Court File and Parties

Citation: R. v. Roy and Biesinger, 2017 ONSC 6020 Court File No.: 17-17 Date: 2017-10-11 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Greg Roy -and- Justin Biesinger Defendants

Counsel: Michael Purcell, counsel for the Crown Ian Paul, counsel for Greg Roy William Webber, counsel for Justin Biesinger

Heard: May 23, May 26, July 26, 27, 28, 2017

Ruling on the pre-trial application Lacelle, J.

Introduction

[1] The Applicant and Mr. Biesinger are charged with various offences following the seizure of drugs and guns at the rural property of the Applicant, Mr. Roy. The accused are alleged to have been running a grow-op that produced “magic mushrooms” and marijuana.

[2] Mr. Roy has brought a pre-trial application regarding the search of his property and seeks the exclusion of the guns and drugs seized by police during their search. Mr. Biesinger has not sought standing nor participated in the application. A third person, Melissa Jeaurond, was also charged following this investigation. Following severance by the Crown those charges are proceeding via a separate indictment.

[3] The search of Mr. Roy’s property was conducted on June 10, 2015 after police had been conducting surveillance of the property for a few weeks. The surveillance had been initiated because police suspected drugs were being produced on the property. After observations were made of two incidents involving persons on the property discharging firearms (allegedly Mr. Roy on May 30, 2015 and Ms. Jeaurond on June 10, 2015), police obtained a warrant to search for weapons. A second warrant was obtained after entry onto the property yielded evidence of drug offences. It is the first warrant that is at the center of the issues in this case.

[4] Ultimately, the searches resulted in the seizure of firearms and drugs. Over 800 marijuana plants were seized as well as twenty-eight kilograms of psilocybin “mushrooms” and fifty-two firearms. Some of the firearms were operable, some not. A room for growing mushrooms was found in a Quonset hut on the property.

[5] The Applicant argues that the police transformed this case from one of suspicion to probability in their rush to search the property for the purposes of the drug investigation. He urges the court to find that the search warrant for the weapons offences was invalid, chiefly because of misrepresentations and omissions in the information to obtain (ITO), and because police trespassed on the neighbour’s property in obtaining their grounds for the search. He argues that this trespass was illegal conduct by the police that breached his rights under both ss. 7 and 8 of the Charter. He says that if the court finds a s. 7 breach he should be granted a stay of proceedings. In the event the court finds a s. 8 breach he argues that additional lesser breaches aggravate and contribute to a pattern of police disregard for his Charter rights. Implicit in the Applicant’s argument is that if the weapons warrant was improperly issued, or was founded on an abuse of process, the second warrant permitting the search for drugs cannot stand. Given the pattern and seriousness of these breaches and others he seeks exclusion of all the evidence seized on the Applicant’s property from the trial pursuant to s. 24(2) of the Charter.

[6] The Crown argues that the Applicant has not established even an air of misconduct or misrepresentation by police let alone the pattern he alleges. The Crown says the Applicant’s complaints relate to nothing more than a handful of technical errors that caused no real harm or prejudice to him. He urges the court to find that this was a Charter compliant investigation. Should the court find any breaches of the Applicant’s Charter rights, the Crown argues their relatively technical nature and the good faith of the police favour the admission of the evidence at trial.

[7] The issues before the court are as follows:

1. Did the police misrepresent or omit material information from the ITO such that upon review the warrant to search for weapons could not have issued;
2. Did the police violate the Applicant’s s. 8 Charter rights in obtaining the ITO because their grounds were obtained as a result of their trespass on the neighbouring property;
3. Did the trespass onto the neighbour’s property breach the Applicant’s s. 7 Charter rights because it amounted to an abuse of process;
4. Were the Applicant’s rights violated in other ways because: i) the police did not file the report to a justice on time; ii) he was not provided with an opportunity to speak with counsel without delay following his arrest; iii) police used binoculars to make observations of activity in his residence; iv) the police provided him with a defective copy of the search warrant; v) the property description in the search warrant gave a wider scope for the search than was appropriate; vi) the search for the weapons was a pretext to further the drug investigation.
5. If any of the Applicant’s Charter rights were breached, should the evidence be admitted or excluded under s. 24(2).

Issue #1: Did the police misrepresent or omit material information from the ITO such that upon review the warrant to search for weapons could not have issued?

The governing principles

The reviewing process

[8] Errors in the information presented to an authorizing justice are factors to be considered in deciding whether the authorization should be set aside. They do not lead to automatic vitiation of the authorization. Trial judges should examine the information in the affidavit independent of the error, misrepresentation or omission to determine whether there is sufficient reliable information to support the authorization: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.

[9] A judge conducting a review of the sufficiency of an ITO does not substitute his or her view for that of the justice who issued the warrant. The task of the reviewing judge is to consider whether the record before the issuing justice contains sufficient credible and reliable evidence to permit the issuance of the warrant once the ITO is “trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor or technical errors in drafting the ITO”: see R. v. Mahmood, 2011 ONCA 693 at para. 99; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 40-42; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 54 and 59.

[10] Information obtained unconstitutionally must be excised from the ITO and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Mahmood at para. 116, Araujo at para. 52. Prior unconstitutional conduct may also be relevant to the decision about the admissibility of evidence obtained by later Charter infringement where there is a sufficient nexus between the prior infringement and the later gathering of evidence: Mahmood at para. 117; R. v. Grant, [1993] S.C.R. 223 at p. 251.

[11] There will be no need to amplify the record if sufficient reliable material remains in the ITO even after excising the erroneous material. If erroneous information was included in the ITO despite good faith by police, then a court may amplify the record on review to correct this information: Araujo at para. 57. If a reviewing court amplifies the record, it must guard against circumventing a prior authorization requirement. As directed in Araujo at para. 59, amplification

cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material.

[12] Once the record for the review is determined, the reviewing judge must undertake a contextual analysis that examines whether the ITO contains sufficient reliable information (that might reasonably be believed) in the totality of the circumstances to support the issuance of the warrant: Araujo at para. 54.

The duty to be full, frank and fair

[13] An applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in an ITO: Araujo at para. 46; Morelli, at paras. 44, 55 and 58-60. The affiant must also not omit material facts. As indicated in Morelli at para. 58, the affiant must be 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” [emphasis in original].

[14] With respect to omissions of material facts, in “most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done”: R. v. Nguyen, 2011 ONCA 465 at para. 50. Further, as the court confirmed in Nguyen at para. 51, the obligation of the affiant is not to commit the error of material non-disclosure:

Materiality” is the something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter [citations omitted]. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time …

The court’s residual discretion

[15] While a failure to be full, frank and fair may undermine the issuance of the warrant on review following the process described above, a warrant may be quashed even where grounds remain for its issuance “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”: R. v. Paryniuk, 2017 ONCA 87 at para. 69; R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436 (C.A.) at para. 31. The threshold for setting aside a warrant in these circumstances will be high: Paryniuk at para. 62. The conduct necessary to engage this discretion must be “so subversive of the search warrant process as to, in effect, amount to an abuse of process”: R. v. Vivar, 2009 ONCA 433 at para. 2, Paryniuk at para. 61.

The principles applied

[16] The Applicant complains of a number of material misrepresentations in the ITO. His principal complaints relate to the information presented suggesting that he and Melissa Jeaurond possessed firearms and the fact that police did not disclose their trespass on the neighbour’s property in the warrant. While they were not addressed in submissions, additional complaints were made in the Applicant’s notice of application. I shall deal with each in turn.

The observations of the Applicant in possession of a firearm

[17] The Applicant says that the alleged observations of weapons were embellished by the affiant. In the ITO, the affiant places the firearm in the actual possession of the Applicant based on information from PC Verney. However, PC Verney testified that he did not speak to the affiant about his observations. The Applicant says that PC Verney also did not observe the gun in the Applicant’s hands which is totally at odds with what is said in the ITO. The Applicant says the affiant deliberately overstated the evidence in the ITO by saying the Applicant was in possession of the firearm when he had not received this information. He argues that the affiant did so to move the case beyond suspicion to one with probable grounds.

