you know, you just get the paper and get it before the judge because it’s done well in advance … before going to the judge”;
When asked if he knew that the cameras installed with management’s consent “would be there, but you didn’t know what, if anything, you’d gotten yet of potential investigative significance,” D.C. Clark replied, “Yes.”
The evidence was that D.C. Clark’s “cut-off date,” for finishing and swearing the first Affidavit, was February 14, 2014, that is, a week before the Crown filed the Affidavit with McMahon J. on February 21, 2014.
19In his second Affidavit, sworn on April 11, 2014, D.C. Clark disclosed the fact of the earlier consent installation of a camera at the Joe Shuster Way building and referred to the utility of the seized images in the following terms (at para. 250):
A covert camera has been installed in the hallway outside of Ken Ying MAI’s apartment at 38 Joe Shuster Way, on the 17th floor since the 30th of January 2014. The camera is positioned in a location where people captured could only have emerged from Ken MAI’s apartment or the neighboring apartment. It does not identify exactly which of the two apartments are attended. The camera has captured images of several people attending the area carrying bags and leaving with bags.
20In the ensuing paragraphs of this second Affidavit, D.C. Clark pasted six still photographs from the hallway camera into the body of his Affidavit. The photographs showed persons arriving in the area of Ken Mai’s unit “empty-handed” and then “leaving a short time later carrying a bag.” The photographs related to two separate incidents that occurred on February 2, 2014, that is, prior to issuance of the first general warrant, and to two separate incidents that occurred on February 28 and April 2, 2014, that is, after the first general warrant had been granted.
(iii) The expert evidence of Professor Lehrer
21The Applicants called an expert witness, Dr. Ute Lehrer, on the s. 8 Motion. She is an Associate Professor in the Faculty of Environmental Studies at York University. She is an acknowledged expert in urban planning, with a specialized focus on condominium development.
22Dr. Lehrer provided statistical data about the prevalence of condominiums and the characteristics of their owners. There are about 35 million private homeowners in Canada. Condominium owners make up 9.6% of this total. In Greater Toronto, which includes much of York, Peel and Durham, condominium owners make up 14.6% of the five and a half million private homeowners. These percentages have been steadily increasing across all age groups in the last 20 years. As the number of condominium owners has increased, the size of the buildings and the density of these communities have also increased. Some condominium buildings now have more than 60 storeys and more than 600 units. There are presently about 100,000 condominium units in the City of Toronto and this number is forecast to increase to about 190,000 units by the year 2025.
23Condominium owners tend to be from a younger, lower income, higher education, and more ethnically diverse demographic than owners of detached homes. According to Dr. Lehrer, all of the above trends relating to condominium ownership are driven by affordability and by government policies that encourage dense urban development and preservation of “green belts” around cities.
24Dr. Lehrer also testified about the importance of amenities and security in condominium buildings. Her report stated the following on these topics:
In my research over the past 15 years, I paid particular attention to the question of public versus private and the role of common areas, including amenities. As my work demonstrates, today’s condominium boom in the Toronto region only can be explained with a particular attention to lifestyle that was created around high-rise condo living. Front and center of social construction of a lifestyle were common areas.
In fact, amenities, according to my own research, have increased in importance. While at the beginning of the condominium boom in Toronto, the usual amenities were party rooms, fitness rooms and swimming pools, it now has become completely diversified.
I can confirm that the trend I have described over the years, is still ongoing: condominium developers continue to put a lot of attention on amenities, and diversify them. Over the years the pool has been replaced or minimized to the advantage of other amenities, including rock climbing walls, yoga studios, game rooms, play rooms for kids, and even a planetarium in a cupola on top of the building is planned for one of the suburban developments in the Toronto region. Besides these relatively functional amenities, there are also those that provide an opportunity for social gatherings, such as meeting rooms and party rooms.
This is a trend that we see more and more: to complement the relatively small space of condominium with common areas that gear toward needs that are of general importance. Increasingly this includes also libraries and study areas, but also guest rooms and such other amenities.
One of the central amenities in condominium buildings, and the one that costs the most in terms of maintenance fees, is a concierge. Preferred by many condominium owners are 24-hour concierge, because that gives them the peace of mind that the ins and outs at the main entrance of a condominium building is not only video recorded but also that there is human interaction possible that can deal with situations expediently. …
Security is used also in other parts of the buildings: this ranges from booking rooms in advance, to using access cards or locks to common areas where there is particular equipment inside to access cards to particular floors within the elevator system. [Emphasis added.]
25Dr. Lehrer testified that the increased emphasis on common area amenities in condominium building can be seen, on the one hand, as a trend towards the privatizing of previously public amenities. On the other hand, it can be seen as a trend towards collectivizing what was traditionally private space. She also testified that everyone is concerned about crime and security in condominium buildings. It is the responsibility of the condominium board to determine the level of security in a building, in order to protect the safety of unit holders. The board is responsible for hiring security guards, and any concierge, and for installing surveillance cameras. If there was a police investigation in a building, the board would be expected to make a decision about how to interact with that investigation, based on the board’s responsibility to the condominium owners.
26Dr. Lehrer testified that there is social science research showing that young women prefer condominiums with a concierge who can control access to the building, as this enhances the level of security. She also testified that surveillance cameras are now normal at the front lobby entrance to condominium buildings. She estimated that surveillance cameras are also installed about 50% of the time in parking garages, and to a roughly similar extent in elevators, and sometimes in amenities like party rooms, although she had no objective or empirical data in this regard. She was not aware of cameras being installed in hallways, which tend to be regarded as private spaces. The surveillance cameras installed by building management are generally visible, in her experience.
27Dr. Lehrer agreed that her evidence about security cameras was anecdotal, and that she is not an expert in security or in criminal matters. She was not asked to look into the subject of policing in condominium buildings or into the need for surreptitious camera surveillance of criminal suspects in a condominium building during a police investigation.
28Dr. Lehrer was asked about two specific buildings that were part of the present investigation. They are both average-size for Toronto condominium buildings, according to Dr. Lehrer. The building at 38 Joe Shuster Way is 22 stories and 333 units, just below the 25 storey average for Toronto. The building at 125 Western Battery Road is 30 storeys and 438 units, just above the average. They are similar to other buildings in the west end Liberty Village area of Toronto where they are located. She visited the two buildings and found surveillance cameras above the doors leading into amenities, such as the gym and meeting rooms, but not inside these rooms. She also noted concierges with a bank of security surveillance monitoring screens.
(iv) Evidence relating to the particular condominium buildings where the police cameras were installed on the basis of permission from management
29A substantial Agreed Statement of Facts was filed on the earlier s. 8 Motion, concerning the security arrangements and the police installation of cameras at the various buildings that were the subject of the police investigation in this case (in Exhibit 10, or Vol. 8 of the Joint Application Record). There were 14 suspects associated with 14 units at 11 separate condominium buildings, who were targets of the police investigation (three of the buildings included two separate units associated with two separate suspects). It was agreed by the parties that the police sought and obtained permission, “from property management,” to install cameras in relation to all 14 units at all 11 buildings. The facts varied as to exactly how the police obtained permission at each building, and the Applicants did not admit the “scope and validity” of all these consents obtained from “property management.” The police never did install cameras at five of these buildings. Cameras were installed at the six other buildings. Three cameras were installed in relation to the units of three suspects at three separate buildings, prior to obtaining judicial authorization. Six more cameras were installed in relation to six further suspects at three further buildings, after obtaining judicial authorization.
