Court File and Parties

Court File No.: 13-G5914 Date: 2017-06-07 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Mathieu Lantaigne, Applicant

Counsel: Colleen Liggett, for the Respondent Dominic Lamb, for the Applicant

Note on Correction: An error occurred at paragraph 13 of the original decision released on June 2, 2017. In the third sentence, the reference to the case “In Brewster” now reads “In White.”

Additional Reasons for Decision

Beaudoin J.

[1] These written reasons are issued in addition to the oral decision given on March 9, 2017. The Applicant, Mathieu Lantaigne, (“Lantaigne”) brought a “Garofoli” application wherein he sought an order declaring the search warrant obtained by the Ottawa Police Services to be invalid and to exclude evidence subsequently obtained. In separate reasons, I granted the Applicant leave to cross-examine the affiant.

[2] The Applicant then sought to excise those portions of the affidavit of Detective Linnett filed in support of an Information to Obtain; in particular those sections dealing with the surveillance observations of November 19 at 200 Rideau Street in Ottawa and all observations made at 2603 Southvale Crescent on November 21, 2013. He argued that these observations were searches made without lawful authority and without that information, the warrant was invalid and the subsequent searches were warrantless and unreasonable. Lantaigne conceded that if I did not excise those portions of the affidavit, the search warrant would survive a section 24(2) Charter analysis.

November 19, 2013

[3] On November 19, 2013, Detective Linnett testified that he was stationed in the parking garage at 200 Rideau Street in Ottawa pursuant to a general warrant issued on November 5, 2013 in Gatineau at the request of Detective Francois Gagnon, lead investigator in an investigation known as Project Dérapage.

[4] The Applicant focused particularly on Appendix A of that general warrant which stated that the warrant was based on reasonable and probable grounds to believe that there had been an offence with respect to conspiracy to traffic drugs and possession of drugs for purpose of trafficking. Ottawa Police Services (“OPS”) were tasked with seeking out the identity of the driver of an Audi vehicle bearing license number K13 CTH who resided at 200-234 Rideau St. in Ottawa.

[5] In cross-examination, Detective Linnett testified that after three separate observations, he was satisfied that James Roberts was the driver of the Audi. According to the Applicant, the purpose of the general warrant was spent before November 19, 2013 since by that time, the OPS was satisfied that James Roberts was the driver of the Audi.

[6] Lantaigne also argued that the OPS had already targeted him before November 19, 2013 since his name appears on the first cover page of the officer’s notes. He relied on Detective Linnett’s evidence that his notes were taken chronologically.

[7] While Detective Linnett may have satisfied that he had determined the identity of the Audi driver after three observations, this does not mean Detective Gagnon would have been satisfied with that evidence within the context of Project Dérapage. The general warrant had just been issued and was in effect for 3 months. It authorized broad search powers in order to satisfy that purpose; including getting card access to the parking garage; viewing the positioning of that vehicle in the interior of the garage; and obtaining copies of the video images showing the driver of that vehicle moving about. An access card was sought so that police officers could enter at all hours of the night to find out exactly where the driver might go. Detective Gagnon clearly sought evidence from all of these sources to support the identity issue. There was no report or return on the warrant made to Detective Gagnon.

[8] The cover page of the surveillance report and the notes are different things. The notes start on page two of seven. Prior to November 19, 2013, the OPS had no reason to suspect Lantaigne who was unknown to them. In my view, nothing turns on the fact that his name appears on the first page surveillance report where he is identified as a person of interest. The original target was James Roberts. It is evident that Lantaigne became a target on page 4 of the notes once observations were made in the parking garage of an interaction between Roberts and Lantaigne. I conclude that Detective Linnett was legally parked in the garage at that time and that the general warrant was still in effect. There is no reason to excise those portions of his affidavit.

Surveillance at 2630 Southvale Crescent

[9] Detective Mate Renic of the OPS then followed Lantaigne to his condo at 2630 Southvale Crescent, unit 305 and made observations of Lantaigne in the parking garage at that location and on the balcony. Surveillance was conducted on November 19, 21, 22 and 26, 2013. On November 19, 2013, Detective Renic also entered the building to determine the location of unit 305.