[18] There is a discrepancy in the evidence of D/Cst MacPherson and PC Verney about whether they spoke and the observations made by PC Verney. D/Cst MacPherson says that he was directed by Sgt. Canham to speak with each of PC Verney and PC Coverdale in preparing the ITO and that he did so. He recorded the times of his conversations with each officer in his notes. He was positive that he spoke with PC Verney over the phone. He says that PC Verney provided him with the facts contained at para. 5.3 of the ITO. That is, PC Verney told him that he observed the Applicant with the rifle in the presence of an unknown male. He said PC Verney told him that he heard three shots fired and that the second and third shots sounded like a .22 calibre rifle. PC Verney told him that he did not know who had taken the shots because the parties were out of sight at the time. He understood that PC Verney did not know who had the weapon at the time of the shots but maintained that PC Verney told him he had earlier observed the Applicant with the rifle.

[19] PC Verney testified that he did not speak with D/Cst MacPherson. He said he had no notation of speaking with D/Cst MacPherson and that he did not recall doing so. He further testified that he was not working on the day that D/Cst MacPherson says they spoke. When it was put to him that he would not have told D/Cst MacPherson that he saw Mr. Roy holding a rifle, he said “I don’t have it in my notes. I don’t recall”. He further testified that he made no distinction in the type of shots that were fired and that he could not say who was handling the gun and did not have any notations about that.

[20] The Crown argues that the court should find that the conversation described by D/Cst MacPherson did occur, although either officer may be mistaken as to various recollections. In any case, he argues that this aspect of the case is properly amplified on review with the evidence of PC Lamarche who was PC Verney’s partner at the time of the observations on May 30th. Since it is PC Lamarche’s evidence that he observed the Applicant with what appeared to be a .22 calibre rifle and he heard a gunshot, any gaps left by the contradictions in the evidence of D/Cst MacPherson and PC Verney are immaterial.

[21] As regards the discrepancy in the evidence between D/Cst MacPherson and PC Verney, I prefer the evidence of D/Cst MacPherson. I accept that he obtained the information contained in the ITO from PC Verney as he stated. D/Cst MacPherson made a notation of having spoken with PC Verney on June 10th at 15:10hrs, which was just over ten days from the time the surveillance was conducted. D/Cst MacPherson was tasked with preparing the ITO and had more reason to be careful about his note-taking regarding a conversation with another officer since the observations of that officer were to be included in the ITO. In contrast, PC Verney was one of the surveillance officers. The information he passed on to another officer could be viewed as less consequential given his role in the investigation. Further, PC Verney was not working the day D/Cst MacPherson says they spoke. It is plausible that PC Verney would not have made a note of their conversation on a day off. Having reviewed the evidence of PC Verney from the preliminary inquiry (unlike D/Cst MacPherson he did not give viva voce evidence on the voir dire) he appeared quite reliant on his notes for his evidence. In the absence of a note, it is likely that the officer has simply forgotten about a conversation that occurred almost two years before his testimony.

[22] With respect to the discrepancy in PC Verney’s testimony about his observations and those attributed to him in the ITO, I consider that the observations in the ITO are generally consistent with PC Verney’s notes about his observations on June 10th. Those notes are attached as an Exhibit to the Applicant’s Affidavit filed in support of his application and form part of the evidentiary record before me. The notes indicate that PC Verney heard three shots and observed males with a .22 or high-powered air rifle. PC Verney had previously indicated in his notes that the Applicant was one of the males he observed. No other information about what he observed is contained in his notes. By the time of the preliminary hearing, given the manner in which he testified, I am not sure that PC Verney had a strong independent recollection of what he saw that day beyond what was stated in his notes. It makes more sense that he had a stronger independent recollection of what he observed at the time he spoke with D/Cst MacPherson, some ten days after the observations were made.

[23] In any case, the observations in the ITO attributed to PC Verney are also generally consistent with the observations made by PC Verney’s partner during the surveillance, PC Lamarche, insofar as PC Lamarche states that the firearm was observed in the hands of the Applicant after a gun shot was heard. The combined observations of PC Verney and PC Lamarche are consistent with the information D/Cst MacPherson states he received from D/Sgt. Canham at paragraph 2.2 of the ITO. I accept that the affiant was given that information by D/Sgt. Canham and that there is no basis to excise the information received from D/Sgt. Canham from the ITO. While this information is double hearsay it may still form part of the grounds to issue the warrant.

[24] Further, I agree with the Crown that even if the information in the ITO from PC Verney was excised because D/Cst MacPherson made good faith errors in reproducing what he was told by PC Verney, this would be an appropriate case for amplification. The observations of PC Lamarche place the Applicant in possession of a .22 caliber rifle. PC Lamarche testified that his notes were provided to his superior officer for the affiant’s use in the preparation of the ITO. The observations of PC Lamarche, which were available at the time the ITO was drafted (see Morelli at para. 43), provide sufficient information to sustain the grounds to believe that the Applicant was in possession of a rifle.

The strength of the identification of Melissa Jeaurond

[25] The Applicant says that the affiant was unfair and embellished when he said that the woman observed with a firearm on June 10, 2015 “closely resembled” or “fit the description” of Ms. Jeaurond. He says that the information D/Cst MacPherson was given about her identification was not as strong as this language suggests. He highlights that there was no facial description of the woman that would permit the officer to reasonably use the phrase “closely resembled” in describing Ms. Jeaurond. He argues that the affiant used stronger language than the facts supported to make the case look stronger. The Crown argues that the difference between the phrases used in describing the identification of Ms. Jeaurond is immaterial because it is a matter of semantics and not substance.

[26] D/Cst MacPherson agreed in his evidence that Sgt. Canham had relayed to him that the woman observed firing the rifle looked like Ms. Jeaurond “from a distance”. He agreed that no officer had used the language that the woman “fit the description” of Ms. Jeaurond and that this was his terminology. He agreed that according to his notes, PC Coverdale told him the woman “resembled” Ms. Jeaurond, as opposed to the phrase “closely resembled” which he used in the ITO. D/Cst MacPherson said that his notes were not verbatim reproductions of what he was told by other officers and the language he used in the warrant reflected his understanding of the facts relayed to him. He denied that he overstated the strength of the identification of Ms. Jeaurond intentionally to enhance the grounds for the warrant and noted that there were other aspects of the information in the warrant that tied her to the property in any case.

[27] I accept D/Cst MacPherson’s evidence that he was not intending to mislead the issuing justice in his choice of language to described the identification of Ms. Jeaurond and that he was conveying the substance of the information he received, if not the exact wording. As for the significance of the language used and its potential to mislead, on balance, I agree with the Crown. I am not satisfied that the difference in the language used by other officers and that of the affiant is material given the totality of the circumstances. I do not see a distinction in the choice of language used to describe the identification of Ms. Jeaurond that would lead to a materially different assessment of the substance of the grounds given the standard for issuance of the warrant (i.e. reasonable probability), and other information that tied her to the Applicant and the property. In other words, even if the ITO contained only the language used by D/Cst MacPherson in his notes to capture what he was told by others about the identification of Ms. Jeaurond, on the totality of the information available in the ITO, I am satisfied that the warrant could have issued.

The failure to disclose the trespass on the neighbouring property and the reliance by police on s. 25.1 of the Criminal Code

[28] In addition to being an independent breach of the Applicant’s s. 8 rights, the Applicant argues that the failure to describe the trespass by police on his neighbour’s property to conduct surveillance was a material omission in the ITO. He argues that this was illegal conduct that would have been relevant and material to the issuing justice. He relies on R. v. J.J., [2010] O.J. No. 915 (S.C.J.) and argues that while s. 25.1 can operate as a defence to police it does not make their conduct pursuant to that provision legal. Because the search from the neighbour’s property was illegal conduct, he says it was relevant and material and should have been described by the affiant in the ITO. The fact that J.J. was decided before the ITO was drafted further compelled the inclusion of this information in the ITO, the Applicant says, because police should have been aware that this was the state of the law.