30One of the three buildings where a camera was installed prior to obtaining judicial authorization, was 1600 Keele Street where Peter Trung Dinh Nguyen was associated with unit 1124. The Applicants do not challenge the installation of this camera or seek to exclude any evidence seized from this camera. The second of the three buildings where a camera was installed prior to judicial authorization, was 18 Valley Woods Road where Buck Tran was associated with unit 807. The Crown is not tendering any evidence seized from this camera. The third and last of the three cameras installed prior to judicial authorization is the most important, as the Crown does seek to tender substantial evidence from this camera at trial and the Applicants do challenge its admissibility. This third camera related to unit 1719 at 38 Joe Shuster Way, which was associated with Ken Mai.
31The Agreed Statement of Fact describes the security features at these three buildings in some detail. It is agreed that all three buildings had a “24 hour concierge.” The 1600 Keele Street building had “security video cameras … installed throughout the building, including one on the 11th floor outside of unit 1124,” which was Peter Trung Dinh Nguyen’s unit. This camera was located near the elevator and the police obtained permission to take a video feed directly from the existing surveillance camera. The building at 18 Valley Woods Road “had cameras installed at garage doors, elevator doors, emergency exits, in the lobby and on the third floor.”
32Given that 38 Joe Shuster Way was the most important building relating to the camera installation issue, the security arrangements at that building and the way in which the police obtained permission to install a hallway camera, was the subject of viva voce testimony on the initial s. 8 Motion. I heard evidence from D.C. Frigon, and from the property manager, Phillip Chudnofsky. Given the importance of this evidence to the present renewal of the s. 8 Motion, I will quote the entire summary of this body of evidence from my earlier Reasons for Judgment (see: R. v. Brewster et al., 2016 ONSC 4133 at paras. 87-98):
Another surveillance officer, D.C. Frigon, testified [that] … he would either buzz security and get permission to enter or he would use a key fob or pass code obtained from building management. On occasion, he would simply follow a target into the common areas. It was D.C. Frigon who obtained a key fob and pass code from property management at 38 Joe Shuster Way, on or about December 2/3, 2013. The key fob allowed access to the elevator and hallways and the pass code allowed access to the parking garage. D.C. Frigon did not believe that obtaining permission from property management was that important, and he made no notes or reports about it. This was because he believed that it was lawful for surveillance officers to follow a suspect into a parking garage or to the door of a unit, without permission, provided the officers remained in the common areas and were engaged in an active investigation.
There are good reasons to be concerned about D.C. Frigon's credibility on these points, given his failure to keep proper notes and given some inconsistencies that emerged from his preliminary inquiry testimony. However, the Applicants called the property manager from 38 Joe Shuster Way, one Phillip Chudnofsky. He confirmed that he granted D.C. Frigon permission to enter the common areas of the building. He worked as a property manager for First Service Property Management at various condominium buildings in Toronto. He is an experienced 64 year old who kept notes and confirmed the steps that he took in emails. I found him to be entirely credible and reliable.
Mr. Chudnofsky explained that the property manager at a condominium building works with the builder during the early stages of a condominium project, and then works with the elected condominium board once control passes from the builder to the board. The property manager's responsibilities include contracting and supervising the cleaners, the electrical and mechanical staff, the security staff, any repairs to the building, budgeting, and building inspections. One of his buildings was 38 Joe Shuster Way. It is located near Dufferin and King Streets on the west side of downtown Toronto in an area generally referred to as Liberty Village. It was built in 2005/2006 and was relatively full when he started working there in November 2012.
When Mr. Chudnofsky took over as the property manager in late 2012, there were serious security problems at the building. There were suspicious cars in the parking garage, vagrants and prostitutes in the stairwells, drug deals were taking place, people were coming and going without challenge, and the cleaners did not feel safe. The builder was still in charge, as significant alterations were being made to the building. Mr. Chudnofsky persuaded the builder to hire a new security firm and to increase the security budget. The new security staff began watching the lobby and patrolling the stairwells, hallways, and parking garage. The residents began to feel more secure. Control of the building was handed over to the elected condominium board in mid or late 2013. Mr. Chudnofsky began to report to the board. He described the residents as an eclectic group, including young urban professionals, elderly persons, students, and some "criminals who should be behind bars," as he put it.
The security system at the building required either a key or a key fob to enter any of the doors, as well as to enter the underground parking garage. Each resident was given two fobs and they were strictly controlled. The first level in the parking garage was for visitors who would gain access through a buzzer system. Each resident was assigned a spot and there were three levels of resident parking. All visitors using a parking space had to report in with security and the duration of their stay would be checked by the new security firm.
On December 2, 2013, according to Mr. Chudnofsky, he met D.C. Frigon in the office at the condominium building. D.C. Frigon advised that the police were investigating a sophisticated car theft ring and that they required access to the building. They suspected stolen cars were being stored in the garage. Mr. Chudnofsky agreed to assist and he provided D.C. Frigon with a key fob and an access code that could be used at both the front lobby door and at the entrance to the garage. D.C. Frigon asked Mr. Chudnofsky to keep this information "quiet," as there could be serious consequences if anyone knew about the investigation. Mr. Chudnofsky decided not to tell the condominium board.
Mr. Chudnofsky was aware of officers attending at the building several times. He assumed they were checking for stolen cars. On a few occasions, D.C. Frigon asked if he could look through the building's video surveillance tapes. There are surveillance cameras in the building's lobby where people enter and leave, on the parking garage ramp where cars enter and leave, in the elevator lobby in the garage, and in the elevators. Mr. Chudnofsky looked through the tapes with D.C. Frigon and they were able to find a particular suspect entering, going up in the elevator, and getting off at a particular floor. Mr. Chudnofsky copied this tape and gave it to D.C. Frigon.
On January 20, 2014, Mr. Chudnofsky spoke to another officer, D.C. Ghaznavi, who advised that the police wanted to install a hidden camera in the ceiling of the hallway where certain suspects were believed to have a unit. The police would have to do some drilling in the ceiling so Mr. Chudnofsky felt that he had to confer with his head office supervisor, who advised him to seek permission from the condominium board. He and the supervisor discussed whether to tell the condominium board the identity of the suspects and the floor where the hidden camera was to be installed. They agreed not to divulge these details to the board, given the need for secrecy and given that some members of the board can be "curious," as Mr. Chudnofsky put it. His emails with the board members were produced. He advised the board as follows:
Just to let you know, a number of different police divisions have been keeping an eye on some residents. It's come to the point where they require more surveillance and want to put a camera on the floor to monitor the goings on for that floor. As far as Privacy is concerned, this is a Hallway so there is no privacy issues [sic], but I do wish to have you informed and obtain your permission to have the surveillance camera installed.
This is somewhat urgent if you could get back to me as soon as possible with your decision I will let them know. All equipment, installation etc…etc is at their expense, we just nee[d] to provide them with the OK.
