Court File and Parties

Court File No.: 71/17 Date: 2018-10-15 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Van Hai Hoang, Van Dung Le, Van Vuong Le, Thanh Van Nguyen, and Van Lo Nguyen

Counsel: Damien R. Frost, Daniel R. Libman and K. Ivory, for the Crown Jaime L. Stephenson for Van Hai Hoang Leo Salloum, for Van Dung Le Leora R. Shemesh, for Thanh Van Nguyen Laura M. Remigio, for Van Lo Nguyen

Heard: September 12-14, 17 & 18, 2018

Reasons for Judgment

Gray J.

[1] There are five accused, who are charged with a variety of drug-related offences, which are scheduled to be heard at trial before me and a jury commencing November 13, 2018.

[2] Four of the accused have brought a number of pre-trial motions, and the Crown has brought one.

[3] The Crown seeks a ruling that an utterance made by Van Lo Nguyen was made voluntarily, and that it should be admitted in evidence at trial. Counsel for Van Lo Nguyen brings a corresponding application under s.24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”), contending that Van Lo Nguyen’s rights under s.10 of the Charter were violated, and that I should rule, pursuant to s.24(2) of the Charter, that it would bring the administration of justice into disrepute to admit the utterance into evidence. It was agreed that the voir dire relating to the voluntariness and s.10 issues would be blended.

[4] Counsel for Thanh Van Nguyen brings an application contending that there were a number of violations of s.8 of the Charter. Counsel contends that a warrantless search of unit 506, 955 Warwick Court in Burlington contravened s.8 of the Charter, and that a subsequent search warrant issued on the same day for those premises should be quashed. It is contended that all evidence seized should not be admitted into evidence. Further, she contends that a covert video installed in the hallway outside that unit, prior to the obtaining of a general warrant authorizing the video, should be excluded from evidence. She also seeks to quash a tracking warrant, issued to track the whereabouts of a vehicle, should be quashed, and a search warrant issued with respect to 646 Hendershot Road and 11 Hazelton Drive in Hamilton should be quashed.

[5] Counsel for Van Hai Hoang seeks to quash search warrants relating to searches at 427 Aberdeen Avenue, Unit 102, and 134 Elgin Street, Hamilton, and seeks to exclude evidence seized during searches of those premises.

[6] Counsel for Van Dung Le seeks to quash two general warrants relating to Unit 102, 427 Aberdeen Avenue, Hamilton, and to exclude evidence obtained as a result of their issuance.

[7] The fifth accused, Van Vuong Le, did not participate in these pre-trial proceedings.

Background

[8] The charges arise from what has been described in the evidence as “Project Skyway”, in which it is broadly alleged that the accused were engaged in a large-scale drug trafficking enterprise.

[9] The investigation began on the morning of February 7, 2015 with a 911 call. The unidentified caller indicated the police, and perhaps an ambulance, would be required. The caller stated:

Maybe police maybe an ambulance uhh umm I was in a house and uhh we were partying all night and what not and uhh I don’t know what happened but these guys got into an argument and uhh I don’t know and then I just heard a whole bunch I don’t know I ran out of there, my buddy is still in there and I heard a whole bunch of gunshots and they started shooting off and a whole bunch of gun shots and my buddy I just took off and I don’t know what’s going on.

[10] The caller indicated that he was at 955 Warwick, Unit 506. He did not wish to give his name. When the operator asked whether there were firearms present, the caller stated “Ya, guns, drugs, you name it… (pause) I uhh I want to get off the phone right now”.

[11] In response to the 911 call, police officers attended at 955 Warwick Avenue, Burlington, Unit 506. They noticed that the door to the unit was ajar, and they went in. What happened thereafter is the subject of complaint.

[12] I will review the evidence given on these applications in a moment, but at this point it is sufficient to say that before the issuance of a search warrant, the officers secured the premises and made certain observations as to what was in the unit. At some point, before the issuance of a warrant, there was discovered, in the bottom of a drawer, five packages, weighing 6.6 kilograms, of cocaine.

[13] Officer Bryl of the Halton Regional Police swore an Information to Obtain (ITO) pursuant to s.11 of the Controlled Drugs and Substances Act, to search the premises at 955 Warwick Court, Unit 506, in Burlington. The ITO was sworn at 1:12 p.m. on February 7, 2015. The material facts alleged in the ITO, in their entirety, are as follows:

INVESTIGATION

1. On February 7th, 2015, at approximately 8:00 am, I received a telephone call from my supervisor Detective Paul FOLEY of the Halton Regional Police Service Drug Gun and Gang Unit and was requested to attend 30 Division of the Halton Regional Police Service to respond to a drug investigation in the City of Burlington.

2. At approximately 9:32 am, I arrived at the Burlington police station and spoke with Staff Sergeant WILKINSON and learned the following information: a) At approximately 6:00 am, police received a phone call from an unknown individual who wished to remain anonymous, regarding a gun shot heard in apartment unit #506 of 955 Warwick Court, in the City of Burlington. b) The anonymous caller stated that he was at a party at the above mentioned apartment and as he was leaving he heard what was believed to be a gun shot. The caller stated that he left the scene for his safety and attempted to call his friend inside the apartment however he could not reach him. The caller was adamant on not providing his name or phone number and did not wish to cooperate with police. c) Uniform patrol officers attended and entered the apartment under exigent circumstance to check on the wellbeing of any occupant(s). d) The officers cleared the apartment and did not locate any persons or firearms. e) During the search of the apartment officers located several large packages of what is believed to be cocaine inside the bedroom.

3. On February 7th, 2015, at approximately 9:36 am, I reviewed Officer GRIFFITHS’ notes and learned the following: a) At approximately 6:12 am, Officer GRIFFITHS was dispatched to 506-955 Warwick Court, in the City of Burlington regarding a possible gun shot. b) At approximately 6:27, Officer GRIFFITHS along with other uniform patrol officers attended Unit #506 and found the door of the apartment ajar. c) Due to the possibility that a shooting had taken place, officers entered the apartment under exigent circumstance in an attempt to locate a victim in need of assistance or a firearm to corroborate the information provided by the anonymous caller. d) Officers cleared the apartment and did not locate any injured persons or weapons. e) During the clearing of the apartment Officer GRIFFITHS located what appeared to be five large bundles of tightly packaged cocaine in the bottom drawer of the bedroom.

[Photograph]

Affiant’s Note: I believe that this is important because I know from my training and experience that large quantities of cocaine are imported to high level drug traffickers at the kilogram weight level. Based on the size and packaging shown in the above image, I believe that there is approximately 5 kilograms of cocaine located at 506-955 Warwick Court, Burlington. I believe that this is a matter of public safety as 5 kilograms of cocaine has an estimated street value of approximately $250,000 to $300,000 and is likely destined to be distributed to other drug dealers and then subsequently purchased by drug dealers. I believe that the distribution of 5 kilograms of cocaine onto Ontario streets has significant social implications including violence which often is associated with the illicit drug trade, organized crime involvement, and potential overdose and death to the end drug users. Based on this information I believe it is in the interest of public safety that police be granted judicial authorization to enter, search and seize all cocaine and packaging material located at this address.

4. On February 7th, 2015, I conduced a NICHE RMS query of 506-955 Warwick Court, in the City of Burlington. Through that query I learned the most recent police occurred in 2013 and it is unknown who the current resident of that unit is.

5. On February 7th, 2015, I spoke with Officer DANCH who is currently stationed at the front door of 506-955 Warwick Court, Burlington. Since his arrival at approximately 06:30 am, no parties have entered or attended unit #506 since his arrival.

