ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
PATRICK PRINCE
Faiyaz Alibhai, for the Public Prosecution Service of Canada
Mr. Adam Weisberg and Mr. Enoch Guimond, counsel for Patrick Prince
HEARD: MAY 6, 7, 9, 10, 13, 2019
Justice J. Copeland
REASONS FOR DECISION ON CHARTER APPLICATION
Introduction
1Patrick Prince was charged with one count of possession of cocaine for the purpose of trafficking, and one count of possession of property obtained by crime. The charges arise out of a search warrant executed on a Land Rover SUV owned by Mr. Prince, and two condominium units in buildings in the same complex, 108-273 South Park Road and 117-325 South Park Road (I will address the ownership and occupancy of the condominium units in due course). The warrant was a general warrant issued pursuant to s. 487.01 of the Criminal Code, accompanied by an assistance order under s. 487.02. The warrant permitted five entries into the condominium units and two vehicles between June 9 and July 31, 2014. Entries were made into the two condominium units and the Land Rover on June 10, 2014. There were subsequent entries pursuant to the general warrant, but I focus on the June 10, 2014 entries, as that is when the items leading to the charges were first viewed by police.
2When the police entered the two condominium units and the Land Rover on June 10, 2014, one kilo of cocaine was found in the Land Rover. Between the two condominium units, police located a safe containing $85,000 Canadian dollars and $384,000 US dollars, and also found under a bed a knapsack containing $22,050 Canadian dollars. This is not a complete list of everything found, only the most significant items.
3Mr. Prince brought a Charter application, primarily under s. 8 of the Charter, seeking exclusion of the items found in the search. Although Mr. Prince raised a number of issues, which I will address in due course, the fundamental issue is whether the issuing judge could have found that the information to obtain the general warrant (the “ITO”) established reasonable and probable grounds that Mr. Prince had committed or would commit an offence (the relevant portion, for purposes of this case, of the legal requirement for a general warrant set out in s. 487.01(1)(a) of the Criminal Code).
4On May 13, 2019, I gave an oral decision on the result of the Charter application, with reasons to follow. As I will explain, after addressing a number of preliminary issues, I found that the issuing judge could not reasonably have concluded that the ITO established reasonable and probable grounds that Mr. Prince had committed or would commit and offence. I note, and I will return to this below, there was some very minor amplification and clarification of some of the facts asserted in the ITO based on the evidence led on the Charter application, but this amplification did not significantly change the grounds set out in the ITO.
5I further concluded that the admission into evidence of the items found in the searches would bring the administration of justice into disrepute, and I excluded the results of the searches.
6Following that decision, counsel for the Public Prosecution Service asked that the charges be stayed pursuant to s. 579 of the Criminal Code.
Burden of proof and procedure on application
7As the searches in this case were conducted pursuant to a warrant, the Defence bears the onus on a balance of probabilities to establish the asserted Charter violations: R. v. Collins, [1987] 1 S.C.R. 265, 1987 84.1
8I address the standard of review in relation to whether the ITO could be found to establish reasonable and probable grounds in relation to Mr. Prince below at paragraphs 97-99,
Does Mr. Prince have standing in relation to the searches of the two condominium units?
9Prosecution counsel raised as a preliminary issue whether Mr. Prince had standing to challenge the searches of the two condominium units. The Prosecution conceded that Mr. Prince had standing in relation to the Land Rover registered in his name.
10I am satisfied that Mr. Prince had a reasonable expectation of privacy in the two condominium units, and thus has standing to challenge the warrant.
11I do not intend to give lengthy reasons on this issue, as I have recently considered the applicable law in R. v. Milton Brown, 2019 ONSC 2882. The relevant law begins with the decision of the Supreme Court in R. v. Edwards, [1996] 1 S.C.R. 128, 1996 255, and continues through recent decisions of the Supreme Court addressing standing/reasonable expectation of privacy, including R. v. Jones, [2017] 2 S.C.R. 696, 2017 SCC 60 at paras. 16-34; R. v. Reeves, 2018 SCC 56 at para. 39; R. v. Jarvis, 2019 SCC 10 at para. 60; and R. v. Marakah, [2017] 2 S.C.R. 608, 2017 SCC 59 at para. 38.
12In Edwards, Justice Cory held that the assessment of whether an individual has a reasonable expectation of privacy in particular premises or property should be assessed in light of the totality of the circumstances. Justice Cory enumerated a list of seven factors that may be considered in assessing the totality of the circumstances. The seven factors are not an exhaustive list.
13Two points merit highlighting in relation to the Edwards analysis.
14First, no single factor among the seven listed in Edwards is determinative. A court must consider the totality of the circumstances, and no single factor determines the outcome: Edwards; Reeves at para. 39; Jarvis at para. 60; Marakah at para. 38.
15Second, the concepts of control of a property and ability to regulate access are not absolute, all or nothing concepts. Rather, they lie along a spectrum: Reeves at paras. 36-37; Jarvis at para. 61. If a person has closer to absolute control over the property and ability to regulate access, these factors will be more supportive of a reasonable expectation of privacy. If a person is closer to no control over the property or ability to regulate access, these factors will tend not to support a reasonable expectation of privacy. If a person has a significant amount of control over a property, and a significant amount of ability to regulate access, then it can support a reasonable expectation of privacy (but still must be considered in the context of all the circumstances).
16Mr. Prince’s brother Michael Prince testified on the application. In very summary form, Michael Prince’s evidence was that Patrick Prince owned both condo units. Michael testified that legal title to the units was put in Michael’s name because of some issues about Patrick’s credit-worthiness at the time the units were purchased. Michael testified that the units were also placed in Michael’s name because at the time Patrick was travelling back to Jamaica a lot, and if the units needed maintenance or sale, it would be easier for Michael to deal with if the units were in Michael’s name. Michael testified that Patrick paid the down payments on both units, as well as the mortgage payments and expenses. He testified that the mortgages and expenses were paid from a joint account in the names of Michael and Patrick Prince (but with Patrick’s money). Michael testified that Patrick lived in one of the units, and used the other as an office and for investment purposes.
17I find that in cross-examination, Michael was evasive about a number of issues, for example, relating to his claiming he was a first-time home buyer in the documentation for the first condo purchase (which entitled him to certain tax advantages). He also at times professed a lack of memory of the answers to questions which seemed convenient, for example, in relation to questions about why he listed himself as the occupant of the units in the documentation filed with the condominium corporation. However, Michael maintained that Patrick occupied that two units, and paid for them.
18I accept Michael’s evidence that Patrick occupied the two units, and that he paid for them. I suspect that Michael’s evasiveness on some issues was driven by whatever the reasons were to set up these apartments as formally owned by Michael but with Patrick occupying them and paying for them. In my view, whether or not Patrick and/or Michael had improper purposes motivating them in setting up the ownership of the apartments as they did does not change that as a factual matter, I accept Michael’s evidence that Patrick occupied the two units.
19The conclusion that Patrick Prince occupied the two units is not only supported by Michael’s evidence. In particular, I note the following evidence:
Based on the videos taken during subsequent entries into the units on June 16, 2014, and also DC Reid’s evidence about the entries on June 10, there were documents and mail in the names of both Patrick and Michael Prince in both units. Both units appeared to be lived in based on their contents.
Although the forms filed with the condominium corporation list Michael as the owner of the two units, and their only occupant, and Patrick only as an emergency contact, one of the forms lists Patrick’s Land Rover (the vehicle where the cocaine was found) as the vehicle associated with one of the units (this is the form in relation to unit 108-273 South Park Road). In addition, although the forms for 108-273 South Park list “Michael Prince” as the owner, in a number of places where the owner is to sign, the name and signature appear to be “P. Prince”.
