R. v. Wawrykiewicz, 2017 ONSC 569

CITATION: R. v. Wawrykiewicz, 2017 ONSC 569

COURT FILE NO.: CR-15-90000493-0000 CR-15-90000501-0000

DATE: 20170124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MATTHEW WAWRYKIEWICZ

COUNSEL:

Chris de Sa and Jason Mitschele, for the Crown

Gregory LaFontaine, for Mr. Wawrykiewicz

HEARD: December 12, 13, 14, 15, 2016

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON CHARTER MOTION

[1] On December 29 and 30, 2013, Mercedes Bettrina was the night manager at the Marriott Hotel at 17 Reading Court in Toronto. When she took up her shift that there had been a lot of complaints about noise emanating from Room 302. There was also a man trying to get into the hotel through a locked door. She called the police. The police arrived and entered Room 302. They found Mr. Wawrykiewicz, his girlfriend, Kimberly Poulter, and a lot of drugs in plain view. They froze the room and obtained a search warrant for the room and for Mr. Wawrykiewicz’s car. The police also seized two cell phones from Mr. Wawrykiewicz incident to arrest.

[2] The police arrested Mr. Wawrykiewicz and Ms. Poulter. They were subsequently released on bail. In February 2014 the Homicide Squad investigated Mr. Wawrykiewicz for firearms trafficking in relation to a murder. They obtained warrants for the cell phones. Those phones have remained in police custody but had not been examined. The police found photographs that led them to believe that Mr. Wawrykiewicz and Ms. Poulter were trafficking drugs from a different location. They identified the location as 105 The Queensway. The police commenced surveillance and formed the grounds to believe that he was engaging in commercial drug trafficking. They obtained a search warrant and executed it. They also executed a search warrant at 83 Humbercrest Blvd., where Mr. Wawrykiewicz was required to reside under the terms of his bail. The police found a large quantity of drugs at 105 The Queensway and a smaller but still significant amount of drugs at 83 Humbercrest Blvd.

[3] Mr. Wawrykiewicz now brings an application pursuant to s. 8 of the Charter to exclude all the seized evidence. His counsel argues that the initial entry into the hotel room was unlawful, thus tainting the entire course of events. As a result, the fruits of the search should be excluded. Those fruits include the seizure of the cell phones, without which there could have been no search of 105 The Queensway.

[4] I find that the initial entry into the hotel room was without lawful authority and therefore a violation of s. 8 of the Charter. It follows that there was a s. 8 violation in respect of the searches of 105 The Queensway and 83 Humbercrest Blvd. I would not, however, exclude the evidence. I find that the admission of the evidence would not bring the administration of justice into disrepute. For the reasons that follow, the application is dismissed.

BACKGROUND

[5] No viva voce evidence was called on this application. It proceeded entirely by way of an agreed statement of facts, the preliminary inquiry transcripts, exhibits, and argument. Counsel agreed that I could make findings of fact and draw conclusions of law from those transcripts.

[6] On the night of December 29-30, 2013, Mr. Wawrykiewicz and Ms. Poulter were staying in Room 302 of the Marriott Hotel. There had been numerous complaints from other guests about noise in the room and the smell of marijuana. At 11:17 pm on December 29, Ms. Bettrina called 911 and spoke to the Toronto Police (which I will refer to as the “TPS”) operator. After identifying herself, the following conversation ensued, in part between her and the operator:

TPS Operator: Okay, and what’s the emergency there right now?

Ms. Bettrina: There… I have a lot of… like over a dozen of guests. They… we are suspected they are smoking marijuana. And we have people coming non-stop and being uncontrollable.

TPS Operator: Okay, what do you mean uncontrollable, ma’am?

Ms. Bettrina: We have people coming in and out non-stop. And we have dispatched security a few times to the room to have them… to minimize the number of people coming in…

[7] The TPS operator then told Ms. Bettrina that since it was not a life-or-death emergency, she should call the main police line instead of 911 – but she would still take the call. Ms. Bettrina added the following information:

TPS Operator: Okay, were you getting complaints from other guests?

Ms. Bettrina: Yes, we do. We’ve been receiving few… more than enough.

Okay. Just hang on a second. Okay, and what were the complaints? Like, that the room’s too noisy, too many people going in and out, or…

Ms. Bettrina: The room’s too noisy and…

TPS Operator: … what?

Ms. Bettrina: The room’s too noisy and we can smell the smoke of marijuana from inside the room.

TPS Operator: And you said that there’s too many people in the room?

Ms. Bettrina: Too many people, all adults.