6. On February 7th, 2015, I reviewed Officer NAGRA’s notes and learned the following: a) At approximately 7:18 am, Officer NAGRA spoke with; Jacqueline DAVIDSON, who is the superintendent of 955 Warwick Court, Burlington and learned the following information regarding unit #506: i) Unit #506 is currently leased by Tyler STOEHR, born February 23rd, 1984, with a registered address of 72 Manderley Drive, Scarborough. ii) STOEHR has been leasing the unit since July 15th, 2014. iii) Police have been unable to locate or speak with STOEHR since this incident and his exact involvement is unknown to police at this time.

7. On February 7th, 2015, I conducted a CPIC query on Tyler STOEHR with a date of birth of February 23rd, 1984 and learned that STOEHR is not on any outstanding charges or orders. STOEHR does have a conviction registered in 2011 for a non-drug related offence.

8. On February 7th, 2015, I made previous application for a search warrant pursuant to section 11 of the Controlled Drugs and Substances Act for 506-955 Warwick Court, Burlington. In a telephone conversation that I had with Justice SOLURSH, I was advised that I stated in paragraph 1 and 3 that the investigation began in November as opposed to February. This was done as a typing error and has since been corrected.

[14] The conclusion as stated in the ITO was as follows:

Based upon the following information:

• Officer GRIFFITHS’ notes indicating that police attended 506-955 Warwick Court in the City of Burlington and entered under exigent circumstances, and located approximately 5 kilograms of packaged cocaine in the drawer of unit #506.
• My knowledge and experience of drug traffickers utilizing one or more places to facilitate drug trafficking to distance themselves from their clients.
• I know from my training and experience that this amount of cocaine likely meant to be distributed to a large number of drug users in the community and I believe that the seizure of it will disrupt the cocaine supply into the region of Halton.
• I further believe that this amount of cocaine is concerning to police due to the inherent violence that often accompanies the illicit drug trade and is especially concerning in this instance considering the significant amount of cocaine and the monetary value associated to the substance.

[15] On consent, leave was granted to cross-examine Officer Bryl and Officer Shanly of the Halton Regional Police. Other oral evidence called was in relation to the voluntariness/section 8 issue regarding the utterance of Van Lo Nguyen.

[16] Officer Greg Bryl testified that on February 7, 2015 at 8:00 a.m., he received a call from his supervisor who told him about a 911 call from an apartment in Burlington. Officer Bryl decided to obtain a search warrant for 955 Warwick Court, Unit 506 in Burlington. He swore the ITO at 1:28 p.m.

[17] Officer Bryl testified that he understood that the premises were being secured by other officers. After the issuance of the telewarrant, he attended with other officers to search the premises and to seize relevant evidence. He attended at 1:49 p.m. He was part of the search team.

[18] Officer Bryl testified that as a result of the search, there was seized cocaine, acetone, and a number of drug-related items. He testified that members of the identification unit attended and took photographs and obtained fingerprints. He testified that the premises were exited at 4:02 p.m. The property that was seized was lodged at 20 Division.

[19] Officer Bryl testified that he instructed that a camera should be installed in the hallway adjacent to Unit 506. Technical officers attended to see to the installation. He testified that the building had its own camera system. The building consists of seventeen floors, with approximately ten units on each floor. There is underground parking. A key fob is required to enter the premises, including the underground parking.

[20] Officer Bryl testified that the camera was installed on February 7, 2015, in a manner to ensure, as much as possible, the privacy of the interior of the unit. Officer Bryl testified that he was able to obtain a general warrant authorizing the installation of the covert camera on February 9, 2015. He testified that he did not review any of the video obtained from the camera on February 7 or 8, 2015, until March 9, 2015.

[21] Officer Bryl testified that when he reviewed the camera footage, it was clear that only events occurring in the hallway were recorded, but nothing inside the unit. He testified that one could see people walking in the hallway adjacent to Unit 506, but could not see anything relating to other units on the floor.

[22] Officer Bryl testified that upon reviewing the footage, he was able to determine that on February 8, 2015, a man he subsequently identified as Van Lo Nguyen walked to Unit 506 from the elevator. He subsequently learned on February 23, 2015 that the fingerprints of Van Lo Nguyen were found somewhere in Unit 506.

[23] Officer Bryl testified that on February 13, 2015, he spoke to the superintendent of the building and discovered that the building has its own camera system. He also learned of the key fob system for entry to the building and the underground parking. He obtained a production order for historical footage of the building’s surveillance system.

[24] Officer Bryl testified that he learned from other officers that upon entry into the unit, some of what was ultimately seized pursuant to the search warrant was in plain view.

[25] Officer Bryl testified that he was involved in the investigation until April, 2015, at which point the investigation was put on hold until November, 2015. Another case took priority during that period. Officer Bryl testified that he was involved in obtaining the tracking warrant that was issued on March 3, 2016. In the ITO Sworn to Obtain Tracking Warrant, Officer Bryl deposed as to what had occurred on February 7, 2015 and subsequently. He deposed that officers had entered the apartment under exigent circumstances and located what appeared to be five large packages of cocaine in the bottom drawer of a dresser in the bedroom. He deposed that after the issuance of a warrant, a number of drug-related items were seized. He deposed that on February 7, 2015, with the permission of the superintendent of 955 Warwick Court, he made arrangements to have a covert camera installed in the hallway of 955 Warwick Court in the area of Unit 506.

[26] Officer Bryl deposed that he obtained a general warrant on February 9, 2015 to make observations by means of a covert camera. He deposed that he made certain observations, including that on February 8, 2015, Thanh Van Nguyen came from the area of the elevators and entered Unit 506, and was in the apartment for approximately one minutes and thirty seconds. He deposed that Thanh Van Nguyen and an unknown male re-entered the unit six minutes later, and exited with what Officer Bryl believed to be the search warrant that had been left in the unit. He deposed that he corresponded the times Thanh Van Nguyen entered the apartment with underground cameras from the building’s CCTV system, and observed a black Volkswagen Passsat bearing the Ontario licence plate number BPFA 737 that had been seen on previous days.

[27] Officer Bryl deposed that he was granted a production order for the key fob information for Warwick Court. Information such as licence plates and footage of unknown Asian male suspects previously entering the apartment building using a “contractor” key fob were obtained. Three vehicles frequently seen using the key fob were:

a) A white 2009 Acura MDX motor vehicle bearing the Ontario licence plate BTHD 115; b) A silver 2013 Volkswagen Passat motor vehicle bearing the Ontario licence plate BRZJ 568; c) A black 2012 Volkswagen Passat motor vehicle bearing the Ontario licence plate BPFA 737, registered to A. Thi Phan of 646 Hendershot Road, Hannon.

[28] While there were many other matters deposed to in the ITO, the foregoing are the matters that are relevant to the application to quash brought by counsel for Thanh Van Nguyen.

[29] On cross-examination, Officer Bryl testified that Unit 506 is a one-bedroom apartment, and is fairly small. Officer Bryl was unable to say how many officers had entered the apartment before the warrant was issued. They entered to secure the premises and locate any persons or firearms that might be there.

[30] Officer Bryl confirmed that the five bags of cocaine were discovered in the bottom of a drawer, and that the photograph taken of the drugs that appears in the ITO was taken before the warrant was issued.

[31] Officer Bryl testified that it was Office Griffiths who found the cocaine.

[32] Officer Bryl testified that he decided to install a camera in the hallway adjacent to Unit 506 on February 7, 2015 at 2:07 p.m. However, he acknowledged that the technicians were contacted at 11:45 a.m. that day to install a camera. Offcer Bryl did not see the camera being installed and does not know when it was installed.