On the record filed before me, the void cheques provided to the condominium corporation for mortgage payments on the units were cheques for what appears to be the same joint account of both Patrick and Michael Prince. For the void cheque given for unit 117-325 South Park, the cheque has Michael Prince’s name on it (Exhibit I). For the cheque given for the unit at 108-273 South Park, the cheque has Patrick Prince’s name on it (Exhibit H). But the same account number is on both void cheques. These cheques on a joint account are consistent with Michael Prince’s evidence before me.
I note as well that the police obtained the key that they used to enter the Land Rover registered in Patrick Prince’s name in the unit at 108-273 on June 10, 2014, when they entered pursuant to the general warrant.
20Further, the police surveillance, and the video from the condominium video security system that DC Reid was permitted to view at 273 South Park on June 9, 2014 showing Patrick Prince exiting the parking garage, entering the lobby for the elevator, and then exiting the elevator at floor G2, collectively show that Patrick was attending at the buildings on June 6, 9, and 10, shortly prior to the entry pursuant to the general warrant on June 10, 2014. He was observed to enter both condominium units. He was observed using a fob to enter the garages and buildings (or police obtained information from building staff confirming this). This is also evidence that supports his occupancy of the units.
21Finally, the Prosecution theory of possession in this case, had the evidence not been excluded, would have relied on an assertion that Patrick Prince possessed the items in the condo units because he controlled the units. In light of the decision of the Supreme Court of Canada in Jones at paras. 16-34, this factor also supports a finding that Patrick Prince had a reasonable expectation of privacy in the condominium units.
22In oral submissions, Prosecution counsel made the submission that the Prosecution was prepared to accept Michael Prince’s evidence that Patrick Prince lived in the condominium units, but argued that Patrick Prince had no standing because he had no legal right to use the units, and because he tried to hide his ties to the units (by having the units in Michael’s name, and with documentation filed with the condominium corporation listing Michael as the occupier of the units, and Patrick only as an emergency contact).
23I reject this argument in the context of all of the factors I have outlined above. It is not clear to me that Patrick Prince did not have a legal right to be in the units, despite the fact that legal title of the units was not in his name. In light of Michael Brown’s evidence, even though the units were in Michael’s name, Michael testified, and I accept his evidence, that he allowed Patrick to use the units (and indeed that Patrick really had paid for them). Further, legal ownership is only one factor among the Edwards factors. Although I accept that the evidence supports a conclusion that Patrick Prince tried to hide his connection to the units, I find in all the circumstances that I have outlined above, that factor does not lead me to conclude that he had no reasonable expectation of privacy in the condo units.
24For all of these reasons, I find that Patrick Prince has standing to challenge the searches of the condo units. As noted above, Prosecution counsel conceded that he had standing regarding the search of the Land Rover, as it was registered in his name.
Did Patrick Prince have a reasonable expectation of privacy in the common garages of the condominiums?
25Prior to obtaining the general warrant, the police entered the common underground garages of the condominium units on June 6 and 9, 2014. They entered without a warrant, by following other drivers into the garage when the door was open. The observations made at the times of these entries are set out in paragraphs 81-83, 86, 89-92 of the ITO.
26The Defence argues that Mr. Prince had a reasonable expectation of privacy in the common garages, and that as such, the warrantless police entry and observations violated his rights under s. 8 of the Charter. The Defence further argues that pursuant to R. v. Kokesch, [1990] 3 S.C.R. 3, 1990 55, and R. v. Plant, [1993] 3 S.C.R. 281, 1993 70, the observations made pursuant to the warrantless entries into the garages should be excised from the ITO (in considering whether the ITO establishes reasonable and probable grounds).
27I am not persuaded that Mr. Prince had a reasonable expectation of privacy in the common underground garages. As a result, I find that the warrantless police entries into the parking garages did not violate Mr. Prince’s rights under s. 8 of the Charter. In light of this finding, I do not excise this information from the ITO in considering whether the issuing judge could reasonably have found that reasonable and probable grounds existed.
28I will summarize the evidence as it relates to the entries into the parking garages at 273 and 325 South Park prior to obtaining the warrant. I will also summarize here the evidence relating to information and documents obtained from staff of the condominiums, because the facts are interrelated (the information and documents is the next legal issue I address in my reasons, below at paragraphs 58-65). At this stage, I intend only to set out the facts necessary to understand the nature of the police entries into the garages prior to obtaining a warrant. This is not a full chronology of the investigation in relation to Mr. Prince (which is addressed in more detail below in relation to the issue of whether the ITO disclosed reasonable and probable grounds).
29Detective Constable Chad Reid testified that on June 6, 2014, he attended at 273 South Park Road in order to try and locate a Jeep Cherokee with a specific licence plate (the Jeep was rented, and was associated with a driver later identified as Mr. Prince). He arrived between 8:30 and 9:00 a.m. He followed another vehicle into the underground garage. He located the Jeep and set up near it to conduct surveillance. At the time, the Jeep was parked in the visitors section of the underground garage. This section of the garage is not physically divided from the parking for residents. As a result, a visitor parking a vehicle would be able to see residents in the parking garage and vice versa. DC Reid saw various residents come and go.
30After making some observations of the Jeep (unoccupied), and taking a photo of the visitor’s parking tag on the Jeep, DC Reid went to the lobby of the building to speak to security staff. DC Reid had been in the underground garage for about half an hour prior to going to speak to security staff.
31DC Reid spoke to a security staff member named Sharif Yusef at approximately 9:30 a.m. He asked for information about the visitor’s parking tag on the Jeep. Mr. Yusef allowed DC Reid to view the history of that parking permit for the dates June 1-6, 2014. From this information DC Reid found out that the permit was associated to unit 107-273 South Park, and a visitor named “Jardine”.
32In his conversation with Mr. Yusef, DC Reid also told Mr. Yusef that the police were engaged in an ongoing investigation, and asked Mr. Yusef for permission for police to conduct surveillance on the property of the building complex. DC Reid testified that Mr. Yusef gave this permission.
33On June 9, 2014, DC Reid again participated in surveillance at 273 South Park Road. At 9:55 a.m., the Jeep Cherokee was located in the outside ground level visitor parking area. At 10:45 a.m., the Jeep was observed being driven into the underground parking garage at 325 South Park Road. DC Reid followed another vehicle into the underground parking garage for 325 South Park so he could continue to observe the Jeep. At this point he had not yet obtained permission to enter the garage at 325 South Park.
34In the garage, he saw Mr. Prince (not yet identified) enter into the parking lot carrying a black duffel bag. Mr. Prince drove the Jeep out of the parking lot. DC Reid participated in this surveillance for a time (with no observations of note), but then returned to 325 South Park. Once there, he spoke to security staff, Mr. Ross Seto.
35DC Reid identified himself as a police officer and said he was doing an investigation, asked Mr. Seto for information about what key fob had opened the garage door at 325 South Park when the Jeep had entered at 10:45 a.m. He also asked what unit the fob was associated with. The information he was provided with included the names of Michael and Patrick Prince, unit number 117-325 South Park, the key fob number, and phone numbers for Michael and Patrick. Mr. Seto also provided DC Reid with similar information for the unit at 108-273 South Park, which was also associated with the names Michael and Patrick Prince in the condominium database. DC Reid testified that he also asked Mr. Seto if the police could do surveillance on the property for their ongoing investigation, and Mr. Seto gave permission.