[10] Lantaigne relies on the fact that the access road to the condominium was marked as private property and that the OPS entered the property and the building without any warrant. He also relies on the fact that the OPS had been unable to get authorization to access the common areas to conduct any surveillance within the building. He argues that any implied license to anyone outside of the building was limited to visitors of the condominium owners.

[11] Exhibit 5 is an aerial photograph of the property from which it appears that the access road to the condominium complex is an extension of public road on the opposite side of the street. There is no gated entrance to the access road nor is there any restriction on access other than a small sign indicating “private property.” Detective Renic parked in a visitor parking area; one with public access. Views of the balcony of unit 305 could also be made from the parking lot of a medical building next door. There was a third vantage point on Southvale Crescent, on public property.

[12] The parking garage is a two story building that is not fully enclosed. Detective Renic was able to make observations of any vehicle in the garage from his position in the visitor parking. He was instructed by Detective Linnett to determine the location of unit 305. There was no surreptitious or forced entry in doing so. Detective Renic was let into the building by an elderly occupant. He then climbed a stairway and found the location of the apartment. He made no further intrusive inquiry nor did he listen at door.

[13] This case falls squarely within the reasoning of Justice Code in R. v. Brewster, 2016 ONSC 4133 where he had to determine whether there was a search within the meaning of s. 8 of the Charter. In that case, as here, the defence had relied on the Court of Appeal’s decision in R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32. In White, the police had made three surreptitious warrantless entries into the common areas of a small 10-unit condominium building. The detective had viewed the contents of the respondent’s storage locker and, on two occasions, the detective entered the building through a normally locked door without the knowledge of any of the residents. On one occasion, he hid in a stairwell and listened to what was going on inside the unit. The detective did not mention the surreptitious entries when he obtained a search a warrant and a wiretap authorization.

[14] Justice Code concluded that White had not changed the law and that there was no violation of s. 8 of the Charter when the police conducted limited physical surveillance in the common areas of a multi-unit building. At paras. 111 through 113, he discussed the Meaning of a Search:

111…

• The first step in any s. 8 analysis is to determine whether the police investigative technique under consideration amounts to a “search” and, therefore, engages s. 8. This inquiry turns on “reasonable expectations of privacy.” Sopinka J. and Major J. gave separate judgments in R. v. Evans (1996), 104 C.C.C. (3d) 23 at paras. 10-11 and 47-8 (S.C.C.) but they agreed on this fundamental starting point. Sopinka J. stated:

I agree with Major J. that not every investigatory technique used by the police is a “search” within the meaning of s. 8. In particular, I agree with Major J.’s view that the court must inquire into the purposes of s. 8 in determining whether or not a particular form of police conduct constitutes a "search" for constitutional purposes.

What then is the purpose of s. 8 of the Charter? Previous decisions of this court make it clear that the fundamental objective of s. 8 is to preserve the privacy interests of individuals. As this Court stated in Hunter v. Southam Inc., (1984), 14 C.C.C. (3d) 97 at p. 109, the objective of s.8 of the Charter is “to protect individuals from unjustified State intrusions upon their privacy.” Clearly, it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a “search” for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8. [Emphasis added.]

After quoting Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at 108 (S.C.C.), to the effect that compliance with s. 8 turns on 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”, Major J. stated the following in Evans:

This balance between individual and state interests must be considered not only in determining whether or not a search was reasonable but also at the threshold stage of determining whether a particular investigative technique used by the police constitutes a search at all within the meaning of s. 8.

... [s. 8] protects individuals only against police conduct which violates a reasonable expectation of privacy. To hold that every police inquiry or question constitutes a search under s. 8 would disregard entirely the public’s interest in law enforcement in favour of an absolute but unrealistic right of privacy of all individuals against any state incursion however moderate. This is not the intent or the effect of s. 8, [Emphasis added.]