[33] In the ITO that was sworn to obtain the general warrant authorizing the camera on February 9, 2015, Officer Bryl deposed that it was during the clearing of the apartment that Officer Griffiths located what appeared to five large bundles of cocaine in the bottom drawer of a dresser in the bedroom. He deposed as to the items that were seized after the issuance of the warrant. He deposed the following as to the installation of the covert camera:

On February 7th, 2015, with the permission of the superintendent of 955 Warwick Court, Burlington, the Halton Regional Police Service installed a covert camera in the hallway of the 5th floor of 955 Warwick Court, Burlington in the area of unit #506. This was done without receiving prior judicial authorization. This was done for the following reasons:

a) At the time that this investigation was unfolding on the 7th of February 2015, there was no Provincial Court Judges working in the Region of Halton. Dues to this investigation unfolding on the weekend, I was unable to seek proper authority required to install the covert camera at the above mentioned location.

b) It is my honest and true belief, that it was imperative to the investigation that the camera be installed as soon as possible on February 7th, 2015, in attempts to identify the parties who attend unit #506 subsequent to the police concluding their investigation. It is my belief that having waited until Monday February 9th, 2015, when a judge was available would have been detrimental to the investigation. At the time of the seizure, no parties attended or entered the above mentioned apartment unit. It is my belief that the parties responsible for the cocaine within unit #506 may be unaware of the police attending and seizing their supply. It my belief that installing the covert camera immediately will prove vital for the investigation in an attempt to identify the suspect attending unit #506 and will provide evidence for the offence listed in paragraph 1.

[34] It was put to Officer Bryl, on cross-examination, that some of the facts to which he deposed were false. Specifically, it was suggested to him that he could not have discerned the licence plate numbers of the vehicles he said had entered and left the parking lot. Officer Bryl testified that he was able to see the licence plate numbers on the footage he obtained from the surveillance system relating to the underground parking lot. He was confronted with a copy of the video footage for one of the vehicles, and he acknowledged the licence number could not be read from that footage. However, he testified that from still photographs obtained from the footage, one could make out the licence plate numbers. I made an order requiring the production of the ITO that was furnished on March 28, 2016 for the issuance of a general warrant. Included is a photograph of a black Volkswagen Passat bearing the Ontario licence plate BPFA 737. I can make out the licence plate number from that photograph.

[35] Officer Shanly was cross-examined, but his evidence added little. On cross-examination by counsel for Van Lo Nguyen, Officer Shanly acknowledged that Van Lo Nguyen was not seen entering Unit 506. He was only connected to the building at all through a photograph of a vehicle apparently driven by him.

[36] Three officers testified on the voluntariness/section 8 issues regarding the utterance of Van Lo Nguyen made on June 17, 2016, during the execution of a search warrant at 646 Hendershot Road. Those officers were Ron Wright, Chris Lee, and Jason Caron.

[37] Officer Wright testified that there was a plan for entry into the premises. There was a briefing prior to entry, at which it was decided that no statements would be taken from any of the occupants unless and until they had an opportunity to speak to lawyers.

[38] Officer Wright testified that he and a number of other officers went to the front door, which was unlocked. He and the other officers were wearing black uniforms, with the word “Police” in white front and back. He had what he called his “use of force” options, consisting of a baton, handcuffs, a firearm and pepper spray. He did not use his firearm.

[39] Officer Wright testified that he went to the upper level where there were five bedrooms and one bathroom. He searched one bedroom, which was unoccupied.

[40] Officer Wright testified that Officer Lee was in the next bedroom on the left. Officer Lee had removed Van Lo Nguyen from the bedroom when Officer Wright saw Mr. Nguyen outside the bedroom. He said “it’s all mine”. Officer Wright said nothing to Mr. Nguyen and had no interaction with him. He heard nothing from Officer Lee before Mr. Nguyen stated “it’s all mine.” Officer Lee asked no follow up questions.

[41] Officer Wright testified that he noticed a young person in the room, who he assumed was Mr. Nguyen’s son. He said he could smell cocaine. He testified that he saw a corner of a package of what he believed was cocaine in the door of the closet.

[42] Officer Wright testified that Mr. Nguyen’s demeanour appeared calm. He testified that Mr. Nguyen was taken downstairs. He testified that he told Officer Caron that he saw what he believed was cocaine, and told Officer Caron to arrest Mr. Nguyen for possession of cocaine for the purpose of trafficking.

[43] Officer Wright testified that ten people were found on the premises, of whom four were arrested.

[44] Officer Wright testified that it was intended to provide those arrested with the opportunity to consult counsel as soon as possible. At the premises, it was not possible to do so and ensure privacy. Messrs. Thanh Nguyen, Van Hai Hoang and Van Vuong Le were asked if it would be acceptable that they consult counsel after they were transported to the police station in Oakville. They answered in the affirmative.

[45] Upon cross-examination by counsel for Van Lo Nguyen, Office Wright testified that there were approximately 15 officers involved in the search. There were approximately ten people in the house, and there could have been more. The officers arrived at the home at 5:31 a.m. and the home was exited at 8:53 a.m.

[46] Officer Wright testified that upon entry to the premises he and the other officers shouted loudly “Police. Search Warrant.” There was considerable commotion, as searching took place throughout the home.

[47] Officer Wright testified that when Van Lo Nguyen came out of the room, that was when Officer Wright saw Officer Lee. He testified that when Officer Lee was outside the bedroom with Mr. Nguyen, Officer Lee had custody of him. He testified that he could only see the cocaine when Mr. Nguyen’s son was taken out of the room.

[48] Officer Wright testified that he did not formally arrest or caution Mr. Nguyen, and his right to consult counsel was not facilitated until he was at the police station.

[49] Officer Chris Lee testified that he participated in the search at 646 Hendershot on June 17, 2016. He testified that he was in the back of the police line. He was wearing a shirt that had the word “Police” on the front and back.

[50] Upon entry at approximately 5:30 a.m., he and the other officers shouted “Police. Search Warrant.” Officer Lee testified that he went upstairs in approximately four or five seconds. He said that on the landing on the top of the stairs, there was a door to a bedroom in front of him.

[51] Officer Lee testified that he heard some rustling in the closet in the bedroom. There was someone on the bed.

[52] Officer Lee testified that he was in the hall, and he ordered the person in the closet to step out. He testified that the person in the closet came out. Officer Lee ordered that person to come towards him. He noticed what appeared to be white powder down the right arm of that person.

[53] Officer Lee testified that the person said “It’s all mine”. Officer Lee said “What’s all yours?” Officer Lee testified that there was no response, and the person never said another word. He asked no further questions.

[54] Officer Lee testified that he assumed the powder on the person’s right arm was cocaine. He said the person looked a little frazzled but kept quiet.

[55] Also upstairs were Officers Wright, Leader and Bendix.

[56] Officer Lee testified that the person was taken downstairs and he, Officer Lee, searched the bedroom. He testified that he found a piece of cocaine on the floor of the closet towards the door. He also found a cellphone, a pillow case with a white bag and baggie, a Tupperware container holding identification of Van Lo Nguyen, a torn baggie of cocaine, and a digital scale. On cross-examination by counsel for Van Lo Nguyen, Officer Lee testified that he understands his duties on arrest. He testified that in this situation, he did not consider it his responsibility to advise a suspect of his right to counsel and to caution him.

[57] Officer Lee testified that during the encounter with Van Lo Nguyen, he did not have his gun withdrawn. He acknowledged that at the preliminary inquiry, he testified that he did have his gun drawn, but said that he had done some “re-thinking”. He acknowledged that there was no use of force report prepared.

[58] Officer Lee testified that he did not enter the bedroom to confront Mr. Van Lo Nguyen. He said he shouted commands at him. Mr. Nguyen looked like he had just wakened up. He did not ask him any questions.

[59] Officer Lee testified that he did not recall whether he had handcuffed Mr. Nguyen or someone else did. He testified that he assumed Officer Caron had read Mr. Nguyen his rights and cautioned him. He testified that he did not tell Mr. Nguyen what he was arrested for.

[60] Officer Caron testified that he was part of the entry team during the search on June 17, 2016 of 646 Hendershot Road. He was wearing a tactical uniform that had the word “Police” front and back.