[29] It was the affiant’s evidence that he was not aware of the location of the surveillance officers or that they might have been on private property at the time they made their observations. He also testified that he was not aware that Sgt. Canham had relied on s. 25.1 of the Code in directing the surveillance of the Applicant’s property or he would have included it in the ITO. Sgt. Canham’s evidence during the voir dire was that he could not recall if he had discussed the reliance on s. 25.1 with the affiant although he agreed it would have been logical to pass this information on to him. While at the preliminary inquiry he testified that he believed that he had passed the information on to D/Cst MacPherson, during the voir dire, he maintained that he did not know what information was passed on.

[30] As a matter of common sense, an affiant may only include information in an ITO that is known to him or her at the time the ITO is drafted. On the totality of the evidence here, I am not satisfied that the affiant was aware of the locations from which the surveillance officers made their observations. I also find that he was not aware of Sgt. Canham’s reliance on s. 25.1. D/Cst MacPherson was a straightforward witness who was generally credible in his presentation. He was credible on this particular issue. I accept his evidence that he did not receive that information. I prefer his evidence on this issue to the equivocal testimony of Sgt. Canham. I am not prepared to find that D/Cst. MacPherson deliberately withheld information about the officers’ locations or the reliance on s. 25.1 in drafting the ITO. I have some difficulty seeing why he would be reluctant to do so had he been aware of the circumstances giving rise to the reliance on s. 25.1 since his superior officer had obtained legal and other advice suggesting this was a permissible tactic. If the topic had been raised between them it seems likely that this aspect of the reliance on s. 25.1 would also have been referenced. In these circumstances, I am also not persuaded that had the facts surrounding the police reliance on s. 25.1 been presented in the ITO (including that this tactic had been employed following the receipt of legal advice) that the warrant could not have issued.

The existence of a lifetime firearms prohibition

[31] In his notice of application the Applicant says that the police materially misrepresented whether he was bound by a lifetime firearms prohibition. This issue was not addressed further in submissions.

[32] The affiant acknowledged in both the ITO and his evidence before me that there was some confusion about the status of a firearms prohibition for the Applicant because another individual with the same name and a proximate date of birth was also found on CPIC. I accept his evidence that he set out the information obtained in relation to both individuals in order to fully and fairly present this information to the justice of the peace. Further, the affiant did not suggest in the ITO that the grounds for the warrant included the offence of breaching a weapons prohibition order. In the circumstances, and given the absence of submissions on this issue, I am unable to see how the conduct of the affiant undermined his duty to be full, frank and fair, or otherwise constituted a material misrepresentation.

The absence of grounds to believe an offence under s. 91 of the Code had been committed because police were aware there was another person on the property

[33] The Applicant alleges that there were insufficient grounds to believe the offence of unlicensed possession of a firearm had been committed by him or by Ms. Jeaurond since police were aware of at least one unknown person on the property. He argues that for all the police knew, this person could have had a firearms license which would have permitted him to supervise others in the use of certain weapons. The Applicant says the affiant failed to make this clear in the search warrant application and that this was a material omission.

[34] I do not agree. The fact that another person was observed on the property was made plain in the ITO. It was not hidden from the issuing justice. There were no facts known to police that suggested the use of the weapons observed was under anyone’s supervision as permitted under s. 91. To the extent that this was a possibility, all the material facts on the issue known to police were presented to the justice of the peace, who is presumed to know the law. The idea that the unknown individual might have had a firearms licence is speculative (see for instance R. v. Nguyen, 2011 ONCA 465 at para. 54). The possibility of a third party on scene whose activities were unknown was not a bar to the issuance of the warrant.

[35] I do not agree that any material fact was omitted or misrepresented. I further find that the observations of the use of the weapons outlined in the ITO were sufficient to meet the standard of a reasonable probability that an offence contrary to s. 91 of the Code had been committed.

Conclusion

[36] As I have explained, I am not satisfied that the ITO contained errors, omissions or misrepresentations that rise to the level of undermining the grounds for its issuance. I turn now to whether the observations made by police from the neighbour’s property should be excised from the ITO because the police made those observations while breaching the Applicant’s Charter rights.

Issue #2: Did the police violate the Applicant’s s. 8 Charter rights in obtaining the ITO because their grounds were obtained as a result of their trespass on the neighbouring property?

[37] The Applicant argues that he had a reasonable expectation of privacy in the neighbouring property and that there was a meaningful linkage between his property and his neighbour’s. He relies on R. v. Murphy and Thompson, O.C.J., Feb. 14, 2014 and R. v. Laurin, 1997 CanLII 775 (ON CA), [1997] O.J. No. 905 (C.A.) in support of his position. He says that when police made observations of his property from that of his neighbour, they breached his s. 8 rights because he had a reasonable expectation of privacy in relation to his neighbour’s property as well as his own.

[38] The Crown’s position is that the Applicant does not hold a reasonable expectation of privacy over his neighbour’s property. Consequently, he lacks standing to claim an infringement of his privacy rights. The Crown relies on a number of cases including R. v. Hok, 2005 BCCA 132, R. v. Bui, [2002] B.C.J. No. 3185, and R. v. Vereczki, [1998] B.C.J. No. 3188.

[39] For the purposes of this analysis, I accept the Applicant’s account of his agreement with his neighbour (Mr. Bouchard) about the use of the neighbour’s property by the Applicant and his wife. His evidence is that he had an agreement with the neighbour to make common use of wood which was harvested by them on the neighbour’s property. He was often on the neighbour’s property, mainly to cut and harvest wood in accordance with their agreement. He worked on the neighbour’s property harvesting wood for a number of hours on certain days. The Applicant’s wife also took stones from the neighbour’s property for use in gardening. By agreement with the neighbour, neither the Applicant nor his wife had to ask permission to be on the property, which was marked with no trespassing signs. In turn, the neighbour made use of the Applicant’s laneway to access portions of his property. The Applicant agreed that insofar as control of the neighbour’s property was concerned he could not grant permission for others to be on it.

[40] There is some evidence before me that some of the observations of the Applicant’s property were made from another parcel of land across the road (e.g. south of Rombough Rd.) which was owned by another third party (see the preliminary inquiry evidence of PC Verney at pp. 11-12 and the map entered as Exhibit 8). This appears to have been the location of the officers who made the observations of the Applicant on May 30th, 2017. It is difficult to see how the Applicant’s arguments about his expectation of privacy could extend to a parcel of land that he did not own or use, and in respect of which he had no agreement with the land’s owner. Given that this issue was not argued by the parties, and in the event I have misapprehended any aspect of this evidence, I will proceed on the basis that all the observations supporting the grounds for the firearms warrant were made from Mr. Bouchard’s parcel of land.

The legal principles

[41] As stated in R. v. Buhay, [2003] S.C.R. 631 at para. 18, “to establish an infringement of s. 8, the person raising the claim must first establish that he or she had a reasonable expectation of privacy in the thing searched or seized”.

[42] In R. v. Spencer, 2014 SCC 43, the Supreme Court directed at para. 18 that “the wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience”. They are: 1) the subject matter of the alleged search; 2) the claimant’s interest in the subject matter; 3) the claimant’s subjective expectation of privacy in the subject matter; and 4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. It held that “while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: see Spencer at para. 18. In analysing this issue, courts should consider the three broad types of privacy interests – territorial, personal, and informational – which may overlap, but may assist in identifying the nature of the privacy interest or interests at stake in particular situations.

[43] Determining whether a person has a reasonable expectation of privacy in respect of a search requires consideration of the totality of the circumstances. Within the framework set out in Spencer, courts may consider such factors as the accused’s possession or control of the property or place searched, ownership of the property or place, historical use of the item, and the ability to regulate access: Buhay at para. 18.

The principles applied

The subject matter of the search

[44] The Applicant has not framed his position within the framework used in Spencer. I agree with the Crown that it appears that the Applicant is asserting a territorial interest over his neighbour’s property, and “an overlapping territorial/informational interest over the information that can be heard, seen or smelled from beyond the boundaries of his property”. In this instance, the subject matter of the search is what could be seen and heard on the Applicant’s property from his neighbour’s.

The applicant’s interest in the subject matter (or the nature of the privacy interest potentially compromised by the state action)

[45] The Applicant was personally and directly exposed to the consequences of the police conduct in this case. In that sense, there is no doubt that he had an interest in the subject matter of the search.