Parking garages in multi-unit buildings

• Applying the principles that emerge from the above authorities, it has been held in this province that there is no reasonable expectation of privacy in observations made concerning “use of a spot in an underground parking garage in the condominium building” in order for the police to infer “the unit occupied by the [accused] in the building.” Epstein J., as she then was, so held and the Court of Appeal agreed in R. v. Drakes and Brewster, 2009 ONCA 560 at paras. 17-18. The Court (O’Connor A.C.J.O., MacPherson and Cronk JJ.A.) reasoned as follows:

Elevators and hallways in multi-unit buildings

• When the same principles are applied to similarly non-obtrusive observations made in elevators and hallways of multi-unit buildings, such as odours emanating out into these common areas or the number of the unit where a suspect enters or exits, the authoritative and binding decisions of courts in Canada have consistently found no reasonable expectation of privacy. In R. v. Laurin (1997), 113 C.C.C. (3d) 519 at 533 (Ont. C.A.), Morden A.C.J.O. (McKinlay and Laskin JJ.A. concurring) stated:

I have concluded that this was not a search. My reasons are as follows. The police officers making their way to the appellant's apartment were entitled to be in the hallway, as were other tenants of the building, their visitors, repair people, the landlord, and so on. I do not think that the fact that they were engaged in an investigation of a complaint meant that they had no right to use the common hallway to attend at the door of the appellant's apartment. Their presence there was not dependent on the invitation of the appellant, express or implied. I refer to the fact that the outer doors of the building were not locked or otherwise secured.

Obtrusive observations into the interior of a unit or locker

• The only circumstance where s. 8 has been held to be engaged, when police enter the common areas of multi-unit buildings, is when they go beyond making observations as to what is externally visible or externally emanating into the common areas. For example, in R. v. Laurin, supra at 534, Morden A.C.J.O. appeared to warn against more “intrusive” observations of activities inside a unit, such as listening at the door…

112 In my view, a coherent and consistent view of the applicable s. 8 principles emerges from the above case law. Applying those principles to the facts concerning warrantless entries into the common areas of multi-unit buildings in this case, I am satisfied that the surveillance officers’ conduct was lawful and that no s. 8 violations occurred. In particular, I rely on the following five considerations:

• The officers had abundant reasonable grounds to be following and investigating the suspects, prior to the warrantless entries into the common areas. They were in the course of investigating serious crimes and they did not acquire their reasonable grounds from the entries;
• The nature of the observations, like those in Tessling, were mundane and non-obtrusive involving the fact of residency and the number of the unit where the suspect resided. As in Plant, none of this information touched on a “biographical core of personal information” or “intimate details of the lifestyle and personal choices of the individual.” The fact of residency and the place of residency is information that is widely disseminated and disclosed in numerous transactions during the course of our daily lives. In addition, it is information that has always been available to surveillance officers, simply by following a suspect to his/her dwelling house. The modern phenomenon of multi-unit residency cannot shield or accord greater privacy to this kind of mundane information. As Chicoine J. put it in R. v. Rogers, supra at para. 130, in finding no reasonable expectation of privacy in relation to 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”;
• Unlike in Evans, White, and Sandhu, the surveillance officers never acquired information about any activity inside the home or inside premises belonging to a suspect, for example, by looking into a unit, listening at the door, or sniffing at the threshold, transom, or open door. As in Tessling, Laurin, and Thomsen, the seized information was “exposed to the public” who happened to be in the parking garage or in the hallways;
• The condominium buildings were large with numerous units (38 Joe Shuster Way has 517 units, 18 Valley Woods Road has 167 units, 1600 Keele Street has 182 units). As a result, large numbers of residents, their friends, family and guests, condominium staff, tradespeople, and miscellaneous visitors who had some reason to be on the premises, all had access to the parking garage, the lobby, the elevators, and the hallways. As in Edwards, “one very important factor” is that an individual suspect who resided in one of these buildings could not “regulate access” to these common areas;
• The police did not initially seek and obtain permission to enter the common areas of these buildings, in all cases, although in some cases they did seek permission simply by pressing the buzzer and advising security staff that it was police.” Once the fact of residency was known to exist in relation to some suspect (and, therefore, some degree of privacy interest in the building was established), permission was sought from property management. In all cases, permission was granted. Furthermore, there was abundant evidence that property management was already conducting surveillance in the common areas of these buildings with video cameras, inferring that the residents had given up control over certain expectations of privacy in these common areas in order to achieve the goal of collective security.