[61] Officer Caron testified that entry was made at approximately 5:30 a.m. He went upstairs and dealt with one of the occupants. He did not deal with Van Lo Nguyen while he was upstairs.

[62] Officer Caron testified that Van Lo Nguyen was brought downstairs at approximately 5:40 a.m. He was placed at a group sitting in the living room. They were advised that they would be detained until the search was completed.

[63] Officer Caron testified that he completed the arrest form for Van Lo Nguyen. He testified that any consultation with counsel was not facilitated while at the house, but that it would be done later at the station.

[64] Upon cross-examination by counsel for Van Lo Nguyen, Officer Caron testified that the first time he saw Van Lo Nguyen was in the living room. He did not recall who brought Mr. Nguyen downstairs. He did not recall whether anyone told him that Mr. Nguyen had made statements while he was upstairs, or whether he was arrested prior to being in the living room.

[65] Officer Caron testified that he did not recall any white powder being seen on Van Lo Nguyen’s arm.

Submissions

[66] Ms. Shemesh, counsel for Thanh Van Nguyen, submits that even if the officers were entitled to enter the Warwick premises on February 7, 2015 because of exigent circumstances, they had no right to search the premises. Furthermore, she submits that the police did not have the right to install a covert camera in the hallway outside Unit 506 before a warrant was issued authorizing the camera.

[67] Ms. Shemesh submits that the cocaine seized prior to the issuance of a warrant was seized as a result of an unconstitutional search, and as such could not form the basis of the warrant that was subsequently issued. That being the case, there was simply no evidence, even on the face of the warrant, that would authorize its issuance, and it must be quashed.

[68] Ms. Shemesh submits, therefore, that there must be excluded from evidence anything seized during the warrantless search and anything seized as a result of the invalid warrant, and any reference to those matters in subsequent ITOs, that was referred to in support of them, must be excised.

[69] Ms. Shemesh submits that anything obtained from the covert camera on February 7 or 8, 2015 prior to the issuance of the warrant on February 9, 2015 was obtained unconstitutionally, and must be excluded from evidence. Furthermore, any reference to such material in subsequent ITOs must be excised.

[70] Ms. Shemesh submits that significant portions of the ITO relating to the tracking warrant issued on March 3, 2016 must be excised. Anything related to what was found during the warrantless search, and as a result of the invalid warrant, must be excised. Any reference to what was observed through use of the covert camera on February 8, 2015 must be excised. When that is done, there is simply nothing left in the ITO that would justify the issuance of the tracking warrant, and it must be quashed.

[71] Ms. Stephenson, counsel for Van Hai Hoang, submits that the search warrant relating to searches done at 427 Aberdeen Avenue, Unit 102, Hamilton and 134 Elgin Street, Hamilton, must be quashed. She submits that much of the evidence used to justify those warrants was obtained as a result of the warrantless search at Warwick, and the search conducted pursuant to the invalid warrant issued for Warwick. She submits that for this limited purpose, she has standing to challenge the searches and the warrant at Warwick.

[72] Ms. Stephenson notes that the same ITO used to justify the search at 646 Hendershot Road was used to justify the searches at Aberdeen and Elgin.

[73] Ms. Stephenson notes that the ITO relies heavily on the warrantless search and the search subsequent to the issuance of the warrant at Warwick.

[74] Paragraph 84 of the ITO, which relates specifically to Aberdeen, relies heavily on what was seized from and observed at Warwick. The balance of that paragraph contains information that followed from the unconstitutional searches that occurred at Warwick. If the information and material had not been unlawfully obtained at Warwick, none of the other observations referred to in paragraph 84 would or could have taken place. Exactly the same can be said with respect to the contents of paragraph 93 of the ITO, relating to the Elgin Street premises.

[75] For these reasons, Ms. Stephenson submits that anything seized from the Aberdeen and Elgin premises as they relate to her client must be excluded from evidence.

[76] Mr. Salloum, counsel for Van Dung Le, submits that the tracking warrant issued on March 3, 2016 must be quashed. He supports the submissions of Ms. Shemesh as they relate to the photographs of vehicles entering or exiting the parking lot on February 8, 2015. He submits that it cannot be concluded that the licences plates were visible from the video surveillance footage, and accordingly, the affiant is not credible. Furthermore, the evidence was obtained to support the images from the illegally-placed camera outside Unit 506 on February 7 and 8, 2015, and thus should be excluded.

[77] Mr. Salloum also supports the submissions of Ms. Stephenson to the effect that if the evidence of what was discovered at Warwick is excised, there is nothing left to support the issuance of a search warrant for Aberdeen. If any evidence relating to Warwick is excluded, none of the investigation relating to Aberdeen would have occurred.

[78] With respect to the general warrants issued on March 29, 2016 and May 26, 2016 with respect to Unit 102, 427 Aberdeen Avenue, Mr. Salloum submits that when any reference to what was discovered as a result of the unlawful searches and observations made at Warwick is excised, there is simply nothing left in the ITOs to justify the general warrants.

[79] Mr. Salloum advances a facial challenge to the general warrant issued on May 26, 2017.

[80] Mr. Salloum points out that on May 11, 2016, items were removed from the Aberdeen property in anticipation of a fire inspection. Between May 11, 2016 and May 26, 2016, the date of the application, there was no surveillance to support the proposition that drugs or drug paraphernalia had been brought back into the unit. The police did not take advantage of an authorization to enter the unit, because they believed nothing would be found. This is also set out in the ITO.

[81] The police did not believe that searching the apartment would generate evidence. Mr. Salloum submits that it is not lawful for a general warrant to be issued in circumstances where there are insufficient grounds for a search warrant. If there are not reasonable and probable grounds to justify a search warrant under s. 11 of the Controlled Drugs and Substances Act, the use of a general warrant is unreasonable and the warrant must be quashed.

[82] Ms. Remigio, counsel for Van Lo Nguyen, submits that the utterance made by Van Lo Nguyen on June 17, 2016 was not made voluntarily and should not be admitted in evidence. In the alternative, his rights under s.10 of the Charter were violated, and pursuant to s.24(2) of the Charter, the evidence should be excluded.

[83] Ms. Remigio also submits that the warrant to search 646 Hendershot Road should be quashed, because on its face the ITO sworn in support of the warrant does not contain sufficient evidence that evidence of an offence would be found there. She submits that the allegations in the ITO as they relate to her client are speculative at best, and cannot justify a conclusion that any evidence of an offence committed by her client would be found at Hendershot.

[84] With respect to the voluntariness issue, Ms. Remigio points out that the onus is on the Crown to prove voluntariness beyond a reasonable doubt.

[85] Ms. Remigio submits that the circumstances that confronted Van Lo Nguyen in the upstairs bedroom were oppressive. It was clear that he had just wakened up, and he was dozy and frazzled. He was confronted by a police officer who was in full police gear, and was loudly shouting commands. As far as Officer Wright was concerned, Officer Lee appeared to have Mr. Nguyen in custody.

[86] In these circumstances, Ms. Remigio submits that it cannot be concluded that the Crown has proven, beyond a reasonable doubt, that Mr. Van Lo Nguyen’s utterance was made voluntarily. Clearly an objective observer would conclude that Mr. Nguyen would reasonably believe that he was obliged to say something. His utterance should be excluded from evidence on that basis.

[87] In the alternative, the circumstances disclose a clear breach of s.10 of the Charter.

[88] Even if Mr. Nguyen was not arrested during the confrontation with Officer Lee, it is beyond dispute that he was detained. The rights under both s.10(a) and (b) arise upon detention. Mr. Nguyen was entitled to be advised of the reasons for his detention and of his right to retain and instruct counsel. He is to be advised of those rights promptly and without delay. In this case, Officer Lee knew someone was in the closet as soon as he was in the doorway of the bedroom. He instructed the person who was in the closet to come out. Once that person came out, Officer Lee instructed him to come forward. There was plenty of time for Officer Lee to advise Mr. Nguyen as to why he was detained, and that he had the right to retain and instruct counsel. He did not do so.