Two of the three board members replied with their approval but they also inquired about the floor where the camera was to be installed and they asked for written confirmation that the police would cover all costs. Mr. Chudnofsky sent an email to D.C. Ghaznavi as follows:
Two of the three board members replied with their approval
So you're good to go,
However, Both wanted to know what floor, I haven't told them and as I wasn't sure if it was a good idea. Can I let them know, or just tell them that it would be better if it wasn't given out just yet
One would like a quick note that all expenses for this is [sic] being covered by the police departments involved, So an Email reply would be quite sufficient.
D.C. Ghaznavi replied:
Just to confirm that no expenses will be passed onto you.
If you can avoid letting them know the floor that would be preferred.
Thank You for your help,
Mr. Chudnofsky passed this response on to the board members. Again, two of the three replied stating, "Okay, great! Let us know if you need anything from us." Mr. Chudnofsky forwarded the response to the police. The third board member never responded and was, apparently, notorious for not responding.
As a result of this process, the camera was installed. Mr. Chudnofsky did not supervise the installation but he understood that it was in the hallway outside the door to the unit of a suspect. Mr. Chudnofsky's supervisor, who approved this process, was the Regional Director for the property management firm. He was in charge of all property managers in the area. The entire process of requesting and receiving permission to install the hallway camera was completed in one day, on January 20, 2014. This was the first time Mr. Chudnofsky had told the board members about his earlier decision, on December 2, 2013, to give the police a key fob and an access code, permitting entry into the common areas of the building.
Mr. Chudnofsky testified that his management team felt that they had to address the problem of crime in the building. He was trained by the senior property managers and supervisors in his company and he was always told to give the police any help they needed. It was company policy to help the police. The actual crime under investigation did not matter. The police needed help in relation to an investigation and Mr. Chudnofsky was willing to give it. He understood the logic of maintaining as much secrecy as possible, in order to avoid the risk of tipping off the suspects. The police did not try to prevent Mr. Chudnofsky from telling the board members. He simply agreed that it was better to tell fewer people, to reduce the risks to the investigation.
(v) The seized video images from the surveillance cameras
33The last area of evidence, relevant to the present renewal of the s. 8 Motion, is the actual images seized by the surveillance cameras. The Crown played all of the video evidence that it will tender at the upcoming trial of the Applicants. These video clips run for something less than two hours. The defence then played a number of short clips that will not be tendered at trial by any party but which illustrate some degree of interference with the privacy interests of innocent third parties. The defence also tendered some still photographs taken from the videotapes, again for the purpose of illustrating some interference with third party privacy.
34I will refer to the general character of these video images below, when analyzing the s. 8 issues at stake. In brief summary, the cameras were all installed in common hallways and they were pointed down the hallways. As a result, the cameras do not point directly into any residential unit except, in one case, there was a unit at the end of a hallway that faced the camera. When the door of this unit opened and closed, as a person entered or left the unit, there was a brief glimpse of the interior of the unit, at some distance from the camera. I could not see what was inside the unit, given the distance, given that a person was in the doorway blocking one’s view, and given the brief time that the door was open. In all other cases, the doors into the units were at the sides of the picture frame. Once again, when a door opened and closed, the camera captured a brief glimpse of the inside of the unit and of any person who came to the door. Each of these interior glimpses was at an angle to the camera and lasted no more than two or three seconds. When the door to one particular unit opened and closed, you could see what appears to be a kitchen counter. When the door to two other units opened and closed, you could see reflections of the person who came to the door in a mirror just inside the door. On one occasion, a woman came to one of these doors in her underwear or in a two piece bathing suit, and let a man into her unit. On another occasion, she kissed him goodbye at the door as he left in the morning. On another occasion, she let him out the door of the unit while wearing a large towel wrapped around her body and while briefly standing at the door. All of these glimpses inside these units, and of people standing in the doorway, are entirely irrelevant to the case. They do not involve the seizure of incriminating evidence.
35Turning to the relevant incriminating evidence seized by the surveillance cameras, what is shown is the comings and goings of the suspects, either in the hallway leading from the elevator to a unit or in the hallway coming from a unit to the elevator. This evidence has considerable probative value, in my view. For example, it strongly infers that Ken Mai did not live at the unit on the 17th floor of Joe Shuster Way but that he went there frequently, often carrying bags to and from the unit. Other suspects would occasionally attend at the unit with him or would visit the unit, while he was present. They would often arrive carrying nothing and would then leave carrying a bag. Other suspects, who were associated with guns and drugs, or with some other gang activity (and who have since been charged, and convicted in some cases), would also visit the unit while Ken Mai was present, sometimes transporting bags back and forth between the various units that were under video surveillance. Substantial seizures were made at the units of these suspects, when search warrants were executed at the end of the investigation. For example, the police seized substantial amounts of heroin, cocaine, MDMA, methamphetamine, marijuana, and cutting agent at the 17th floor unit of the Joe Shuster Way building and at a second condominium unit in another building that was also associated with Ken Mai. In addition, the police made three surreptitious entries into the 17th floor unit, pursuant to a different provision in the general warrant, during the pendency of the wiretap and video surveillance warrants. They sampled and photographed various drugs, including evidence of recent crack cocaine manufacturing, during these three surreptitious entries into the unit.
36The totality of this body of evidence, including the hallway camera surveillance, persuasively infers that the 17th floor unit at Joe Shuster Way was under the control of Ken Mai and that it was being used by him as a “stash house” from which he ran a diverse drug trafficking business. It also establishes Ken Mai’s association with certain other suspects in the alleged “criminal organization.”
C. ANALYSIS
(i) Introduction
37As stated above, there are three main issues to be determined on this renewal of the s. 8 Motion:
First, whether the warrantless installation of cameras in condominium hallways, on the basis of consent from “property management,” violates s. 8 of the Charter;
Second, whether the failure to disclose the warrantless installations to McMahon J., prior to issuance of the first general warrant, violated the duty to make full, fair and frank disclosure on an ex parte application; and
Third, whether any such non-disclosure was “material” to issuance of the general warrant in this case, in the sense that it caused a violation of s. 8 of the Charter.
38It is only in the event of a s. 8 Charter violation, either as a result of success on the first or the third issue, that the further s. 24(2) Charter issue arises concerning the admissibility of evidence.
(ii) The first issue: warrantless installation of hallway cameras based on permission from condominium building management
39As previously summarized, the agreed facts are that three hallway cameras were installed or accessed by the police, in relation to three suspects’ condominium units, prior to judicial authorization being granted by way of a general warrant. However, the Applicants do not challenge one of these consent installations (at 1600 Keele Street) and the Crown is tendering no evidence in relation to a second consent installation (at 18 Valley Woods Road). More importantly, the only adequate evidentiary record relates to the third installation (at 38 Joe Shuster Way). I simply do not know all of the necessary facts and circumstances relating to two of the three consent installations. This is not surprising, as it appears that nothing much turns on them.
