COURT FILE NO.: 62695/14
DATE: 20180809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADONAY ZEKARIAS
Defendant
Ms. Mary Humphrey and Ms. Meghan Scott, for the Crown
Ms. Alison Craig and Mr. Craig Zeeh, for the Defendant
Mr. Paul Cooper and Ms. Lisa Jorgensen, Amicus Curiae
HEARD: September 22, 25, 27, 28, October 2, 3, 5, 6, 10 and 16, 2017.
pre-trial ruling
application to exclude the SECURITY video surveillance RECORDINGS from THE APARTMENT BUILDING AT 101 humber blvd.
M. F. BROWN J.
Overview
[1] This is an application by the defence to exclude the security video surveillance recordings (“security videos”) from the defendant’s apartment building at 101 Humber Blvd. The defence submits that the security videos were seized by the police and reviewed by them in a manner that breached the defendant’s s. 8 Charter rights and should be excluded pursuant to s. 24(2) of the Charter.
[2] On October 16, 2017 I gave oral reasons indicating that the seizure and review of the security videos by the police did not constitute a s. 8 Charter violation. I also indicated that pursuant to s. 24(2) of the Charter and the principles set out in R. v. Grant, 2009 SCC 32, if there was a breach of s. 8, the admission into evidence of the security videos would not bring the administration of justice into disrepute. The security videos were therefore admissible at trial. I indicated that I would provide more detailed reasons for my decision at a later date. These are those reasons.
Factual Background
[3] During the course of the police investigation, the police retrieved the security videos from the Toronto Community Housing Corporation (“TCHC”) in regard to the apartment building of the defendant at 101 Humber Blvd. On May 28, 2013 the police reviewed the security videos they had obtained from TCHC.
[4] 101 Humber Blvd. is a high-rise apartment building with 246 units. At the time of these events the doors of the building were locked and residents entered with a key fob. There was also a buzzer system to allow people access to the apartment building. There were five security surveillance cameras on the main floors as well as one in each of the two lobby elevators. There were no cameras on the hallway floors. The locations of the cameras are set out on the map in Tab 12 of Exhibit 2 on the voir dire.
[5] The security camera in the lobby in front of the elevators was clearly observable in the police video filed as Exhibit 5 on the voir dire. There were also cameras in the elevators and other areas of the common areas that were observed by Det. Margetson as marked at Tab 12 of Exhibit 2. The only cameras Det. Margetson did not actually see himself were camera #1 at the north entrance and camera #7 by the convenience store.
[6] At Tab 11 of Exhibit 2 on the voir dire the policy in regard to closed circuit television surveillance (CCTV) in existence between the police and TCHC in May 2013 is set out. The CCTV policy applies to all surveillance systems, surveillance monitors, and camera recording devices used for security purposes that have been installed by TCHC on its properties such as 101 Humber Blvd. The CCTV policy provides that if the police need a CCTV security video surveillance recording to help them investigate a crime, TCHC will let them look at the security surveillance video recording and take it with them. That CCTV policy was created in 2011 and, as noted, was in existence in May 2013. Sometime after May 2013, a new policy provision was implemented requiring that before taking a security video surveillance recording, the police are required to fill out a release form. This new policy was not in effect in May 2013. TCHC has never required the police to obtain a search warrant before handing over security surveillance videos.
[7] In this case there is no issue that TCHC consented to the release to the police of the security videos at issue for 101 Humber Blvd.
Positions of the Parties
[8] The defence argues that applying the principles of R. v. White, 2015 ONCA 508, the defendant had a reasonable expectation of privacy in the security videos depicting the common areas of his apartment building. The defence submits the defendant rented an apartment in 101 Humber Blvd., a multi-unit apartment building. The apartment building utilized key fobs and a buzzer system to keep out strangers of the building. Although the defendant did not have absolute control over access to the building, the defence submits it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the building.
[9] The defence does not contest the fact that the police were entitled to be inside the apartment building itself pursuant to the implied license doctrine in furtherance of a legitimate police investigation on May 26, 2013. However, the defence submits that such a license does not eliminate the defendant’s reasonable expectation of privacy in the security videos depicting the common areas of the apartment building.
[10] The defence submits that after the decision in White, police need prior judicial authorization or the consent of the defendant himself before being allowed unbridled access to a building’s security cameras. No such consent was given by the defendant in this case.
[11] The defence submits that this case is analogous to situations such as in R. v. Spencer, 2014 SCC 43 and R. v. Orlandis-Habsburgo, 2017 ONCA 649 where the police sought to retrieve records from internet service providers (Spencer) or energy providers (Orlandis-Habsburgo). In those circumstances, the police were required to have prior judicial authorization before retrieving the requested information from third party record holders.