[89] It is noteworthy that Officer Lee did not use, as his excuse, the fact that he did not have enough time to advise Mr. Nguyen of his rights. Rather, he said he did not think it was his job to do so.

[90] In the final analysis, it is clear that Mr. Nguyen’s rights under s.10 of the Charter were violated. The only remaining question is whether the utterance should be excluded from evidence pursuant to s.24(2) of the Charter.

[91] Ms. Remigio submits that it would bring the administration of justice into disrepute if the evidence were admitted.

[92] Pursuant to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Court is to consider three factors: the seriousness of the breach; the impact of the breach on the Charter-protected interests of Mr. Nguyen; and the societal interest in an adjudication on the merits. Ms. Remigio submits that the breach was serious. Officer Lee apparently does not think it is his job to comply with s. 10 of the Charter. That is a very serious matter, and a dereliction of his duty.

[93] The interests protected by s.10 of the Charter are significant. They include the right to silence and the right to counsel. The right to silence is illusory if a suspect is not advised that he has that right. If a suspect is advised of his rights under s.10, he may well say nothing until he has had a chance to talk to a lawyer. In this case, the impact on Mr. Nguyen’s Charter-protected interests is significant.

[94] The third factor favours inclusion.

[95] On balance Ms. Remigio submits that it would bring the administration of justice into disrepute to admit the utterance.

[96] Mr. Frost, counsel for the Crown, points out that there are eight different matters that are subject to the applications alleging violations of s.8 of the Charter:

a) the warrantless entry on February 7, 2015; b) the installation of a covert video in the hallway at Warwick on February 7, 2015; c) the search warrant under s.11 of the Controlled Drugs and Substances Act with respect to the premises at Warwick Court, which was applied for on February 7, 2015, and granted on February 7, 2015; d) the warrant for the covert camera at Warwick, which was granted on February 9, 2015, and the installation of the camera on February 7, 2015, prior to the granting of the warrant, and observations made through the use of that camera; e) the tracking warrant issued on March 3, 2016; f) the general warrant issued on March 29, 2016 for Unit 102, 427 Aberdeen Avenue, Hamilton; g) the general warrant issued on May 26, 2016 for Unit 102, 427 Aberdeen Avenue, Hamilton; and h) the search warrant, or “takedown” warrant for, among other properties, 646 Hendershot Road, 427 Aberdeen Avenue, Unit 102, and 134 Elgin Street.

[97] Mr. Frost submits that only Thanh Van Nguyen has standing to challenge (a), (b), and (e) above. He submits that none of the other accused has the requisite standing to raises Charter issues with respect to those items.

[98] Mr. Frost submits that the warrantless entry on February 7, 2015 did not include a search. Mr. Frost submits that the police were entitled, indeed obliged, to enter the premises after receiving information about a 911 call that showed that there was gunfire at the premises and the possible use of drugs.

[99] Mr. Frost submits that in such circumstances the police are entitled to enter premises in order to ensure the safety of those who may be there, and to ensure that there is no firearm that is present that could cause a danger. He submits that the five bags of cocaine that were discovered in the premises were only discovered while the police were engaged in such a lawful exercise. He submits that many of the items that were ultimately the subject of the search warrant were in plain view. The items that were found were left as they were, and were only seized after the issuance of the warrant.

[100] Mr. Frost acknowledges that when the warrant was applied for, no description was given of the items that were in plain view, other than the five bags of cocaine that were found in a drawer in the bedroom. However, through amplification evidence, it is clear that evidence was present that would have justified the warrant.

[101] Mr. Frost submits that even if the amplification evidence is not sufficient to justify the warrant itself, it is clearly relevant to the issue under s.24(2) of the Charter. The police clearly had grounds to search the premises, and any deficiency in the ITO is by omission only. There was an inevitability of discovery of the drugs and other paraphernalia.

[102] As far as the covert video is concerned, Mr. Frost concedes that the installation of the video prior to the obtaining of a warrant was unlawful, but submits that the evidence acquired from viewing the activities that occurred before issuance of the warrant should be admitted pursuant to s.24(2). He submits that the administration of justice would not be brought into disrepute if the evidence were to be admitted. The police acted in good faith, and full disclosure of the installation of the camera was made when the warrant was applied for. Any intrusion on the Charter-protected interests of the accused was minimal, in that the interest in privacy in a hallway is very low. The police had clear grounds to apply for the warrant at the time the camera was installed, and it was only because of the inability to get to a Justice of the Peace in a timely way that the warrant could not be issued until February 9, 2015.

[103] Mr. Frost points out that it was not until March 9, 2015 that the video footage was looked at. At that time, it was discovered that Thanh Van Nguyen had entered the unit on February 8, 2015. The police then checked the parking lot video tape information, and asked the technical personnel to ascertain whether relevant information could be obtained for February 8, 2015. At that point, video evidence was obtained for February 8th and during periods before February 8th, and it was discovered that vehicles driven by suspects, including Thanh Van Nguyen, had entered the parking lot on February 8, 2015 and at other times. Mr. Frost points out that the approval of building management was secured to examine the surveillance footage from the parking lot, and permission was obtained to install the covert camera in the hallway.

[104] Mr. Frost submits that Officer Bryl has explained how he was able to ascertain the licence numbers of the relevant vehicles, and it is clear that he did not mislead the issuing justice. With respect to the tracking warrant issued on March 3, 2016, the test under s.492.1(1) of the Criminal Code is whether there are reasonable grounds to suspect that an offence has been or will be committed, and that the tracking of a vehicle will assist in the investigation. This is a low threshold.

[105] Mr. Frost points out that there were two vehicles connected to Thanh Van Nguyen, and he was observed on surveillance operating both vehicles. He had been observed on the covert camera entering the Warwick premises on February 8, 2015. His fingerprints were discovered in the Warwick premises after execution of the warrant. He and Van Lo Nguyen had been observed through surveillance in activities consistent with drug trafficking. Police surveillance had identified 427 Aberdeen as a suspected stash house which was visited by Thanh Van Nguyen on multiple occasions while driving in a manner suggestive of counter-surveillance techniques.

[106] Mr. Frost submits that no grounds have been advanced that would justify quashing the tracking warrant.

[107] With respect to the two general warrants, issued for Aberdeen Avenue, which authorized surreptitious entries and the placing of covert cameras, Mr. Frost submits that even if the material referred to in connection with Warwick is excised, and the material obtained from the tracking warrant is excised, there is still more than enough in the ITOs for the general warrants to justify the warrants being issued.

[108] Mr. Frost submits that Aberdeen had been identified as a potential stash house quite independently of any information obtained as a result of the Warwick search or covert camera.

[109] As far as the argument based on facial invalidity is concerned, Mr. Frost submits that the general warrants were not issued as a substitute for a regular search warrant. The mere fact that the stash house had been cleared out at some point does not mean that a general warrant cannot be used if it appears that the stash house is being used as such on an ongoing basis. Surveillance was called off for a few days after it appeared that bags full of drugs may have been taken from the unit but renewed activity was seen subsequently. On the second application for a general warrant, observations arising out of the first warrant were set out. In the circumstances, ample grounds were furnished for the issuance of the warrants.

[110] As far as the take down warrants are concerned, the ITO furnishes ample information to permit an inference that the various properties, including Hendershot, Hazelton, Aberdeen and Eglin were used by drug traffickers to distribute drugs. Vehicles were used that were registered to and used by Thanh Van Nguyen. Meetings of brief duration were held at the various properties. The driving of vehicles prior to and subsequent to those meetings was very erratic, and was consistent with efforts being made to avoid surveillance.