TPS Operator: Okay, and what happened when security went up to the room?

Ms. Bettrina: They were not listening. They were shouting at him.

TPS Operator: Okay, but nothing violent?

Ms. Bettrina: Nothing violent.

[8] The police arrived on scene shortly before midnight. They received information from Ms. Bettrina and went to Room 302. They knocked on the door and announced that they were police officers. Constable Day used a key card to open the door. The police entered the room. They found Mr. Wawrykiewicz and his girlfriend, Ms. Poulter. They also found 111.04 grams of cocaine, 58.29 grams of crack cocaine, and just over $7000.00. They arrested Mr. Wawrykiewicz and Ms. Poulter. They also seized two cell phones from Mr. Wawrykiewicz incident to arrest.

[9] The police then “froze” the hotel room. They obtained a warrant to seize the cocaine and to search the car. They seized a further 29.76 grams of crack cocaine in Mr. Wawrykiewicz’s car.

[10] In February, 2014 the Homicide Squad was investigating an unrelated homicide. The police suspected that Mr. Wawrykiewicz had sold a firearm that was used in a murder. On January 22, 2014 Homicide Squad officers obtained search warrants to examine the two cell phones that the police seized from Mr. Wawrykiewicz in December 2013. The police examined the images on the phones. The phones contained photographs and videos. There was a video of Ms. Poulter counting money. In the background of the video was a digital scale, a box of baking soda, and packages of a white substance. The police believed that the packages contained cocaine. There was also a photograph from a window which permitted the police to identify 105 The Queensway as the address where the video was filmed. The Drug Squad commenced surveillance of Mr. Wawrykiewicz. They observed him attending at 105 The Queensway, Apartment 905, along with Ms. Poulter. The police observed what they believed to be drug transactions. They obtained a search warrant for 105 The Queensway, Apartment 905. They also obtained a search warrant for 83 Humbercrest Blvd.

[11] On February 18 2014 the police executed the search warrants. Mr. Wawrykiewicz was arrested leaving 105 The Queensway, Apartment 1905. He was searched incident to arrest. The police seized from him some cocaine, some currency, two cellphones, and the keys to Apartment 905.

[12] The police seized a great deal of cocaine, heroin, marijuana, and drug trafficking paraphernalia from 105 The Queensway, Apartment 1905. They also seized heroin, cutting agents, and other prohibited substances. The total amount of drugs seized by the police and the estimated value was:

• 1772.56 grams of powder cocaine with an estimated street value of $141,769 to $177,200.00;

• 8.55 grams of crack cocaine with an estimated street value of $720-$900;

• 173.21 grams of heroin with an estimated street value of $20,400 to $27,000;

• 1273 grams of marijuana with an estimated street value of $9000 to $11,250.

[13] The police seized more cutting agent as well as 13.67 grams of cocaine from 83 Humbercrest Blvd.

ANALYSIS

[14] There are three issues in this case: first, whether the entry of the police into the hotel room was a violation of s. 8 of the Charter; second, did the police violate s. 8 of the Charter during the surveillance of 105 The Queensway; and third, whether the evidence should be excluded.

(a) Did The Entry Into The Hotel Room Violate S. 8 Of The Charter?

[15] Mr. Lafontaine, for Mr. Wawrykiewicz, argues that the initial entry into the hotel room was unreasonable and unlawful. He argues that the hotel staff did not request that the police enter room 302 to remove the guests. They were primarily concerned, he says, with attempts by unauthorized intruders to enter the hotel. The Trespass to Property Act did not apply, he says, because there was no evidence that Mr. Wawrykiewicz and Ms. Poulter no longer had permission to be present in the hotel.

[16] Mr. De Sa and Mr. Mitschele, for the Crown, accept that the entry was warrantless and that they have the burden to justify it. They argue that the police lawfully entered the hotel room pursuant to the Trespass to Property Act, particularly s. 2 and s. 9. They argue that when Ms. Bettrina asked the police to remove Mr. Wawrykiewicz and Ms. Poulter, they had implied authority to terminate their occupancy and remove them.

[17] Although I find as a fact that Ms. Bettrina asked the police to remove Mr. Wawrykiewicz and Ms. Poulter, and, as I will explain, the police asked them to leave the hotel, the police entered the hotel room before there was any chance to comply. Thus, the pre-requisite to exercise the power of arrest under s. 9 of the Trespass to Property Act was not fulfilled. That means that the initial police entry was not authorized by law. It was therefore a violation of s. 8 of the Charter.

