Court File and Parties

COURT FILE NO.: 74/15 DATE: 20170108

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen D. Ives, for the Respondent Respondent

• and -

Mustafa Hassan K. Schofield, for the Applicant Applicant

HEARD: November 17 2016

Templeton J.

Section 8 Charter Ruling

Section 8 Everyone has the right to be secure against unreasonable search and seizure.

Introduction

[1] On February 21 2014, DC Tennant of the London Police Service obtained a warrant to enter and search Apartment 305, 695 Proudfoot Lane, London, Ontario.

[2] In the course of their search of this apartment, the officers found and seized the following:

• 2.274 kilograms of cocaine;
• 6.805 kilograms of marijuana;
• 6.132 kilograms of phenacetin;
• 5.809 kilograms of lidocaine;
• British Columbia flag stickers;
• one Revionissimo and two AWS operational digital scales;
• three digital scale covers and one non-operational digital scale;
• vacuum seal freezer bags and various boxes of zip lock and sandwich bags;
• clear plastic bags in brick shapes;
• Minto documents in the name of Spencer Stewart including a rental application and key pick up receipt;
• a Power Fist 12-ton shop press including a brick mould;
• various attachments for the press;
• cocaine in the brick mould on the press; and
• a Dannyco operational digital scale;

[3] These items were found in various containers and places throughout the apartment, including but not limited to plastic bags of various sizes, a white pail, a safe, a black duffel bag, a bedroom closet, a storage closet, kitchen cupboards and kitchen garbage.

[4] When the police entered the apartment, the kitchen cupboard doors and drawers were closed, the storage closet door was closed, the bedroom door needed to be pushed open, the panel doors to the bedroom closet were partially open and the black duffel bag in the closet was in plain view.

[5] The value of the cocaine seized from the apartment ranged from $189,120 to $236,400, if sold at the gram level, and from $94,560 to $118,200, if sold at the kilogram level. The value of the marijuana seized from the apartment ranged from $48,000 to $67,200, if sold at the quarter ounce level, and from $27,000 to $33,000, if sold at the pound level.

[6] The parties have agreed that whoever possessed the cocaine and marijuana located in the apartment at the time it was seized by police did so for the purpose of trafficking.

Background

[7] In January 2014, DC Tennant received information from a confidential human source ('CI') about a 'middle eastern guy' trafficking in cocaine. In addition to this information, the source indicated, inter alia, that this 'guy' drove a white Ford F-150 and a red Dodge Charger, that he lived at 20 Tanner Drive and that he had another place.

[8] The police commenced an investigation and learned that the registered owner of the white Ford and the red Dodge Charger was Nagham Mohammad of 14 Nicholas Crescent in London. The police further learned that:

• Ms. Mohammad has a parent/child relationship with Mustafa Hassan;
• Mr. Hassan's address was listed as 14 Nicholas Crescent on CPIC;
• Ms. Mohammad is also the registered owner of property located at 20 Tanner Drive in London.

[9] At 1:00 pm on February 5, 2014, the London Police Service commenced surveillance at 20 Tanner Drive. At 2:45 pm, Mr. Hassan left his mother’s residence in a white Ford F-150, license plate AF 53792. He went to a Petro Canada and then attended at 14 Nicholas Crescent. At 4:10 pm he was lost in traffic.

[10] Mobile and static surveillance of Mustafa Hassan continued on February 6, 12 and 19 2014.

[11] On each of the surveillance days, the police started their surveillance at 20 Tanner Drive in London and saw Mr. Hassan leave the house and drive away in either the white Ford or the red Charger that had been parked in the garage or the driveway of the property.

[12] On three of the four surveillance days, Mr. Hassan was followed to 695 Proudfoot Lane and was seen to park his vehicle near the south side doors - not the main door into the building - and enter the apartment building through a controlled access door on the south side of the building. This was not the main entrance to the building.

[13] The building at 695 Proudfoot Lane is owned and/or operated by Minto Group. It is a multi-unit apartment building consisting of twelve or thirteen floors and approximately two hundred apartment units of various sizes. Access to the building is secured and controlled by way of assigned key fobs. Video security cameras cover the entrances to the building and the adjacent parking lots. There is also an intercom/video facility at the main entrance that allows tenants to view individuals who seek access into the building prior to admitting them by way of an electronic buzzer system. There are also signs on the property indicating the presence of video surveillance at the property.

[14] On February 6, 2014, Mr. Hassan left 20 Tanner Drive at 2:50 pm. carrying a grey shoulder bag. At 3:40 pm, he arrived at 14 Nicholas Crescent and while he was there, placed a brown cardboard box into his truck. He left at 3:54 pm and drove to 60 Conway Drive, arriving at 4:05 pm after performing what the police viewed to be counter surveillance maneuvers. He entered 60 Conway Drive and left five minutes later. He then drove to 695 Proudfoot Lane, arriving at 4:35 pm. He entered the south doors of the building, carrying the grey bag.

[15] While under surveillance on February 6, Mr. Hassan was inside 695 Proudfoot Lane from 4:35 pm to 4:48 pm; 5:05 pm to 5:15 pm; and 7:10 pm to at least 7:45 pm when surveillance ended.

[16] When he left at 4:48 pm, Mr. Hassan was still carrying the grey bag. He was followed in his vehicle to a nearby Bowling Alley parking lot where he stopped, got out of his car and, with the shoulder bag, got into the rear passenger side seat of a Checker Limousine cab that was also located on the lot. The operator of the cab moved the cab north, closer to the doors of the business, and stopped. About four minutes later, Mr. Hassan got out of the cab, entered his own vehicle and returned to 695 Proudfoot Lane. The cab left the lot and proceeded east bound.

[17] When Mr. Hassan entered the building at 7:10 pm, he was accompanied by a female.

[18] On February 7 2014, the police learned from Minto Group that neither Mustafa Hassan nor the vehicles he was operating and parking at 695 Proudfoot Lane were listed on the tenant manifest for this apartment building. The south door entrance to the building did not have an intercom and could only be access by way of a security card to unlock the doors.

[19] On three of the four surveillance days, the police saw Mr. Hassan engage in what they believed to be counter surveillance techniques, including driving around the block before stopping at his destination on February 6 and using an indirect and circuitous route to get to his destination on February 12 and 19, 2014.

[20] In February 2014, Lisa Smith was employed as a property manager by Minto Group. The main office of the company was located in another large apartment complex a few kilometres east of 695 Proudfoot Lane.

[21] In early February, she met with DC Tennant and Detective Carson of the London Police Service. The officers identified themselves to her as members of the Guns and Drugs Section of the London Police and further informed her that they were conducting a police investigation at 695 Proudfoot Lane. The officers asked for permission to enter onto the property and into the building.

[22] The officers did not provide details of their investigation to Ms. Smith, nor did they inform her of the investigative steps they intended to take inside the building. They did not ask her permission to install a video camera in a hallway or other common area inside the building or to make recordings using the camera. Further, they did not tell her that they intended to do so.