113 The above five considerations infer a relatively low expectation of privacy in the common areas of the multi-unit buildings and in the kind of information being acquired by the surveillance officers in this case. Balanced against that relatively low expectation of privacy, the state interest in effective law enforcement was relatively high. The crimes under investigation were extremely serious, representing a direct threat to the safety of the public. Learning the residential unit of a suspect within a large condominium building is essential to being able to obtain a s. 487 search warrant in relation to a “place” and to being able to seize, for example, a firearm used in a murder. It is similarly important in relation to a s.186 wiretap to be able to describe “the place at which private communications may be intercepted.”

[15] Justice Code went on to conclude that the physical surveillance carried out in that case did not amount to a “search” and that the detailed circumstances surrounding this surveillance were not material to the issuance of the wiretap authorizations and the general warrant. Even if it had been a “search”, he went on to discuss the doctrine of implied license:

118 The other subsidiary point in relation to warrantless entries into common areas of condominium buildings concerns the “implied license” doctrine. If the police entries into parking garages, elevators, and hallways did amount to a “search,” contrary to the conclusion that I have reached, then the further question that arises is whether these searches were “reasonable.” That question turns on whether the searches were "authorized by law." See: R. v. Edwards, supra at paras. 33, 39 and 45; R. v. Tessling, supra at para. 18; R. v. Evans, supra at paras. 21-25; R. v. Collins (1987), 33 C.C.C. (3d) 1 at 14 (S.C.C.). In this regard, the police possess the same authority at common law as any member of the public, “to approach the door of a residence and knock,” provided they understand that this “implied license ends at the door” and does not permit entry into a dwelling. See: R. v. Evans, supra; R. v. Tricker (1995), 96 C.C.C. (3d) 198 at 203 (Ont. C.A.); Robson v. Hallett, [1967] 2 Q.B. 939 at 950-2 (C.A.); R. v. MacDonald, supra at paras. 6-8 and 26-7; R. v. Zargar, supra.

120 On the basis of these broad descriptions of the “implied license” doctrine, it would appear that the surveillance officers in the present case complied with the common law as they did no more than “come onto the property,” while “on legitimate business,” and “approach the door of a residence” on occasion. They never crossed the threshold and went inside anyone’s condominium dwelling, unlike the officers in R. v. Zargar, supra.

124 In my view, the result of Evans, Mulligan, and Laurin is that the police cannot rely on the “implied license” doctrine to enter the common areas of multi-unit buildings if their purpose is to seize evidence from inside a residence, upon the opening of the door (as in Evans). However, if they have articulable cause and are in pursuit of a bona fide criminal investigation that requires them to make observations in common areas outside a residential unit, and if such an investigation is to the benefit of the law-abiding residents of the building, then the police can proceed to make non-obtrusive observations in these common areas on the basis of an “implied license” granted by and for the benefit of these tenants (as in Mulligan and Laurin).

[16] In this case, the OPS were investigating a serious crime on behalf of the Gatineau Police when they became aware of Lantaigne’s possible involvement and they followed him home. The circumstances surrounding this surveillance were not essential to the authorization of the search warrant. Lantaigne had already been observed transferring a black gym bag to a suspected drug trafficker, James Roberts, in the parking garage at 200 Rideau. The gray Cadillac he was driving on that day was already noted in the police surveillance as having some significance and connection to James Roberts. Lantaigne’s address and ownership of unit 305 could be learned from public documents. Surveillance of Lantaigne was also conducted from outside the private property.

[17] Moreover, the police were not acting unlawfully during their limited physical surveillance of the common areas. There was no search as there was no reasonable expectation of privacy with regard to the open parking garage at 2630 Southvale, the visitor parking lot, the entrance to the building, the balcony of unit 305 or in the common hallway of the multi-unit condominium beyond what was externally visible. Detective Renic was given access to the building by a resident; he made no obtrusive search of unit 305. He merely made a note of its location within the building.

[18] Even if this amounted to a “search”, I am persuaded the implied license doctrine is applicable. The OPS were in pursuit of a bona fide investigation that required them to make observations in common areas outside of a residential unit.

[19] For these reasons, the accused’s application to excise those portions of the affidavit is dismissed and the validity of the search warrant is upheld.

Mr. Justice Robert N. Beaudoin

Released: June 7, 2017