40Accordingly, I intend to decide this first issue concerning warrantless installation of hallway cameras, on the basis of the consent or permission that was given by building management in relation to the camera installed on the 17th floor of 38 Joe Shuster Way. This camera was near the elevator and in the general vicinity of a unit associated with Ken Mai. There were three other units on the same floor belonging to innocent third parties.
41The basic structure for s. 8 analysis is well known. The Court must first determine whether a particular police investigative technique amounts to a “search or seizure.” If it does, the particular “search or seizure” in the case must then be assessed to determine whether it was “reasonable.” Reasonableness, in this context, means that the particular search or seizure was “authorized by law,” the authorizing “law itself” was reasonable, and “the manner” of execution was reasonable. At both the initial stage of analysis – determining whether the technique is a “search or seizure” – and at the secondary stage of analysis – determining whether it was “reasonable” – the Court must assess “reasonable expectations of privacy.” As a result, there is some inevitable overlap between the first and second stages of analysis. See: R. v. Evans (1996), 104 C.C.C. (3d) 23 at paras. 10-11, 21-25 and 47-8 (S.C.C.); R. v. Wise (1992), 70 C.C.C. (3d) 193 at 217 (S.C.C.); R. v. Edwards (1996), 104 C.C.C. (3d) 136 at paras. 33, 39, and 45 (S.C.C.); R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 at para. 18 (S.C.C.); R. v. Collins (1987), 33 C.C.C. (3d) 1 at p. 14 (S.C.C.).
42There was considerable analysis in my Reasons for Judgment on the initial s. 8 Motion as to whether police observations in common areas of multi-unit buildings, when following a suspect, amounted to a “search.” See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 111-114. That analysis has somewhat less application to the present s. 8 issue, given that the police went far beyond merely following a suspect to the floor on which he/she resided or to the parking garage space where he/she normally parked a car, in order to determine the unit where the suspect resided or to determine whether the suspect was at home and could be followed upon exiting his/her unit. The present issue is the permanent seizure, by way of video recording, of images that substantially incriminate a suspect in criminal activity. It is more likely that this much more invasive police investigative technique constitutes a “search or seizure” and that it engages s. 8 Charter protections. As LaForest J. put it, speaking for the majority in R. v. Wong, supra at pp. 479-80:
R. v. Duarte was predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. It is thus an important factor in considering whether there has been a breach of a reasonable expectation of privacy in given circumstances. [Emphasis added.]
Also see: R. v. Duarte (1990), 53 C.C.C. (3d) 1 at p. 14 (S.C.C.).
43The hallways and other common areas of multi-unit buildings, such as elevators and parking garages, undoubtedly enjoy a much lower expectation of privacy than the inside of the hotel room that was at issue in Wong. Indeed, the evidence in the case at bar makes it clear that these common areas are already subject to extensive video surveillance, by way of cameras installed by condominium management. This distinction was not lost on LaForest J. in R. v. Wong, supra at p. 481, where he framed the issue in that case narrowly as involving “persons who retire to a hotel room and close the door behind them”:
Accordingly, it follows logically from what was held in R. v. Duarte that it would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.
Viewed in this light, it becomes obvious that the protections of s. 8 of the Charter are meant to shield us from warrantless video surveillance when we occupy hotel rooms. Clearly, our homes are places in which we will be entitled, in virtually all conceivable circumstances, to affirm that unauthorized video surveillance by the state encroaches on a reasonable expectation of privacy. It would be passing strange if the situation should be any different in hotel or motel rooms. Normally, the very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free of uninvited scrutiny. Accordingly, I can see no conceivable reason why we should be shorn of our right to be secure from unreasonable searches in these locations which may be aptly considered to be our homes away from home. Moreover, R. v. Duarte reminds us that unless the question posed in the preceding paragraph is answered in neutral terms as I have suggested, it follows not only that those who engage in illegal activity in their hotel rooms must bear the risk of warrantless video surveillance, but also that all members of society when renting rooms must be prepared to court the risk that agents of the state may choose, at their sole discretion, to subject them to surreptitious surveillance: see again at pp. 16-7. [Italics of LaForest J. in original, underlining added.]
44It was the combination of all the factors that existed in Wong –permanent surreptitious video recording and the inherent privacy of the kinds of activities that take place behind a closed door and inside a hotel room – that led LaForest J., on behalf of five members of the Court, to impose a warrant requirement in R. v. Wong, supra at the second stage of s. 8 analysis (Cory J.A., as he then was, on behalf of three members of the Ontario Court of Appeal, and Lamer C.J.C., McLachlin J., as she then was, concurring, all held that no warrant was required, even in the particular circumstances of that case, so it was a contentious issue).
45There is some doubt, in my view, as to whether installing surveillance cameras in the common areas of multi-unit buildings constitutes a “search,” given the significantly reduced expectation of privacy in these areas and the apparently ubiquitous presence of cameras in these areas. However, there is a further issue at the initial stage of analysis and that is whether tape recording by the police in these areas (or even handing over control to the police of pre-existing tape recordings made by management) constitutes a “seizure.” Lamer J., as he then was, and LaForest J. gave the majority judgments of the Court on this point in R. v. Dyment (1988), 45 C.C.C. (3d) 244 at pp. 248 and 256-7 (S.C.C.), which was a case where a doctor took a blood sample from an injured accused after a motor vehicle accident and then handed the sample over to the police, without a warrant and without consent. Lamer J. stated, on behalf of three members of the Court:
For the reasons given by my brother La Forest J., the fact that the doctor, at the time he remitted the vial to the police, had in his possession the respondent's blood, subject to a duty to respect respondent's privacy, is sufficient to qualify the police’s receiving of the vial of blood without the consent of the doctor's patient as being a seizure as that term is meant in s. 8 of the Canadian Charter of Rights and Freedoms. [Emphasis added.]
LaForest J., on behalf of two members of the Court, stated:
In this case, unlike Pohoretsky, where this was conceded, there was no search. The doctor simply collected the blood as it flowed from an open wound and it was later handed over by him to the police officer. It should be observed, however, that s. 8 of the Charter does not protect only against searches, or against seizures made in connection with searches. It protects against searches or seizures. As Errico Co. Ct. J. put it in Re Milton v. The Queen (1985), 16 C.R.R. 215, at p. 226 (B.C. Co. Ct.): "The words are used disjunctively and although in instances it is a search and seizure that will be under scrutiny as was the situation in Southam, the Charter is worded so that a seizure simpliciter could offend against the section." See also R. v. Dzagic (1985), 19 C.C.C. (3d) 98 (Ont. H.C.J.).
As I see it, the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person's consent. That is what occurred in Pohoretsky, supra. The focus of the enquiry in that case was on the actual taking of the blood sample. But one must bear in mind why that was so. In Pohoretsky, the blood sample was taken at the request of the police officer. The taking of the blood sample, therefore, immediately triggered s. 8 scrutiny. Section 8 was designed to protect against actions by the state and its agents. Here too the focus of enquiry must be on the circumstances in which the police officer obtained the sample. However, the circumstances under which it was obtained by the doctor are by no means irrelevant.
There was no consent to the taking of the blood sample in this case; Mr. Dyment was unconscious at the time. But even if he had given his consent, I do not think that would have mattered if the consent was restricted to the use of the sample for medical purposes; see Griffin v. The Queen (1985), 38 M.V.R. 18 (Ont. Dist. Ct.). As I have attempted to indicate earlier, the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity. [Italics in the original, underlining added.]