[23] According to Det. Carson, at the time the fob was obtained, the officers were hoping to identify the unit by physical surveillance and when they spoke to Ms. Smith, the prospect of requiring or using video surveillance was not under consideration.

[24] They did ask Ms. Smith not to notify the on-site supervisors about their investigation. No notes were made by the officers at the time regarding this conversation with Ms. Smith.

[25] Under cross-examination, DC Tennant could not recall if he told Ms. Smith about any specific areas inside the building that the police would be entering. He could not recall discussing any limits with respect to any areas of the building.

[26] Ms. Smith gave the officers permission to enter 695 Proudfoot Lane and arranged for the delivery of a key fob ('the fob') to the officers to gain access through the controlled doors.

[27] At 4:26 pm on February 12, Det. Carson used the fob and entered 695 Proudfoot Lane by the south side door. He climbed the stairs in the stairwell and went to the fourth or fifth floor and waited for about ten minutes in the stairwell. He had noticed that Mr. Hassan did not seem overly energetic so he did not think that Mr. Hassan would be climbing the stairs to access a higher floor via the stairwell. At approximately 4:37 pm, he saw Mr. Hassan enter into the stairwell from the third floor and walk down the stairs out of sight. Mr. Hassan was carrying a blue water bottle. Det. Carson then exited the building the same way as Mr. Hassan.

[28] On February 14 2014, Detective Boughner entered 695 Proudfoot Lane using the fob and went to the third floor. Det. Boughner is a technical installer and co-ordinator with the London Police Service. He had spoken with DC Tennant prior to February 14 about the deployment of a video camera on the third floor and was familiar with the address. He agreed with DC Tennant that at that time, there was no reasonable expectation of privacy in the hallway but confirmed that the police had permission to be on the premises, in any event. A warrant for video surveillance was not sought or obtained. No notice was provided to the superintendents or owners of the building or tenants.

[29] Given the evidence that an officer had seen Mr. Hassan in the area of the third floor in the stairwell and that Mr. Hassan had entered and exited the building on multiple occasions by way of the south side door to the building rather than another door, the police had decided that the area of interest was the southern end of the hallway on the third floor. For this reason, Det. Boughner installed a video camera on the third floor at the south end of the hallway, south of the elevators. The focus of the camera was limited to cover the hallway alone and to not to allow any view into any apartment within its scope. After installing the camera, he left.

[30] The camera recorded all activity in the third-floor hallway of 695 Proudfoot Lane between 1:10 pm and 10:50 pm on February 14, 15, 16 and 17, 2014.

[31] On February 18, Det. Boughner used the fob, entered the building, retrieved the camera and recordings and left.

[32] At approximately 6:20 pm on February 19, Det. Tennant who was also familiar with the building having lived there himself some years earlier, entered 695 Proudfoot Lane using the fob and went to the third floor where he stayed near the elevator located at the centre of one side of the hallway. While in the area, he saw Mustafa Hassan and an unknown male (later identified as Mr. Hassan's younger brother Omar) enter onto the third floor from the south stairwell and walk down the hallway to the second apartment located on the east side of the hallway. He then saw Mr. Hassan unlock the door to the apartment using a key on a red lanyard and enter the apartment. The officer was able to see the door area when Mr. Hassan entered the apartment.

[33] Det. Tennant took the elevator down to the lobby and left the building.

[34] He later concluded based on his observations and the video surveillance evidence that the apartment Mr. Hassan had entered and locked behind him was Apartment 305. By reviewing the videotapes and comparing it to the floor plan of the apartment, Det. Carson was also of the view that the apartment entered by Mr. Hassan was Apartment 305.

[35] At 6:57 pm, Mr. Hassan left the building by way of the side door.

[36] At 7:00pm, another officer received information that Mr. Hassan was driving a red car and located Mr. Hassan and the vehicle in the parking lot of London Mall, a strip mall located southwest of 695 Proudfoot Lane. The officer watched the car stop in front of Bubble Tea, a business located at the Mall and saw an Asian male get into the back seat of the car Mr. Hassan was driving. Mr. Hassan's car was then driven around the parking lot for about two minutes in the form of a loop and returned to the spot where the Asian male had been picked up. The Asian male got out of the car and returned to the Bubble Tea premises.

[37] At 8:05 pm, Mr. Hassan was seen back at 695 Proudfoot Lane in the red car. He entered the building where he remained until 8:15 pm when he left again. At 8:18 pm, the car was seen in the parking lot of yet another mall. Surveillance was terminated shortly after 8:22 pm that day.

[38] During the three days of video surveillance in the third-floor hallway of 695 Proudfoot Lane, Mustafa Hassan was recorded either alone or with another person, entering and leaving the apartment later determined to be Apartment 305:

• On February 14, 2014, at 3:46 pm, an unidentified male entered the apartment. This male was never identified. At 4:07 pm, Mr. Hassan and a man later identified as Omar Hassan ('Omar') arrived at the apartment. They knocked on the door and were let in. At 4:23 pm, the unidentified male left the apartment. At 4:36 pm, Mr. Hassan and Omar left the apartment using a key to lock the door.
• At 6:34 pm, Mr. Hassan and Omar returned to the apartment. Omar was carrying a suitcase. A key was used to unlock the apartment door. At 6:46 pm, Mr. Hassan and Omar left without the suitcase. They used a key to lock the door.
• At 9:07 pm, an unidentified male and Omar arrived and used a key to enter the apartment. At 9:15 pm, Mr. Hassan arrived and used a key attached to a lanyard to enter the apartment. At 9:19 pm, the unidentified male and Omar left. At 9:27 pm, Mr. Hassan left used a key to lock the apartment behind him.
• On February 15, Mustafa Hassan entered the apartment at 4:31 pm and left at 4:45 pm; he returned and entered again at 5:09 pm and left at 5:10 pm; at 6:39 pm he arrived with Omar and left with Omar at 6:54 pm.; and at 9:46 pm an unidentified male arrived carrying a plastic bag. He used a key to enter the apartment and left at 9:48 pm, the without the bag. He locked the door behind him using a key.
• On February 16, Mr. Hassan and Omar arrived at the third floor by way of the main elevators and entered the apartment with a rolling suitcase at 9:29 pm. They used a key to unlock the apartment door and enter. At 9:45 pm they both left the apartment, locked the door and exited the third-floor hallway by way of the south stairwell.
• No one entered or left the apartment on February 17 2014.

[39] At 3:48 pm, on February 19 2014, Mr. Hassan and another male left 20 Tanner Drive in a red Dodge Charger. They proceeded south on River Run Terrace. At 3:55 pm, Mr. Hassan drove through a red light, resulting a the temporary halt to surveillance.