[111] While each of these activities, standing alone, might not raise the necessary inferences of illegality, when put together there is ample evidence to justify the necessary inferences to give rise to the issuance of the take down warrants.

[112] Mr. Libman made the submissions on behalf of the Crown with respect to the utterance of Van Lo Nguyen. He submits that the utterance was purely spontaneous, and was not made as a result of any threats, trickery, oppression, or a holding out of any hope or advantage. It was clearly the product of an operating mind.

[113] Mr. Libman submits that there was nothing the police could have done to prevent Mr. Nguyen from speaking, and it was not practical to advise him, before he opened his mouth, as to his rights under s.10 of the Charter.

[114] Mr. Libman submits that the utterance was clearly voluntary.

[115] Mr. Libman submits that as far as s.10 of the Charter is concerned, there was no violation in these circumstances. There was simply insufficient time for Officer Lee to advise Mr. Nguyen of his rights. Mr. Nguyen insisted on blurting out “It’s all mine” before Officer Lee would have had any opportunity, realistically, to advise him.

[116] In any event, Mr. Libman submits that to admit the evidence of the utterance into evidence would not bring the administration of justice into disrepute. There was no attempt by Officer Lee to elicit any information from Mr. Nguyen, rather, it was spontaneously offered. In the circumstances, if there was a breach, it is at the less serious end. Officer Lee clearly acted in good faith.

[117] As far as the impact of the breach on Mr. Nguyen’s Charter-protected interests is concerned, the impact is slight. He made no other statement to the police. He was ultimately given his full rights under s.10 of the Charter, and he made no other statement on which the Crown relies.

[118] As far as the societal interest in an adjudication on the merits is concerned, the evidence is real and would be of considerable assistance on the merits.

[119] On balance, Mr. Libman suggests that the court should exercise its discretion to admit the evidence.

[120] In reply, all counsel submit that if the evidence secured at Warwick is excised, it will have a “domino” effect on all remaining ITOs in which that evidence is mentioned.

Analysis

[121] I do not accept, as submitted by the Crown, that the standing issue is as narrow as the Crown would have it. If it is held that evidence acquired as a result of the warrantless entry at Warwick, the warrantless covert camera at Warwick, and the search warrant at Warwick are to be excised, then, to the extent that any of that material is referred to and relied on in subsequent ITOs, any party affected by subsequent ITOs is entitled to rely on the excision.

[122] The standing rule means that only Thanh Van Nguyen has the standing to attack the warrantless entry, the covert camera, and the search warrant on constitutional grounds. However, if reliance on the material is excised once Thanh Van Nguyen has exercised his right to challenge it, the standing rule does not preclude another party from relying on the excision.

[123] Looked at in another way, if Thanh Van Nguyen were to fail in his constitutional challenge, the standing rule would preclude any of the other accused from raising the same constitutional challenge that Thanh Van Nguyen raised and lost. However, if he succeeds, other parties can rely on his success.

Was the cocaine found at Warwick the product of an unconstitutional search?

[124] The first issue is whether the warrantless entry on February 7, 2016 at Warwick was justified, and whether the police had the authority to locate the five bags of cocaine that were found in the bottom of a drawer. In my view, the warrantless entry was justified, but the finding of the five bags of cocaine was done after a search, which was not authorized.

[125] The basic principle is summarized by the Supreme Court of Canada in R. v. Godoy, [1999] 1 S.C.R. 311, [1998] S.C.J. No.85, [1999] 1 S.C.R. 311. At para. 22, Lamer C.J.C. stated:

Thus in my view, the importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on a residence privacy interest. However, I emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to a 911 call ends there. They do not have further permission to search premises or otherwise intrude on a resident’s privacy or property. [Emphasis added]

[126] There can be little doubt, on the facts of this case, that the police were justified in entering the premises at Warwick after receiving information about the 911 call. The caller indicated that gun shots had been fired, and police presence and perhaps an ambulance were required. Drugs were mentioned.

[127] However, when the police entered the unit it quickly became apparent that no one was present. It was obviously open to the police to notice anything in plain view. On the other hand, as specified by Lamer C.J.C. in Godoy, the police had no authority to search the premises. Any search would have to await the issuance of a search warrant, which indeed was underway.

[128] The police found the five bags of cocaine at the bottom of a drawer in the bedroom. There is no mention in any material that the drugs were in plain view. A reasonable inference is that they were not in plain view.

[129] I conclude that the five bags of cocaine were found after a warrantless search. Accordingly, the drugs were found after a violation of s.8 of the Charter.

Should the cocaine be admitted in evidence?

[130] The admission of the cocaine in evidence depends on an analysis of the factors discussed in Grant, supra: the seriousness of the breach; the impact on the Charter-protected interests of the accused; and the societal interest in an adjudication on the merits.

[131] The breach was serious. A search without a warrant here was entirely unjustified. No one was in the unit, and safety was not an issue. The impact on Charter-protected interests was serious. Privacy in dwellings is important. The societal interest in an adjudication is important, but cannot outweigh the other two factors. On balance, to admit the evidence would bring the administration of justice into disrepute. The cocaine will not be admitted into evidence.

Must the Warwick warrant be quashed?

[132] The warrant was issued pursuant to s.11 of the Controlled Drugs and Substances Act. It was issued in order to obtain evidence relating to the offence of possession of cocaine for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act.

[133] The only mention of any drugs in the ITO is contained in paragraph 2(e) and 3(e). In paragraph 2(e) it is stated that several large packages of what is believed to be cocaine were located inside the bedroom during a “search” of the apartment.

[134] In paragraph 3(e) it is stated that during the “clearing” of the apartment, Officer Griffiths located what appeared to be five large bundles of tightly packaged cocaine in the bottom drawer of the bedroom. Included is a photograph of the cocaine. Under the heading “Conclusion” it is stated that police entered the apartment under exigent circumstances and located approximately five kilograms of packaged cocaine in the drawer of Unit 506.

[135] There is no other evidence in the ITO of any drugs or anything else related to drugs that may be found in the apartment. The references in the ITO to the finding of a number of bags of cocaine must be expunged.

[136] The test that must be applied in determining whether an ITO is sufficient to justify the issuance of a warrant was set out by Fish J. in R v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, as follows:

In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”. The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [citation omitted]

[137] In this case, once the reference to the unconstitutionally-obtained evidence is removed, there is simply nothing in the balance of the ITO that would justify the issuance of the warrant.

[138] There is no mention in the ITO of what material of a drug-related nature was in plain view in the unit. Neither is there any mention of the fact that the 911 caller mentioned that there may have been drugs in the unit. Some evidence was elicited before me to suggest that some drug-related paraphernalia was in plain view, and the text of the 911 call was introduced before me.

[139] As noted, Mr. Frost submitted that I could have regard to amplification evidence to justify issuance of the warrant. However, as stated by Justice Fish at paras. 42 and 43 of Morelli, the use of amplification evidence must be confined narrowly. At para. 42, he stated: “Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds”, and at para. 43 he stated that reviewing courts should resort to amplification evidence only to correct some minor, technical error in the drafting of affidavit material.

[140] In my view, amplification evidence is not to be used to supplement the evidence that should have been in the ITO in the first place, in order to shore up a defective ITO that is deficient on substantive grounds.

[141] In this case, the ITO, with the unconstitutionally obtained evidence expunged, did not justify the issuance of the warrant. It must be quashed.

Should the evidence seized pursuant to the warrant be admitted in evidence?

[142] Once again, the admission of the evidence depends on an analysis of the Grant factors.

[143] The breach was at the less serious end of the scale. The search was warrantless in a technical sense, in that the warrant that justified the search was quashed. However a warrant was applied for. It was deficient by omission only. Had reference been made to the fact that drugs were referred to in the 911 call, and that drug paraphernalia were in plain view, the warrant would have been justified. The impact on Charter-protected interests was serious. The societal interest in an adjudication on the merits is high. On balance, to admit the evidence would not bring the administration of justice into disrepute. The evidence seized as a result of the warrant, other than the five bags of cocaine, will be admitted.