[18] I start with a review of the facts. Ms. Bettrina spoke to the 911 operator between 11:17 pm and 11:21 pm. Constable Day indicated that she received a radio call to attend the hotel at 11:53 pm and arrived a few minutes later. Ms. Bettrina testified as follows:

A. They asked what is happening and I told them that we have noise issues and if I – they can please help me have this guy removed from the property.

Q. Okay.

A. And if possibly including Room 302 if the noise still continues.

[19] Several officers testified as to their understanding of what Ms. Bettrina told them. Constable Day, for example, testified that she talked to Ms. Bettrina for a few minutes. She testified that Ms. Bettrina wanted the police to assist in having the security guard talk to them. She also testified that she was there to prevent a breach of the peace and facilitate the hotel telling the occupants whatever they needed to. Constable Parney testified that Constable Day talked to Ms. Bettrina.

[20] Constable McInerney testified that he spoke to Ms. Bettrina. She told him that there were upwards of six people in Room 302, causing a disturbance and that there was another person who tried to gain entry through a locked side door. He clarified with her that she wanted the police to evict the people in room 302 from the hotel. Ms. Bettrina also told him that the person trying to get in was quite belligerent, which was concerning because he was associated with the disturbances in Room 302.

[21] Constable McInerney testified that he had a specific reason for clarifying what Ms. Bettrina wanted:

A. And in my personal experience at times we – we receive radio calls to hotel rooms, or for hotels, information like this is there once upon – upon arriving quite often they’ve had a change of heart, things are quieted down and they would just like us to peak with them,

[22] Other officers present, Constable Panayotov, Constable Dills, and Constable Rachid, testified that they did not speak to Ms. Bettrina.

[23] Ms. Bettrina testified that she only spoke to one officer. I find that she spoke to both Constable Day and Constable McInerney and simply did not recall that she spoke to more than one officer. Constable McInerney was more definitive that Ms. Bettrina asked the police to remove the occupants. There is something of a contradiction with Constable Day’s evidence on that point but frankly it doesn’t matter – it is possible that Ms. Bettrina told Constable McInerney one thing and something slightly different to Constable Day. Ultimately she told Constable McInerney, the senior officer present, that she wanted the guests removed. I reject Mr. Lafontaine’s contention that Constable McInerney’s evidence is the outlier. It is generally consistent with the evidence of other officers.

[24] Mr. Lafontaine pressed the point that Ms. Bettrina was not particularly concerned about the noise from Rom 302 when the police arrived. Her main concern was the man trying to gain entry into the hotel from the locked door.

[25] I agree that the man trying to gain entry was a concern of Ms. Bettrina, but it was not her only concern. It appears that she believed that he was one of the partyers in Room 302. She was clearly concerned about both the man trying to gain entry as well as the noise and disturbances emanating from Room 302.

[26] Constable Day testified that several officers went to Room 302 after speaking with Ms. Bettrina. They knocked on the door and announced themselves as police. There was no response. The security guard gave her the pass card. She announced that they were the police and that they were coming to make sure everything was okay. She then swiped the door. The door was locked and the lock bar was closed. Mr. Wawrykiewicz said “hang on” or words to that effect. He then shut the door to take the lock bar off, opened the door, and walked in. Constable Parney, Constable Day’s partner, testified to similar effect. He agreed that he heard Constable Day announcing that it was the Toronto Police at the door, but did not recall her saying anything else. He also testified that the room was quiet when the police arrived there. Constable Panayotov did not recall if anyone made an announcement before entering but he also testified that Mr. Wawrykiewicz opened the latch bar and that the officers walked in.

[27] Constable Day testified that when she used the hotel pass card to obtain entry to the room, Mr. Wawrykiewicz simply turned around and walked away, leaving the hotel room door opened. She testified that she assumed that she was invited into the room. She also testified that if he had wanted to speak to the police in the hallway that would have been fine with her. It was her understanding of the law that when Mr. Wawrykiewicz implied the invitation, she was permitted entry. Other officers testified to much same effect. I note that the Crown did not rely on implied invitation in its submissions.

[28] Constable McInerney also testified that he told the occupants that they were to be evicted:

A. Upon attending, then, with other units and security, we attended the hotel room, 302. We banged on the door of the hotel room for a period of time, several minutes, quite loudly. We announced that it was the police. I also announced that hotel staff wanted them to leave immediately. There was no answer, although we could hear some movement inside. I don’t recall hearing any voices of any kind. And there was no – no response from the room itself.