[12] The Crown submits that there was no breach of the defendant’s s. 8 rights relating to the search and seizure of the security videos as the defendant had no reasonable expectation of privacy in the common areas of his apartment building depicted in the security videos and in this case TCHC consented to the release to the police of the security videos at issue for 101 Humber Blvd. The Crown submits that the White case has not changed the law regarding whether there is a reasonable expectation of privacy in the common areas of apartment buildings. The Crown submits that White did nothing more than apply the existing law to a very bad set of facts from the Crown’s perspective.
General Principles
[13] The scope of the protection afforded by s. 8 of the Charter was determined by the decision of the Supreme Court of Canada in Hunter v. Southam Inc. (1984) 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97, at pp. 108-109. While s. 8 provides a broad general right to be secure from unreasonable search and seizure, it only protects a “reasonable expectation of privacy”. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from unreasonable search and seizure, or positively as an entitlement to a reasonable expectation of privacy, indicates that an assessment must be made as to whether in particular situations, the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. This assessment must be made in light of the totality of the circumstances of a particular case.
[14] When deciding whether state conduct amounts to a search or seizure, the focus is not so much on the nature of the state conduct as it is on the impact of the state conduct on the privacy interests of the s. 8 claimant. State conduct that, in the totality of the circumstances, infringes a claimant’s reasonable expectation of privacy will be treated as a search or seizure for the purposes of s. 8 of the Charter. See Orlandis-Hasburgo at para. 39. While conduct by agents of the state may, in practical terms, amount to a search and seizure, it will not be viewed as conduct subject to Charter scrutiny under s. 8 of the Charter unless a reasonable expectation of privacy has been violated. It is the defendant who bears the burden of demonstrating this expectation on a balance of probabilities. See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at para. 45.
[15] In Edwards at para. 45 Cory J. enumerated several considerations that are relevant to this inquiry:
(i) Presence of the accused at the time of the search;
(ii) Possession or control of the property or place searched;
(iii) Ownership of the property or place;
(iv) Historical use of the property or item;
(v) The ability to regulate access, including the right to admit or exclude others from the place;
(vi) The existence of a subjective expectation of privacy; and
(vii) The objective reasonableness of the expectation.
Analysis
[16] In my view, the White decision does not require the police to obtain a search warrant for the type of investigative technique employed by the police in this case. White must be considered in light of the particular facts of that case. In White, the Ontario Court of Appeal found that multiple police entries into the common areas of a condominium building resulting in observations of the contents of the defendant’s storage locker and the eavesdropping of conversations inside the unit, were so intrusive that if it could not be said that there was no reasonable expectation of privacy in the building’s hallways and common areas.
[17] The defendant in White resided in a small condominium building that had ten units on four floors. The police suspected that the defendant in that case was involved with dealing drugs and made three surreptitious entries into common areas of his condominium building. The first time, a police officer entered to determine the layout of the building, including points of entry and exit, and obtain information as to other people that might be of interest. He also examined the visible contents of the storage lockers associated with the units. The second time, the officer hid in a stairwell and from that location observed an associate of the defendant leaving the defendant’s unit carrying a box. On the third occasion, the officer again hid in a stairwell and observed the same associate of the defendant leave with a box.
[18] I agree with Justice Code’s comment in R. v. Brewster, 2016 ONSC 4133 (Brewster #1) at para. 110 that White did not change the law but simply applied the pre-existing law to a set of facts where the police acted in an egregious manner. As Justice Huscroft said in White at para. 44, the lesson from Edwards is that a reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.
[19] In Brewster #1, at paras. 110-114, Justice Code set out an extensive analysis relating to certain kinds of police observations made in the common areas of multi-unit buildings. Justice Code’s conclusion from that analysis was that the current law is that there is no reasonable expectation of privacy (or a very low privacy interest) in common areas like parking garages, lobbies, elevators, and hallways provided the police do not conduct intrusive surveillance of activities inside the apartment or condominium unit from their vantage point in the common areas. The current state of the law suggests that the warrant requirement is generally not engaged in the common areas of multi-unit buildings. See R. v. Brewster, 2016 ONSC 8038 (Brewster #2), at para. 62.
[20] I agree with Justice Code’s analysis in both Brewster #1 and Brewster #2. In both Brewster #1 and Brewster #2 the police were involved in a lengthy and complicated investigation into a large number of people alleged to be involved in drug trafficking. The police undertook a number of investigative techniques, one of which was the installation of a camera in the hallway outside the apartment door of one of the targets and elsewhere in the common areas of the building with the consent of the condominium board of that building.