[46] As for the nature of the privacy interest that was impacted by the conduct here, the discussion in Spencer about anonymity as an aspect of privacy is of some assistance. The court found that “anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance”. It further recognized that even in public contexts, people may be justifiably outraged by intensive scrutiny: see para. 43. It held that leaving the privacy of a dwelling house does not mean that a person abandons all privacy rights, even where that person may not be able to control who observes him or her in public: see para. 44. Therefore the recognition of anonymity as one conception of privacy is necessary.

[47] I take from this discussion that privacy interests are not extinguished even where others, such as our neighbours, are able to observe us outside of our residences. I accept that observing the applicant from his neighbour’s property engaged a personal privacy interest in what could be seen and heard on his property. To the extent that such observations engaged his informational privacy, however, that interest was engaged at a low level. The information obtained was limited to sights and sounds observable from a distance. The subject matter of the search yielded no information about the Applicant’s communications, core biographical data, activity taking place within his home, or other highly personal information.

The applicant’s subjective expectation of privacy in the subject matter

[48] The Applicant testified on the voir dire and provided evidence about the agreement he had to use his neighbour’s land. It is implicit in the Applicant’s position on this issue that he had an expectation of privacy in what could be seen and heard from his neighbour’s property, even though he did not further articulate in his evidence the nature of any expectation of privacy he held. For the purposes of this analysis, I assume that he had a subjective expectation of privacy.

Was the applicant’s subjective expectation of privacy reasonable in the totality of the circumstances?

[49] Considering the totality of the circumstances and the factors outlined in Buhay and Spencer, I am not satisfied that the Applicant has shown that he had a reasonable expectation of privacy in the subject matter of the search. As I have said, I accept that the Applicant used his neighbour’s property and had permission to be on it. But his occasional use of the neighbour’s property and the nature of that use are such that I find his interest in his neighbour’s property was very limited. He did not have any legal entitlements to the property or its use. Most critically, he had no ability to regulate access to it.

[50] The Applicant agreed in his evidence during the voir dire that he had no control over who might attend on his neighbour’s property. Consequently, he had no control over what such persons might do on his neighbour’s property. The observations such persons might make of sounds and sights on his property were not reasonably considered private. As observed by the court in Bui at para. 85, “could the occupants of any residence entertain the privacy expectation that sounds and smells emanating therefrom and detectable from neighbouring properties will not be detected by occupants of those properties who may appreciate their significance and may report them to police, or by police on those properties pursuing other investigations? I find that no occupant could reasonably entertain such an expectation of privacy”.

[51] I have considered the decisions in Laurin and Murphy and Thompson relied upon by the Applicant and find both distinguishable on their facts. In Laurin, the police used the land immediately adjacent to the window of the accused’s basement apartment to observe activity within his residence, thereby engaging various factors and high level privacy interests not at play here. In Murphy and Thompson, the trial judge found that the neighbouring property had a driveway that was used by the accused to access a portion of their own property. This gave rise to a reasonable expectation of privacy when considered in tandem with their own residential property. Here, the accused’s use of the neighbour’s property was not to access his own, nor can it be said that his residence and the land used for the surveillance are meaningfully linked.

[52] Since the Applicant has not satisfied me on the balance of probabilities that he has a reasonable expectation of privacy in what could be seen and heard from his neighbour’s property, he has no standing to make a s. 8 claim. Consequently, no breach of s. 8 is made out.

Issue #3: Did the trespass onto the neighbour’s property breach the Applicant’s s. 7 Charter rights because it amounted to an abuse of process?

The positions of the parties

[53] The Applicant says the police conduct in relying on s. 25.1 of the Criminal Code to justify their trespass onto the neighbouring property constitutes an abuse of process. He argues that since the powers in s. 25.1 are exceptional and there is not a lot of oversight of their use, the police have a heavy onus to “get it right and do it correctly”. He seeks a stay of proceedings on this basis. He relies on R. c. Brind’Amour, 2014 QCCA 33, a case where a stay was granted because police abused their powers under s. 25.1. Relying on R. v. Harrer, 1995 CanLII 70 (SCC), [1995] S.C.J. 81, he also argues that the conduct of police amounted to illegal activity that would render the trial of the accused unfair. He says the evidence should be excluded on this basis as well.

[54] The Crown concedes that s. 25.1 of the Code did not justify a trespass by the officers onto the neighbour’s property in the circumstances of this case. However, he argues that the police acted in good faith because they relied on s. 25.1 only after receiving legal advice from the Crown (not Mr. Purcell) supporting this tactic. The Crown says there is no abuse of process in these circumstances.

The relevant facts

[55] With respect to the facts that are relevant to this analysis, I accept that when the police entered onto the accused’s neighbour’s property for the purposes of conducting surveillance for the drug investigation, they did not have the permission of the owner of that property. They relied on s. 25.1 of the Criminal Code as legal authority for their conduct. I also accept the evidence of Sgt. Canham about how he came to rely on s. 25.1 of the Code. A summary of that evidence follows.

[56] Sgt. Canham was the officer in charge of the drug investigation. He testified that during the drug investigation he researched s. 25.1 and confirmed he was a designated officer under that provision. He had been trained in 2003 in how s. 25.1 functioned. He did not recall anything in that training about time limits on the use of s. 25.1.

[57] Sgt. Canham said there was a need to pursue surveillance from the neighbouring property because of its rural location. There was no other means for static surveillance because the only option was the roadway and surveillance from that location would compromise the investigation. The purpose of using s. 25.1 was to gather grounds for the drug investigation.

[58] Sgt. Canham testified that he discussed the situation with a superior officer and senior Crown counsel. When speaking with counsel, the officer did recall discussing the weighing process, but not time limits under s. 25.1. They also discussed his ability to delegate the power to other officers. Following those discussions, it was determined that relying on s. 25.1 by delegating his authority to the surveillance officers was the best option to take in the investigation. Accordingly, he directed the use of s. 25.1 and arranged for a surveillance team to be installed on the neighbour’s property.

[59] As I have indicated, the Crown concedes that the reliance on s. 25.1 was an error on the part of police because of lack of compliance with the requirements of that section. Accordingly that provision may not be relied upon to justify the police trespass onto the neighbour’s property.

The governing principles

The purpose of section 25.1

[60] It is helpful in considering this issue to have some context for how s. 25.1 is intended to function and how it has been considered in the jurisprudence.

[61] The history and purpose of s. 25.1 have been considered by at least one appellate court. In R. v. Lising, 2010 BCCA 390, the court described the enactment of the section as the government’s response to the decisions of the Ontario Court of Appeal and the Supreme Court of Canada in R. v. Campbell and Shirose (1997), 1997 CanLII 3462 (ON CA), 32 O.R. (3d) 181; [1991] 1 S.C.R. 565 [Shirose]. In that case police conduct in a drug investigation was found to amount to trafficking in narcotics and a new trial was ordered to determine whether a stay of proceedings should be granted for abuse of process.

[62] In considering the constitutionality of the provision, the Lising court held at para. 122 that the purpose of s. 25.1 was to permit the police, or persons under their direction and control, to commit criminal acts while involved in criminal investigation. However, the court also held that the law was not intended to put law enforcement officers or their agents above the law or give them blanket or unlimited immunity from the law. “The goal was to limit such exemptions to “reasonable and proportional acts” undertaken only for legitimate law enforcement purposes”. The court held that if the police or their agents operate outside the scheme, criminal sanctions can still be brought against them”: Lising at para 120.

[63] The impact of the provision in assessing the conduct of police in a criminal prosecution was considered in J.J. The court held in that case that while the conduct of a public officer may be justified under s. 25.1 in the context of a prosecution of the public officer, that conduct is still relevant and otherwise admissible in a criminal prosecution at the instance of an accused person. In other words, the conduct may still form the basis for a remedy for the defendant in a criminal trial. The court held that s. 25.1 “does not empower or authorize a public officer to commit crimes. Any illegal behaviour by a public officer may be used by a defendant to make full answer and defence”: see J.J. at para. 302.