Should any reference to the warrantless entry, the issuance of the warrant, and the seizure of evidence at Warwick be excised from other warrants?

[144] I agree with defence counsel that there are potentially different consequences that flow from a finding that evidence was unconstitutionally obtained. Such evidence may or may not be admissible depending on an analysis of the Grant factors. However, if evidence is obtained as a result of a warrantless search, or as a consequence of a quashed warrant, it cannot be relied on as the basis for subsequently applied-for warrants. Any reference to it in any subsequent ITOs must be excised from those ITOs. Such a consequence is not governed by s.24(2) of the Charter, which deals only with the admission of evidence at trial. The result of any excision must await an analysis of the relevant ITO to see if there is sufficient remaining material to justify the ITO.

Was the covert camera at Warwick installed unconstitutionally?

[145] I must next consider the warrantless placing of a camera in the hallway outside Unit 506 at the Warwick premises. As noted, Mr. Frost candidly concedes that this was unlawful.

[146] It is stated in the ITO sworn by Officer Bryl to obtain the general warrant authorizing the placement of the camera on February 9, 2015, that he had the camera installed on February 7, 2015 with the permission of the superintendent of 955 Warwick Court. He was not cross-examined on that statement.

[147] That being the case, this case is similar to R. v. Brewster, 2016 ONSC 8038, a decision of Code J. and R. v. Hassan, 2017 ONSC 233, a decision of Templeton J. In both cases, the judges discussed the decision of the Court of Appeal in R. v. White (2015), 2015 ONCA 508, 325 C.C.C. (3d) 171 (Ont. C.A.).

[148] In White, police had entered a condominium building surreptitiously on three occasions. The building was small, having approximately ten units. Once inside, a detective walked through the hallways, entered the storage area and viewed the contents of the accused’s storage locker. He also hid in the stairwell, where he observed the accused’s unit and listened to what was going on inside the unit.

[149] The police secured no permission from the condominium corporation to engage in the surreptitious activities, but a member of the board of directors was called on a voir dire, and that person stated that if the police had requested permission to enter the building it would have been granted.

[150] For the Court of Appeal, Huscroft J.A. held that there may be a reasonable expectation of privacy in the hallways of an apartment or condominium building. This would depend on a number of factors, including the size of the building. At para. 45, he stated “a resident of a large building with 200 units may have a lessor expectation of privacy than a resident of a small building with two apartments.” Ultimately, he held that in the circumstances the accused had a reasonable expectation of privacy. Permission had not been secured from building management in advance; the officer was able to make observations of activities in the unit, including listening to what was going on in the unit; and the judge who subsequently authorized the issuance of a warrant was not advised about the circumstances under which the police obtained the evidence in the ITO.

[151] In Brewster, the police secured the permission of building management to install a covert camera in a hallway in the building. At para. 43, Code J. stated:

The hallways and other common areas of multi-unit buildings, such as elevators and parking garages, undoubtedly enjoy a much lower expectation of privacy than the inside of a hotel room that was at issue in Wong. Indeed, the evidence in the case at bar makes it clear that these common areas are already subject to extensive video surveillance, by way of cameras installed by condominium management.

[152] At para. 45, he stated:

There is some doubt, in my view, as to whether installing surveillance cameras in the common areas of multi-unit buildings constitutes a “search”, given the significantly reduced expectation of privacy in these areas and the apparently ubiquitous presence of cameras in these areas.

[153] Ultimately, Code J. held that the placing of a surreptitious camera constitutes a search or seizure. At para. 47, he stated:

Given the absence of authority, and given the intrusiveness of surreptitious video recording, the better course at this initial stage of analysis is to hold that surreptitious video recording in common areas of multi-unit buildings constitutes a “search or seizure”. Accordingly, s.8 of the Charter is engaged.

[154] After noting that permission was obtained from property management and the condominium board to install the camera, Code J. then proceeded to consider whether s.8 of the Charter requires a warrant for this kind of search or seizure. Ultimately, he held that a warrant was not required. At para. 55, he stated “In my view, the facts of the present case do not involve a situation where the warrant requirement applies.” At para. 64, he stated that this was so provided that the police had a valid consent from property management.

[155] In Hassan, the police had entered a multi-unit building and made observations with the consent of the owner of the property, but did not have consent to install a covert camera. In fact, the police installed a covert camera and recorded persons and activity for four consecutive days. At para. 109, Templeton J. stated:

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

[156] At para. 119, she stated:

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

[157] Subsequently, Templeton J. noted that a warrant was obtained based on information the police learned about the exact number of the apartment used based on observations and information provided by the video recording. She excised the information gleaned from the video surveillance from the ITO. Notwithstanding the excision, she held that there was an adequate evidential basis for the issuing justice to assess and determine whether there was sufficient evidence referred to in the ITO. She held that there was. In the alternative, she held that admission of the evidence gathered by the police as a result of their surveillance and ultimate search of the apartment would not bring the administration of justice into disrepute.

[158] In the case before me, Officer Bryl obtained the approval of building management to install the covert camera outside Unit 506 at Warwick. He tried to ensure that there would be no visibility of the inside of the unit, and there is no evidence that any portion of the interior of the unit was, in fact, visible. He fully disclosed the installation of the camera in the ITO that was submitted to a justice on February 9, 2015.

[159] As did Code J. in Brewster, I hold that any expectation of privacy was at the low end, but in the circumstances it was nevertheless a search. I respectfully disagree with Code J., however, that a warrant was not required. In any event, I am bound by the concession made by the Crown in this case that the installation of the camera was unlawful.

Are the images obtained from the camera admissible in evidence?

[160] As was held by both Code J. and Templeton J. in Brewster and Hassan, the privacy interest of the accused in the hallway outside the unit was low. In the circumstances, the breach of the Charter was not overly serious. The police had commenced the paperwork for applying for a warrant, but it was not practical to obtain one for a couple of days. Full disclosure of the installation of the camera was made to the issuing justice when the warrant was granted on February 9, 2015. The images secured between February 7 and February 9, 2015 were not observed until quite a bit later.

[161] As noted, the impact on the Charter-protected interests of the accused was low. The societal interest in an adjudication is high.

[162] On balance, it would not bring the administration of justice into disrepute to admit the evidence. The images obtained from the covert camera in the hallway will be admitted.

Must reference to the images be excised from other warrants?

[163] For the reasons articulated already, any reference to the images obtained from the unconstitutionally-placed covert camera must be excised from any other ITOs that led to other warrants.

Must the tracking warrant dated March 3, 2016 be quashed?

[164] The ITO leading to the tracking warrant of March 3, 2016 contains extensive reference to the warrantless search of the unit at Warwick, the quashed warrant and the items seized pursuant to the that warrant at Warwick, the unconstitutionally-placed covert camera at Warwick, and the images obtained from that camera during the period February 7 to February 9, 2015. All of that must be excised from the ITO.

[165] In addition, there is reference to certain vehicles that entered and left the parking lot at Warwick, as a result of a production order that was obtained for video surveillance material that was maintained by building management.

[166] Counsel argued that references to that material should be excised for two reasons. First, the evidence given by Officer Bryl as to his ability to read the licence plate numbers was not credible. I do not accept that argument. I accept that he was able to discern the licence plate numbers from still pictures made from that video surveillance.

[167] Second, counsel argued that the discovery of that material came about as a result of the unconstitutionally-obtained evidence that was derived from an examination of the covert camera that was improperly placed, and as a result of the unlawfully obtained material that was seized from the Warwick premises. In substance, this is a “poisoned fruit” argument.