[29] I make the following findings of fact from the transcripts:

• Ms. Bettrina may have told different things to different officers, but ultimately she told Constable McInerney (the senior officer present) to remove the occupants from Room 302;

• Constable Day knocked on the door and announced that the Toronto Police were at the door;

• Constable McInerney ordered the occupants to vacate Room 302 under the authority of Ms. Bettrina;

• There was no response from Room 302;

• Constable Day opened the door using a pass card supplied by the hotel security guard;

• The door opened but was barred by a physical latch;

• Mr. Wawrykiewicz opened the door to the police by opening the physical latch;

• Mr. Wawrykiewicz walked back into the hotel room without engaging the officers

• The police entered the open door;

• The police saw drugs in plain view.

[30] The key sections of the Trespass to Property Act state:

2.(1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000

9.(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

[31] The Crown has not challenged Mr. Wawrykiewicz’s expectation of privacy in the hotel room: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36. As such, any search of the room required lawful authority: R. v. Mercer (1992), 1992 CanLII 7729 (ON CA), 7 O.R. (3d) 9 (C.A.).

[32] As I read the statute, the authority of the police to arrest under s. 9 only arises where a person has contravened s. 2. I accept that the police have authority to enter premises to effect an arrest, even in a hotel room. Otherwise, the arrest power in s. 9 would be meaningless. That authority, however, may only be exercised where the tenancy is terminated by the owner and the person is ordered to leave. The police could have entered the room with the authority of the hotel management and removed the occupants but only after the occupants had been told to leave and had refused. The police also could have entered the room if the occupants had failed to leave after a reasonable period of time.

[33] Mr. Wawrykiewicz and Ms. Poulter undoubtedly had some contractual rights as against the hotel, assuming that they were the ones who actually rented the room. (Interestingly, was no evidence that they were the renters, only evidence that they were present when the police entered. The Crown did not object to their standing to challenge the police search and entry.) Assuming that Mr. Wawrykiewicz and Ms. Poulter had contractual rights, those rights were not unlimited. The owner has an absolute right at common law and under the Trespass to Property Act to evict persons present without permission and to bar entry: Russo v. Ontario Jockey Club, 1987 CanLII 4356 (ON SC), [1987] O.J. No. 1105, 62 O.R. (2d) 731 (Ont. H.C.J.).Once the hotel, through its agent, Ms. Bettrina, terminated the tenancy then the occupants of Room 302 were required to leave when ordered.

[34] That said, a hotel owner cannot simply empower the police to remove people from a hotel room without giving the occupant a chance to vacate the premises. I take that from the simple wording of s. 2(1)(b) of the Trespass to Property Act. There is no doubt that Mr. Wawrykiewicz and Ms. P were lawfully present in Room 302 until Ms. Bettrina terminated the tenancy. Section 2(1)(b) requires that the occupier of a premises direct that a person leave when directed to do so: Batty v. City of Toronto, 2011 ONSC 6862, 108 O.R. (3d) 571 at paras. 60; Russell v. York Regional Police Services Board, 2011 ONSC 4619, 242 C.R.R. (2d) 281 at para. 149.

[35] There is a very surprising dearth of case law regarding statutory authority to enter a hotel room in the Charter context. My colleague Forrestal J. dealt with the issue in R. v. Dornan (2008), 2008 CanLII 4978 (ON SC), 170 C.R.R. (2d) 22, [2008] O.J. No. 507 (Sup.Ct.).

[36] In that case, hotel staff found vials of cocaine in a hotel room and called the police. The police seized the vials. The hotel staff informed the police that the guests had simply changed rooms. The police and the hotel staff then went to the other room. There was a “Do Not Disturb” sign on the room. There was no request by the hotel management to the police to enter the room or to remove the occupants, although the hotel staff opened the room with a pass card. The police entered the room and saw cocaine in plain view. They obtained a search warrant. The subsequently found and seized a large quantity of cocaine and a gun.

[37] The Crown conceded the Charter violation but argued that the gun and drugs should not be excluded under s. 24(2). That was based on the good faith of the police: several officers said that they believed that there was some kind of statutory authority for the entry based on their training, although they were somewhat vague about that. Forrestal J. found that they were mistaken. There was no statutory authority to enter. It was not a good faith mistake after the courts in R. v. Kenny, supra, and R. v. Wong, supra, had been clear about the expectation of privacy in a hotel room. Even if the offers were acting in good faith on an individual level, there was a serious institutional mistake. Forrestal J. did not engage in an analysis of the authority of the police under the Trespass to Property Act (although one officer made reference to that statute) because there could have been no authority under that Act: the hotel staff were clear that they did not ask the police to remove the occupants.