Illegal conduct by police and abuse of process

[64] The issue of illegal conduct by police during an investigation and its potential to constitute an abuse of process has been considered by a number of courts. As the Court recognized in Lising at para. 78 (and in Shirose at para. 24):

It is a reality of criminal investigations that sometimes the police and their agents have to commit crimes to either maintain their ability to investigate or protect their true identity. This was recognized in R. v. Bond (1993), 1993 ABCA 50, 135 A.R. 329 at para. 17, where the Alberta Court of Appeal said:

Illegal conduct by the police during an investigation, while wholly relevant to the issue of abuse of the court’s processes, is not per se fatal to prosecutions which may follow: Mack; supra at 558. Frequently it will be, but situational police illegality happens. Police involve themselves in high speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence. Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary but, patently, illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotel room transoms and keyholes or waiting patiently at police headquarters to receive the confessions of penitent drug-traffickers.

[65] Balanced against this consideration is the quandary posed by endorsing police illegality in the name of law and order. As observed in R. v. Matthiessen (1999), 1999 ABCA 31, 133 C.C.C. (3d) 93 (Alta. C.A.) at para. 13 “were we to endorse police illegality in the name of law and order, we would soon succumb to the temptation of the “means justifying the ends”; illegality would be a legitimate tool in the eradication of illegality”: see Lising at para. 80. As the court held in Lising at para. 87,

[t]he police cannot do whatever they like under the guise of investigating serious crime, or even organized crime that is frequently beyond detection. In order to maintain a free, democratic and civilized society, there must be some balance between the “concept of fairness and justice” and the need to protect the public from crime.

The test for abuse of process

[66] As noted in Lising at para. 79, “[o]ccasions will arise where criminal acts by agents and officers are not exempted or justified. It is these acts that an accused may rely upon to argue an abuse of the court’s process.” The court held that the residual category of abuse of process, where it is alleged that state conduct undermines the integrity of the judicial system, applied to this scenario.

[67] In these circumstances, a stay may only be appropriate where two criteria are met: 1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and 2) no other remedy is reasonably capable of removing the prejudice: R. v. Regan, 2002 SCC 12 at para. 54. In cases “where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay”, a third criterion is considered, and a “traditional balancing of interests is done”. That is, the court will balance the interests that would be served by granting a stay of proceedings against the interest that society has in having a final decision on the merits: Regan at para. 57

[68] Even cases involving the residual category of abuse of process require a court to be convinced that a stay of proceedings is the only way to prevent the perpetuation of the abuse: Regan at para. 55 and Lising at para. 84. A stay is a prospective remedy and is not designed to redress past wrongs but to prevent their perpetuation: Regan at paras. 54-55. Regan held that it will only be in “exceptional” and “relatively very rare” cases where a stay will be warranted. The threshold for obtaining a stay remains as described in O’Connor, and may only be granted in the “clearest of cases”: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.) at para. 68.

[69] Finally, as was noted by the Supreme Court of Canada in Shirose at para. 24 (and in Lising at para 88), “the effect of police illegality on an application for a stay of proceedings depends very much on the facts of the particular case. This case by case approach is dictated by the requirement to balance factors which are specific to each fact situation”. Illegality itself will not necessarily amount to an abuse of process, and there is no automatic stay of proceedings in this context: Lising at para. 89.

The principles applied

[70] I am not persuaded that the police conduct in this case amounts to an abuse of process warranting a stay of proceedings. While the police conduct in trespassing on the neighbour’s property was not justified under s. 25.1 of the Code, as noted in Lising, “the analysis does not end at a finding of illegality”. The analysis must include consideration of the good faith effort by Sgt. Canham to obtain advice from a superior officer and legal advice about whether the provisions of the section could permit him to authorize a trespass by surveillance officers. On that issue, as I have said, I am satisfied that Sgt. Canham did seek advice and did not act in a manner contrary to the legal advice received by the Crown. I am satisfied that he acted in good faith, as did the officers who trespassed at his direction on the neighbour’s land and conducted the surveillance.

[71] The analysis must also consider that the conduct by police in this case did not amount to a criminal offence, let alone a criminal offence of any gravity. This is not a case like Shirose, Lising, or Brind’Amour, where the conduct at issue involved serious criminal activity. Further, unlike in Lising and Brind’Amour, all illegal activity in this case was conducted by police officers on a parcel of rural land. It created no risk of harm to the community, as was the case in J.J. At most, it infringed the interests of the Applicant’s neighbour. There is no evidence before me of any complaint by him, or other description of the impact of the police conduct upon him or others for my consideration.

[72] In these circumstances, I cannot conclude that the manner in which this investigation was conducted offends society’s sense of decency and fair play. I am not satisfied there was an abuse of process: see also Lising at para. 172.

[73] If I am wrong in that regard and there has been an abuse of process, I do not find that this is a case warranting a stay of proceedings. I am not satisfied that the first criterion of the Regan test has been met. That is, I am not satisfied that the “prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”. To the extent that police erred in relying on s. 25.1 in this case there is no evidence that this error is systematic or at risk of recurring. I am not satisfied that there is a need for a prospective remedy. Nor am I satisfied that this is one of the “clearest of cases” warranting a stay of proceedings: see also Lising at paras. 102-104.

[74] As I have said, the Applicant relies on Brind’Amour as supportive of his position. I have considered that case in arriving at my conclusion on this issue. In that case, police facilitated the purchase and sale of cocaine for several months by an undercover agent who was a convicted offender on parole, without supervision. The court held this flouted all of the rules laid down in section 25.1 of the Code. The court further held that police had misled and lied to Correctional Service Canada and the National Parole Board for several months. I agree with the Crown that Brind’Amour is wholly distinguishable from the case before the court. As the Crown put it in his factum, “[a]lthough Brind’Amour similarly involves s. 25.1, there is a stark contrast between facilitating activity that is objectively criminal and erroneously justifying police conduct that could be unlawful”.

[75] The Applicant also relies on Harrer to argue that the evidence should be excluded because it would render the trial unfair. In Harrer, the court addressed the impact of conduct by American immigration officials in determining the admissibility of a statement by the accused at trial. The court held at para. 21 that there may be circumstances where the admission of evidence would lead to an unfair trial. In such circumstances, the evidence might be excluded by a trial judge without relying on s. 24(2) or s. 24(1) in order to uphold the principles of s. 11(d) of the Charter and the guarantee of a fair trial.

[76] I am not satisfied that in the circumstances of this case the ratio in Harrer applies. The conduct at issue here is that of Canadian authorities who have a duty to comply with the Charter. To the extent a breach of his Charter rights is made out by the Applicant, I am not persuaded that the analysis of the admissibility of evidence should go beyond that required by ss. 7, 8 and 24(2) of the Charter. I am not satisfied that in these circumstances the admission of evidence that survived analysis under those rubrics would compromise the protections afforded the Applicant by s. 11(d) of the Charter.

Issue #4: Were the rights of the Applicant violated by the police in other ways?

[77] The Applicant argues his Charter rights were breached in other ways and that these cumulative breaches support the exclusion of the evidence obtained in this case. I turn now to a consideration of the additional breaches he alleges.

i) the report to a justice

[78] The Applicant argues that police breached his s. 8 rights because they did not file a report in respect of the search warrant to a justice within the time prescribed in s. 489.1 of the Criminal Code.

[79] There is no dispute that the report to a justice was filed on October 9, 2015, about four months after the search. This far exceeds the times prescribed in the Criminal Code. No extension of that deadline was sought by police.

[80] D/Cst MacPherson testified that at the time the search was executed he believed he had thirty to sixty days to file the report to a justice. He had no system in place to ensure its timely filing and he had a busy caseload. When he realized that he had not filed the reports for the two warrants executed in this case he took steps to complete and file them, ultimately filing both together within a day or two of realizing that he had missed the deadline. He acknowledges this was a mistake (both the late filing and the combined filing of the reports), and has since reviewed the Criminal Code provisions to ensure he does not make such an error again. He said his lapse in this case was an oversight. I accept his evidence on this issue.