[40] At 4:25 pm, the vehicle was located at 14 Nicholas Crescent and at 6:00 pm, Mr. Hassan and Omar were observed leaving the residence. They arrived at 695 Proudfoot Lane at 6:24 pm, after having employed counter-surveillance measures consisting of driving past the building and then doubling back in what could be described as a round-about manner. Mr. Hassan and Omar entered the south side of the building together.

[41] On February 20 2014, the police obtained a copy of the lease agreement for Apartment 305 from Minto Group and learned that a person named Spencer Stewart was the lawful tenant of the apartment. However, further investigation also indicated that Mr. Stewart's current residence was on Piccadilly Street in London.

[42] On February 21 2014, DC Tennant sought and obtained a Controlled Drugs and Substances Act, S.C. 1996, c. 19, search warrant for Apartment 305. This warrant was issued on the basis of an Information to Obtain (the 'ITO') sworn by him on February 21, 2014.

[43] In the ITO, D/C Tennant had deposed the following in addition to the information gleaned from the surveillance of Mr. Hassan and their investigation to date:

• that the CI had been an informer for an unknown number of years;
• that the CI had “provided information on multiple occasions that ha[d] led to the seizure of controlled substances”;
• that the CI had also said that the “middle eastern guy” was part of the “Black Dynasty Crew”; was rolling around “large with Louis Vuitton on everything”; and, that he drove a white Ford F-150 and a red Dodge Charger. The license plate of the F-150 was AF53792;
• that he (D/C Tennant) was aware that the “Black Dynasty Crew” was associated with a person named Jerome Williams. Mr. Williams had been charged with a set of narcotics and firearm offences in 2012 and again 2013;
• that the suspect in question had “another place” in the area of Cherry Hill Village Mall, which was interpreted by D/C Tennant to mean a house or apartment used to store controlled substances;
• that the suspect carried cocaine in a false bottom of a blue water bottle;
• that he (D/C Tennant) used a police database to retrieve information about Ms. Mohammad and learned that she had a son named Mustafa Hassan with a date of birth of August 19, 1991;
• that he searched the name Mustafa Hassan in a London Police Service computer database and recognized Mr. Hassan's likeness from a hip-hop video produced by Jerome Williams;
• that he watched the videos and determined that the Mustafa Hassan was in two of them;
• that he noted that the Mustafa Hassan had been stopped thirteen times by the London Police Service for “street checks” between September 2011 and June 2013;
• that he learned that Mustafa Hassan had a youth and adult criminal record;
• that Mustafa Hassan's adult record included an entry for assault and failure to comply with a recognizance;
• that Mustafa Hassan was also subject to a weapons prohibition;
• that Mustafa Hassan's address was listed as 14 Nicholas Crescent, London, Ontario and that his mother’s address, according to the City of London tax rolls, was 20 Tanner Drive, London, Ontario;
• that Mustafa Hassan had a single drug charge in January 2011, which was withdrawn;
• that in November 2012, an anonymous Crime Stoppers tip had suggested that Mustafa Hassan trafficked in cocaine, that he received orders from someone, that he was associated with a gold-coloured Pontiac Sunbird, and that he had a girlfriend who lived on Third Street.

[44] Mr. Hassan notes that in the ITO, there was no indication with respect to (a) whether the CI had any convictions for dishonesty; (b) his or her motivation for providing information to the police; or, (c) whether information from the CI had ever led to arrests or criminal convictions in the past. Further, the times of entry and departure observed during the video surveillance were not included in the ITO and there was no indication that Det. Tennant had obtained a key fob from Minto Group to allow the police access to the building.

[45] There was a reference to a "Mr. Williams" but there was no information with respect whether Mr. Williams had ever been convicted of the offences listed.

[46] Under cross-examination, D/C Tennant agreed that while under surveillance, Mr. Hassan had never been seen wearing Louis Vuitton clothing. He also agreed that there had been no subsequent investigation that connected Mr. Hassan to the “Black Dynasty Crew”.

[47] On the strength of the warrant and the police surveillance, DC Warren of the London Police Service arrested Mustafa Hassan in the parking lot of 695 Proudfoot Lane on the same day. The police searched Mr. Hassan as an incident to his arrest and found and seized 88 grams of cocaine, four cell phones, $120 Canadian dollars and various keys including the key to Apartment 305 and the white Ford vehicle.

[48] With Mr. Hassan in custody, three police officers entered Apartment 305 at 3:55 pm using the key found on Mr. Hassan. Det. Carson noted a strong odour of cocaine and a chemical smell. He had been involved in approximately 50 investigations to that date and recognized the smell. It is not a smell of ammonia but there is a unique chemical odour that catches in the nose.

[49] There was no one in the apartment which consisted of a living room, a kitchen area, a bathroom and bedroom. The apartment was not furnished save and except for a futon and small television set located in the living room and a futon in the bedroom. There were no clothes, dishes and/or cutlery, food or beverages, or personal items. The officers found and seized the drugs and property detailed at the outset of this decision.

[50] At the time of these events, Mr. Hassan was 23 years of age. He testified as follows:

• that he had rented Apartment 305 with a friend of his, Imad Aloul, as a “hangout spot” because they were not permitted to drink in their parents' homes, have female friends over, or listen to loud music;
• that they shared the cost of the rent for Apartment 305 to make it affordable;
• that they had asked a friend, Spencer Stewart, to lease the apartment for them because he, Mr. Hassan, would not have been approved due to a bad credit rating and Mr. Aloul was afraid that renting an apartment in his own name would prevent him from qualifying for a student loan;
• that Spencer Stewart agreed to lease the apartment for them commencing October, 2013;
• that he, Mr. Hassan, and Mr. Aloul had unlimited access to the apartment including a key fob to enter the building and a key to enter Apartment 305. Mr. Stewart did not have a key;
• that he used Apartment 305 for occasionally drinking at night, having a female friend over or playing video games;
• that he bought the cheapest furniture for the apartment that he could find: two futons, one for the bedroom and one for the living room; a small TV stand and a TV; an Xbox or PlayStation; and, soap and toilet paper for the bathroom;
• that, on occasion, he stayed at the apartment overnight if he had been drinking with friends or if he had a female guest;
• that he ate fast-food at the apartment and did not buy groceries;
• that his mother owned two houses: 14 Nicholas Crescent, where he was “supposed to reside,” and 20 Tanner Drive, which she purchased for relatives to live in who were coming from overseas;
• that his mother currently lived at 20 Tanner Drive with his grandmother;
• that in 2014, he lived at 20 Tanner Drive for a few months on the understanding that he would help renovate the home to prepare for relatives;
• that his plan was to eventually move into Apartment 305, 695 Proudfoot to live there on a fulltime basis;
• that he usually slept at Apartment 305, three or four times a week and visited usually once a day;
• that he and Mr. Imad had agreed they would only bring overnight guests to 695 Proudfoot if they gave each other notice and it was on consent;
• that a guest could not enter the building unless permitted to do so by residents or superintendents.
• that cameras had been installed outside the building to provide residents a sense of security;
• that a camera and a buzzer system had been installed in the lobby of the building to permit residents to control who could enter the building;
• that no cameras could be seen on the individual floors of the building;
• that signs had been posted that alerted residents as to the presence of cameras installed by management.

