Court File and Parties

Court File No.: 8/18 Date: 2019/07/05

Superior Court of Justice - Ontario

Re: Her Majesty the Queen (Respondent) - and - Omar P. James (Applicant)

Before: Justice A. K. Mitchell

Counsel: S. O’Neill, for the applicant L. Tripp, for the Federal Crown

Heard: February 13 and 14, 2019

Ruling with Respect to s. 8 and s. 24(2) Charter Application

Overview

[1] Omar James is charged with two counts of possessing a Schedule I drug for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“the CDSA”).

[2] On May 6, 2016, a search warrant (the “Warrant”) for the residence of the applicant located at Unit 509-100 Ridout Street South in London, Ontario (the “residence”) and a blue, 4-door 2002 BMW motor vehicle bearing license plate BMZR166 (the “BMW vehicle”) was issued pursuant to s. 11 of the CDSA. The Warrant was issued based on an Information to Obtain (“ITO”) sworn by Detective Constable Craig Brown (“Detective Brown”) a member of the London Police Service Guns and Drugs Section (“LPS”).

[3] On May 6, 2016, the Warrant was executed and a number of items were seized from the residence, including:

(a) 232 grams of cocaine; (b) 115 x 5 mg pills of oxycodone; (c) 40 g of marijuana; (d) A Diablo digital scale; and (e) $10,245 Canadian currency and $35 US currency.

[4] During the search of the applicant incident to his arrest, police seized 1 gram of cocaine and $625 in Canadian currency.

[5] Mr. James claims the ITO contained insufficient reasonable grounds to support the issuance of the Warrant and furthermore that material information contained in the ITO was obtained without legal authorization and in breach of s. 8 of the Charter. Mr. James brings this application alleging a violation of his s. 8 Charter right to be free from unreasonable search or seizure and seeks an order to have all evidence obtained by the LPS during its execution of the Warrant excluded pursuant to s. 24(2) of the Charter.

[6] As a preliminary matter, it was not disputed and I find that the applicant on May 6, 2016 was the sole occupant and resident of 509-100 Ridout Street South in London, Ontario and was the licensed owner of the BMW vehicle. The applicant, therefore, has standing to bring this application.

Background and Factual Matrix

[7] Detective Brown has been employed by the LPS since 2000 and has been a member of the Guns and Drugs Section in the Criminal Investigation Division since 2012. He is responsible for investigating offences relating to firearms and controlled drugs and substances.

[8] Detective Brown swore the ITO wherein he described the grounds for believing that cocaine would be found in the residence and in the BMW vehicle. The ITO contained information provided by two confidential sources. The first source was an unproven confidential human source with a criminal record (“Source #1”). The second source was in the form of an anonymous tip received through the Crime Stoppers law enforcement program (“Source #2”). The ITO also included details of video surveillance and police surveillance conducted, information relating to the accused obtained through various searches and information supplied by Enterprise Rent-A-Car.

[9] Detective Brown detailed the following information provided by Source #1 to Detective Constable Mike Steele in March 2015:

(a) the applicant resides at 100 Ridout Street South in London; (b) he sells cocaine; (c) his apartment faces Ridout Street; (d) he drives a blue BMW and sometimes conducts drug transactions in this vehicle; and (e) he sells powder cocaine.

[10] Detective Brown detailed the following information provided by Source #2 in June 2015:

(a) Mr. James is a black male, 6’4” tall, 200 pounds, about 30 years of age, short black hair and brown eyes; and (b) Mr. James lives at 100 Ridout Street South and is selling drugs including powder cocaine.

[11] Acting on the information provided by the confidential sources, Versadex and Ministry of Transportation searches were conducted by Detective Brown. These searches confirmed and corroborated the biographical information supplied by the confidential sources, including Mr. James’ age/birthdate, his home address as 509-100 Ridout Street South, and his physical appearance.