46As in Wong, the Court in Dyment imposed a warrant requirement at the second stage of s. 8 analysis in all cases where the police seize blood samples, taken for medical purposes, given the very significant privacy interests engaged by the taking of bodily samples.
47Counsel for the parties advised that they are not aware of any authorities addressing the s. 8 issue of warrantless installation of cameras in the common areas of multi-unit buildings. Nor am I. As a result, there is little guidance in relation to this issue. The privacy interests at stake in Wong and Dyment were clearly much stronger than in the present case, and the Court addressed them mainly at the second stage of s. 8 analysis, by imposing a warrant requirement. In my view, the strength or weakness of the privacy interests in this case is an issue that is better addressed at the next stage of analysis, when assessing whether a warrant is required. Given the absence of authority, and given the intrusiveness of surreptitious video recording, the better course at this initial stage of analysis is to hold that surreptitious video recording in common areas of multi-unit buildings constitutes a “search or seizure.” Accordingly, s. 8 of the Charter is engaged.
48Turning to the “reasonableness” stage of analysis, the only issue is whether the warrantless installation of a surveillance camera near the elevator, looking down the 17th floor hallway at 38 Joe Shuster Way, was “authorized by law.” There is no attack on the reasonableness of “the law itself” or on “the manner” of execution. Rather, the Applicants submit that a warrant is required and that building management’s consent is not a reasonable basis for authorizing this significant form of “search or seizure,” given the privacy interests at stake. In the alternative, the Applicants submit that the particular consent obtained from the condominium board by the property manager, Mr. Chudnofsky, did not meet the constitutional standards for consent searches, as set out in the leading s. 8 authorities.
49The alternative submission, concerning the sufficiency of the consent obtained by the police through Mr. Chudnofsky and the condominium board, is relatively easy to resolve. The leading authorities concerning consent, as a basis for a lawful search, are R. v. Borden (1994), 92 C.C.C. (3d) 404 (S.C.C.) and R. v. Wills (1992), 70 C.C.C. (3d) 529 at p. 546 (Ont. C.A.). In the latter case, Doherty J.A. thoroughly reviewed the authorities on consent searches and concluded as follows:
In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
50In my view, all of the Wills criteria were satisfied in this case. I have previously summarized Mr. Chudnofsky’s evidence. He was an experienced and impressive individual whom I found to be entirely credible and reliable. He understood that he was not obliged to consent, indeed he conferred with his head office supervisor and with the condominium board before consenting. There was no hint of police coercion or oppression. D.C. Ghaznavi appears to have been polite and deferential, when communicating with Mr. Chudnofsky. All of the evidence on the s. 8 Motion is to the effect that property management and the condominium board have full authority to determine these kinds of issues, relating to the safety and security of the common areas of the building, including the installation of surveillance cameras. Mr. Chudnofsky understood that the camera would be installed in the ceiling of a hallway near the unit of a suspect, in order to observe his comings and goings. Finally, Mr. Chudnofsky assessed the potential consequences, that is, the extent of any interference with the unit holders’ privacy interests, and he advised the condominium board in writing: “As far as privacy is concerned, this is a hallway so there is no privacy issues, but I do wish to have you informed and obtain your permission to have the surveillance camera installed.” It can be inferred that the condominium board must have read this email and considered the consequences, in terms of the unit holders’ privacy, and then granted their approval. Mr. Chudnofsky’s assessment of the minimal privacy interest in activities taking place in a hallway coming to and from the elevator, is consistent with the evidence on this Motion concerning the widespread use of surveillance cameras in the common areas of condominium buildings.
51There is little, if any, discussion or analysis in R. v. Wong, supra, as to why the consent of hotel management was insufficient in law to justify the search and seizure in that case. However, it should be apparent that there were significant deficiencies in relation to one of the most important Wills criteria, namely, whether “the giver of the consent had the authority to give the consent in question.” No one who rents a hotel room agrees to give authority to hotel management over video surveillance inside the rented hotel room. By way of contrast, the evidence is clear in the present case that condominium owners do give authority over security in the common areas of the building, including video surveillance, to condominium management.
52I am satisfied that the police obtained a sufficient consent to install the 17th floor camera at 38 Joe Shuster Way, consistent with Wills and Borden. The real issue is whether s. 8 of the Charter requires a warrant for this kind of “search or seizure,” as in Wong and Dyment. It is helpful to note, in this regard, that the seizures in Wills and Borden were of bodily samples and there was no suggestion that such seizures could not be lawfully made on the basis of consent. The seizures in the present case were arguably less intrusive than those in Wills and Borden.
53The warrant requirement in the s. 8 case law is a presumption relating to the second stage of analysis, concerning the “reasonableness” of a particular “search or seizure.” It originates in Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at pp. 108-9 (S.C.C.) where Dickson J., as he then was, gave the Judgment of the Court and stated:
Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far. The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure. [Italics of Dickson J. in the original, underlining added.]
54Applying the above principles from Hunter, the Courts have held that no warrant is required where there are heightened law enforcement interests and/or diminished privacy interests. See, e.g., R. v. Simmons (1988), 45 C.C.C. (3d) 296 (S.C.C.); R. v. Fearon (2014), 2014 SCC 77, 318 C.C.C. (3d) 182 (S.C.C.). On the other hand, where there are heightened privacy interests and it is feasible to obtain a warrant, the warrant requirement has been applied. See, e.g., R. v. Wong, supra; R. v. Dyment, supra; R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.); R. v. Spencer (2014), 2014 SCC 43, 312 C.C.C. (3d) 215 (S.C.C.).
55In my view, the facts of the present case do not involve a situation where the warrant requirement applies. Beginning with the privacy interests of the residents, there is a minimal privacy interest in the comings and goings at the external entrance to any private residence. Everything that the police observed in the 17th floor hallway, with the aid of cameras, would be visible from the sidewalk or street if the targets were living in a detached dwelling house. The fact that Ken Mai repeatedly entered and left the hallway leading to his 17th floor unit, sometimes with a bag and sometimes without a bag and sometimes in the company of another suspect, is no different than observations of a homeowner walking along the front yard path leading from the garden gate to the front door of a detached dwelling house. The latter observations have always been the subject of warrantless surveillance by police officers. Those surveillance officers sometimes carry still cameras or video cameras, indeed they are encouraged to use this simple and longstanding technology because it produces much more reliable surveillance evidence.