[51] Under cross -examination, Mr. Hassan told the Court:

• that he did not know if Minto Group was aware of his presence in Apartment 305;
• that he had not been given a copy of the lease signed by Mr. Stewart, although he had seen one;
• that he was not trespassing on the property at 695 Proudfoot Lane since he had Mr. Stewart’s permission to be there;
• that he had not obtained permission to be on the property or in the apartment as a tenant from the landlord;
• that he did not know the terms and conditions of the lease agreement with respect to sub-leasing an apartment;
• that at the time of his arrest, he did not live at 695 Proudfoot on a permanent basis; and
• that he would spend nights at both 20 Tanner Drive and 695 Proudfoot Lane and had no full-time residency at the time;
• that he had not read the Resident Code of Conduct that was attached to the lease;
• that just prior to his arrest on February 21 2014, he had been inside the apartment for approximately one hour;
• that Mr. Stewart was a friend he had met in 2013 at a few parties;
• that he did not know where Mr. Stewart lived;
• that Mr. Stewart had agreed to lease the apartment for him (Mr. Hassan) but had told him (Mr. Hassan) to pay the rent on time;
• that Mr. Stewart had visited him at Apartment 305 “here and there”. Mr. Hassan was unable to remember how many times because of the fact that he was “drunk” each time Mr. Spencer was present;
• that he, Mr. Hassan, had the responsibility of paying the rent. He would give Mr. Spencer the amount due for rent in cash. They would then go to a Money Mart, where he would purchase a certified cheque that they then deposited into the appropriate account for Minto Group;
• that at the time, he (Mr. Hassan) was working in construction for cash and earning $14.00 per hour;
• that Mr. Aloul worked at TD bank; and
• that Mr. Aloul was a very good friend but he could not recall Mr. Aloul's address or phone number.

[52] Mr. Hassan denied knowing about the presence of marijuana, the cocaine, the cocaine press or the drug paraphernalia found in the apartment by the police on February 21, 2014.

[53] Counsel showed Mr. Hassan a series of photographs that had been taken by the police and had been marked as Exhibits at the hearing.

[54] Mr. Hassan testified that he never seen the red hydraulic shop press or the Century Safe before. He was shown a picture of the bathroom, agreed that there was no toothbrush or toothpaste evident and stated that he did not use a toothbrush when he was at the apartment.

[55] Mr. Hassan was also shown a photograph of a black suitcase with marijuana located inside. He testified that he had never seen either of these objects before and said that he would not have allowed then in the apartment if he had known about them.

[56] Mr. Hassan recalled the brown suitcase that his brother Omar had carried into the apartment testified that he had never looked inside He had not asked his brother what was inside the suitcase because he was not a "nosy person". The brown suitcase was found to contain bags of marijuana.

[57] He also told the Court that he had never seen the black bag before.

[58] In re-examination, Mr. Hassan told the Court that Mr. Aloul occupied the bedroom of the apartment and that he (Mr. Hassan) had not gone in there often because he did not want to invade his friend's privacy.

[59] His understanding or agreement with Mr. Aloul was that he, Mr. Hassan, would have the living room area and Mr. Aloul would have the bedroom and walk-in closet. In the result, Mr. Hassan usually stayed in the living room area when he was there.

[60] Mr. Hassan testified that he had no knowledge of the cocaine or cutting agents depicted in the photos taken by the police in Apartment 305. Except for a few of the suitcases, he had never seen any of the drugs or paraphernalia found in the apartment.

[61] Unlike the officers who entered the apartment, he did not smell or notice odd chemical odours or the odour of marijuana in the apartment. As for the smell of marijuana, it was his view that when people “partied” at the apartment, they could have smoked weed but he did not smoke it himself. He did not see it or smell it.

[62] Mr. Hassan was also asked to look at a series of still photographs taken from video surveillance. He identified both himself and Mr. Aloul in at least three of the photos.

[63] Mr. Hassan also identified himself and his brother, Omar, in other photographs.

[64] By explanation of the short time frames he was actually in the apartment, Mr. Hassan testified that at these times, he was just "hanging out …texting probably … laying on the futon.”

[65] When asked to explain his presence of just twelve minutes (from 6:34 pm to 6:46 pm) on February 14 2014, he indicated that he must have received a text/invitation to go and "hang out" with a friend so he had left right away.

[66] Under cross-examination, Mr. Hassan agreed that:

• certain categories of people such as delivery people or cleaners would be allowed to enter the building with the permission of residents or the superintendent;
• he was unaware that the property manager could allow police to enter the building without his consent to conduct an investigation;
• he did not own the building and was not a lease-holder with respect to Apartment 305;
• it would not surprise him to see uniformed police in the lobby;
• would not be able to stop someone else from letting others into the common areas in the building;
• he would not be able to prevent the building manager from installing video cameras He

The Issues

[67] Mr. Hassan has brought an Application pursuant to ss. 8, 9 and 24(2) of the Charter of Rights and Freedoms (the 'Charter').

[68] He submits firstly that the video surveillance of the third floor of 695 Proudfoot Lane without a warrant was in breach of his right to be secure against unreasonable search or seizure; and, secondly, that the warrant to search Apartment 305 was based on unconstitutionally obtained evidence and should be quashed.

[69] Mr. Hassan's claim involves the issuance of a search warrant, amplification of the ITO through cross-examination of the D/C Tennant (the Affiant), the unauthorized installation of video surveillance, the arrest and search of the Applicant, and the search of his apartment.

[70] He submits that the violation of his s. 8 rights happened in four different ways:

1. there were two entries by the London Police into common areas of 695 Proudfoot Lane: an officer was located in the stairwell of the building to observe Mr. Hassan and, on another occasion, an officer stood in the hallway on the third floor by the elevators;
2. the police installed a video camera for the purpose of surveillance in the third-floor hallway of 695 Proudfoot Lane;
3. the police searched his person following his arrest on February 21, 2014; and
4. the police searched his shared apartment on the same date.

[71] Mr. Hassan has pleaded as justification for the quashing of the search warrant not only conventional jurisdictional grounds of challenge such as a lack of reasonable grounds for believing that the offence had been committed but also on the ground that the warrant authorized an unreasonable search and seizure in violation of his right as protected by s. 8 of the Charter.

[72] It is his position that for these reasons, all of the evidence seized by the police ought to be excluded.

The Law

[73] The guarantee of security from unreasonable search and seizure only protects a reasonable expectation [of privacy]. 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. [1]

[74] Not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes”. The reason is clear. If every police inquiry or question constituted a search, the public’s interest in law enforcement would be unrealistically curtailed in favour of an absolute right of privacy of all individuals against state intrusion, without regard to the level of intrusion.