[12] During December 2015, Detective Brown spoke with Robyn Decicco, the property manager for the apartment building located at 100 Ridout Street, and was advised that an occupant had complained to Ms. Decicco about the many quick visits to Unit #509. Detective Brown spoke with this occupant and requested and obtained permission to be in the building in order to conduct a criminal investigation. Ms. Decicco provided Detective Brown with the universal “buzz code” to enter the building as well as a key for the back door. She confirmed that Mr. James was the tenant pursuant to a lease agreement for Unit #509 and that his mother, Sylvia James was listed as his guarantor under the lease. She provided a copy of the lease to Detective Brown. She further advised that parking spot #32 was the assigned spot for Unit #509.

[13] With express authorization provided by Ms. Decicco, video surveillance was installed on the 5th floor of 100 Ridout Street in the hallway outside Unit #509.

[14] On December 16, 2015, Detective Brown attended at 100 Ridout Street South. He observed that Unit #509 was located at the northwest corner of the fifth floor and the balcony of the unit faced Ridout Street. This direct observation corroborated the information supplied by Source #1.

[15] A CPIC search was conducted on March 16, 2016 and revealed that Mr. James has criminal convictions for public mischief and failing to comply with recognizance.

[16] On March 17, 2016 Detective Brown obtained a tracking warrant for the BMW vehicle, valid for a period of 60 days.

[17] During the months of March and April 2016, police observed 5 separate motor vehicles [1] parked in Mr. James’ designated parking spot. Searches conducted by Detective Brown and information supplied by Enterprise-Rent-A-Car revealed all 5 vehicles were rented by Mr. James from Enterprise Rent-a-Car for a period of 7 days each.

[18] Detective Brown stated in the ITO:

In my experience as a drug officer, I know that drug dealers will often rent vehicles to try and prevent police from knowing who was operating the vehicle, as well as distancing themselves from the vehicle they usually operate as to not draw attention to themselves.

[19] In March and April 2016 Source #1 advised Detective Constable Steele that s/he purchased cocaine from Mr. James and that s/he has known James to deal cocaine. This information was relayed to Detective Brown.

[20] Surveillance conducted on April 4, 13, 14, 20 and 28, 2016 provided corroboration of the information supplied by the confidential sources with respect to alleged criminal activity being undertaken by Mr. James at the residence. A summary of the surveillance evidence is as follows:

(a) On April 4, 2016 Mr. James made 2 quick stops and 1 quick meet; (b) On April 13, 2016 Mr. James made 2 quick stops; (c) On April 14, 2016 Mr. James made 3 quick stops and 1 quick meet; (d) On April 20, 2016 Mr. James made 4 quick stops; and (e) On April 28, 2016 Mr. James made 3 quick stops.

[21] Detective Brown deposed in the ITO that quick stops and quick meets are consistent with drug transactions.

[22] Ms. Decicco testified that she was the property manager of the apartment building in which the residence was located in December 2015 and had assumed that role in July of 2015. She says that the on-site building managers provided to her a document from an occupant describing excessive noise and foot traffic at Unit #509. Suspecting criminal activity, and as she had done with respect to prior un-related investigations, she contacted police and, specifically, Detective Brown.

[23] When requested by Detective Brown, Ms. Decicco provided her express verbal authorization to police to install a surveillance camera in the hallway on the 5th floor of the apartment building. She testified that before December 2015, the applicant was not known to her and she had no prior dealings with him.

[24] During cross-examination, Detective Brown admitted that Ms. Decicco was, in December 2015 and continues to be, his common-law spouse. He says he did not disclose their relationship in the ITO or to the Crown until October 30, 2018 (the first return date for the hearing of this application) and admitted that their relationship was not disclosed to the applicant until after the original return date.