56The Applicants’ privacy interests, in these circumstances, bear no resemblance to the cases involving searches of the interior contents of offices or homes (as in Hunter) or of the interior of hotel rooms (as in Wong) or of the kinds of information stored in a computer (as in Spencer) or of bodily substances (as in Dyment and Stillman). Indeed, the evidence on the present Motion is that surveillance cameras are commonplace in the lobbies, parking garages, elevators, and hallways of condominium buildings, indicating that the owners accept this reduction of their privacy interests in these common areas that lead to their homes, in favour of collective security. This interest in enhanced security in the common areas of condominium buildings is not surprising, given that a resident of a multi-unit building is living in very close proximity to neighbours who may not be known and who may be suspicious or even dangerous. Mr. Chudnofsky testified that criminal activity was known to be occurring in the common areas of the Joe Shuster Way building, when he became property manager, and he set about increasing security. Morden A.C.J.O. (McKinlay and Laskin JJA. concurring) addressed this issue in R. v. Laurin (1997), 113 C.C.C. (3d) 519 at para. 45 (Ont. C.A.):
The policy considerations relating to the reasonable expectation of privacy of an apartment dweller with respect to different kinds of police surveillance in the common hallways may be varied. On the one hand, it may be thought that tenants would not wish police officers to have the same scope as neighbours and visitors with respect to making ordinary observations in the hallways. On the other hand, it may be quite in the interests of tenants that they have this scope, if they are legitimately engaged in investigating a complaint, to enter and make observations in the hallway which are not intrusive. "This rule gives tenants the benefit of much-needed police protection in common hallways ..., while it preserves for them the privacy of their actual places of abode, their apartments": United States v. Holland, 755 F. 2d 253 at 256 (2nd Cir. 1985). [Emphasis added.]
57In this regard, I already set out the well-known authorities concerning the “moral or social duty … to assist the police,” in my Reasons for Judgment on the initial s. 8 Motion. I also set out the authorities concerning permission granted to the police by “property management” or “the property manager,” to enter the common areas of multi-unit buildings in certain circumstances, including in the context of the “implied license” doctrine. In my view, these cases all express the common sense logic adverted to by Morden A.C.J.O. in Laurin, that the law-abiding residents of the condominium building are entitled to cooperate with a police investigation, pursuant to their “moral or social duty” and in order to protect their own interest in the security and safety of the building. In doing so, they act through the agency of the building management. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 115-117.
58The Applicants concede that surveillance cameras are commonplace in many of the common areas of condominium buildings. However, they seek to distinguish the hallways leading to a unit as a zone of privacy. In this regard, they rely on Dr. Lehrer’s evidence to the effect that hallways are generally regarded as private. In my view, the evidence does not support this distinction, nor does common sense or principle. Dr. Lehrer conceded that this part of her evidence was anecdotal and that she had not studied the issue. Furthermore, the only factual and detailed evidence on the Motion about cameras installed by building management was in relation to the three buildings where the police installed warrantless cameras. At 18 Valley Woods, the agreed facts were to the effect that building management had “cameras installed at garage doors, elevator doors, emergency exits, in the lobby and on the third floor.” At 1600 Keele Street, it was agreed that “security video cameras were installed throughout the building, including one on the 11th floor outside of Unit 1124.” At 38 Joe Shuster Way, Mr. Chudnofsky and the condominium board appeared to be of the view that there were “no privacy issues” at stake in placing a surveillance camera near the elevator in the 17th floor hallway. [Emphasis added.] It therefore appears that installing a camera near an elevator, in a hallway, was not unusual in these three buildings. There is no contrary evidence.
59As a matter of principle, I can see little distinction between, on the one hand, surveillance cameras showing a suspect arriving or leaving in the parking garage of a condominium building, arriving or leaving in the front lobby of the building, or entering or exiting from an elevator in the building, all of which seems to be commonplace, and on the other hand, the camera installed on the 17th floor which shows a suspect either walking from the elevator to his unit or to the elevator from his unit. The distinction between these two kinds of surveillance cameras is not a principled point at which to draw a bright s. 8 line, requiring a warrant in one case but not the other. The principled line is the one drawn in Wong, namely, activities inside the condominium unit, behind closed doors, are protected by the warrant requirement.
60In addition to the above diminished privacy interests at stake in this case, the competing law enforcement interests must be considered. The recent increase in the number of condominium residences, especially in Toronto, has introduced significant challenges for law enforcement. The historical ability of surveillance officers to follow a suspect home and determine his/her exact residence, and to then obtain a search warrant or wiretap in relation to that specific residence, has become much more difficult. Similarly, the historical ability to observe the comings and goings of persons at certain premises, in order to determine who is in control of the premises and its contents, and to determine the character and use of the premises, and to determine the identity of others who are associated with the premises, has also become much more difficult. Indeed, the evidence is that it would have been dangerous for surveillance officers to take up positions in the hallways of the suspects’ buildings in this case.
61There is no rational reason to accord a higher level of privacy, or a greater immunity from law enforcement, in the case of a condominium owner than in the case of an owner of a detached dwelling. As Chicoine J. put it in R. v. Rogers (2014), 114 W.C.B. (2d) 611 at para. 130 (Sask. Q.B.), in finding no reasonable expectation of privacy in relation to certain observations made in the common areas of multi-unit buildings, “This, in my view, puts occupants of apartment buildings and condominium complexes on the same footing as occupants of single family dwellings.”
62I have already set out an extensive analysis of the s. 8 case law relating to certain kinds of police observations made in the common areas of multi-unit buildings. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 109-125. Without repeating that analysis, the present law, as I understand it, is that there is no reasonable expectation of privacy (or a very low privacy interest) in common areas like parking garages, lobbies, elevators, and hallways, provided the police do not conduct intrusive surveillance of activities inside the apartment or condominium unit from their vantage point in the common areas. Furthermore, the common law “implied license” doctrine allows the police to use the common areas of multi-unit buildings in order to approach the door to a unit, in furtherance of a legitimate investigation, provided they do not cross the threshold. All of these legal developments suggest that the warrant requirement is generally not engaged in the common areas of multi-unit buildings.
63I appreciate that the surveillance cameras in this case involved some interference with the privacy interests of innocent third parties. However, these interferences were very brief and they involved the kinds of glimpses of persons that inevitably occur when a homeowner comes to his/her front door in order to let someone in or to let someone out. Neighbours or passersby on the sidewalk or street can occasionally catch a brief glimpse of the homeowner, wrapped in a towel or a bathrobe, letting someone in or out at the front door. This slight loss of privacy is not peculiar to surveillance in condominium hallways. In any event, some interference with third party privacy interests is inevitable, in virtually every search and seizure. The interferences here were not so significant as to constitute a s. 8 violation. Indeed, the Applicants conceded that the interferences with third party privacy were minor. See: R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at para. 84 (Ont. C.A.); R. v. Thompson (1990), 59 C.C.C. (3d) 225 at pp. 272-4 (S.C.C.); R. v. Edwards, supra, at paras. 34-39.
64In all these circumstances, I am satisfied that the police did not require a warrant in order to lawfully install a camera in the 17th floor hallway of 38 Joe Shuster Way, provided they had a valid consent from property management. I have already found that the consent from the property manager and the condominium board at this particular building was sufficient for s. 8 purposes.
65For all these reasons, the Applicants’ first argument cannot succeed. There was no s. 8 violation when the camera was installed at 38 Joe Shuster Way on January 29, 2014 on the basis of consent from condominium management.