[38] Although the evidence is unclear as to which officer entered the room first, in my view that is not material. What the police should have done, and what the Trespass to Property Act requires, was order the occupants to leave the premises and give them a chance to comply. That did not happen. I find that the police (and the hotel) gave Mr. Wawrykiewicz and Ms. Poulter no real opportunity to vacate the premises when ordered to do so. When Mr. Wawrykiewicz opened the latch that did not give the police the authority to simply enter and remove the occupants. The police should have repeated the order to vacate as it is unclear whether Mr. Wawrykiewicz or Ms. Poulter heard that order through the closed door. If there were a refusal to leave after a reasonable period of time, then the police would have been justified in exercising the power of arrest – which, I find, carries with it a power to enter. Since that is not what happened, the police entry was not authorized by the Trespass to Property Act.

[39] The Crown also relies on the common law duty of the police to preserve the peace, prevent crime, and protect life and property. Under what is sometimes called the ancillary powers doctrine, the police may interfere with individual liberties or privacy in order to carry out their common law duties: R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Waterfield, [1964] 1 Q.B. 164. The analysis, which is sometimes called the Waterfield test, is this:

Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?

If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?

[40] The police conduct here fails the first part of the Waterfield test. The Trespass to Property Act does not apply so there is no statutory authority. I also find that the common law power of the police to keep the peace and prevent crime does not apply, simply because the ruckus in Room 302 had died down. I do not doubt for a moment that the police were entitled to investigate and question the people in Room 302. I also do not doubt that if the ruckus were still going on, the police may have been authorized to enter the room. But the disturbance had ended. There was no need to enter to keep the peace or prevent criminal conduct. Since the police conduct fails the first part of the Waterfield test, there is no need to engage in an analysis under the second part.

[41] Accordingly, I conclude that the police were not authorized by law to enter into the hotel room. The police therefore violated the s. 8 rights of Mr. Wawrykiewicz. The observations of the police must be excised from the subsequent warrant which means that there were no grounds upon which that warrant could have issued.

[42] I have reviewed the information to obtain (“ITO”) in support of the warrants that were eventually issued for Room 302 and Mr. Wawrykiewicz’s impounded vehicle. Mr. Lafontaine did not strenuously argue that the ITO was materially misleading, although he pointed to errors. I am unable to say that the ITO was, in fact, materially misleading. Any errors did not, in any event, affect the good faith of the police in their initial entry into Room 302.

[43] It is not necessary for me to engage in an analysis of s. 9 or s. 10(b) of the Charter: the s. 10(b) issue was not pursued with any real vigour by Mr. Lafontaine and, in any event, the Crown does not seek to introduce any utterances by Mr. Wawrykiewicz. Regarding s. 9, once the police entered the room and saw the drugs in plain view, there were clearly grounds to detain, and ultimately arrest Mr. Wawrykiewicz. Furthermore, given my finding of a Charter violation whether or not there was a s. 9 violation is not particularly germane. In any event, search issues are best determined under s. 8: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 at paras. 23-24.

(b) Did The Police Violate S. 8 Of The Charter During The Surveillance Of 105 The Queensway?

[44] Mr. Lafontaine argues that the police were in illegal possession of the cell phones seized from Mr. Wawrykiewicz. The warrants obtained by the Homicide Squad were invalid because they relied on evidence obtained in violation of s. 8 of the Charter. All of the evidence subsequently obtained, in fact, is derivative evidence that must be excluded. That means the evidence obtained from 105 The Queensway and 83 Humbercrest Blvd.

[45] Mr. Lafontaine further argues that when the police conducted surveillance of Mr. Wawrykiewicz and Ms. Poulter in the common areas of 105 The Queensway, they did so in violation of the Charter. He relies on R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32. In that case, the police entered the common areas of a small condominium building. They observed the contents of the accused’s storage locker. They also eavesdropped on conversations going on inside the accused’s condominium. They obtained a search warrant based on those observations and that eavesdropping. The trial judge found a Charter violation and excluded the evidence. The Court of Appeal agreed.

[46] The Crown concedes that there was a nexus between the hotel investigation and the subsequent investigation at 105 The Queensway. The Crown further concedes that if there was a violation of the s. 8 in relation to the hotel, then a breach of s. 8 is made out in relation to 105 The Queensway and 83 Humbercrest Blvd. I agree with the Crown’s concession. The seizures at 105 The Queensway and 83 Humbercrest Blvd. must be assessed under s. 24(2) of the Charter.