36DC Reid then went to 273 South Park and requested information about use of the key fob associated with unit 108. He had a note that he was told of uses of the fob at 10:45 and 2:45 that day. He then asked to see video from the condominium security system for those times. He viewed a video of Mr. Prince exiting the parking garage, entering the lobby for the elevator, and then exiting the elevator at floor G (on June 9, 2014).
37DC Reid then spoke to the property manager for both buildings, Mr. Simon Lam. Mr. Lam gave DC Reid permission to install hallway cameras if the police obtained a warrant (at this stage the police were in the process of preparing the ITO for the general warrant). I note that the step of installing hallway cameras was not, in the end, pursued.
38DC Reid agreed in cross-examination (and it is not in dispute), that the parking garages for 273 and 325 South Park Road had secure doors at the access, and signs indicating they were private property.
39Detective Constable Michael Daoust also entered the parking garage at 273 South Park on June 6, 2014. He entered the parking garage at approximately 9:45 a.m. (later than DC Reid), and also followed another vehicle in. DC Daoust did not speak to building staff or ask permission himself. He did not recall being advised that any other officer had asked permission to enter the garage.
40Once in the parking garage, DC Daoust set up to do surveillance in the garage. He was there for approximately one hour. During the surveillance, he took the photos in Exhibit E marked 1 and 3, which are of Mr. Prince (at the time still an “unknown male”) and a woman in the parking garage, proceeding from the parking garage elevator to separate vehicles.
41DC Daoust testified that in the garage he was able to observe the general area. There were people coming and going, and lots of vehicles parked there. He took no steps to hide himself when he was doing surveillance in the garage. He just sat in his vehicle.
42Detective Constable Anthony Goulah entered the underground garage at 325 South Park on June 9, 2014 at 1:50 p.m. DC Goulah agreed that the garage is secure, and one is supposed to have a key to access it. DC Goulah followed another vehicle in to gain access to the garage. DC Goulah testified that he did not speak to any staff at the building complex to get permission to enter the garages. He recalled being told by another officer that permission to enter the garages had been given, but could not recall which officer told him or when he was told. However, he agreed that he did not have any notes about permission to enter having been given.
43Once in the garage, he set up to make observations from his vehicle. In the garage he observed two vehicles that were of interest to the investigation, the Jeep Cherokee and a Honda, both parked and unoccupied, at approximately 1:50 p.m. (as is outlined below at paragraph 103, these vehicles had been followed to the building complex from a Moxie’s restaurant. The Jeep was a rented vehicle that Mr. Prince was observed on other occasions driving). At approximately 2:45 p.m., DC Goulah saw Mr. Prince and the male he had been observed with at Moxie’s enter the garage. Both were empty-handed. They each got into their separate vehicles and departed. DC Goulah stayed in the garage for about one hour total that day.
44DC Goulah testified that he entered the garage at 273 South Park later in the afternoon of June 9, but he made no relevant observations. While he was in the garage, he took the photos in Exhibit G marked 18, 19, and 20. Two of these photos are photos of the unoccupied rented Jeep. The third is a photo a sign pointing directions to 233, 253 and 273 South Park Road.
45For the most-part, the facts related to the police entries and information obtained prior to obtaining the warrant is not disputed. The only significant factual issue in dispute is whether DC Reid asked staff of the condominium corporation for permission to enter the garages after the initial entry into each garage.
46I accept the evidence of DC Reid that after he initially entered the garages without permission, he then obtained permission from security staff for the garage at 273 South Park on June 6, and for the garage at 325 South Park on June 9. Although there are some areas of concern about DC Reid’s evidence on this point, ultimately, I accept his evidence that he asked the security staff person at the building for permission to enter the garage after the initial entry. DC Reid acknowledged that he did not have a note of asking for permission, and acknowledged that there was nothing in the central surveillance notes about it. However, he testified that he did not make a note of asking for permission because to him it was basically a routine exercise. He was cross-examined about why he did not ask for a fob to open the garages, if he had obtained permission. He testified that in his experience, fobs to access parking will not be provided without a warrant. He has been told in the past by building management (of other buildings), that for accountability purposes a warrant is required to give out a fob in case the fob is lost. It is not disputed that he spoke to building staff on June 6 (for 273) and on June 9 (for 325 and for 273), because he obtained various documents and information from them at those times. I accept DC Reid’s evidence that he asked in general terms for permission for police to enter the garages as part of the investigation, although not disclosing details of the nature of the investigation.
47The question of whether a reasonable expectation of privacy exists in common areas of a condominium property or an apartment building is fact-specific, and has been considered in numerous cases: R. v. White, 2015 ONCA 508; R. v. Laurin, 1997 775; R. v. Brewster (Brewster #1), 2016 ONSC 4133; R. v. Brewster (Brewster #2), 2016 ONSC 8038; R. v. Batac, 2018 ONSC 546. The analysis is based on the Edwards factors, and involves consideration of all the circumstances. Whether or not there will be a reasonable expectation of privacy on a given set of facts is “context-specific” and “not amenable to categorial answers”: White at paras. 31, 41, 44-45.
48As I read the decided cases, although each case must be decided considering all the circumstances, where the evidence involves a common area, such as a garage, in a large complex, where many people will have access to the area, the Edwards factors are less likely to lead to a finding of a reasonable expectation of privacy.
49Exceptions to this conclusion for common areas in large complexes to which many people have access arise in two main situations: first, where police use the common area to make observations very proximate to the individual unit (for example, approaching a unit door and sniffing or attempting to overhear conversation from inside the unit); and second, when police use invasive technology, such as installing video or audio recording in common areas without a warrant: White; Brewster #1; Brewster #2; Batac. Neither of those situations is present in this case. I pause to note that in my view, the small number of still photos of Mr. Prince that DC Daoust and DC Goulah took in the underground garage do not fall within the paradigm of invasive technology like installing video cameras without a warrant.
50Although the evidence in the record before me does not include the precise number of people who live in each building in the condominium complex, there is evidence that provides a basis for me to find that they are large complexes, with hundreds of residents. In particular, the affidavit of Enoch Guimond, filed by the Defence, contains photos of the photos of the buildings at 273 and 325 South Park Road. Based on the photos, each building is approximately 10 to 12 stories in height. The buildings are also quite wide across. Based on the number of stories, and the size of the buildings, I find that each building would have a number of residents that would measure in the hundreds (as opposed to, for example, a very small multi-unit building).
51I take into consideration that the garages are private property of the condominium corporation. I take into account that they are controlled by key or card access for residents, and based on the affidavit of Mr. Guimond, are well-signed that they are private property. The existence of a private property right is a factor in the Edwards analysis, but not controlling.
52The practical reality is that these garages are accessible by hundreds of people. I do not accept that an individual living in these buildings would expect privacy in the garage in the sense of not be observed when they are in the garage. They would expect that their car would be secure to some degree from theft or break-in. But they would not expect that their activities in the garage would be private and unseen by others. Simply put, there is a difference in terms of reasonable expectation of privacy between the inside of an individual condominium unit, and the large common parking garage associated with that unit. Given the size of the garage, and the minimally intrusive nature of the police activity, I find that as a normative matter, we as a society would not expect there to be a reasonable expectation of privacy in a large condominium parking garage.