(iii) The second issue: alleged failure to make full, fair and frank disclosure to McMahon J. on February 21, 2014, prior to issuance of the first general warrant
66As summarized above, D.C. Clark had been given a “cut-off date,” to have his first Affidavit finished and sworn by February 14, 2014. This makes sense as the Crown wiretap agent would have to review the Affidavit, draft the wiretap authorization and general warrant, and then file it with McMahon J. It was filed on February 21, 2014 and the authorization and general warrant were granted on February 24, 2014. In other words, the Affidavit was completed ten days before the Warrant issued. As previously noted, the Affidavit was lengthy and complex, involving numerous targets.
67The camera at 38 Joe Shuster Way was installed on January 29, 2014 and the camera at 18 Valley Woods was installed on December 14, 2013. D.C. Clark was aware of these consent installations, at a time when he was still drafting the first Affidavit, but they were relatively recent developments in a large ongoing investigation and he was not yet aware of any useful investigative information that had been generated by the two cameras. There is nothing in his Affidavit that indicates any reliance on the fruits of these cameras.
68The Applicants submit that the fact of these two consent installations, the fact that nothing useful had yet to emerge, and the fact that there was some interference with third party privacy, ought to have been disclosed to McMahon J.
69I have already discussed the duty to make full, fair, and frank disclosure in my earlier Reasons for Judgment, on the initial s. 8 Motion. I stressed the fact that the supporting Affidavits filed in this case were already lengthy and complex. The police affiants were obliged to edit out irrelevant information, or information that was peripheral, or information that was not useful or necessary. The leading authorities on this point are cited in my earlier Reasons. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 105-7.
70It is somewhat understandable, in these circumstances, that D.C. Clark chose not to mention the two pre-existing consent installations. He was not yet aware of any useful information from these installations and he was not relying on them. He testified on the Motion that he did not believe his failure to mention the past consent installations was misleading because he was seeking a future general warrant that would be much more secure than any consent from building management and that would apply even in the absence of consent. I found D.C. Clark to be a credible witness. He made two serious mistakes in his second Affidavit, in relation to the accused Tony Huang, and he responsibly admitted to these mistakes and even acknowledged that he had been careless, in failing to catch the mistakes while reviewing the Affidavit in draft. There can be no suggestion of bad faith or a deliberate attempt to mislead, in my view. The fact that D.C. Clark expressly referred to the earlier consent installations in his second Affidavit, once he had received some useful investigative information from the cameras, is further evidence of his good faith. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 142-3 and 148.
71Having said that, the fact of the two consent installations was a relevant and important investigative step and it should have been disclosed to McMahon J. As previously noted, video surveillance is intrusive and it engages s. 8 interests. The investigators’ success in obtaining permission from condominium management to install these two cameras was relevant, at a minimum, to the s. 186 investigative necessity criterion. The subject of investigative necessity was addressed in the Affidavit, albeit in a somewhat attenuated way, given that the “criminal organization” offences do not require a showing of investigative necessity. More importantly, the successful installation of the two cameras should have been disclosed to McMahon J. because it might have assisted in deciding what minimization terms to impose. I will discuss this issue in more detail below, when analyzing “materiality,” but the police experience in positioning the cameras in the hallways of the two buildings, and the extent to which they interfered with the privacy interests of innocent third parties, were matters that could have helped McMahon J. in crafting the terms of the final general warrant.
72For these reasons, I am satisfied that there was a failure to comply with the duty to make full, fair and frank disclosure on an ex parte application. Having said that, the real issue in relation to the non-disclosure of the two consent installations, in my view, is their “materiality” to issuance of the general warrant. I turn to that final issue in the next section of these Reasons.
(iv) The third issue: the “materiality” of the non-disclosure to issuance of the general warrant
73I have already discussed the meaning of “materiality” in search and seizure law, in my Reasons for Judgment on the initial s. 8 Motion in this case, as well as in another recent case, R. v. Jaser, infra. In brief summary, “materiality” in the s. 8 context means that the reviewing judge must insert the non-disclosed information into the record that was before the issuing judge and ask whether the general warrant, nevertheless, could have issued on this more complete and accurate record. This deferential standard of review provides some degree of finality to the warrant process while, at the same time, ensuring that the Applicants’ s. 8 rights are protected from “material” non-disclosure. See: R. v. Brewster et al., 2016 ONSC 4133 at paras. 41-46; R. v. Jaser and Esseghaier, 2014 ONSC 6052 at paras. 68-84.
74The three statutory criteria for a s. 487.01 general warrant, as previously noted, are: the s. 487 “reasonable grounds” requirement for a conventional search warrant; the s. 186 “best interests of the administration of justice” requirement for a wiretap; and the unique s. 487.01 requirement that “no other provision” exists to authorize the particular search or seizure. The Applicants do not challenge the first or third of these criteria. They submit that the sub-facial defect in the general warrant, that has now been exposed by the expanded record filed by the Applicants on the inter partes review of McMahon J.’s ex parte warrant, impacts only on the “best interests of the administration of justice” criterion.
75There is little case law interpreting the “best interests of the administration of justice” criterion in the context of s. 487.01. However, there is little doubt that it was imported into s. 487.01 from s. 186, given LaForest J.’s heavy reliance, by analogy, on wiretapping and on R. v. Duarte, supra, in his analysis of video surveillance in R. v. Wong, supra. The leading authority on the meaning of the “best interests of the administration of justice” criterion, in the context of s. 186 wiretapping, is R. v. Finlay and Grellette, supra at p. 70, where Martin J.A. stated:
The prerequisite of the granting of an authorization that the judge be satisfied that, "it would be in the best interests of the administration of justice" to do so, embodies a broad concept. Although the term "in the best interests of the administration of justice" is incapable of precise definition it imports, in my view, in the context, two readily identifiable and mutually supportive components. The first component is that the judge must be satisfied that the granting of the authorization will further or advance the objectives of justice. The second component imports a balancing of the interests of law enforcement and the individual's interest in privacy. It is fundamental to our criminal justice system that the interests of law enforcement cannot prevail over the privacy interests of the individual on the basis of mere suspicion that an offence has been committed. Authorizing such a serious intrusion on the individual's reasonable expectation of privacy as the interception of his private communications on the basis of mere suspicion would not further the interests of the administration of justice, but would bring it into disrepute. It seems to me impossible to say that it would be in the best interests of the administration of justice to grant an authorization to intercept private communications on the basis of mere suspicion. The legislative scheme precludes embarking on a fishing expedition in the hope of uncovering evidence of crime. Thus, it appears to me that the prerequisite that the judge must be satisfied that it would be in the best interests of the administration of justice to grant the authorization, in the context of the legislative scheme, imports as a minimum requirement that the authorizing judge must be satisfied that there are reasonable grounds to believe that a particular offence or a conspiracy, attempt or incitement to commit it has been, or is being, committed. [Italics of Martin J.A. in the original, underlining added.]
The Supreme Court subsequently adopted Martin J.A.’s analysis of the “best interests of the administration of justice” criterion in R. v. Duarte, supra at pp. 12 and 19-20. Also see: R. v. Lucas at para. 29 (Ont. S.C.J.).