[47] That, however, does not end the matter. It is surely relevant whether, standing alone, the police violated s. 8 of the Charter by conducting surveillance in the common areas of 105 The Queensway. I find that they did not. I find that White is distinguishable from this case and has no application. This finding has important implications under the s. 24(2) assessment.

[48] I note that White was decided well after the surveillance was conducted. Prior to White was authority for the proposition that there is little or no expectation of privacy in the common areas of an apartment building: R. v. Piasentini, [2000] O.J. No. 3319 (Sup.Ct.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.). As Wein J. pointed out in Piasentini, a contextual analysis is required that requires applying the factors set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

[49] In R. v. Brewster, 2016 ONSC 4133 the police undertook several “massive” criminal investigations. They conducted surveillance in the common areas of various multi-unit apartment buildings. Most of the observations were made in underground parking areas and hallways of the buildings. The amount of time spent in these common areas was very small in relation to the rest of the surveillance, which was very significant. Using the surveillance reports (and other evidence) the police applied for and received several authorizations to intercept private communications. Code J. conducted a detailed analysis of the case law at para. 111 regarding warrantless entry into the common areas of multi-unit buildings after White. He found that there are five broad propositions that emerge from the cases. Those five propositions are:

• The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;

• There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;

• There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560;

• There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings. That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, supra;

• Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.

[50] Code J. concluded that the police “were not acting unlawfully and they did not violate s. 8 by conducting limited physical surveillance in the common areas of multi-unit buildings…”

[51] I agree with Code J.’s analysis and adopt it.

[52] In R. v. Barton and Jacobs, 2016 ONSC 8003 the police were in the hallway of a building. Relying on exigent circumstances, the police attempted to enter an apartment. They moved a planter that was right beside the door. They then noticed something protruding from the planter. It turned out to be a gun. My colleague Akhtar J., applying the principles set out by Code J. in Brewster, found that the accused did not have a reasonable expectation of privacy in a planter in a hallway in an apartment building. He noted that in White, Huscroft J.A. had commented about the ability of the police to investigate crime. The full comment is found at para. 51 of that White, supra:

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. 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.

[53] Turning to the facts, I take the following from the Agreed Statement of Facts: on February 13 2014 Mr. Wawrykiewicz and Ms. Poulter were scheduled for an appearance at Old City Hall on the drug charges arising from the hotel seizure. Drug Squad officers followed them from Old City Hall to a car parked at the Eaton Centre and from there to 83 Humbercrest Blvd. They stayed at Humbercrest Blvd. form 11:46 am to 12:15 pm and then left. Eventually the police followed them to 105 The Queensway. At 3:53 pm Mr. Wawrykiewicz and Ms. Poulter drove into the parking garage. They parked in the visitor’s lot. The police obtained entry to the building. They did not have judicial authorization or the permission of a tenant or building management to do so. They conducted surveillance in the elevator, the tenant’s lobby, and the 19th floor. They observed Mr. Wawrykiewicz and Ms. Poulter emerge from Unit 1905 at 4:43 pm. Mr. Wawrykiewicz used a key to lock the door when he left.

[54] On February 13 2014 the police again conducted surveillance on Mr. Wawrykiewicz and Ms. Poulter at 105 The Queensway. Both were observed in the building. Mr. Wawrykiewicz used a key fob to gain entry into the building at 6:57 pm. Mr. Wawrykiewicz was also observed leaving Unit 1905 that day.

[55] There is no evidence one way or the other about Mr. Wawrykiewicz’s relationship to the common areas of 105 The Queensway, or in Unit 1905, although the Crown has not challenged his standing. He had a key fob and a key, but it is unclear whether he was “an especially privilege guest” as the target was described in Edwards or a tenant or owner. The only person in the video taken at 105 The Queensway is Ms. Poulter, although it is reasonable to assume that Mr. Wawrykiewicz took the video. 105 The Queensway is a residential condominium. Mr. Wawrykiewicz was not permitted to reside there. Importantly, Mr. Wawrykiewicz’s bail conditions required him to reside at 83 Humbercrest – and he would have had no permission to reside at 105 The Queensway. I accept that a person may have more than one residence, but in the absence of any further evidence I cannot conclude that Mr. Wawrykiewicz’s expectation of privacy at 105 The Queensway was high. I therefore find that he had even less of an expectation of privacy in the common areas.

[56] I also cannot conclude that the police engaged in the type of intrusive behaviour that they did White. They did not cock an ear to a door in order to eavesdrop on a private conversation. They did not try to determine what Mr. Wawrykiewicz and Ms. Poulter were up to in Unit 1905. Their sole purpose was to determine whether there was a connection between Mr. Wawrykiewicz and that unit. As noted by Code J., there is no expectation of privacy in the unit number in a multi-unit building. I therefore find that there was no stand-alone violation of s. 8 of the Charter in respect of Unit 1905 of The Queensway.