53The Defence raises the concern that a finding that there is not a reasonable expectation of privacy in a common garage of a condominium results in a lesser level of Charter protection for individuals who live in apartments or condominiums. I accept that some level of consistency in the protection of a reasonable expectation of privacy between different types of dwellings is a factor that the courts must consider. People who live in multi-unit buildings should not have lesser privacy rights due to that fact than people who live in single family dwellings. But in my view, the practical impact of the size of a building complex and the number of people who live in it cannot be ignored in the privacy analysis. As the Court of Appeal recognized in White, in this context, size matters. There is a qualitative difference, not just a quantitative one, between a single or double car garage associated with one residence, and a large garage where hundreds of people keep their vehicles. Neither an individual in making decisions about what conduct to engage in, nor society in its assessment of reasonable expectation of privacy, would view a garage accessible to hundreds of people as having the same level of privacy as a garage accessible to a handful of people.
54Further, even in large building complexes, the decided cases do recognize important protections for residents which, in my view, do give them protections analogous to residents of single family homes or smaller multi-unit complexes. As I have noted, the decided cases recognize a reasonable expectation of privacy in common areas in general in at least two circumstances: first, when police use the common area to make observations very proximate to the individual unit (for example, approaching a unit door and sniffing); and second, when police use invasive technology, such as installing video or audio recording in common areas without a warrant. In my view, taking into account that the courts have not permitted this type of activity by police without a warrant, it is not the case that residents of large multi-unit buildings are provided significantly different privacy protection than individuals who live in single family homes or smaller buildings. I note for example, that a resident of a single detached house cannot prevent police from observing them as they approach and enter their house.
55I want to be clear that the fact that Mr. Prince was not the owner on title of the two condo units is not a factor in my conclusion that he did not have a reasonable expectation of privacy in the common garages. Prosecution counsel argued that because he was the occupant of the units, but not the owner, he did not have a reasonable expectation of privacy in the common areas of the condominium. I see no basis to distinguish between and owner of a unit and an occupier of a unit in relation to reasonable expectation of privacy for common areas of a condominium. As an occupant of the unit, Mr. Prince had a right to use the common garage. In my view, if a reasonable expectation of privacy in the common garage existed, it would exist both for owners of units, or for regular occupants of units. In this regard, I respectfully part company with the analysis in R. v. Harris, 2018 ONSC 4298 at paras. 32-33 (although I agree with the analysis in Harris at paras. 34-43 that the relative size of a building and the relative intrusiveness of police investigative activity is relevant in assessing a reasonable expectation of privacy in common areas).
56However, as outlined above, in my view there is no reasonable expectation of privacy in a large common garage of a large condominium complex. Prosecution counsel relied on the decision of White, where ownership is cited as a factor that distinguished the decision from Laurin. I acknowledge that White refers to ownership as a factor supporting the finding of a reasonable expectation of privacy in that case, but in my view, the main factors that led to the conclusion in White that there was a reasonable expectation of privacy were the absence of a complaint to police being made prior to the warrantless entry, and the intrusiveness of the police conduct in listening (from outside the unit) to conversation inside a residential unit search at issue in White.
57For all of these reasons, I find that the police entry into the garages prior to obtaining the warrant did not infringe Mr. Prince’s section 8 rights.
Did Mr. Prince have a reasonable expectation of privacy in information obtained by the police from security staff of the condominiums?
58Mr. Prince makes a similar argument to the garage argument in relation to documents obtained by police from building staff prior to obtaining the search warrant. These documents include the documents the condominium corporation kept on file of who occupied the two units, the contact information for the listed occupier (Michael Prince) and the emergency contact (Patrick Prince), and vehicles associated with the units. They also include DC Reid being given information about the fob used by the then unknown male (Patrick Prince) at various times, which units the fob was associated with, and being permitted to view video from the building security system of one occasion of Mr. Prince going from the garage to a unit in 273 South Park.
59As with the observations made in the condominium garages, Mr. Prince argues that he had a reasonable expectation of privacy in these documents held by the condominium corporation. As a result, he argues that the police action in obtaining them without a warrant violates s. 8, and pursuant to Kokesch, and Plant should lead to this information being excised from the ITO.
60I am also not persuaded that the actions of the police in obtaining various information from building staff, including viewing video from the condominiums elevator camera system, violated Mr. Prince’s rights under s. 8 of the Charter. As a result, I do not excise this information from the ITO in considering whether the issuing judge could have found that reasonable and probable grounds existed.
61In my view, the nature of the information obtained by police from the security staff of the building is not the type of personal information that gives rise to a reasonable expectation of privacy. In my view, the information obtained is akin to address and phone number information – that the units were owned by Michael Prince according to the records held by the condominium corporation, phone numbers for Michael Prince, and for Patrick Prince as emergency contact, and a vehicle associated with one of the units: R. v. Saciragic, 2017 ONCA 91 at paras. 8, 25-38, affirming 2013 ONSC 7648 at paras. 13-14, 36-40; R. v. Spencer, [2014] 2 S.C.R. 212, 2014 SCC 43. In light of the holding in Saciragic, this conclusion also applies to the information about the use of the key fob, and the viewing of one occasion of Mr. Prince’s movements on the condominium’s own video security system.
62In my view the case of R. v. Beitel, 2011 ONSC 5394, referred to by counsel for Mr. Prince, is distinguishable from this case for several reasons. I note in particular that an important factor in the finding of a reasonable expectation of privacy in information disclosed by a third party to police without a warrant in Beitel was the evidence in that case about Costco’s privacy policy (at paras. 89-90 of Beitel; and see also Spencer at paras. 54-66). In this case there was no evidence about the condominium’s privacy policy, or even if there was a privacy policy. Further, in Beitel the information at issue that was obtained without a warrant was different and of a more personal nature than the information at issue in this case, which is an important distinguishing factor (see discussion in Spencer at paras. 22-67, and in particular para. 32).
63Further, as I have set out above, although I accept that Patrick Prince has standing to raise these search issues in relation to the condominium units, I find that the acts taken by both Patrick and Michael Prince to hide Patrick’s association with the units further lowers and privacy interest Patrick has in relation to the documents held by the condominium corporation. Although I accept Michael Prince’s evidence that Patrick actually paid for the units, and that Patrick occupied them, with the brothers having made the choice to put title to the units in Michael’s name, and tell the condominium corporation that Michael was the owner, and Patrick just and emergency contact, in my view it is difficult to see how Patrick can then assert a privacy interest over the documentation.
64Finally, I note that the police asked for this information from building staff. Building staff were not required to provide it. There is no evidence that the police were coercive to building staff in any way.
65For these reasons, I find that the actions of the police in obtaining of documents and information from the condominium staff prior to obtaining the warrant did not infringe Mr. Prince’s rights under s. 8 of the Charter.
Should the vehicle tracker information in paragraphs 79 and 80 of the ITO be excised because the underlying data was no longer available at the time of the trial?
66Paragraphs 79 and 80 of the ITO contain information relating to a tracker on a BMW used by Travis Richards. The tracker information is what led police to attend at the McDonald’s on Highway 7 on June 4, 2014, and observe an unknown male (later identified as Patrick Prince) meet with Mr. Richards.
67The Defence argues that because the underlying tracking data had not been retained and thus was not available at the time of the trial, any reference to the tracking data on the BMW should be excised from the ITO (and in particular at paragraphs 79 and 80 of the ITO).
68The Defence and the Prosecution agree on the facts regarding what information was lost. During the course of oral submission, both parties agreed that the court could accept as true the facts set out in the willsay of DC Adam Harker (at tab F of the Defence supplementary application record regarding lost evidence).