[81] In R. v. Garcia-Machado, 2015 ONCA 569, the Court of Appeal considered the impact of an officer’s failure to report to a justice as soon as practicable and found that this violated the Applicant’s s. 8 Charter rights. In that case, the seizure involved the Applicant’s blood and medical records. The officer had filed the report approximately 15 weeks after the seizure because he was unaware of the requirements of the Criminal Code. The court held at para. 45 that an individual retains a residual “post-taking reasonable expectation of privacy in items lawfully seized” and that Charter protection continued while the state detained those items. It found that the failure to file the report constituted a breach of s. 8 but held that the evidence was nevertheless admissible under s. 24(2) of the Charter: see paras. 60-69.

[82] In the instant case, the Applicant enjoys the same post-taking reasonable expectation of privacy in the items seized. I find that the delay of almost four months in filing the report to a justice violated the Applicant’s rights under s. 8.

ii) the Applicant’s rights to counsel

[83] The Applicant argues that his rights to counsel were violated because he was not provided with an opportunity to speak with counsel without delay. His complaint is not that he should have been permitted to speak with counsel following his arrest when he was still on his own property. Rather, the complaint is that once the Applicant was taken to the detachment, police were obliged to facilitate his access to counsel more promptly than they did. No evidence was obtained following this alleged breach, such as a statement by the accused. The Applicant seeks a ruling on this issue because he alleges it is more evidence that the police violated his rights during the course of their investigation.

[84] The facts relating to this issue are not disputed. The evidence is that it took fifty-one minutes from the time the Applicant arrived at the detachment following his arrest before he was placed on the phone with duty counsel.

[85] I am not satisfied that the Applicant has demonstrated that the delay in speaking with counsel resulted in a breach of his s. 10(b) rights. The investigation resulted in the arrests of the Applicant and two others. All three individuals were returned to the detachment at about the same time. One officer, PC Lloyen, was responsible for booking the two male accused persons. I accept the evidence of PC Lloyen that between his arrival at the detachment and the time the Applicant was able to speak with counsel he was engaged in booking processes and other efforts to ensure each accused (including Ms. Jeaurond) was able to speak to counsel. I accept his evidence that he was engaged in the booking process and facilitating access to counsel for all three accused during the fifty-one minutes at issue. I accept that there are security reasons for ensuring that the booking process is followed diligently and that this ensures the safety of police and the accused person.

[86] In my view PC Lloyen did not unduly prioritize administrative matters over the Applicant’s Charter rights. There was nothing in the facts adduced during his evidence or that of the Applicant that suggests to me that this officer was indifferent or careless in ensuring that the Applicant was given an opportunity to exercise his right to counsel. It was clear as he testified that PC Lloyen understood his obligation to implement the right to counsel without delay, and I find he acted diligently in doing so. I am not satisfied that the Applicant’s s. 10(b) rights were breached.

iii) the use of binoculars by police

[87] The Applicant argues that the police conduct in using binoculars to “look into the residence of the applicant” amounted to an illegal search. He says they needed a search warrant before doing so.

[88] The parties agree that binoculars were used by the surveillance team in the drug investigation in the days leading up to the execution of the search warrant for the weapons offences. On one occasion, June 1st, 2015, the surveillance officers used binoculars to observe what could be seen from a main floor window at the front of the accused’s residence. At the time, the surveillance officers were located “some distance away” on one of the neighbouring properties. The maps entered during the voir dire show those properties to be rural parcels of land, one across the road from the Applicant’s property, and the other surrounding the side and rear boundaries of his property.

[89] PC Meloche testified that when observing the Applicant’s residence through the binoculars he was able to see when somebody would be walking by the window. He could see the shape and silhouette of the figures observed. He was able to see a white male and female. Due to the distance from which he made his observation, he could not identify either person. He could not determine what type of room they were in though he could see “somewhat inside the residence”. I accept this evidence as the basis for consideration of the Applicant’s argument. There is no dispute that police made no observations of any significance to the investigation in using the binoculars to view what was observable at the window of the residence.

The legal principles

[90] The Applicant relies on an American case, People v. Arno (1979) 90 Cal. App. 3d 505, to argue that the use of binoculars by police was an invasive technique and occasioned a breach of his s. 8 Charter rights when it was used to observe his residence. The court has not been provided with any Canadian authority supporting this proposition.

[91] The dated authority cited by the Applicant is neither persuasive nor binding. On the other hand, there is Canadian jurisprudence that comments upon the relative invasiveness of the use of binoculars as an investigative technique. In R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527, while the court was not expressly ruling on police conduct in using binoculars, the majority appeared to accept the proposition that “visual surveillance may properly be augmented by the use of binoculars” (see paras. 28 and 39). In a dissenting opinion, La Forest J. also commented on the use of this technology by police. He wrote at para. 80 “I have no doubt that the police, like other people, may observe our comings and goings when we place ourselves in open view, and I would also think that they may enhance their visual observations by the use of such instruments as binoculars. This type of observation does not pose grave or overriding threats to individual privacy”.

[92] The fact that binoculars had been used by police to make observations contained in an ITO was more recently referenced in R. v. McKenzie, 2016 ONSC 245 at para. 87. While the court was not considering the lawfulness of the technique, it is instructive that an officer’s observations of the accused on his apartment balcony, enhanced by the use of binoculars, was accepted as part of the grounds for the issuance of the ITO.

[93] In R. v. Kwiatkowski, 2010 BCCA 124, the Court of Appeal for British Columbia considered whether the accused had a reasonable expectation of privacy in what could be observed in greenhouses on his property with the assistance of a zoom camera lens during an aerial fly-over. In considering whether the accused had an objectively reasonable expectation of privacy, the court twice referenced the relative lack of intrusiveness of the use of binoculars at para. 40. In considering whether the subject matter was on public view, the court held that “anyone using binoculars would have seen what the police saw”. The court noted the zoom lens was technology that “did not permit police to determine what activities were taking place inside the greenhouses that were not otherwise observable given the translucent walls of the structures”. As to the question of whether the use of the police technique was itself objectively unreasonable, the court held that it was not. It held that the zoom lens was not more powerful or technologically advanced than binoculars, or capable of seeing “through” walls. Finally, as regards the question of whether the surveillance technology exposed any intimate details of the appellant’s lifestyle or part of his core biographical data, the court held

[a]lthough it is true that the surveillance permitted the police to see the activity occurring in the greenhouses, this was made possible by reason of the material from which the greenhouses were constructed and not because the surveillance technology was particularly advanced or intrusive. It did not reveal the kind of private activities that the courts are concerned to protect from observation in dwelling houses or other private structures. As in R. v. Hutchings (1996), 1996 CanLII 703 (BC CA), 111 C.C.C. (3d) 215 (B.C.C.A.) at para. 29, “[n]o ‘private’, ‘personal’ or ‘core biographical information’ was at risk or obtained”.

[94] This case is different than Kwiatkowski and Wise because it involves an observation of a dwelling house, which attracts heightened protection. Consequently, it is helpful to consider recent jurisprudence relating to the use of technology to make observations pertaining to a dwelling house or the activities taking place within a dwelling-house.

[95] In R. v. Gomboc, 2010 SCC 55, the issue was whether the use of a digital recording ammeter to measure electricity consumption engaged a reasonable expectation of privacy. Various principles summarized by the court are of assistance here. For instance:

1. Because privacy is a wide-ranging concept, the s. 8 jurisprudence recognizes a number of privacy interests – personal, territorial and informational. The territorial privacy interest in the home attracts heightened protection because of the intimate and private activities taking place there (para. 19);
2. Context is crucial, and a reasonable expectation of privacy is assessed in the totality of the circumstances (para. 23);
3. A subjective privacy interest can be presumed in respect of activities taking place in the home (para. 25);
4. “As is true of all constitutional rights, the Charter’s protection of territorial privacy in the home is not absolute. The Constitution does not cloak the home in an impenetrable veil of privacy. To expect such protection would not only be impractical; it would also be unreasonable” (para. 46);
5. “In discharging their duties, many legitimate avenues are open to police in seeking information about activities taking place in the home. As in the present case, they are free to view the home while in the public areas surrounding it. They may take up a position in a publicly accessible location and note what or who is entering and leaving the home. They may ask neighbours about what they have observed taking place around the home. None of this information, though capable to varying degrees of supporting inferences about what is taking place in the home, attracts Charter protection” [emphasis added](para. 47);
6. There may be overlapping informational and territorial privacy interests at issue when activities suspected of taking place in the home are under investigation. Where there was no direct search of the home itself, the informational privacy interest should be the focal point of the analysis. The informational privacy analysis must be alive to the heightened privacy interest that the law recognizes for our homes. However, while informational and territorial privacy interests may overlap, the fact that a home was involved is an important but not controlling factor. It must be looked at in context and in relation to the nature and quality of the information made accessible by the alleged search [emphasis added] (para. 49);
7. “The fact that the home was the focus of an otherwise non-invasive and unintrusive search should be subsidiary to what the investigative technique was capable of revealing about the home and what information was actually disclosed.” Where the nature and quality of the information about the home and activities taking place within it reveals nothing meaningful related to the Charter’s protection of biographical core information of an intimate and personal nature, “the fact that the search includes a territorial privacy aspect involving the home should not be allowed to inflate the actual impact of the search to the point where it bears disproportionately on the expectation of privacy analysis” [emphasis added] (para 50).