[75] To determine whether the conduct of an officer amounted to a search within the meaning of s. 8 of the Charter, the matter is to be considered from two perspectives. First is the question of the purpose of the officer when he is inside the building. Second is the question of whether, in light of his purpose, the officer’s activity invaded the appellant’s reasonable expectation of privacy.

(a) Reasonable expectation of privacy

[76] The right to be secure from unreasonable search or seizure protects a reasonable expectation of privacy. The reasonableness of that expectation is determined having regard to all of the relevant circumstances in a particular case. [2]

[77] Justice Cory enumerated several relevant considerations in R. v. Edwards, [1996] 1 S.C.R. 128 [3], at para. 45:

• presence at the time of the search;
• possession or control of the property or place searched;
• ownership of the property or place;
• historical use of the property or item;
• the ability to regulate access, including the right to admit or exclude others from the place;
• the existence of a subjective expectation of privacy; and
• the objective reasonableness of the expectation.

[78] Justice Cory also emphasized that these considerations are a guide to answering the question. There is no requirement that each of these factors be considered in a mechanical fashion in order to render a valid decision. [4]

[79] Justice Huscroft recently wrote in R. v. White, 2015 ONCA 508:

But the lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.

A resident may have possession or control of the common areas of a building to a greater or lesser extent. The size of a building may be a relevant consideration in determining reasonable expectations of privacy, as even in the context of a locked building protected by a security system it is reasonable to assume that the number of people that may be present in the common areas of the building will vary in accordance with the size of the building and its population. Ownership of the property may be of greater or lesser significance for the same reason. A resident of a large building with 200 units may have a lesser expectation of privacy than a resident of a small building with 2 apartments.

The reasonable expectation of privacy does not establish a zone for the protection of criminal activity in the common areas of multi-unit buildings, but neither does it permit the police to enter common areas of those buildings at any time and for any reason. The reasonable expectation of privacy is a concept which protects those interests that courts think ought to be protected having regard to the interests at stake in particular circumstances: R. v. Tessling, [2004] 3 S.C.R. 432. Some limits on police activity are necessary if privacy is to be protected.

There is nothing “perverse” about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life.

[A] reasonable expectation of privacy may be attenuated in the context of multi-unit buildings, where common areas including hallways, stairwells, and storage rooms are shared by the residents, but as I have said, the reasonable expectation of privacy does not disappear. Those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single-family homes, albeit that the nature and extent of the expectations of privacy that they might reasonably hold may differ. [5]

(b) Warrant to Search

[80] A search warrant is presumptively reasonable.

[81] The standard of review for search warrant authorization was determined by Justice Sopinka J. in R. v. Garofoli, [1990] 2 S.C.R. 1421:

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 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. [6]

[82] The test is whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. [7]

[83] An ITO must provide reasonable grounds for believing that an offence has been committed and that there is evidence to be found at the place of the search. "Reasonable grounds to believe" is a measure of reasonable probability in the totality of the circumstances. [8]

[84] Justice Hill has held that:

It is essential that a search warrant information set out reasonable grounds to establish that things which will afford evidence will be located at a specific place … Mere suspicion, conjecture, hypothesis or “fishing expeditions” fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case … The appropriate standard of reasonable or credibly based probability envisions practical, non-technical and common sense probability as to the existence of the facts and inferences asserted ... Probable cause does not arise, however, from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record ever minute step taken in the course of the investigation. [9]

[85] In R. v. Grant, [1993] 3 S.C.R. 223, Justice Sopinka wrote the following concerning an ITO,

…where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra. In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event. Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised from the information. [10]

[86] Justice Fish reminded the Court that:

When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. [11]

[87] A search warrant may be quashed where one or more substantial defects going to jurisdiction are identified. In such circumstances, it is almost inevitable that such an unlawful order will engage a breach of s. 8 of the Charter. [12] Nevertheless, the evidence seized pursuant to such an unlawful and unconstitutional search warrant is presumptively admissible, subject to the decision of the trial court relating to s. 24(2) of the Charter. [13]

[88] Finally,

• search warrants are statutorily authorized investigative aids issued most frequently before criminal proceedings have been instituted. Almost invariably a peace officer prepares the search warrant and information without the benefit of legal advice. The specificity and legal precision of drafting expected of pleadings at the trial stage is not the measure of quality required in a search warrant information;
• the appropriate approach for judicial review of a search warrant information is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information provides the fair and reasonable context for the assertions in question; and
• a search warrant information draftsperson or affiant is obliged to state investigative facts sufficient to establish reasonable grounds for believing that an offence has been committed, that the things to be searched for will afford evidence, and that the things in question will be discovered at a specified place. An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious. In this regard, some deference should be paid to the ability of a trained peace officer to draw inferences and make deductions which might well elude an untrained person. Probable cause does not arise however from purely conclusory narrative. A search warrant information is not a Crown brief and the affiant is not obliged to record every minute step taken in the course of the investigation. [14]

Analysis

[89] It has been consistently held that a court must inquire into the purposes of s. 8 to determine whether particular police conduct at issue constitutes a “search” that attracts the scrutiny of s. 8 of the Charter. [15]

[90] The purpose of s. 8 is to preserve the privacy interests of individuals. The right protected by s. 8 is invoked where a person's reasonable expectation of privacy is diminished by an investigative technique. [16]

(a) The Surveillance

(i) the personal observations of the officers

[91] It has been acknowledged and I agree that the lobby, the stairwells and the hallways of 695 Proudfoot Lane are 'common areas'; areas that are available for the common use by all tenants or groups of tenants in the building and their invitees.

[92] In this case, the police obtained the permission of the owner to enter 695 Proudfoot Lane and by, inference, the common areas of the building. The owner knew that the police were conducting a police investigation relating to their identity as members of the Guns and Drugs Section of the London Police Service. No limit was placed by the owner with respect to areas of building they could or could not access.

[93] The officers were therefore entitled to be in the common elevators and hallways like any other persons who were tenants, invited guests or other persons approved by management.

[94] There is no evidence before me of a history of use of the third-floor hallway in this building that would have excluded other people such as the police.

[95] Mr. Hassan submits that his subjective expectation of privacy was objectively reasonable; that although he did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. And, it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings.

[96] In seeking to use or access the common areas in multi-residence buildings, tenants and guests disclose personal and private information about themselves to strangers daily. Visual, physical and/or verbal contact at some point in time with other tenants and strangers is inevitable in multi-unit buildings. In a rental building tenants disclose, for example, whether management has approved and provided them with the necessary technology to freely enter the building; which floor they live on, when in the presence of others they press a button on an elevator; and which unit they occupy, when they unlock an apartment door and enter into the apartment while others are in the hallway.

[97] Disclosure of this personal information to strangers and others who are present in the lobby, in the elevator or on a particular floor is inevitable in a confined social setting. And disclosure of this information to others is exponentially unlimited depending on the size of the residence.