69DC Harker’s unit was involved in the installation of the tracker on the BMW in 2014. In May 2018, a request was made to his office to assist with clarifying GPS tracking data from this investigation. It was discovered at that time that only a partial download of the tracking data was completed for the BMW. DC Harker made several attempts to locate the missing data, but was unsuccessful in doing so. Due to the age of the case, the tracker data was purged in January 2017, and is no longer recoverable.
70I am not satisfied that that the loss of the underlying tracking data in relation to the BMW driven by Mr. Richards impaired Mr. Prince’s ability to challenge the warrant, or his right to make full answer and defence. As a result, I do not excise any of the reference to the tracker data in paragraphs 79 and 80 of the ITO.
71The Defence argument in this respect is somewhat novel. It is well-established that lost evidence can be a basis for a finding of the Charter violation, even in the absence of the Crown breaching its duty to disclose (i.e., where the Crown is not negligent in its handling of the fruits of the investigation), if the Defence establishes that the effect of the lost evidence is to impair the right to make full answer and defence: R. v. La, [1997] 2 S.C.R. 680, 1997 309. In this case, the Defence seeks to extend the principle to argue that where evidence underlying assertions in an ITO is not available at the time of trial, the portions of the ITO based on the missing evidence should be excised.
72The Prosecution concedes that the state had an obligation to preserve the tracker data, but argues that the Defence argument on this issue must be viewed in context. No-one realized until May 2018 that some of the underlying data had not been preserved. And the Defence did not make a disclosure request for the underlying tracker data until July 26, 2017 (one year after Mr. Prince’s return to Canada and arrest, and approximately 11 months after the initial disclosure package was provided). Further, the Prosecution argues that on the record before the court, there is no basis for the court to suspect that the information contained in the ITO about the tracker data at paragraphs 79 and 80 of the ITO is incorrect. In this sense, it is speculative that having the underlying tracker data would assist in challenging the validity of the warrant.
73I find that there is no basis to find that the police or the prosecution were negligent in their handling of the underlying tracker data. As well, the Defence was not diligent in seeking the tracker data information in disclosure. The first request for it was made in July 2017. However, that does not end the lost evidence inquiry.
74I accept, for purposes of argument, that if it could be shown that the loss of evidence underlying assertions in an ITO impaired the right to make full answer and defence in terms of challenging the warrant, it could give rise to a finding of a violation of s. 7 or 8 of the Charter. I pause to note that it seems to me that the application of the principles regarding lost evidence would, as a practical matter, be somewhat attenuated in the context of information included in an ITO. I say this in light of the nature of a reviewing judge’s function in a Charter claim based on allegations about the validity of a search warrant, and also the well-established law that hearsay information may be included in an ITO.
75However, it is not necessary in this case for me to delineate the limits of the application of principles regarding lost evidence to search warrant ITOs, because in my view the Defence has failed to show that the right to make full answer and defence (in this case challenging the search warrant) was impaired by the loss of the underlying data.
76Constable Goulah was the officer who had firsthand information about the tracking data at the time the ITO was prepared. He was monitoring the data on June 4, 2014, and dispatched an officer to attend at a McDonald’s on Highway 7 and Times Road in Richmond Hill based on the data. DC Goulah testified on the Charter application. His evidence was that although the police no longer had the original tracker data, he had times that Mr. Richard’s BMW was at specific streets in his notes as follows:
17:29 South Park Road
18:02 leaves
18:34 650 Sheppard
19:00 Allen and Sheppard
19:20 leaves
19:42 South Park Road
19:58 leaves
20:20 Allen and Sheppard
21:20 South Park Road
23:25 650 Sheppard
77DC Goulah agreed that based on his notes, he could identify the street the vehicle was on at the listed time, but not the specific street address (i.e., the street number)3. He was unsure whether the original tracking data would allow more specific tracking of the street address, because it depends how frequently the tracker is set to “ping” (i.e., to transmit data). He gave the example of a setting to ping every 30 seconds, but was not sure what the setting was for this tracker. DC Goulah also agreed that the 21:20 entry for the BMW being at South Park Road would encompass the area of the McDonalds at Highway 7 and Times Road.
78I note that in examining DC Goulah, the Defence did not at any point suggest to him that the information about the tracking data in his notes or in the ITO was not true. Rather, the concern was that it lacked detail, and possibly the underlying data could have provided more detail about the BMW’s movements that may have assisted the Defence in challenging the search warrant.
79In my view, in the absence of any basis to suspect the information in paragraphs 79 and 80 is fundamentally incorrect, I do not see how the absence of the detail which may have existed in the underlaying tracker data impaired Mr. Prince’s right to make full answer and defence.
80Taken at its highest as set out in paragraphs 79 and 80 of the ITO, all that is asserted is that Mr. Richards’ BMW was in the general area of South Park Road, which is the road the condominium complex is on. That general assertion is supported by the contemporaneous notes that DC Goulah made when he reviewed the tracker data shortly prior to the preparation of the ITO. Further, the hypothetical possibility that some fine detail was not properly captured in DC Goulah’s notes or the ITO would not affect the substance of the assertion in paragraphs 79 and 80 of the ITO, which was that the BMW owned by Mr. Richards was in area of residence of Prince (but not claimed to be at his actual residence) on June 4, 2014.
81However, in light of DC Goulah’s evidence regarding not being able to identify specific street addresses from the tracker data, as a matter of amplification of the ITO, I will not consider the specific numbers on South Park Road (“263-353”), which are asserted in the bottom portion of paragraph 80 of the ITO. Rather I will read it as the BMW being “in the area of South Park Road” at 5:44 p.m. on June 4, 2014). I do this on the basis of it being amplification or clarification of the ITO.
Did the failure to serve notice of covert entry infringe Mr. Prince’s s. 8 rights?
82I accept that the failure of the police to give Mr. Prince notice of covert entry in the time prescribed in the warrant violated s. 8 of the Charter. However, I do not find that breach to be significant in terms of the s. 24(2) balancing.
83Patrick Prince left Canada shortly after the execution of the general warrant (i.e., in June 2014). At that time, the police did not know where Mr. Prince was for purposes of giving the required notice of covert entry. On the record before me, one year later, in August 2015, the police were in possession of an address for Mr. Prince in Jamaica (and the Prosecution was beginning extradition proceedings). The police did not take any steps at that time to formally serve a notice of covert entry on Mr. Prince once they had the address in Jamaica.
84I note as well that on the record before me, the police made no efforts whatsoever to notify Michael Prince of the entry into the two condo units (and based on the documents available to them, he was the owner on title). This is another failure to comply with the statutory scheme for the warrant. However, Patrick Prince cannot rely on this breach of his brother’s section 8 rights.
85The Defence relies on the Court of Appeal decision of R. v. Coderre, 2016 ONCA 276 at para. 12, which holds that the failure to provide a required statutory notification of a search violates s. 8 of the Charter. I agree that the failure to give notice in this case to Mr. Prince infringed his rights under s. 8 of the Charter. A failure of the police to comply with the statutory scheme for a warrant, such as providing notice after entry, breaches s. 8 because the manner of search is not in compliance with the statutory authorization or the terms of the warrant. Section 487.01(5.1) of the Criminal Code mandates that notice of covert entry be included as a term of the warrant. The warrant at issue included a notice term at paragraph 3(e). It does not matter for the existence of the Charter breach that the non-compliance occurred after the items were seized, although that will be a relevant factor in the s. 24(2) analysis: Coderre at paras. 14-18, and 22.