[21] Justice Code in Brewster #2 found that in the circumstances of that case the police did not require a warrant in order to install a camera in the hallways of a multi-unit apartment building provided that they had a valid consent from property management. The defence in this case submits that the decisions of Justice Code in Brewster #1 and Brewster #2 are wrongly decided and should not be followed by me. I disagree. I am of the view that Justice Code has accurately stated the law as it currently exists in regard to the reasonable expectation of privacy in the common areas of multi-unit apartments in both decisions.
Reasonable Expectation of Privacy
[22] As set out above in Edwards, a reasonable expectation of privacy has both a subjective and objective element. An individual must first subjectively hold an expectation of privacy in a place or thing in order for s. 8 of the Charter to be engaged. At the same time, however, that expectation must be objectively reasonable.
[23] In this case there was no direct evidence of a subjective expectation of privacy by the defendant. However, at the subjective stage of the test for establishing a reasonable expectation of privacy, the question is whether the defendant had or is presumed to have had an expectation of privacy. This is a low hurdle to overcome and for the purposes of the inquiry I am prepared to presume that the defendant had such a subjective expectation of privacy. See R. v. Patrick, 2009 SCC 17 at para. 37.
[24] As noted earlier, the reasonableness of a person’s belief in an expectation of privacy of a particular case must be objectively reasonable. In the circumstances of this case I find there was no objective basis for the existence of a reasonable expectation of privacy on the part of the defendant regarding the security videos.
[25] On the totality of the circumstances before me, taking into account the factors set out in Edwards, I am satisfied that the defendant did not have a reasonable expectation of privacy in the security videos depicting the common areas of his apartment building. In particular, I rely on the following considerations:
a) the video recording of the defendant was non-intrusive. The video has no audio. It does not depict the hallways of the apartment building but is limited to the two elevators and common areas of the main floor. That being said, it does represent a permanent recording of ongoing, full time observations of the common areas of the apartment building;
b) the video recording never depicts the inside of the defendant’s apartment unit or that of any other tenants;
c) the apartment building was large with 246 units. As a result, large numbers of residents, their friends, family and guests, staff, tradespeople and miscellaneous visitors who had some reason to be on the premises all had access to the lobby and common areas on the first floor and the elevators. As in Edwards, one very important factor is that the defendant could not regulate access to these common areas;
d) the building management was conducting surveillance in the common areas of the building with security cameras which would not have gone unnoticed by the residents, inferring that the residents, including the defendant, had given up control over certain expectations of privacy in these common areas in order to achieve the goal of collective security (See Brewster #1 at para. 112);
e) the defendant had no ownership interest in the common areas of the building. He rented an apartment in the building.
[26] For all these reasons, on the totality of the circumstances, I am of the view that the defendant did not have a reasonable expectation of privacy in the security videos depicting the common areas of his apartment building that were seized by the police. Section 8 of the Charter was therefore not engaged and there was no violation of the defendant’s Charter rights regarding the police seizure and review of the security videos.
Warrantless Search and Seizure
[27] However, even if I am wrong and the defendant had some reasonable expectation of privacy in the security videos and the seizure and review of the security videos by the police was a search and seizure that engaged s. 8 of the Charter, I am still of the view that the facts of this case do not involve a situation where a search warrant or the consent of the defendant was required. In my view, the warrantless search or seizure in this case was reasonable within the meaning of s. 8 of the Charter. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at p. 278. Reasonableness in this context means that the particular search or seizure was authorized by law, the authorizing law itself was reasonable and the manner of execution was reasonable.
[28] An applicant alleging a breach of s. 8 of the Charter bears the initial onus of establishing that a search was warrantless. If that onus is met, the Crown must then demonstrate, on a balance of probabilities, that the search was nonetheless reasonable. See Orlandis-Habsburgo, at para. 38.
[29] In this case the defence argues that a search warrant or the consent of the defendant was required before the police could seize and review the security videos. Given that neither was obtained, the defence submits that the warrantless search and seizure by the police of the security videos was not authorized by law and was therefore unreasonable. I disagree with the defence position. In my view, if there was a warrantless search and seizure by the police of the security videos that engaged constitutional scrutiny, such a warrantless search and seizure was reasonable within the meaning of s. 8 of the Charter. In my view, the Crown has established that any warrantless search or seizure of the security videos by the police was authorized by law in that the security videos were given to the police on the consent of TCHC. As well, I am satisfied that the authorizing law itself was reasonable and the manner of execution was reasonable.