[96] It is with these principles in mind, and the analytical framework previously outlined from Spencer and Buhay, that I consider the Applicant’s position.

The principles applied

The subject matter of the alleged search

[97] I find that the subject matter of the search alleged in this instance is what could be seen through a window of the Applicant’s residence.

The applicant’s interest in the subject matter

[98] My previous analysis of this issue as it related to what could be observed from the neighbour’s property has some application here. Again in this instance, the Applicant was personally and directly exposed to the consequences of the police conduct in this case, and had an interest in the subject matter of the search.

[99] I accept that the subject matter of the search engaged a personal privacy interest. To the extent that the search engaged the Applicant’s informational privacy that interest was engaged at a moderate level. The information obtained was limited to sights observable from a distance. The subject matter of the search yielded no information about the Applicant’s communications, or core biographical data. What raises the privacy interest to a moderate level is the fact that it did provide some information about activity taking place within his home, where he had a heightened privacy interest.

The applicant’s subjective expectation of privacy in the subject matter

[100] As I have indicated, the Supreme Court has recognized that a subjective expectation of privacy can be presumed in respect of activities taking place in the home. I presume for the sake of this analysis that this includes activities observable through a window of the home.

[101] That presumption is appropriate in this case. Although the Applicant did not testify about his subjective expectation of privacy, given the rural character of his property and the unoccupied farmland that neighboured it, I presume that the Applicant would have felt that the activity observable from his window was private. I find that the Applicant had a subjective expectation of privacy regarding what could be seen through his window.

Was the subjective expectation of privacy objectively reasonable having regard to the totality of the circumstances?

[102] I am not satisfied that the subjective expectation of privacy held by the Applicant was objectively reasonable given the totality of the circumstances.

[103] As indicated in Gomboc, not every observation with respect to a dwelling house is constitutionally protected. There was nothing to prevent the police in this case, or anyone else, from making observations of the Applicant’s residence from the roadway. There was nothing preventing his neighbours from making visual observations of his property, and what could be seen of his dwelling house, from their properties, even though the rural characters of those properties made it less likely that they would do so. The point is that they could. There would be no issue if binoculars were used in these circumstances because “visual surveillance may properly be augmented by the use of binoculars”: Wise at paras. 28, 39 and 80. Indeed, the Applicant takes no issue with the use of binoculars by police during their surveillance to make other observations of activity on the property.

[104] Does the use of that same technology to observe what could be seen from the same vantage point through the Applicant’s window fundamentally change the analysis because the focus of the observation is on a dwelling-house? I do not believe that it does in this case. Reasonable people understand that windows permit activity in their proximity to be seen by others. For that reason, window coverings or other measures are used by anyone concerned with maintaining their privacy. For instance, a person standing in his residence at a window easily observed from the neighbour’s yard or the street might have a subjective expectation of privacy. However, knowing that either the neighbour or a member of the public could easily observe what took place at the window, that expectation of privacy would not be objectively reasonable. In these circumstances, activity that takes place in front of a residential window is in public view.

[105] As noted in Kwiatkowski with respect to a zoom camera lens, binoculars did not permit the police to see through walls, or otherwise obtain information about what was taking place in the home. Notwithstanding the rural nature of the Applicant’s property, what was observed through his window with the aid of binoculars from a neighbouring property was within public view.

[106] I consider as well that to the extent that there is an informational privacy interest here, the court must be mindful of “what the investigative technique was revealing about the home and what information was actually disclosed”: Gomboc at para. 46. No information of any significance was ultimately disclosed in this alleged search. The technique was only enhancing what was otherwise observable with the naked eye. It did not disclose any information striking at the Applicant’s biographical core, any intimate details of his life within the home, or the content of any private communication.

[107] The Applicant has not persuaded me that his expectation of privacy was objectively reasonable. In the absence of a reasonable expectation of privacy, the conduct of police did not amount to a search or breach his rights under s. 8 of the Charter.

iv) the omission of a description of the property to be searched in the copy of the warrant left for the Applicant

[108] The Applicant argues that the police provided him with a defective copy of the warrant at the time of the search because it did not contain a description of the property to be searched. He argues this resulted in a breach of his s. 8 Charter rights.

[109] The Applicant testified that he briefly reviewed the warrant upon his arrest and that a copy was left in his kitchen by police following the search. He reviewed this copy after being released on bail. It did not include the appendix listing the property to be searched. I accept this evidence. While the Applicant’s mother had access to the property while he was in custody, there is no evidence to suggest she interfered with the copy of the warrant and it would be speculative to conclude that she did.

[110] The Applicant relies on s. 29 of the Criminal Code and the case of R. v. Chen, 2016 BCCA 506 in support of his position. In that case, the court noted that s. 29 of the Code provides that it is the duty of anyone executing a warrant to have it with him “where it is feasible to do so” and to produce it when required. It also adverted to the Supreme Court’s ruling in R. v. Cornell, 2010 SCC 31 at para. 43 that the purpose of s. 29(1) is to permit an occupant of premises being searched “to know why the search is being carried out, to allow assessment of his or her legal position and to know as well that there is a colour of authority for the search, making forcible resistance improper”. The Chen court agreed with the trial judge that the warrant shown to the Applicant, which lacked the signature of the issuing justice, would lead to confusion about whether the search had been properly authorized. The court upheld the finding and that the accused’s s. 8 rights had been breached.

[111] Although the defect in Chen might give rise to more confusion about whether the warrant had been properly authorized, the reasoning in Chen still applies here. I accept that the copy of the warrant provided to the Applicant could lead to confusion about whether the search had been properly authorized since it contained no information at all about the premises or things to be searched. These aspects of the warrant are not immaterial to an assessment of whether there is proper authority for the search, “making forcible resistance improper”. I find that the failure to provide the Applicant with a complete copy of the warrant breached his s. 8 rights.

v) the wording of the property description in the warrant

[112] The Applicant argues that the search warrant gave a wider scope for the search than appropriate. In his Notice of Application and factum, he complains that the description of the property to be seized was too broad. Citing J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada, Ninth Edition (LexisNexis Canada Inc., 2015), he argues that the description of items to be seized should not be so overly broad that it opens the door to a speculative search. The Applicant has not further articulated how the description of the property to be seized was too broad, nor has he cited any additional authority for the court’s consideration of this issue. Given the lack of particulars in the Applicant’s claim, the Crown has not presented a responding argument.

[113] Appendix A of the ITO lists the “things to be searched for” as follows: rifles, ammunition, magazines to hold ammunition, materials and tools used to manufacture ammunition, documentary evidence of residency and ownership, and documentary evidence relating to firearms. With the possible exception of the materials and tools used to manufacture ammunition, I am not persuaded that the list of things to be searched for was overly broad. I am unable to conclude however that the inclusion of “materials and tools used to manufacture ammunition” broadened the scope of the search in any significant way given the other items on the list. The remaining items on the list were relevant to the offences being investigated and supported by the grounds for the search. Considered collectively, I am not satisfied that seeking authority to search for the items listed opened the door to a speculative search. I am not persuaded that the Applicant’s Charter interests were impacted by this aspect of the ITO.

vi) The pretext issue

[114] The Applicant argues that the ITO in relation to the firearms offences was a pretext to permit the advancement of the drug investigation. He alleges there were insufficient grounds to seek a warrant in relation to outbuildings in the firearms ITO and the request for a warrant for the outbuildings was a pretext to locate drugs. He says that the evidence of omissions and misrepresentations, the lack of grounds for a weapons warrant, and failing to follow legal requirements pursuant to s. 25.1 of the Code supports the conclusion that the warrant for weapons was a pretext to look for drugs.