86Thus, as a technical matter, the failure to give Mr. Prince notice of the covert entry into the condominiums and the vehicle violated s. 8 of the Charter, in that it was a non-compliance with the terms of the warrant.
87However, in my view, this breach is entitled to very little weight in the s. 24(2) analysis. First, on the case law, this type of breach or analogous breaches, such as failure to report to a justice, have not been considered to be a significant factor favouring exclusion of evidence for s. 24(2) purposes: Coderre at para. 22; R. v. Garcia-Machado, 2015 ONCA 569 at paras. 63, 65, and 66.
88Second, to a large extent the fact that Mr. Prince was not given notice of the entries in a timely way was a problem of his own making. The first entries (and the significant ones in terms of items being found) were conducted on June 10, 2014. Mr. Prince left the country soon after (and avoided apprehension for some time). He returned to Canada and was arrested in July 2016. Although he was not formally given notice of the entries, there is no dispute that this information was conveyed to him in his disclosure in August 2016.
Issues no longer in issue by end of hearing of application
89Both the Defence and the Prosecution chose not to pursue certain arguments by the time of oral submissions on the application.
90The Defence had asserted in its written materials that for the warrant to be executed in a manner consistent with s. 8, it could only be executed when police had gathered sufficient evidence to give rise to reasonable grounds that information related to the specified offences would be present in the places entered. This argument was based on paragraph 3(a) of the warrant, a condition imposed pursuant to s. 487.01(3). By the time of submissions, in light of the fact that the warrant had issued hours before the entries on June 10, 2014, and there was no evidence that anything had changed in relation to reasonable and probable grounds between the time the warrant issued and the entries, the Defence did not pursue this issue.
91The Defence also did not pursue its argument about whether the best interests of justice supported the use of a general warrant, or whether there were other provisions of the Criminal Code or other federal legislation that would have applied (Criminal Code, s. 487.01(1)(b) and (c)). In effect, the Defence accepted that in the circumstance, preserving ongoing secrecy of the investigation justified the use of a general warrant over a regular search warrant.
92Finally, the Prosecution did not pursue reliance on step 6 of Garofoli. In the circumstances, this approach makes sense, since the confidential informant information all related to people other than Mr. Prince. There was no confidential informant information whatsoever regarding Mr. Prince. And the Defence did not contest that the confidential informant information in relation to the other targets of the investigation was sufficient (along with subsequent investigation) for the issuing judge to conclude that there were reasonable and probable grounds that the other targets of the investigation were involved in drug trafficking activities.
Do the grounds set out in the information to obtain the general warrant establish reasonable and probable grounds?
93I turn then to the issue of whether the ITO disclosed reasonable and probable grounds in relation to Mr. Prince. In terms of my role as the reviewing court, the issue whether the grounds set out in the ITO are sufficient that the issuing judge could have found they constituted reasonable and probable grounds.
94In light of my conclusions regarding the police entries into the parking garages, the information the police obtained from the staff of the buildings, and the tracker data, I make this assessment based on the ITO as written, subject to the minor amplifications requested by the Defence based on the officers’ evidence on the application, which modifications were not contested by the Prosecution.
95The Defence conceded that the confidential informant information and the subsequent investigation was sufficient to provide reasonable and probable grounds that to the other targets of the investigation, Ewan Sutherland, Travis Richards, and Everton Henry, were engaging in drug trafficking. Thus, the real issue is whether the observations of Mr. Prince, when combined with that information could constitute reasonable and probable grounds that Mr. Prince was engaging in drug trafficking.
96In my view, considering all of the information set out in the ITO in context, I am not satisfied that the issuing judge could reasonably have concluded that reasonable and probable grounds existed in relation to Mr. Prince. I accept that there was a basis for reasonable suspicion. But in my view, considering the ITO as a whole, one could not reasonably conclude that the grounds set out rose to the level of credibly based probability, as opposed to possibility, that Mr. Prince was engaging in drug trafficking.
97In considering whether the ITO establishes reasonable and probable grounds in relation to Mr. Prince, I must bear in mind my role as a reviewing judge. The reviewing function is not a de novo review of the decision whether to issue a warrant. As a reviewing judge, it is not my role to substitute my views for those of the issuing judge. Rather, the issue I must consider is whether based on the record before the issuing judge, as amplified on the review, could the issuing judge have granted the authorization. As a reviewing judge, I must consider the information in the ITO (as amplified on the review) in a common sense and holistic manner: R. v. Garofoli, [1990], 2 S.C.R. 1421, 1990 52, at pp. 1451-52; R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8 at paras. 39-43; R. v. Herta, 2018 ONCA 927 at paras. 20-21; R. v. Sadikov, 2014 ONCA 72 at paras. 81-82.
98Reasonable and probable grounds involves both a subjective and an objective standard. It is not enough that the affiant believes he or she has the requisite grounds. In addition, the issuing judge must have a basis to conclude that a reasonable person would conclude that there were reasonable and probable grounds. The standard requires information that establishes a reasonable probability that an offence has been or will be committed: R. v. Debot (1986), 30 C.C.C. (3d) 207, 1986 113 (ONCA), affirmed [1989] 2 S.C.R. 1140, 1989 13; R. v. Storrey, [1990] 1 S.C.R. 241, 1990 125.
99The case law is also clear that reasonable and probable grounds is more than reasonable suspicion. Both reasonable suspicion and reasonable and probable grounds must be based on objective facts. The difference between reasonable suspicion and reasonable and probable grounds is that reasonable suspicion is based on reasonable possibility, while reasonable and probable grounds is based on reasonable probability: R. v. Chehil, [2013] 3 S.C.R. 220, 2013 SCC 49 at para. 27; Herta at para. 20; Sadikov at para. 81. In the words of Chief Justice Dickson, reasonable and probable grounds exist where “credibly based probability replaces suspicion”: Hunter v. Southam, [1984] 2 S.C.R. 145, 1984 33.
100I note that unlike some cases, the review of the ITO on the issue of reasonable and probable grounds in this case does not engage issues of credibility regarding the information in the ITO. The Defence concedes that the information in the ITO regarding other targets of the investigation apart from Mr. Prince was sufficient to establish reasonable and probable grounds that the various other targets were engaging in drug trafficking. The information consisted of confidential informant information about several of the other targets, and police investigation regarding the other targets. In particular, for purposes of considering whether there were reasonable and probable grounds in relation to Mr. Prince, the Defence concedes that there were reasonable and probable grounds that Mr. Richards was engaged in drug trafficking.
101Because there are no credibility issues at play, the question is whether, taking all of the information in the ITO as it relates to Mr. Prince, there were reasonable and probable grounds to believe he was engaged in drug trafficking based on the information in the ITO.
102I note as well that there were minor amplifications, more in the nature of clarifications, that the Defence submitted should be made to paragraphs 88, 90, 91 and 100 of the ITO. The Prosecution did not contest these amplifications/clarifications, but took the position that they did not change the assessment of whether the ITO did or did not establish reasonable and probable grounds in relation to Mr. Prince. Thus, my summary below of the contents of the ITO as it relates to whether there were reasonable and probable grounds that Mr. Prince had committed or would commit an offence includes the amplifications/clarifications.
103The substance of the ITO as it relates to whether or not reasonable and probable grounds were present in the material before the issuing judge is as follows:
As noted above, the defence concedes that the information from the confidential informant, coupled with the investigation of the other targets of the investigation apart from Mr. Prince, as set out in the ITO is sufficient to establish reasonable and probable grounds that Mr. Sutherland, Mr. Richards, and Mr. Henry were involved in drug trafficking. For purposes of considering reasonable and probable grounds as it relates to Mr. Prince, it is the presence of reasonable and probable grounds in relation to Mr. Richards that is significant. In general, the information that establishes reasonable and probable grounds in relation to Mr. Richards is found in paras. 14-78 of the ITO.