(c) Should The Evidence Be Excluded?

[57] The framework for s. 24(2) of the Charter was set out by the Supreme Court of Canada in R. v. Grant, [2009] 3 S.C.R. 353. The Court summarized the three-part analysis at para. 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[58] In R. v. Lam, 2012 ONSC 2131 MacDonnell J. made the following comments interpreting and applying Grant, supra:

The three lines of inquiry mandated by Grant are not in themselves tests for the admission or exclusion of evidence. That is, neither the seriousness of an infringement nor the impact of an infringement on the rights of an accused are per se reasons for excluding evidence. They are important considerations, however, because of the light they shed on the core question to be considered, namely whether the admission of the evidence could bring the administration of justice into disrepute. That is the sole test for exclusion under s. 24 (2).

[59] I agree with and adopt MacDonnell J.’s approach. I turn to the three lines of inquiry.

The Seriousness Of The Charter-Infringing State Conduct

[60] The Charter-infringing state conduct was serious in the sense that there was a dynamic entry into a place with a very high expectation of privacy without statutory authority. Six police officers went into the room, and then commenced searching the main room, the bathroom, and a bedroom.

[61] That said, I find that the seriousness of the violation is tempered the fact that the police acted in good faith, and they believed that they were acting pursuant to law.

[62] Constable McInerney acted on the instructions that he received from Ms. Bettrina, which was to remove the occupants of Room 302. He was careful to clarify what Ms. Bettrina wanted the police to do. He would not have entered the room and removed the occupants without explicit authority from the hotel – which distinguishes this case from R. v. Dornan, supra. Constable McInerney believed that he was acting under the authority of the Trespass to Property Act – and made an announcement to that effect. His actions to that point were correct and lawful. He was attempting to comply with the statute as he understood it. His error was in failing to give the occupants time and space to remove themselves peacefully.

[63] I also accept that Constable Day acted in good faith when she swiped the hotel passcard to obtain entry. I further accept that she acted in good faith when she assumed that Mr. Wawrykiewicz had given her an implied invitation to enter the hotel room. She testified that that was her understanding of the law. Mr. Lafontaine did not suggest that she was trying to mislead the court – indeed, he argued that I should accept her version of events as to the intention of Ms. Bettrina. Constable Panayotov also testified that he also assumed that the police had been invited into the room. Since the Crown did not rely on the point, it was not litigated. At the least, all I can say is that it was not unreasonable, based on these facts, for Constables Day and Panayotov to assume that they had been invited into the room.

[64] Thus, the police understood that they could not simply enter the hotel room without authority. I find that they did not wilfully act in violation of what they understood that authority to be. I cannot conclude that the failure to comply fully with the Trespass to Property Act was wilful or lacked good faith.

[65] What about the evidence from 105 The Queensway and 83 Humbercrest Blvd? Given the Crown’s concession, the police violated Mr. Wawrykiewicz’s rights when they executed warrants at those locations. That is a correct concession. As MacDonnell J. put it in Lam, supra, a ruling under s. 24(2) cannot be used “to avoid the rule of excision with respect to facts derived from unconstitutionally obtained evidence.” In other words, a Charter violation cannot be cured for the purposes of a subsequent investigation because the evidence was found to be admissible notwithstanding the violation. As MacDonnell further stated at para. 56 with regard to the “rule of excision”:

Excision has nothing to do with the admissibility of evidence. Unlike s. 24(2), it is not a remedy for a breach of the Charter. Its purpose is not to determine whether evidence obtained to pursuant to a search warrant or other judicial authorization should be admitted or excluded at trial. Rather, it is a mechanism for determining the significance of prior unconstitutional conduct in the chain of events that led to the evidence that is sought to be excluded. It enables a court to determine whether the evidence would have been obtained in any event of the breach, which in turn will assist in determining whether the evidence was ‘obtained in a manner’ that infringed the accused’s rights and the extent of the impact of the breach on the accused’s Charter-protected interests.