[98] I am satisfied that given the size of this building; the purpose of the building (which was to provide rental accommodations to potentially hundreds of people); the lack of control that could be exercised over the stairwell and the hallways by Mr. Hassan or any other tenant including his lack of right to admit or exclude others from the hallways, lobby or stairwells; the availability and accessibility of the stairwells and hallways to and for any tenant's or visitor's personal use; and the lack of ownership interest in the common areas, Mr. Hassan's subjective expectation of privacy was not objectively reasonable in the circumstances. [17] Even if I am wrong, in this regard, I am satisfied that it in these circumstances, it was low, at best.

[99] The officer’s presence in the common areas of the building was not dependent on the invitation of the appellant, express or implied.

[100] I make these observations and findings in the context of unobtrusive observation by others including the police. Unlike in White, the police did not (a) enter a storage locker room and observe contents of individual lockers; (b) listen to what was going on inside Apartment 305; (c) obtain information as to other people in the building who might be of interest; or (d) hide in a stairwell to overhear a conversation. They “did not take unusual advantage of their presence in the hallway”. [18] They maintained a distance from Mr. Hassan and did not engage with either him or the premises he was seen to enter.

[101] I find, therefore, that the entry and presence of the police officers did not constitute a search.

[102] Even if I were wrong in this regard, I am satisfied that Mr. Hassan's subjective expectation of privacy was not reasonable in these circumstances.

(ii) the covert installation of a video camera

[103] The same considerations referred to above in Edwards apply in the analysis with respect to the use of this police investigative tool.

[104] As I have indicated, prior to making a personal attendance on the third floor on February 19, the police had installed a covert video camera and recorded persons and activity on the third floor of the building for four consecutive days ending on February 17, 2014.

[105] Although the police were present in the building with the owner's knowledge and consent, the owner was not made aware at any time that a camera would be installed to record the activities on the third floor over a period of time.

[106] I am satisfied that the purpose of the installation of the camera was to obtain the number of the apartment used by Mr. Hassan. This is the same reason for the personal attendances. Indeed, there is no probative evidence before me that the purpose of this video surveillance was to acquire any other information.

[107] Further, it is significant that the camera had no audio component and recorded the activity in the south end of the hallway only for both a limited number of hours per day and a limited number of days.

[108] Finally, at no time was there any visibility into any apartment within the camera's scope. The range of view from the camera was limited to the hallway floor, walls and ceiling.

[109] I am very concerned, however, that this use and scope of this investigative technique, which was executed without the owner's knowledge or consent or with a warrant, diminished even the low attenuated objective reasonableness of Mr. Hassan's subjective expectation of privacy with respect to the hallway.

[110] As the Court has indicated in White, "It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated." [19]

[111] The concept of "privacy' includes the ability of an individual to seclude themselves, or information about themselves, and thereby express themselves selectively. [20]

[112] In this case, the camera recorded not just Mr. Hassan but anyone who was in his company, the frequency with which he attended Apartment 305, what he was carrying, if anything, and the times he entered and left Apartment 305.

[113] In this context, Mr. Hassan's ability to seclude information about himself beyond the floor and the number of the apartment he was entering and exiting was eradicated.

[114] The objective reasonableness of a subjective expectation of privacy may therefore vary even within the same physical confines of space. In multi-unit dwellings, particularly where numerous tenants and strangers interact in time and space daily, it cannot be a static concept defined by geographical circumstances alone.

[115] In White, the Court of Appeal stated that:

A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.

[116] In support of his position that the installation of a camera and recording of his activity on the third floor of 695 Proudfoot Lane breached his s. 8 Charter right, Mr. Hassan pleads and relies comments from the Supreme Court of Canada in R. v. Wong, [1990] 3 S.C.R. 36 [21]. In Wong, the police had installed a camera in a hotel room. The Justice La Forest wrote,

I am firmly of the view that if a free and open society cannot brook the prospect that the agents of the state should, in the absence of judicial authorization, enjoy the right to record the words of whomever they choose, it is equally inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. George Orwell in his classic dystopian novel 1984 paints a grim picture of a society whose citizens had every reason to expect that their every movement was subject to electronic video surveillance. The contrast with the expectations of privacy in a free society such as our own could not be more striking. The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government. As in the case of audio surveillance, to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society. There are, as R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 428‑29, tells us, situations and places which invite special sensitivity to the need for human privacy. Moreover, as Duarte indicates, we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy. [22]

[117] But Justice Lamer also went on to state the following:

I agree with my colleague that unauthorized surreptitious electronic surveillance may, in certain circumstances, violate an individual's rights under s. 8. I agree that such surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. However, in my view, the consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance, not by reference to a general notion of privacy in a free and democratic society which an individual enjoys at all times. A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances. It is sufficient to decide this case by considering whether the appellant had a reasonable expectation of privacy in this hotel room which had been effectively converted into a public gaming house. It is not necessary to decide whether the appellant would have such an expectation in all circumstances according to a general notion of privacy. The latitude of the concept of a reasonable expectation of privacy will be determined by the factual situations which arise in future cases. [23]

[118] I am also mindful of the Court of Appeal's comments in R. v. Laurin [24] that:

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).

[119] In this case, I am satisfied that the installation of a surreptitious video camera to record activity in a specific hallway at 695 Proudfoot Lane and the subsequent surveillance of that activity without the express consent or knowledge of the owner and/or without a warrant violated s. 8 of the Charter even in these circumstances where the objective reasonableness of Mr. Hassan's subjective expectation of privacy was very low.

[120] I do not agree with the Crown's submission that to require the police to obtain a warrant in order to initiate and continue this type of surveillance notwithstanding that it consists of unobtrusive observation would hamper police investigations. Det. Boughner indicated that if this scenario were to transpire today, the police would require a warrant and that the Ministry of the Attorney General now recommends that judicial authorization be obtained for this type of surveillance.

(b) The Search Warrant

[121] Mr. Hassan submits that the search warrant to enter Apartment 305 should be quashed on the grounds that it (a) depended on information obtained in violation of his constitutional rights; and, (b) was based on a lack of reasonable and probable grounds.

[122] The evidence elicited at the hearing indicated that the police learned about the exact number of the apartment used by Mr. Hassan at 695 Proudfoot Lane based on their observations and the information provided by the video recording.

[123] I agree with the submissions of Mr. Hassan that in these circumstances, the information gleaned from the video surveillance must be excised from the ITO.

[124] I am also of the view, however, that there remains some evidence of the apartment number that could both be believed and form a basis for the lawful issuance of this search warrant.

[125] Firstly, the officers had seen Mr. Hassan repeatedly enter and exit the apartment building through the south side door to the exclusion of other doorways. Secondly, the officers were able to narrow down through lawful surveillance that Mr. Hassan was gaining access to and leaving from the third floor once inside the building. Finally, on February 19 2014, Det. Tennant, who was the Affiant for the ITO and was familiar with the building, saw Mustafa Hassan and his younger brother Omar enter onto the third floor from the south stairwell, walk down the hallway to the second apartment located on the east side of the hallway. He then saw Mr. Hassan unlock the door to the apartment using a key on a red lanyard and enter the apartment. The officer was able to see the door area when Mr. Hassan entered the apartment.