[25] Detective Constable Mark Bougher, a member of the technical support unit, was responsible for installing the surveillance camera outside Unit #509. He testified that at the request of Detective Brown he installed a covert video camera in the hall outside Unit #509 on two separate occasions. A camera was deployed and configured to record from 5 pm until midnight on December 18-20, 2015 and was removed on December 21, 2015. A camera was deployed a second time and configured to record from 4 – 11 pm on March 18-21, 2016 and was removed on March 22, 2016.

Analysis

s. 8 Charter

[26] Pursuant to s. 8 of the Charter, everyone has the right to be secure from unreasonable search and seizure. This was not a warrantless search. The Warrant was judicially-authorized and is presumptively valid and the ensuing search and seizure presumptively reasonable. [2] Therefore, Mr. James bears the onus of demonstrating, on a balance of probabilities, the invalidity of the Warrant. [3]

[27] In assessing the validity of the Warrant, the standard of review is whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the Warrant could – not would - have issued. If that standard is met, the Warrant is valid. Simply stated, I am not permitted to substitute my view for that of the issuing justice. [4]

[28] I must be satisfied that, in the totality of the circumstances, the ITO reveals reasonable grounds to support the issuance of the Warrant. If the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have issued and is valid. [5]

[29] The applicant raises a number of concerns with respect to the validity of the Warrant. These are:

(a) the failure by Detective Brown to disclose his personal relationship with Ms. Decicco; (b) the placement of the surveillance equipment in the hallway in which Mr. James claims to have a reasonable expectation of privacy, without judicial authorization; (c) requesting and obtaining rental car information relating to Mr. James from Enterprise Rent-a-Car in breach of his Charter rights and his privacy rights as statutorily protected by PIPEDA; (d) the failure to disclose in the ITO the existence of the video surveillance taken in March 2016; and (e) the information provided by the confidential sources does not satisfy the Debot [6] test.

[30] I will deal with each ground separately.

(i) Bias

[31] It was a complaint made by an occupant of the apartment building that prompted Ms. Decicco to report the issue to police. She did not trigger the investigation on her own initiative. The fact she disclosed this information at first instance to her spouse, a police officer, rather than another member of the LPS does not taint or tarnish her intentions or the investigative efforts of Detective Brown.

[32] Furthermore, I find Detective Brown’s explanation for his oversight in failing to disclose his relationship with Ms. Decicco reasonable. It was not until Ms. Decicco was asked to make a statement and the issue of a judicial authorization for her release of information to Detective Brown became a live issue that her relationship with Detective Brown had potential relevance. I find there was nothing nefarious about Detective Brown’s failure to disclose his relationship with Ms. Decicco to the issuing justice and, furthermore, there was nothing nefarious about Detective Brown’s delay in disclosing his relationship with Ms. Decicco to the Crown or to the applicant.

[33] I find that Detective Brown’s relationship with Ms. Decicco to be irrelevant to the issues to be decided on this application. I accept that neither Detective Brown nor Ms. Decicco was familiar with Mr. James or had any dealings with him prior to December 2015. There is no evidence of any intention to collude by Detective Brown and Ms. Decicco nor any evidence of an intention to entrap or unfairly investigate Mr. James.

[34] This ground of attack does not constitute a breach of s. 8 of the Charter.

(ii) Lack of Proper Authorization for Video Surveillance

[35] The applicant argues that Ms. Decicco’s verbal express authorization to deploy video surveillance in the 5th floor hallway provided to police did not comply with the law in force at the time. The applicant relies on the decision in R. v. White [7].

[36] White involved a Charter challenge to the validity of a warrant-less search of the common areas of a condominium building in which the accused was the owner of a unit. The trial judge concluded that the accused had a reasonable expectation of privacy in the common areas of his condominium building and the surveillance installed in the common areas was, therefore, a breach of his Charter-protected rights. The surveillance conducted in the common areas was utilized to support the issuing of the warrant for the search of the accused’s condominium. The surveillance was verbally authorized by the property manager. The Court of Appeal upheld the trial judge’s finding that the applicant had a reasonable expectation of privacy in the common areas and that police surveillance conducted in the common areas was a breach of the applicant’s s. 8 Charter right to be free from unreasonable search and seizure.