I note that the ITO is clear that the confidential informant information only concerned Mr. Sutherland, Mr. Richards, and Mr. Henry (see ITO at paras. 17-26). There was no confidential informant information about Patrick Prince at all. Rather, the claim that reasonable and probable grounds existed to ground the general warrant in relation to the two condo units and the Land Rover is based on Mr. Prince meeting with Mr. Richards on one occasion, and very limited additional observations of Mr. Prince on June 6 and June 9, which I will summarize below. Paragraphs 79-93 of the ITO are the primary paragraphs that address observations related to Mr. Prince (paragraphs 98-100 summarize what is in the earlier paragraphs).
It is important to note, and this is clear from the ITO, that the broader investigation of the various targets had been ongoing for approximately five months. During that time, Patrick Prince had never been observed by police, nor did the police receive information about him from any source until he was observed meeting with Mr. Richards on June 4, 2014.
Paragraphs 79-80: Police had a tracking warrant for a white 2011 BMW believed to be used by Mr. Sutherland and Mr. Richards. On June 4, 2014, the tracker showed that the BMW attended in the area of South Park Road multiple times that evening. The tracker then showed the BMW to attend in the area of a McDonald’s on Highway 7. An officer attended and saw the BMW parked in the McDonald’s parking lot at approximately 9:30 p.m. At that time, a black Jeep Cherokee arrived in the same parking lot and parked beside the BMW (The driver of the Jeep was not observed on June 4. Investigation showed the Jeep to be a rental. Police surveillance on subsequent days included observations of Mr. Prince driving the Jeep). Travis Richards got out of the BMW and opened the trunk and obtained a weighted4 gift bag. Mr. Richards got into the passenger side of the Jeep. Mr. Richards stayed in the Jeep for close to two hours. He then exited the Jeep without the gift bag. The Jeep then exited the McDonald’s parking lot and was followed to the underground parking garage for 273 South Park Road. In light of my holding above that the record does not support that the tracker data actually showed specific street numbers on South Park Drive that the BMW attended, I read this section of the ITO simply as showing that the BMW was in the area of South Park Road earlier at approximately 5:44 p.m., and according to DC Goulah, that would include the area where the McDonald’s was located. I do not think the difference is particularly significant in relation to considering in there were reasonable and probable grounds in relation to Mr. Prince.
Paragraphs 81-82: On June 6, 2014, DC Reid located the black Jeep Cherokee (the same one as from McDonald’s on June 4) in the underground visitor’s parking lot at 273 South Park Road. DC Reid was given access to the building’s guest logs, which showed that the Jeep was associated to unit 107.
Paragraph 83: On June 6, 2014, at approximately 10:43 a.m., and unknown black male and an unknown black female exited from 273 South Park Road into the underground garage (the male was later identified as Patrick Prince). The male got into the driver’s seat of the black Jeep Cherokee. The female got into a grey Honda Accord. Both vehicles left in tandem. A database search identified the name of a woman associated with the licence plate on the grey Honda (I note that she seems to have no further involvement in the investigation).
Paragraphs 84-85: On June 6, 2014, surveillance was maintained on the black Jeep Cherokee after it left the parking garage at 10:43 a.m. The unknown black male driver (later identified as Mr. Prince), picked up several other unknown males, and travelled to the Toronto Premium Outlets, where they shopped for the afternoon. I note that in submissions Prosecution counsel conceded that this observation simply seemed to be shopping and did not assist regarding establishing reasonable and probable grounds.
Paragraph 86: On June 9, 2014, police observed an unknown male (later identified as Mr. Prince) enter the underground garage of 273 South Park Road with a weighted duffle bag. He placed the bag in the trunk of the black Jeep Cherokee. He then entered the Jeep and drove to the underground parking garage of 325 South Park Road and parked. He exited the Jeep (and the garage). Moments later he returned to the Jeep with a second weighted duffle bag, and placed it in the trunk of the Jeep. DC Reid viewed building security video (after he asked building staff). The video showed Mr. Prince taking the elevator to the ground level, where unit 117 is located. He had a duffle bag in his possession at the time.
Paragraph 87: On June 9, 2014, Mr. Prince was then followed to Babylon Monetary Services at 1746 Lawrence Avenue East, in Toronto. Police observed him remove both weighted bags from the Jeep and enter the storefront. He then returned to the vehicle. Police were not able to observe if he had anything in his hands when he returned to his vehicle. Police did an internet search on Babylon Monetary Services and learned it offers money order, currency exchange, and money transfer services, including wire transfer.
Paragraph 88: On June 9, 2014, Mr. Prince was then followed to an RBC bank branch at 16th and Woodbine. He was observed with various papers and envelopes inside the bank branch shortly after. Then he drove to a Moxie’s restaurant located in the area of East Beaver Creek and Highway 7, and met with an unknown male driving a black Honda. They then drove in tandem to the South Park Road area of Richmond Hill. Counsel agreed based on the evidence led on the application (testimony of DC Daoust) that this paragraph should be amplified to include that both men were emptyhanded (except possibly for a phone) when they met at Moxie’s, and that they walked into Moxies restaurant at 12:35 p.m. Both men exited Moxies, still empty-handed at 1:26 p.m. (to make this point clearer, I observe that they were in a restaurant for about an hour, at the lunch-hour).
Paragraph 89: On June 9, 2014 (after Moxie’s), Mr. Prince drove back to 273 South Park Road in the black Jeep Cherokee and entered the underground parking garage. He parked next to a Grey Land Rover (which police later confirmed was registered in his name). Mr. Prince exited the Jeep, opened the Land Rover, and placed a weighted bag inside the Land Rover. He then got back into the Jeep.
Paragraph 90: On June 9, 2014, Mr. Prince then drove the Jeep above ground, and met with the unknown male operating the same black Honda as at Moxie’s. They drove in tandem to the underground parking garage at 325 South Park. Both vehicles were unoccupied when officers gained access to the underground parking garage at 1:50 p.m.
Paragraph 91: On June 9, 2014, Mr. Prince and the unknown male them returned to their vehicles at approximately 2:45 p.m. (the ITO erroneously states 2:25 p.m.), and left the area emptyhanded. Mr. Prince proceeded to park the Jeep in the underground garage of 273 South Park Road. The unknown male drove to a Shell gas station on Highway 7.
Paragraph 92-93: These paragraphs detail the information DC Reid obtained from building staff of 273 and 325 South Park Road, listing Michael Prince as the occupier of the relevant units, and listing Patrick Prince as his emergency contact.
Paragraph 100: This paragraph contains a very summary repetition of the contents of paras. 86 and 89. However, it also references Mr. Prince meeting with an unknown male. It was agreed that the reference in this paragraph of the ITO to Mr. Prince meeting with an unknown male should be removed, as it was not supported by the evidence led on the application (and indeed, is not supported by paras. 86 and 89 of the ITO).
104The Prosecution claim that there were reasonable and probable grounds to believe that Mr. Prince committed or would commit and offence thus rests on the fact of and circumstances of the meeting with Mr. Richards one June 4, 2014, and the observations of Mr. Prince on June 6, and 9, 2014.