[168] I do not accept that argument. To accept it would mean, literally, that all evidence discovered subsequent to the search at Warwick would have to be disregarded. There is extensive evidence in all of the ITOs, including the ITO leading to the tracking warrant of March 3, 2016, that was obtained long after the search at Warwick was undertaken. I am not prepared to assume that discovery of the alleged drug trafficking ring would not have been discovered but for the search at Warwick. Any poisoned fruit argument can only go so far, and it cannot go as far as counsel would wish to take it here.

[169] In this case, even if the reference to the Warwick search and seizure and the information relating to the parking lot is excised from the ITO, there remains sufficient material in the ITO to justify the tracking warrant. I refer particularly to paragraphs 20-33 of the ITO.

Must the general warrants dated March 29, 2016 and May 26, 2016 relating to Unit 102, 427 Aberdeen Avenue, Hamilton, be quashed?

[170] Counsel advanced the same poisoned fruit argument here. It is contended that with any reference to the warrantless entry, search and seizure and the covert camera at Warwick excised, together with any evidence that was subsequently derived as a result of the unconstitutional activity at Warwick, there is nothing left in the ITOs that led to those general warrants that would justify them.

[171] The general warrants authorized the covert entry and search of Unit 102 at 427 Aberdeen Avenue in Hamilton, together with the ability to install covert television cameras in a hallway and the parking garage.

[172] In the ITOs leading to the issuance of both warrants, there is extensive reference to the warrantless entry, the search and seizure, and the evidence obtained from the covert camera at Warwick. All of that must be excised. There is also reference to the images obtained from the surveillance camera at the Warwick parking lot. Even if all of that is excised, in my view there is still plenty of evidence in the remainder of the ITOs that would justify the warrants. I specifically refer to paras. 35-63 of the ITO leading to the warrant of March 29, 2016, and paras. 36-82 (save for para. 36(b)) of the ITO leading to the warrant of May 26, 2016.

[173] To the extent that counsel argue that the individual pieces of evidence referred to in those paragraphs cannot justify a conclusion that any drug-related offences are being committed, I do not agree. In my view, all of the various pieces of evidence must be assessed cumulatively, and not individually. To take one example, it is argued that brief meetings at various locations cannot give rise to an inference that there is any drug-related offence being committed. That is true as far as it goes, but when those sorts of meetings are juxtaposed with other features, such as consistent erratic driving patterns, which might well give rise to an inference that counter-surveillance techniques are being used, the reasonable inference, at the end of the day, is that there are probable grounds to believe that drug-related offences are being engaged in.

[174] I do not accept Mr. Salloum’s submission regarding his facial challenge to the general warrant of May 26, 2016. It is true that the police thought the apartment had been vacated for some period because the suspects believed a fire inspection would be done. However, that does not mean that the clock stands still, and that the police are not entitled to hold the view, reasonably, that the premises are being used on an ongoing basis as a stash house. In my view, the evidence referred to in the ITO is reasonably capable of giving rise to a belief that the premises are being used for that purpose.

Must the search warrants dated June 17, 2016 for 646 Hendershot Road, 11 Hazelton Drive, 427 Aberdeen Avenue, Unit 102 and 134 Elgin Street, be quashed?

[175] During the hearing, these warrants were colloquially referred to as the “take down” warrants. They were executed at a number of locations on the same day. The same ITO was used for these and some additional warrants.

[176] Fundamentally, the arguments relating to the ITO, as it pertains to the four properties in issue, were similar to the other arguments that I have already reviewed. It was argued that any reference to the warrantless entry and the search at Warwick, and the covert camera at Warwick should be excised, as a result of which there is nothing remaining in the ITO to justify the warrants pertaining to the four premises.

[177] Once again, in my view, if the material relating to the warrantless entry, the search and seizure, and the covert camera at Warwick are excised from the ITO, there is ample material remaining in the ITO to justify the issuance of the warrants relating to the four properties. I would refer specifically to paragraphs 24-83 of the ITO. In my view, the summaries contained in paragraph 84, relating to Aberdeen, 85, relating to Hazelton, 90, relating to Hendershot, and 93, relating to Elgin, must be read together with the balance of the material in the ITO. When they are, in my view, there is ample material to justify the warrants.

Was the utterance of Van Lo Nguyen on June 17, 2015 made voluntarily?

[178] There can be little doubt, in my view, that the utterance of Van Lo Nguyen was made voluntarily.

[179] The leading case on voluntariness is R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. A summary of the relevant principles is found in the reasons of Iacobucci J. at para. 68:

While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible of it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

[180] In addition to the features mentioned in this paragraph, Iacobuuci J. also dealt with the concept of an “operating mind”. At para. 63, he stated that “[l]ike oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule.” All of the factors must be considered together.

[181] In this case, I am satisfied beyond a reasonable doubt that the statement was entirely spontaneous, and was not the product of intolerable conditions, inducements, promises, or threats, and that Mr. Nguyen had an operating mind when he made the utterance.

[182] Thus, subject to an analysis under s.10 of the Charter, Mr. Nguyen’s utterance was made voluntarily, and would be admissible in evidence.

Was the utterance of Van Lo Nguyen obtained in violation of s.10 of the Charter?

[183] I am persuaded that the utterance was obtained in violation of s.10 of the Charter.

[184] Section 10(a) and (b) of the Charter provide as follows:

10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right;

[185] It is clear that the rights provided for under s.10(a) and (b) arise on both arrest and detention.

[186] In this case, it is clear that Mr. Nguyen was detained the moment he was instructed by Officer Lee to leave the closet in which he was hidden, and to come towards him. It would have been apparent to Mr. Nguyen that he was not free to do what he wished once he was instructed by Officer Lee to leave the closet. Officer Lee was in the process of executing a search warrant, and he knew that a suspect was in the closet. He could see a corner of what appeared to be a package of cocaine in the corner of the closet.

[187] It would have been a simple matter for Officer Lee to at least advise the suspect that he was detained on account of a suspected drug offence. He did not do so.

[188] He could have so advised the suspect when he came out of the closet and started to come towards the officer. He did not do so.

[189] It may have been somewhat more difficult for Officer Lee to advise the suspect of his rights under s.10(b), but it would not have been impossible and indeed he made no attempt to do so.

[190] In my view, there was a clear violation of s.10 of the Charter.

Should the utterance be excluded from evidence on the ground that to admit it would bring the administration of justice into disrepute?

[191] The onus is on Van Lo Nguyen to persuade me that the evidence should be excluded pursuant to s.24(2) of the Charter. As noted earlier, the court must consider the three Grant factors: the seriousness of the breach; the impact on the Charter-protected interests of the accused; and the societal interest in an adjudication on the merits.

[192] I am guided in my analysis by the decisions of the Supreme Court of Canada in R. v. Brydges, [1990] 1 S.C.R. 190; and R. v. Bartle, [1994] 3 S.C.R. 173.

[193] In both cases, the Supreme Court held that the informational component of s.10(b) had been violated, and that utterances made by the accused should not be admitted in evidence pursuant to s.24(2) of the Charter.

[194] In my view, the Charter-infringing conduct of Officer Lee was serious. He apparently does not think it is part of his job to comply with s.10 of the Charter. In that, he is wrong. As part of his job, he will detain suspects. There is a systemic feature to this violation that makes it particularly serious.

[195] Mr. Nguyen has not shown that the impact of the violation on his rights was serious. The potential impact was on his right to silence. It was open to him to testify on the voir dire, but he did not. On this issue, he bears the onus of proof. It would have been open to him to testify that had he been advised of his rights under s.10 he would not have made the utterance, but he did not.

[196] The societal interest in an adjudication on the merits is obvious.

[197] On balance, Mr. Nguyen has not established that the administration of justice would be brought into disrepute if his utterance is admitted into evidence. It will be admitted.

Released: October 15, 2018 Gray J.