[37] For purposes of my analysis of this issue, I note the court found that not all common areas of multi-unit buildings create a reasonable expectation of privacy. Rather, the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations are relevant in determining whether an expectation of privacy is reasonable in the context of a particular multi-unit building. The court included as factors to consider: the size of the building and its population; whether the applicant had an ownership interest in the common area; whether the entrance to the building and its common areas was secure and not accessible to the general public; and whether the police were responding to a complaint [8]. This list was not intended to be exhaustive.

[38] White is distinguishable from the facts present here. Mr. James does not own unit #509 and by extension has no ownership interest in the common areas of the building. In her role as property manager, Ms. Decicco had express authority to allow third parties such as the police to enter upon the common areas to further their investigation. In this case, not only was Detective Brown expressly authorized to enter the apartment building he was invited to do so by Ms. Decicco because of a complaint lodged by a concerned occupant. Surveillance was conducted in a manner which minimized any intrusion on Mr. James’ privacy interests in his residence. The camera was installed in such a manner that it could not record what was occurring in Unit #509 and was not trained on the door to Unit #509.

[39] Unlike the evidence in White, there is no evidence suggesting that the apartment building located at 100 Ridout Street South was small, containing only a few units, or that tenants could be clearly overheard in their respective units from the stairwell and/or common areas of the building.

[40] Moreover, unlike the evidence in White, the surveillance of the hallway was but one part – and, I note, a minor part – of the totality of the evidence which supported the issuance of the Warrant. Detective Brown referred to the “surreptitiously installed” [9] video camera on the 5th floor of the hallway in the ITO. There is no issue raised of non-disclosure to the issuing justice in this case.

[41] I was referred to the decision in R. v. Hassan [10], a recent decision of this Court where it was found that the applicant had a reasonable expectation of privacy in the hallways of his multi-unit apartment building and a reasonable expectation to be free of unreasonable search and seizure in the nature of surreptitious police video surveillance. I am not bound by the decision in Hassan and moreover, Hassan is distinguishable from the case at hand as the police did not ask for or obtain permission to install a video camera in the common areas inside the apartment building or ask to conduct video surveillance of the hallway. In Hassan, police sought and obtained only permission to enter onto the property and into the building. Their authorization did not go far enough.

[42] I find that the installation of a video camera and the surreptitious recording of activity in the 5th floor hallway outside the door to Unit #509, did not infringe Mr. James’ reasonable expectation of privacy and did not constitute a breach of his s. 8 Charter rights.

(iii) Seeking rental car information relating to Mr. James from Enterprise Rent-a-Car

[43] The applicant submits that his Charter rights were violated when the police obtained information from Enterprise-Rent-A-Car regarding details of his vehicle rental history. He says he held a reasonable expectation of privacy in the information supplied by Enterprise-Rent-A-Car and that seeking and obtaining this information by police without judicial authorization was in breach of his privacy rights provided for under the Personal Information Protection and Electronic Documents Act [11].

[44] Detective Brown contacted Enterprise-Rent-A-Car to obtain information relating to various vehicles he observed in the parking spot associated with Unit #509 and observed being operated by the applicant. He testified that he contacted a “1-800” number set up by Enterprise-Rent-A-Car for this very purpose. He had contacted Enterprise-Rent-A-Car at this number in connection with at least 6 prior unrelated investigations.