76The Applicants conceded that Martin J.A.’s “first component,” as set out above, relates mainly to the importance of the general warrant to law enforcement interests, and that this aspect was easily satisfied in this case. It is the “second component,” which involves a balancing of “the individual’s interest in privacy,” on which the Applicants rely. They submit that the two cameras were yielding little information of value to the investigation and they were interfering with third party privacy. Had these facts been disclosed to McMahon J., the Applicants submit, he would either have denied the general warrant or he would have enhanced the minimization conditions so as to better protect third party privacy.
77In my view, there are both factual and legal weaknesses in this argument. As a factual matter, the cameras were yielding and did yield a great deal of valuable evidence. D.C. Clark was not yet aware of it, at the time of his first Affidavit, but he was later to refer to some of this evidence in the second Affidavit, including evidence that pre-dated his first Affidavit (see para. 20 above). It appears that the Valley Woods building camera was not particularly useful but the Joe Shuster Way camera, and other cameras, were extremely useful. In any investigation, there will be some warrants or wiretaps that yield little evidence while others yield a great deal of evidence. There will also be investigative steps that do not appear to be productive, at their early stages, but later become very productive. In other words, the utility of the cameras was not as the Applicants suggest. Furthermore, the interferences with third party privacy in this case were minimal. As I have previously explained, the brief glimpses of one or two innocent third party unit holders at the door to their unit, are no different than glimpses of detached dwelling homeowners at their front doors, from the vantage point of the sidewalk or street. These are ordinary incidents of daily urban life and they are not significant interferences with third party privacy that would or could have led McMahon J. to refuse the general warrant.
78The legal flaw in the Applicants’ argument is that it is premised on the reviewing judge re-assessing the balance between law enforcement and privacy interests anew, on the expanded record filed by the Applicants, or even quashing the general warrant, because the issuing judge had no opportunity to carry out this balancing on the full factual record. Mr. Foda submits that the deferential standard of review set out in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 at pp. 187-9 (S.C.C.) only applies to the “reasonable grounds” criterion in s. 487.01 and does not apply to the “best interests of the administration of justice” criterion. He submits that these two criteria are quite different, as the former involves an objective assessment of the sufficiency of evidence whereas the latter involves a nuanced balancing of competing factors. The former is said to require a deferential standard of review but not the latter.
79This legal argument is novel, and unusual, as it involves subjecting different parts of the statutory test for a general warrant to different standards of review. This seems intuitively unsound, as a matter of principle. The Garofoli standard of review is intended to achieve a balance between the need for some degree of finality in relation to search and seizure warrants and the need to protect s. 8 rights. See: R. v. Araujo et al. (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at paras. 50-54 (S.C.C.); R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at paras. 23-4, 30, 34-5 and 41 (S.C.C.). The test of “materiality” achieves this balance by asking whether the warrant could issue, regardless of any deficiencies in the supporting affidavit. The “materiality” test, therefore, must apply to all of the essential grounds for issuance of the warrant. Sopinka J. made this clear in R. v. Garofoli, supra at pp. 187-9. In my view, the following passages from his majority judgment foreclose Mr. Foda’s argument:
In R. v. Collins (1987), 33 C.C.C. (3d) 1 at p. 14, Lamer J. (as he then was) set out the basic test for determining the reasonableness of a search under s. 8 of the Charter. He stated: “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”
To arrive at the conclusion that the search is authorized by law, the reviewing judge must therefore conclude that these conditions were complied with. If he concludes that they were not, then the search is not authorized by law and is unlawful. Consequently, in order to discharge the duty cast upon the reviewing judge to determine whether there has been a breach of s. 8, he or she must determine whether the Code provisions have been satisfied. This is the inevitable result of the statutory conditions being identical to the requirements of s. 8.
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
The general requirement with which the authorizing judge must comply has already been referred to in these reasons. He or she must be satisfied that the statutory conditions have been established. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization. [Emphasis added.]
Also see: R. v. Pires and Lising, supra at paras. 8 and 30.
80In the above passages, Sopinka J. twice referred to “the Code provisions” and “the statutory conditions,” and then applied the deferential standard of review to the issue of whether there continued to be any basis for the authorization/warrant. It will be recalled that one of the “Code provisions” or “statutory conditions” in Garofoli itself was the s. 186 “best interests of the administration of justice” criterion, given that Garofoli involved a wiretap. Pires and Lising is to the same effect. In my view, the s. 8 standard of review envisaged by Garofoli applies to all of the statutory criteria in s. 487.01.
81Applying the Garofoli approach to “materiality,” and the deferential standard of review, I am satisfied that there was abundant evidence on which McMahon J. “could have granted” the general warrant, had he known about the two consent installations of hallways cameras. There still remained strong law enforcement reasons to grant the general warrant and there were minimal third party privacy interests.
82At most, the non-disclosure of the two consent installations supports an argument that the minimization conditions might have been different, but even this argument is speculative. The most important minimization condition imposed by McMahon J., in accordance with the requirements of s. 487.01(4), directed that the cameras “shall be installed so as to minimize capturing any observations within private units” [emphasis added]. The police complied with this condition by not pointing the cameras into any unit, with one minor exception involving a unit at the end of a hallway (see para. 34 above). The fact that the interferences with third party privacy were so few, and so minor, suggests that the minimization terms imposed by McMahon J. worked. Mr. Foda fairly and reasonably conceded that it is difficult to install a hallway camera without inevitably capturing occasional glimpses into the doorways of one or two units, as the occupants either enter or leave their premises. No means or device was suggested, in the course of submissions, as to how to completely prevent this from occurring. D.C. Clark suggested after the fact “editing” of the video images, in order to protect third party privacy when making disclosure to defence counsel. McMahon J. did not adopt this suggestion, presumably because he did not want the judge who issues an ex parte warrant to be deciding the scope of defence disclosure, which is a matter that should be addressed inter partes, once charges have been laid. It may be better, in future, for the Crown to disclose only the relevant images, and to let the defence decide whether to request the other images involving third parties (on the basis of some articulated relevance to the defence). However, I agree with McMahon J.’s implicit decision, that this is not a matter to be decided when issuing a warrant. It is better left to post-charge discussions, between the Crown and the defence, and to a ruling made by a judge on a contested disclosure Motion, if necessary.
83For all these reasons, I am satisfied that the non-disclosure in D.C. Clark’s Affidavit relating to the installation of two hallway cameras, was not “material,” as that term is understood in the s. 8 case law. Accordingly, the non-disclosure did not result in a violation of s. 8 of the Charter.
D. CONCLUSION
84Given that no s. 8 violation has been made out, it is unnecessary to address the s. 24(2) arguments.
85The renewal of the s. 8 Motion, in relation to the warrantless installation of condominium hallway cameras and in relation to the general warrant authorizing such installations, is dismissed.
86I wish to thank all counsel for their thorough materials and their helpful submissions.
M.A. Code J.
Released: December 21, 2016
CITATION: R. v. Brewster, 2016 ONSC 8038
COURT FILE NOs. CR-15-30000642; CR-15-90000159-MO; CR-16-40000123
DATE: 20161221
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSEPH BREWSTER, GARY CHEN, HUSSEIN DAYA, KEN MAI, CHRISTOPHER SACCOCIA, DAT QUOC TANG and LARRY YU
REASONS FOR JUDGMENT
M.A. Code J.
Released: December 21, 2016