[126] This evidence is specific and detailed. A floor plan reflecting the layout of an identical floor in the building with consistent numbering was filed at the hearing.

[127] There is no evidence before me that the officers relied exclusively on the video surveillance to establish the target location of the warrant and there is no reference in the ITO with respect to exclusive reliance on the video surveillance recording to establish the target location to be searched.

[128] The Crown has conceded that that when viewed in the context of each of the individual factors set out in R. v. Debot, [1989] 2 S.C.R. 1140 [25], there are "shortcomings" with respect to the ITO.

[129] In Debot, the Court held that:

[T]here are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [26]

[130] The factors set out in Debot include the following considerations:

• whether the information about the predicted offence was compelling. A court should consider the degree of detail provided by the informant, the source of the informant’s knowledge, and the criminal record and reputation of the alleged offender.
• whether the source of the information (i.e. the informant) was credible. A court should consider whether the informant has proven reliable in the past, the informant’s motive for providing the information, and his or her criminal record.
• whether the information was corroborated by police investigation prior to making the decision to conduct the search. In this regard, they need only verify sufficient details to be able to conclude that the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

[131] It is also the Crown's position, however that when viewed in totality, there were sufficient grounds in the ITO to support the lawful issuance of a search warrant.

[132] I turn now to consideration of these three factors.

[133] It is clear that the CI was aware specific details about the alleged drug dealer and his business. In the course of his disclosure to the police, he described

• the dealer’s sex and ethnicity;
• the origin of the dealer’s business;
• the nature of substance being sold;
• the quantity and frequency of cocaine being obtained;
• the dealer’s membership in a local street gang;
• the two vehicles used by the dealer, including the licence plate of one of the vehicles;
• the dealer’s residential address;
• the method of transportation used by the dealer to transport cocaine; and
• the dealer’s use of a stash house.

[134] In the ITO, Det. Tennant indicated that the CI had been providing information for less than 7 years; that the CI's information had resulted in the seizure of controlled substances and other items in the past; that the information provided by the CI in the past had included reliable information resulting in the seizure of controlled substances; and, that the CI was providing information for financial consideration, and was aware that if false information was provided the CI would no longer be used by the police as an informant. The issuing justice was also informed as to whether or not the CI had a criminal record.

[135] Finally, I am satisfied that the police corroborated a significant amount of the information provided by CI. They searched querying police and other records and conducted surveillance of Mr. Hassan.

[136] The police investigation indicated that:

• Mr. Hassan knew Jerome Williams referred to by the CI;
• Mr. Hassan had access to and drove the white Ford F-150 and a red Dodge Charger;
• Mr. Hassan was the son of the registered owner of the white Ford F-150 and a red Dodge Charger;
• Mr. Hassan had access to and was the son of the registered owner of 20 Tanner Drive;
• Mr. Hassan was not a registered or listed tenant in the apartment building located at 695 Proudfoot Lane;
• neither the Ford F-150 nor the red Dodge Charger were on the assigned parking list for the apartment building;
• the listed tenant and leaseholder for Apartment 305 was a Spencer Stewart, whose registered residence address was 434 Piccadilly Street;
• Mr. Hassan resided at 20 Tanner Drive;
• Mr. Hassan used a key on February 19 to enter Apartment 305;
• in their view, Mr. Hassan engaged in counter surveillance techniques while driving; and
• in their view, Mr. Hassan engaged in conduct indicative of drug transactions once on February 6 and twice on February 19, 2014.

[137] In the ITO, Det. Tennant also confirmed the data bases he had used to access information he identified in the ITO: that he had spoken to the property manager to obtain information about access to the building and whether Mr. Hassan was a registered tenant or occupant of the building, and that the police had entered the building and made observations of Mr. Hassan in the building.

[138] In reviewing the entirety of the information provided in the ITO, notwithstanding two errors and the exclusion of unlawful information gleaned from the video camera, I am satisfied and find that I agree with the Crown's submissions in this case that there was an adequate evidential basis for the issuing justice to assess and determine whether the surveillance evidence reasonably supported the inferences drawn by the affiant, an experienced drug investigator, as set out in the ITO, namely that Mr. Hassan had engaged in counter-surveillance driving techniques and had conducted drug transactions with unknown persons on at least three occasions during the surveillance

(c) S. 24 (2) of the Charter

[139] If I am wrong and particularly having determined that by installing and keeping Mr. Hassan under video surveillance in the hallway without a warrant, the police were in breach of Mr. Hassan's albeit objectively low reasonable expectation of privacy (and thereby his right pursuant to s. 8 of the Charter), it is incumbent on me to turn to the question of whether the admission of the police evidence would bring the administration of justice into disrepute.

[140] The Court's decision in Grant [27] requires the court to consider three things in this regard. Firstly, the seriousness of the Charter infringement; secondly, the impact of the breach on Mr. Hassan's Charter rights; and thirdly, society’s interest in having this case adjudicated on the merits.

[141] Ultimately, the question is whether, in all the circumstances, admission of the evidence gathered by the police as a result of their surveillance, investigation and ultimate search of Apartment 305 would bring the administration of justice into disrepute.

[142] In my view, the answer is 'no'.

[143] In consideration of these issues, I have applied the principles of law recently discussed by Justice Doherty in R. v. McGuffie, 2016 ONCA 365 [28].

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case…

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence…If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility … Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence…

(i) The seriousness of the breach

[144] Mr. Hassan argues that the officers’ conduct in this case was careless and, as such, extremely serious. He submits that their lack of diligence in documenting the manner in which they received consent from the Minto Group to enter the property "speaks volumes as to their total disregard for the Applicant’s Charter rights. Police officers are obliged to take notes. Their failure to do so disrespected the rights of the Applicant and their obligations to the court. Proper note-taking is integral to both the disclosure process and the reputation of the administration of justice itself." [29]

[145] In this regard, I refer to and adopt the observations of Justice Hill in R. v. Gill, 2015 ONSC 7872 [30],

While the necessity for a police officer to make accurate, comprehensive and contemporaneous notes cannot be understated (Wood v. Shaeffer, 2013 SCC 71), as a general rule, perceived, acknowledged or found deficiencies or omissions from a police officer’s notes relating to a particular transaction may, or may not, hold any significance depending on specific factual context. An absent note may impact on the weight to be afforded an officer’s evidence. Automatic rejection of the officer’s evidence as a discipline sanction is inappropriate. The significance of an omitted notational reference will depend upon such factors as the number of gaps, the nature of an omission in terms of the importance of the fact in question, the explanation for the omission, the overall degree of completeness of the notes, the length of the interval between the making of the notes and the delivery of oral testimony, and the existence of confirmation for the missing note.