[45] A copy of the standard form of rental contract used by Enterprise-Rent-A-Car was filed as an exhibit. This standard form includes a provision relating to the release of information to third parties and provides, in part, as follows:

Owner may disclose Renter’s personal information: (1) when required by law, (2) in response to legal process, (3) without legal process in response to a request from law enforcement relating to a criminal investigation; (4) to protect Owner’s rights, privacy, safety or property, or the public; (5) to permit Owner to pursue available remedies or limit damage, or (6) to enforce the terms of any rental or sales agreement or websites terms and conditions…

[46] I question whether information relating to the make and model of the vehicles rented by Mr. James and the length of time he rented each vehicle is “personal information” in which the applicant held a reasonable expectation of privacy. However, as noted by the Court of Appeal in R. v. Orlandis-Habsburgo [12]:

Information about an individual which is the subject of a contract between persons, and which is not confidential or highly personal, and which does not make available inferences that go to “biological core” information about an individual, can be the subject of s. 8 Charter protection.

[47] In Orlandis-Habsburgo, a supplier of energy to the accused’s home tracked energy consumption and on its own initiative contacted the police to report higher than normal energy consumption. This information formed the basis for the issuance of a warrant to search the accused’s home. The court found the information collected by the energy provider related to the activities of the accused in their home which favoured the existence of a reasonable expectation of privacy. The court noted the relatively non-personal nature of the information supplied and the fact that the right of the accused to control the data was substantially qualified. It should be noted that the energy provider’s contract with the accused did not address the issue of release of personal information.

[48] Orlandis-Habsburgo is clearly distinguishable. The non-personal information supplied by Enterprise-Rent-A-Car to Detective Brown did not relate directly to the suspected criminal activities being carried on in the residence or the BMW vehicle being the targets of the Warrant. The information supplied related to indicia of drug trafficking, generally. I find no legal authorization for the release of this information was necessary. However, if legal authorization was required, the form of contract utilized by Enterprise-Rent-A-Car expressly authorized the sharing of information by Enterprise-Rent-A-Car with police in furtherance of a criminal investigation. By contracting with Enterprise-Rent-A-Car, the applicant waived any protected right under the Charter or PIPEDA thus precluding him from asserting a reasonable expectation of privacy in this information. I find that the sharing of information by Enterprise-Rent-A-Car did not constitute an unreasonable search and seizure.

(iv) Failure to disclose the existence of the March 2016 video surveillance

[49] The applicant submits that Detective Brown failed to refer to the March 2016 video surveillance in the ITO and by doing so intentionally mislead the issuing justice in breach of his s. 8 Charter rights. Detective Brown explained that he did not refer to this surveillance in the ITO because he had physical surveillance conducted during April 2016, closer in time to the preparation of the ITO. He further explained that he did not review this video surveillance until more than 2 years later and promptly disclosed it to the Crown at that time. Upon review, he noted the March 2016 video surveillance to be unremarkable.

[50] I am unable to conclude that the decision of the issuing justice to issue the Warrant would have been impacted to any material degree or at all had reference been made in the ITO to the non-corroborative March video surveillance. Video surveillance was not the sole or most significant source of information contained in the ITO in support of the issuance of the Warrant. Rather, it was a piece of the overall mosaic which included information obtained from 2 confidential sources, information obtained from performing various searches, video surveillance taken in December 2015, information supplied by Enterprise Rent-A-Car and physical surveillance conducted mere days prior to issuance of the Warrant.

[51] There is no evidence that Detective Brown intended to mislead the issuing justice. He had not reviewed the video surveillance at the time he prepared and filed the ITO in support of the Warrant. He was entirely unaware whether or not its contents were helpful.

(v) Information provided by the confidential informants does not satisfy the Debot test

[52] The applicant argues that the information supplied by the confidential sources has no credibility, is not compelling and has not been corroborated - that is, the ITO fails on all 3 grounds of the Debot test.