[66] In Lam, supra, MacDonnell J. dealt with a series of search warrants that were issued pursuant to a derivative investigation. The warrants from the first investigation had been litigated in the Superior Court of Justice in Peel. Hill J. found Charter violations and excluded the evidence. The derivative investigation relied on a series of search warrants that relied on evidence obtained as a result of the first set of warrants. MacDonnell found that the second set of warrants could not have been issued if the information from the first set was excised. He therefore found a Charter violation. He did not, however, exclude the evidence. He found, drawing upon the Court of Appeal’s decision in R. v. Mahmood, 2011 ONCA 693, that the absence of a direct link between the Charter-infringing conduct and the obtaining of the evidence “is a circumstance tending to temper the impact of the serious of the infringing conduct on the admissibility inquiry.” MacDonnell J. ultimately decided not to exclude the evidence.

[67] Given that the violation regarding the hotel room, while serious, was tempered by the good faith of the police, I am unable to find that the subsequent violations were more serious. The Homicide Squad did not just take the cell phones – they obtained specific warrants to have them forensically analyzed. The basis for those warrants has not been challenged, other than the initial seizure.

[68] It is an agreed fact between counsel that a police officer would have testified that the police seized the two cell phones from Mr. Wawrykiewicz incident to arrest. I am aware that the justice of the peace crossed out the original request to seize the cell phones when he granted the warrant for Mr. Wawrykiewicz’s impounded vehicle. It is unclear if he did that because he wished to deny the police the authority to seize the phones, or because he believed that they were already lawfully seized power incident to arrest: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51. I draw the inference that it was the latter. It would make no sense to grant authority to the police to seize drugs and other paraphernalia but to deny them the power to seize cell phones, which would clearly be relevant to any drug trafficking investigation. Accordingly, I find that the police reasonably believed that they had the lawful authority to detain the cell phones.

[69] I have already found that the surveillance of 105 The Queensway did not breach Mr. Wawrykiewicz’s Charter rights. The information from the cell phones were obtained pursuant to a judicial authorization. There were, therefore, no independent Charter violations in relation 105 The Queensway and 83 Humbercrest Blvd. Given my finding that the seriousness of the entry into Room 302 is tempered by the good faith of the police, it can hardly be said that the subsequent police behaviour constituted a serious Charter violation.

The Impact Of The Breach On Charter-Protected Interests:

[70] There is no doubt that the impact on the Charter-protected rights of the accused was serious when the police entered Room 302. The hotel room was a place where appeared to enjoy a high expectation of privacy. That means that the impact is more serious than, say, the interception of a parcel intended for Mr. W: Grant, supra, at para. 78, Lam, supra, at para. 90. That said, a party reveler smoking marijuana and causing a ruckus in a hotel room must expect that security would visit. Where the reveler has verbally abused the security guard, he or she must surely expect a visit from the police. That does not mean, obviously, that the police have carte blanche to enter that room, but it certainly means that there will be a warning and possibly an investigation into the marijuana smoking. It might also mean an order from the hotel to vacate, an order which was in fact given. Thus, while the impact of the infringement was serious, it must be placed in context.

Society’s Interest In The Adjudication Of The Case On Its Merits:

[71] This is a very serious case. Mr. Wawrykiewicz is charged with possession for the purpose of trafficking significant quantities of drugs on two indictments. The first indictment involves 111.04 grams of cocaine, 58.29 grams of crack cocaine, and just over $7000.00 seized from a hotel room. The first indictment also involves 29.76 grams of crack cocaine in Mr. Wawrykiewicz’s car. The second indictment involves almost 1.8 kilograms of cocaine, over 170 grams of heroin, some crack cocaine, and over 1.2 kilograms of marijuana – drugs worth in the neighbourhood of $200,000 at street level – seized from two locations. It should also be pointed out that Mr. Wawrykiewicz was on bail for the first offences when he allegedly committed the second set of offences. Society’s interest in adjudication on the merits is very high. The truth-seeking function of the trial process is obviously better served in this case by the admission of the evidence. I find that if the evidence were excluded, the price – an acquittal in a very serious case – would extract too great a toll: Grant, para. 82.

Conclusion Under s. 24(2):

[72] Balancing all the factors, I find that that it would not bring the administration of justice into disrepute to admit the evidence from all locations. There are, obviously, factors that militate towards admission and exclusion. Although there is no overarching factor to be considered, in my view the good faith of the police in the initial entry is important. The fact that the Homicide Squad obtained judicial authorization to examine the seized cell phones is also important. It is important that the societal interest in a trial on the merits is high, and that exclusion of real evidence would result in the collapse of the prosecution’s case. Against these factors must be balanced the high degree of privacy enjoyed in a hotel room. In my respectful view, the exclusion of the evidence would adversely affect the repute of the administration of justice far more than would admission.

DISPOSITION

[73] The application is dismissed.

R.F. Goldstein J.

Released: January 24, 2017