I agree with the statement of Durno J. in R. v. Machado, 2010 ONSC 277, [2010] O.J. No. 387 (S.C.J.), at paras. 121-122: While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some … have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson, 151 C.C.C. (3d) 339(Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.).

I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816: It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.

Of course, an absent note of a fact or observation does not mean that the observation or fact is not true. A missing note is not necessarily determinative of the reliability of a police witness’ evidence on the relevant subject or at large.

[146] I am unable to agree that the lack of notes in this case regarding the conversations with Ms. Smith have the extreme negative impact perceived by Mr. Hassan. The testimony of the officers was clear with respect to the subject matter, the gist and the outcome of the conversation. There is no probative evidence before me that the lack of a written record with respect to this conversation was reflective of a carelessness that ought to or does impugn the entire investigation.

[147] I am satisfied that the officers involved in this case were not willfully blind to their obligations under the law. They considered Mr. Hassan's expectation of privacy and the need for further investigation. They considered the necessity of a warrant and acted pursuant to their understanding of the law at that time. In my view, they acted in good faith bearing in mind as well that this investigation occurred prior to the Court's decision in White.

[148] Indeed, there is no probative evidence before me that the police acted in bad faith or that their investigatory conduct in this matter was egregious. The police sought and obtained the owner's permission to be in the apartment building. They did not knock on the door of Apartment 305, listen at the door or record conversations in the hallway. The video camera was active for a limited number of hours per day and a limited number of days and the perspective was limited to the confines of the hallway.

[149] I am satisfied that the police also had reasonable and probable grounds to lawfully arrest Mr. Hassan and acted in good faith in doing so. The police had formed their grounds based on personal observations and information from other officers, information from the CI, surveillance of Mr. Hassan, surveillance of the building and Mr. Hassan's behaviour during surveillance including to the length and timing of his meetings and indirect routes to and from those meetings that appeared to the officers to be indicative of drug transactions and counter surveillance manoeuvres.

[150] Based on the cumulative effect of the evidence gleaned their own observations and investigation, they had a reasonable belief that Mr. Hassan was in possession and control of cocaine.

(ii) The impact of the breach

[151] In my view, the breach in this case did not seriously undermine Mr. Hassan's interests protected by the Charter.

[152] As has been noted by the Court in White, the reasonable expectation of privacy may be attenuated in the context of multi-unit buildings, where common areas including hallways, stairwells, and storage rooms are shared by the residents but the reasonable expectation of privacy does not disappear. Those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single-family homes, albeit that the nature and extent of the expectations of privacy that they might reasonably hold may differ.

[153] But the difference between White and the case at bar is that in White, the police overheard conversations and activities taking place within a unit by hiding in a nearby stairwell.

[154] The intrusion into Mr. Hassan's privacy was non-invasive. Firstly, the personal observations of the officers and video recordings were made at a distance and without any interaction with Mr. Hassan personally or his time.

[155] Secondly, I am not satisfied that the interior of Apartment 305 was Mr. Hassan's residence over which he would otherwise be entitled to claim a very high privacy entitlement. This was not a "home" for Mr. Hassan. This three or four room rental accommodation that was designed and intended by the owner to be a residence was not occupied by Mr. Hassan as such. It is trite to say that many people have more indicia of a "home" in their offices at work than Mr. Hassan had in this apartment.

[156] The personal search of Mr. Hassan at the time of his arrest and as incident to his arrest was limited to his shoulder bag and his pockets.

[157] I am satisfied that neither the breach referred to above with respect to the video surveillance nor the subsequent searches fall at the serious end of the spectrum referred to by Justice Doherty in McGuffie. [31]

(iii) Society’s interest in having the case adjudicated on its merits

[158] In my view, this community has a significant and substantial interest in having the case against Mr. Hassan adjudicated on its merits.

[159] Possession of cocaine and possession for the purpose of trafficking in cocaine are very serious offences.

[160] The evidence list at the outset of this decision that was obtained as a result of the search of Apartment 305 and Mr. Hassan's person is real, reliable and highly probative.

[161] The sole object of seizure in the search warrant, and the only thing reported to have been seized pursuant thereto, are the narcotics and related agents and paraphernalia as set out above. There will be no consequential relief of a return of the illegal substances or contraband.

[162] It is clear that the exclusion of the evidence would decimate the Crown's case. I agree with the Crown's submission that considering the totality of factors, the exclusion of the cocaine, marijuana and other evidence seized from the Mr. Hassan's person during the course of his arrest and Apartment 305, 695 Proudfoot Lane would have a greater negative impact on the repute of the administration of justice than admitting the evidence at trial.

[163] Balancing all of the factors as required, with respect to the police conduct and Mr. Hassan's protected interests, I find that the admission of this evidence would not bring the administration of justice into disrepute.

Conclusion

[164] For all of these reasons, Mr. Hassan's request to exclude the evidence at trial is dismissed.

Justice L Templeton

Released: January 8, 2017

Footnotes:

[1] Hunter v. Southam Inc., [1984] 2 S.C.R. 145. [2] R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32. [3] R. v. Edwards, [1996] 1 S.C.R. 128. [4] Ibid. [5] Ibid, at paras. 44-45, 50-51, and 65. [6] R. v. Garofoli, [1990] 2 S.C.R. 1421. [7] R. v. Araujo, [2000] 2 S.C.R. 992. [8] R. v. Debot, [1989] 2 S.C.R. 1140. [9] R. v. Sanchez. [10] R. v. Grant, [1993] 3 S.C.R. 223. [11] R. v. Morelli, [2010] S.C.R. 253, at para. 58. [12] R. v. Collins, [1987] 1 S.C.R. 265. [13] R. v. Sanchez. [14] Ibid. [15] R. v. Evans, [1996] 1 S.C.R. 8. [16] R. v. Mulligan. [17] In R. v. White, 2015 ONCA 508, Mr. White owned a condominium at 711 Churchill Avenue, Toronto. This property was a small ten-unit condominium building. By operation of law, condominium owners share ownership and are responsible for the control, care and maintenance of the common areas. The officer entered and searched the locked building without prior consent. The factual circumstances are therefore substantially distinguishable from the case at bar. [18] R. v. Laurin. [19] White, at para. 51. [20] Daniel J. Solove, "'I've Got Nothing to Hide' and Other Misunderstandings of Privacy", San Diego Law Review, Vol. 44, 745-772. [21] R. v. Wong, [1990] 3 S.C.R. 36. [22] At p. 48. [23] At pp. 62-63. [24] R. v. Laurin. [25] R. v. Debot, [1989] 2 S.C.R. 1140. [26] Ibid. [27] R. v. Grant, [1993] 3 S.C.R. 223. [28] R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643. [29] Applicant's Factum paras. 115 and 116 [30] R. v. Gill, 2015 ONSC 7872, 347 C.R.R. (2d) 249. [31] R. v. Gill, 2015 ONSC 7872, 347 C.R.R. (2d) 249.