[53] The applicant points to the following weaknesses in the information provided by the confidential informants:

• both Source #1 and Source #2 are unknown with Source #1 having a criminal record. Neither the credibility of Source #1 nor the credibility of Source #2 can be assessed;
• the information provided by the confidential informants was dated, having been supplied to police 14 months prior in the case of Source #1 and 11 months prior in the case of Source #2 to the preparation of the ITO and therefore has little probative value. The currency of the information at the time it was provided is also unknown;
• a significant portion of the information supplied by the confidential sources is “biographical”, that is, information which is generally available to the public with the balance comprised of bald assertions unsubstantiated by any direct involvement of the confidential sources; and
• it is unknown whether the information supplied by either confidential source is first-hand or hearsay.

[54] When the police rely upon information from a confidential informant the issuing justice must consider whether the information supplied is compelling, credible, and corroborated by other aspects of the police investigation. However, weakness in one area may be compensated by strength in the other two areas. [13]

[55] Detective Brown was not asked to provide amplification evidence. The court was not asked to provide a judicial summary of the unredacted ITO. In considering the sufficiency of the evidence contained in the ITO including the information provided by the confidential sources, I must consider the evidence contained in the ITO as a whole.

[56] I, too, share many of the concerns expressed by the applicant with respect to the evidence of the CI’s. The confidential sources are anonymous and, through no fault of Detective Brown, their identity and, therefore, credibility cannot be assessed. Obviously, this weakness, alone, is not fatal otherwise the Crime Stoppers program would be of no practical benefit to law enforcement. However, when dealing with the sufficiency of information provided by an anonymous source whose credibility cannot be assessed, the assessment must focus on whether the tipster’s information was sufficiently compelling and whether it was sufficiently corroborated. [14]

[57] The information supplied by each source is materially similar. By way of example, both sources make specific reference to Mr. James’ address and the type of drug he sells - powder cocaine. The fact that one source is an anonymous tip and the other source is a confidential police informant with each source providing similar information at different points in time lends credibility to the information supplied by each source.

[58] However, the information supplied by both sources does not refer to first-hand knowledge of Mr. James’ alleged drug trafficking. Neither source provided information relating to their own purchase of drugs from Mr. James at his residence. Both sources provide conclusory information. For example, Source #1 reports: “[Mr.] James drives a blue BMW and sometimes conducts drug transactions in this vehicle”. How did Source #1 acquire this knowledge? Did he acquire the knowledge first-hand or from another source? If the latter, was the information provided to this secondary source acquired first-hand or from a third source?

[59] With respect to Source #2, the information supplied is even more problematic. Source #2 reports: “James lives at 100 Ridout Street South and is selling drugs including powder cocaine”. Unlike the usual confidential informant, the anonymous tipster is not prompted by the questions of a handler which might elicit specific evidence to support the desired conclusion to be drawn by the issuing justice. The tipster’s conclusory statements are compelling; however, require a high-degree of corroboration so as to satisfy the Debot test.

[60] Despite my concerns with the confidential source evidence, those concerns are addressed by the corroborative surveillance evidence, the corroborative search evidence and the expertise of Detective Brown. The information relating to the BMW vehicle and Mr. James’ physical appearance was corroborated by the MTO search. The information relating to the layout of Unit #509 was corroborated by the direct observations of Detective Brown. In March and April 2016 (close in time to the issuance of the Warrant), Detective Steele was contacted by Source #1 and again advised that the applicant was selling cocaine. This information was corroborated by the numerous quick stops and meets observed during surveillance conducted in March and April 2016.

[61] I find that the issuing justice reasonably inferred from the information supplied by the sources, as verified and corroborated by the balance of the evidence and other information contained in ITO in the context of the expert opinion evidence of Detective Brown, that evidence of criminal activity would be found at the residence and in the BMW vehicle.

[62] For the foregoing reasons, I am not satisfied, on a balance of probabilities, that there has been a breach of Mr. James’ constitutional right to be free from unreasonable search and seizure. The Warrant was validly issued and the ensuing search of the residence and the BMW vehicle were, therefore, reasonable.