[30] In my view the facts of this case do not involve a situation where a search warrant or the consent of the defendant is required. As Justice Code noted at para. 56 of Brewster #2, the privacy interests of a unit holder in a multi-unit apartment building in regard to the common areas of the building, bear no resemblance to the cases involving searches of the interior contents of offices or homes (as in Hunter) or searches of the kinds of information stored in a computer (as in Spencer). I would add to that list the kinds of information required from energy consumption records generated on a continual and ongoing basis by activities within a person’s home (as in Orlandis-Habsburgo). In my view, the privacy interests of the unit holder in those cases are very different than the privacy interests of the defendant in this case which do not involve the recording of any activities within his actual apartment unit and are limited to the common areas of the apartment building itself. This is especially true in this case where, as noted previously, the building management was conducting surveillance in the common areas of the building with security cameras which would not have gone unnoticed by the defendant, inferring that the defendant had given up control over certain expectations of privacy in these common areas.
[31] In all these circumstances, I am satisfied that the police did not require a search warrant in order to seize the security videos of the common areas of the defendant’s apartment building at 101 Humber Blvd. or the consent of the defendant. In my view, the consent of TCHC was a reasonable basis for authorizing the search and seizure of the security videos of the common areas of the apartment building given the privacy interests at stake.
[32] In my view, in these circumstances, the impugned state conduct did not fall below the reasonableness standard demanded by s. 8 of the Charter. The Crown has demonstrated that the warrantless search and seizure of the security videos by the police was authorized by law, the authorizing law itself was reasonable and the manner of execution was reasonable. The warrantless search and seizure in this case was therefore reasonable within the meaning of s. 8 of the Charter.
Conclusion
[33] For all these reasons, there was no violation of s. 8 of the Charter when the police seized the security videos of the defendant’s apartment building and reviewed them. The evidence is admissible.
Should the Evidence Be Excluded Under s. 24(2)?
[34] If I am wrong and there was a violation of s. 8 of the Charter, I am nevertheless of the view that having regard to all the circumstances the admission of the security videos into evidence at the trial would not bring the administration of justice into dispute.
[35] In R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, at para. 72-82, the court set out three factors for consideration in determining whether the administration of justice would be brought into dispute a) the seriousness of the Charter-infringing state conduct, b) the impact of the breach on the defendant’s Charter-protected interests; and c) society’s interest in an adjudication of the case on the merits.
[36] Dealing with the first factor, the seriousness of the Charter-infringing state conduct, focuses on the actions of the police. In this case, the police were not engaged in any surreptitious video recording of the common areas of the apartment building. The security videos were recorded by TCHC. The police acted in good faith in seizing the security videos from building management. They did so with the consent of TCHC and on the basis of the agreement that existed between the parties. There was no hint of police coercion or oppression in obtaining the consent of the building management. In doing so the police were acting pursuant to the state of the law at the time in May 2013. Decisions such as Spencer, White and Orlandis-Habsburgo all came after May 2013. The conduct of the police did not represent conduct from which the court must disassociate itself. See Grant at para. 75. In my view, this Grant factor favours admission of the evidence.
[37] Dealing next with the second factor, the impact of the breach on the defendant’s Charter-protected interests. If the defendant did have a reasonable expectation of privacy in the common areas depicted in the security videos, it was a relatively low privacy interest. The security videos did not reveal any personal or intimate details of the defendant’s lifestyle. The videos were non-intrusive. They did not depict the inside of his or any other person’s apartment. That being said, those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single-family homes, albeit the nature and extent of the expectations of privacy that they might reasonably hold may differ. See White at para. 65. In the event there was a breach of s. 8 of the Charter, I do not regard the impact on the defendant’s Charter-protected interests as serious given the attenuated privacy interests of the defendant in this case. In my view this second Grant factor favours admission of the evidence.
[38] The third factor, society’s interests in an adjudication of the case on the merits, favours admission of the evidence. The evidence of the security videos was both real and reliable and very important, to the Crown’s circumstantial case. Society obviously has a strong interest in the adjudication of this case on its merits. The charges in this case of first degree murder and indignity to a dead human body are most serious.
[39] On balance, having considered these three factors together, I am satisfied that the admission of the seized security videos into evidence at this trial would not bring the administration of justice into dispute. The evidence is admissible.
M. F. BROWN J.
Released: August 9, 2018
COURT FILE NO.: 62695/14
DATE: 20180809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADONAY ZEKARIAS
Defendant
PRE-TRIAL ruling
application to exclude the SECURITY video surveillance RECORDINGS from THE APARTMENT BUILDING AT 101 humber blvd.
M. F. BROWN J.
Released: August 9, 2018