[115] The Applicant bears the onus of establishing the police were pursuing the weapons offences as a pretext. He has not done so. The fact that the police were pursuing a drug investigation in relation to the Applicant’s activities on his property was declared by the affiant in the first paragraph of the overview of the facts in the ITO. It was not a secret. The fact of the drug investigation was not hidden from the issuing justice. Further, as I have already explained, I do not agree that there were material omissions and misrepresentations in the ITO or that the police had insufficient grounds to obtain a warrant for the firearms offences. I am not satisfied that including outbuildings in a search for weapons on a rural property was unreasonable. Finally, the error made by police in relying on s. 25.1 of the Code was made in good faith. I do not see how the erroneous reliance on that section lends greater credence to the notion that police were acting under a pretext.

[116] There was a legitimate view to be taken that the weapons offences engaged issues of public safety in the circumstances of this case. The police acted quickly after the second incident of a gun being discharged on the Applicant’s property and obtained the firearms warrant the same day. This arguably reflects the bona fides of the view expressed by Sgt. Canham in his evidence that the weapons offences impacted public safety and took precedence in the investigative hierarchy at the time. The Applicant has not satisfied me that the conduct of police in seeking a warrant for the firearms offences was inappropriate or unlawful.

Issue #5: Should the evidence be admitted or excluded under s. 24(2)?

[117] I have found two breaches of the Applicant’s rights under s. 8 that require further analysis pursuant to s. 24(2) of the Charter: 1) the breach arising from the police failure to file the report to a justice as required by the Criminal Code; and 2) the breach arising from the defective copy of the search warrant provided to the accused.

[118] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 sets out the modern approach to the analysis of the admissibility of evidence under s. 24(2) of the Charter. The re-iteration of the purpose of s. 24(2) at paras. 67-70 is worth repeating:

The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. …

The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[119] The court confirmed that a trial court should consider and balance three lines of inquiry in determining whether evidence obtained in breach of the Charter would bring the administration of justice into disrepute. In doing so, it must take a long-term, forward-looking and societal perspective: see Grant at para. 71. The lines of inquiry are: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in adjudication of the case on its merits.

[120] Following consideration of these lines of inquiry, a trial judge must “weigh the various indications”. Ultimately, the balancing inquiry is qualitative in nature and not to be subjected to a mathematical formula. That is, it is not simply a question of whether the majority of the relevant factors favour exclusion or inclusion in a particular case. The ultimate issue is whether, considering all the circumstances, on balance, the admission of the evidence would bring the administration of justice into disrepute: see Grant at paras. 85-86, and 140.

[121] To the extent that a general rule could be formulated, the Supreme Court provided the following guidance in Grant at para. 127: where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion notwithstanding that the evidence may be reliable.

The seriousness of the Charter-infringing state conduct

[122] Garcia-Machado identifies a number of factors which may be relevant in assessing the seriousness of the breach for the failure to make a timely report to a justice. In this case, I conclude (as did the court in Garcia-Machado at para. 67) that the breach was minor and technical. I accept that it was the product of an oversight on the part of the officer responsible for the report. The breach was the product of carelessness at most. While the officer’s failure to be more pro-active in knowing and meeting his obligations under the Criminal Code is of concern, other factors must also be weighed in considering the seriousness of the breach.

[123] Chief amongst these is the fact that the search had already been authorized by a warrant that I have found to be lawful: Garcia-Machado at para. 60. Further, had the officer made the report as soon as practicable, detention of the evidence would have been ordered. Or, had he applied for an extension of the timeline, it would have been granted: Garcia-Machado at para. 63. As in Garcia-Machado, I also consider that this was a case of delayed compliance, not of complete non-compliance: see para. 65. When the officer realized his error, he acted to correct it and comply with the law.

[124] With respect to the seriousness of the breach arising from the police failure to provide the Applicant with a complete copy of the warrant, I find that the breach resulted from inattention by police. It was not a deliberate or flagrant breach of his rights. While the defective copy of the warrant was left for the Applicant following the search, the evidence before me also establishes that at his request following his arrest, he was shown a copy of the face of the warrant. This is some evidence that police were aware of and made efforts to comply with their duties under s. 29(1) of the Code. As in Chen, I find that the conduct falls at the lower end of the range of Charter breaches: see Chen para. 39.

The impact of the breaches on the Charter-protected interests of the accused

[125] While the impact of the breaches on the Applicant’s Charter interests were not at the most serious end of the scale, I conclude that their combined impact was significant.

[126] With respect to the failure to make the timely report to a justice, I consider that the police had primarily seized drugs and firearms. The Applicant had no real or reasonable expectation that these items would be returned to him at any time. Further, the Applicant’s privacy interests in the additional items seized (e.g. compost and spores used to grow portabella mushrooms) was not high and pales in comparison to the blood and medical records at issue in Garcia-Machado. I do consider that the applicant was interested in the return of an antique firearm so that it might be transferred to another individual. While the delay in the report to a justice may have had an impact on this interest, this is a far different scenario than seeking the return of a smart phone or computer, or other property that contains core biographical data and might be of significant use to the applicant.

[127] The impact of the defective copy of the search warrant in combination with the delayed report to a justice is more serious. There is evidence before me which I accept that the Applicant made efforts to obtain a copy of the report to a justice. As the Applicant indicated in his evidence, he was entitled to know what property had been taken from him and what parts of his property had been searched. I accept the Applicant’s submission that the different treatment of the places to be searched in the weapons and drug warrants contributed to confusion on this issue, and increased the Applicant’s interest in being provided with this information. The lawful seizure of his property did not diminish his interest in knowing in a timely fashion how police had exercised their powers. I find that the combined impact of the breaches deprived him of that information. The absence of information about these issues can be presumed to have a significant impact on the Applicant’s Charter interests.

Society’s interest in adjudication of the case on its merits

[128] At this stage of the analysis, I consider that the evidence seized is real and reliable. The evidence is critical to the Crown’s case.

[129] As regards the seriousness of the charges and society’s interests in adjudication of the case on its merits, this factor must not overwhelm other factors relevant to the s. 24(2) analysis. The court must be vigilant in maintaining respect for Charter rights and ensuring that Charter protections apply to everyone, including persons charged with serious criminal offences: R. v. McGuffie, 2016 ONCA 365 at para. 74 and R. v. Paterson 1 2017 SCC 15, [2017] S.C.J. no 15 at para 55. I am mindful of the modern approach to the consideration of this issue, as set out in para. 73 of McGuffie:

[t]he seriousness of the offences charged “does not speak for or against exclusion of the evidence, but rather can “cut both ways”: Grant, at para. 84. On the one hand, if the evidence at stake is reliable and important to the Crown’s case, the seriousness of the charge can be said to enhance society’s interests in adjudication on the merits. On the other hand, society’s concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious: see Grant, at para. 84; R. v. Dhillon, [2010] O.J. No. 3749, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 60.

[130] Serious offences are alleged in this case, including the production of controlled drugs and substances and the unauthorized possession of a prohibited firearm (a Luger 9mm) with readily accessible ammunition. While the police made errors in this investigation, I would not characterize any of them, either individually or collectively, as rising to the level of “misconduct” that should not appear to be condoned by the courts. Given the totality of the evidence, I am satisfied that the serious nature of the charges enhances society’s interests in the adjudication of the case on its merits.

Conclusion

[131] Balancing all three Grant factors, and giving consideration to the prospective interests of the repute of the justice system, I conclude that the analysis favours the admission of the evidence at trial: see Chen at paras. 38-44 and Garcia-Machado at paras. 60-69.

[132] Given this conclusion, the Application is dismissed.

Madam Justice Laurie Lacelle Released: October 11th, 2017