S. 24(2) Charter

[63] Since I have found no breach of s. 8 of the Charter, it is unnecessary to consider the application of s. 24(2) of the Charter and the admissibility of the evidence obtained from the search of the residence. However, for the sake of completeness, had I determined a violation of s. 8 of the Charter, I would still have admitted the evidence.

[64] In R. v. Grant [15], the Supreme Court of Canada set out three factors that must be assessed and balanced in deciding the effect of admitting the evidence on the public’s confidence in the administration of justice:

(i) the seriousness of the Charter infringing state conduct; (ii) the impact of the breach on the Charter protected interests of the applicant; and (iii) society’s interest in the adjudication of the case on its merits.

(i) Seriousness of State Conduct

[65] The court is required to consider whether the conduct of the police is conduct from which the court needs to disassociate itself. As stated in Grant at para. 72:

The first line of inquiry relevant to the 24(2) analysis requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to disassociate themselves from the fruits of that unlawful conduct.

[66] Assuming a breach of s. 8 and judicial authorization was in fact required for the installation of video surveillance, I find that the police acted in good faith in securing (i) the prior express authorization of the property manager to install a surveillance camera in the fifth floor hallway of 100 Ridout Street South in London pointing at the door of Unit #509 and by ensuring its placement prevented police from being able to view the activities inside the residence; (ii) a tracking warrant for the BMW vehicle; and (iii) judicial authorization to search the residence and the BMW vehicle.

[67] Having found no evidence of an intent to deliberately mislead or deceive the issuing justice, this prong of the test strongly favours admission of the evidence.

(ii) Impact of Charter Violation

[68] I find that the search of the residence and the BMW vehicle both had a significant impact on the applicant’s Charter-protected rights. A person’s residence attracts a high expectation of privacy and police searches constitute a serious intrusion on such privacy rights. This is also true with respect to a person’s motor vehicle albeit to a lesser degree. Accordingly, this factor favours exclusion of the evidence.

(iii) Societal Interest in Adjudication

[69] The evidence seized from the residence is real evidence. So, too, is the evidence seized incident to arrest. The exclusion of this evidence would “gut” the Crown’s case and in all likelihood bring an end to the prosecution. These are serious allegations and society has a strong interest in seeing the case dealt with on its merits. This factor strongly favours admission of the evidence.

[70] On balance, I conclude that the evidence seized from the residence and incident to Mr. James’ arrest is admissible at trial pursuant to s. 24(2) of the Charter.

Disposition

[71] Application dismissed.

“Justice A.K. Mitchell” Justice A. K. Mitchell

Released: July 5, 2019

COURT FILE NO.: 8/18 DATE: 2019/07/05 ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen (Respondent) Respondent – and – Omar P. James (Applicant) Applicant RULING Mitchell J. Released: July 5, 2019

Footnotes

[1] A 2016 Toyota RAV4; a 2016 Chevrolet Tahoe; a 2016 Volkswagen Tiguan; a 2016 Dodge Durango; and a 2016 Hyundai Elantra. [2] Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at paras. 109-110; and R. v. Collins, [1987] 1 S.C.R. 265 at paras. 13 and 14. [3] R. v. Collins, [1987] 1 S.C.R. 265, supra at paras. 13 and 14. [4] R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 54. [5] R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357 (C.A.) at paras. 81 and 82. [6] R. v. Debot (1986), 30 C.C.C. (3d) 207 ONCA (“Debot”). [7] (2015), 2015 ONCA 508, 127 O.R. (3d) 32 (C.A.) (“White”). [8] Ibid, at paras. 44 and 45. [9] Paragraph 20 of the ITO. [10] R. v. Hassan, 2017 ONSC 100 [2017] O.J. No. 83 (S.C.). [11] Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”). [12] R. v. Orlandis-Habsburgo, 2017 ONCA 649 at paras. 79 and 80. [13] Supra., at para. 53; and R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (C.A.) at para. 16. [14] R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673 C.A. at para. 18. [15] R. v. Grant, 2009 SCC 32 (“Grant”).