105I note that the Defence accepts that based on the confidential informant information, and further investigation, at the time the warrant issued, there were reasonable grounds to believe that Mr. Richards was involved in drug trafficking. However, the Defence argues that the fact that Mr. Prince met once with Mr. Richard on June 4, 2014 (and the circumstances of that meeting), along with the observations of Mr. Prince on June 6 and 9, 2014, were not sufficient to establish reasonable and probable grounds that Mr. Prince was involved in drug trafficking.
106It is important in considering the contents of the ITO as they relate to Mr. Prince to bear in mind that the police had no confidential informant information whatsoever about Mr. Prince. Further, in the five months their investigation was ongoing, they had never observed or heard of Mr. Prince, prior to seeing the Jeep Cherokee associated with him at the McDonald’s on the evening of June 4, 2014 (I note that, although the male driving the Jeep on June 4, 2014 was not identified, I accept that considering the totality of the ITO, and Mr. Prince’s association with the rented Jeep Cherokee on June 6 and 9, that it is a reasonable inference that he was the driver on June 4). It is notable that since March 2014, the police had tracking warrants on the white BMW that Mr. Richards was driving when he met with Mr. Prince on June 4, and on the vehicles of other targets of the investigation – but yet, no observations of Mr. Prince until June 4, 2014
107I accept that the circumstances of the meeting with Mr. Richards on June 4, 2014, raise a level of suspicion, but they do not amount to reasonable and probable grounds. The length of the meeting in the car (close to two hours), and fact that Mr. Richards carried a gift bag into the Jeep, and exited later without the bag, in light of the (conceded) reasonable and probable grounds that Mr. Richards was involved in drug dealing creates a level of suspicion. But it could also have been a meeting for some other purpose. Drug dealers have friends, and give gifts, just like everyone else. The mere fact that a person meets with someone who police have reasonable and probable grounds is engaged in drug dealing is not itself sufficient to create reasonable and probable grounds about the other person.
108This is not a case, for example, where the police had information, from a confidential informant or otherwise, that a drug deal was likely to be conducted one June 4, 2014 involving either Mr. Richards or the defendant. While the nature of the meeting in a parking lot in a vehicle for two hours raises a level of suspicion, in my view it is insufficient alone, or in combination with the rest of the information in the ITO to establish reasonable and probable grounds that Mr. Prince had committed or would commit an offence.
109The tracker information in relation to Mr. Richards’ BMW is very general, and does not add anything to the observation of Mr. Prince meeting with Mr. Richards at the McDonald’s, other than that Mr. Richards’ (or at least his vehicle) was in the general area of South Park Road (i.e., in the general area of Mr. Prince’s residence), earlier in the evening on June 4, 2014 (prior to the McDonald’s meeting).
110Does adding the observations and information gathered by police on June 6 and 9 in relation to Mr. Prince amount to information sufficient to rise to the level of reasonable and probable grounds, taken with the June 4 meeting with Mr. Richards?
111Let us consider what those observations amount to (including the information DC Reid got from building staff). Mr. Prince was seen driving the Jeep Cherokee on June 6 and 9 (and inferentially on June 4), which police found out was a rental vehicle. He was associated to the two condominium units at least as an emergency contact based on the information from building staff, and his Land Rover was associated with one of the units.
112On June 6, 2014, he left the building with a woman. He then picked up some male friends and went shopping. The Prosecution concedes that there is nothing to suggest that the shopping was anything other than innocent shopping.
113On June 9, 2014, Mr. Prince took a duffle bag from each of the condominium units, and placed them in the Jeep Cherokee. He drove to a money exchange business. He went in carrying to bags. He then came back out. The police did not observe whether or not he had the bags with him when he came back out. We simply do not know. The police did no investigation whatsoever about what occurred in the money exchange business. They only looked up online the nature of the business. The Prosecution asserts that these observations are consistent with money laundering. But we have no idea what was in the bags, what happened inside the business, or even whether or not the bags and their contents were brought back out of the business to the Jeep.
114Mr. Prince then attended at an RBC bank branch. He was observed in the branch with papers in his hands – as I think it is fair to say most people would be observed holding papers in a bank branch.
115He then went to have lunch at a Moxie’s restaurant with an unknown male, neither of them carrying anything, except possibly a phone.
116Mr. Prince then drove back to the South Park Road condominiums, and took a bag out of the Jeep and put it in the Land Rover. He then met outside with the man he had had lunch with at Moxies, and they both drove into the garage at 325 South Park Road, and went into the condominium. About an hour later, they both came back to the garage, empty-handed, got into their respective vehicles, and left separately. The police did not make any observations of note either outside, or in the garage.
117In oral submissions, Prosecution counsel agreed that the observations of Mr. Prince shopping with friends on June 6, 2019, and having lunch at Moxie’s with an unknown male on June 9, 2014, contributed nothing to establishing reasonable and probable grounds.
118In my view, taken together, the information in the ITO establishes reasonable suspicion that Mr. Prince had committed or would commit an offence, but falls short of reasonable and probable grounds.
119Respectfully, I find that there was not a basis on which the issuing judge could conclude that the ITO established reasonable and probable grounds in relation to Mr. Prince. In fairness to the issuing judge, most of the ITO related to information which supported a finding of reasonable and probable grounds in relation to Mr. Sutherland, Mr. Richards, and Mr. Henry. Only a small portion related to information relevant to assessing if reasonable and probable grounds existed in relation to Mr. Prince. In the circumstances, this may have obscured the limited nature of the investigation into Mr. Prince and information available about Mr. Prince.
120It is, of course, easy in hindsight to conclude that the police were correct in their suspicions about Mr. Prince. But s. 8 of the Charter since Hunter v. Southam requires that the question of whether credibly based probability exists must be assessed before the intrusion into a person’s reasonable expectation of privacy. Hindsight must not be allowed to colour the assessment of the grounds as they existed at the time the warrant was issued.
121In the end, I find that the information in the ITO rises to reasonable suspicion that Mr. Prince had committed or would commit and offence, but not to the level of reasonable and probable grounds. Thus, the searches pursuant to the warrant infringed Mr. Prince’s rights protected by s. 8 of the Charter.
Would admission of the evidence obtained as a result of the entries and searches pursuant to the general warrant bring the administration of justice into disrepute?
122I find that admission into evidence of the results of the searches would bring the administration of justice into disrepute. As a result, I exclude from evidence the items found in both condominium units and in the Land Rover.
123The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, requires me to consider the following factors in assessing whether in all the circumstances, admission of the physical evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendants; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-98, 112-115.
124The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.
125The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.
126The third branch of the Grant analysis requires the court to consider the societal interest in a trial on the merits. Admission of reliable physical evidence may be more likely to support the societal interest in the truth-seeking function of a trial that will admission of a statement: Grant at paras. 79-84; 89-98; 112-115.
127At the same time, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach, the long terms impact on the administration of justice may favour exclusion of evidence.
(i) Seriousness of the breach
128Ultimately, I find that this factor is neutral in terms of the s. 24(2) analysis. On one hand, the breach was serious in the sense that what occurred was a search of a residence in the absence of reasonable and probable grounds. The fact that a warrant issued when reasonable and probable grounds were not present is serious, particularly where a residence is involved. The threshold of reasonable and probable grounds before a warrant can issue is a fundamental protection of the privacy of Canadians. In my view the police failed to do sufficient investigation, and were in too much of a hurry.
129However, a significant mitigating factor of the seriousness of the breach is the fact that the police applied for, and were granted, a warrant before entering either the residences or the vehicles. I have found that the warrant was improperly granted because the ITO did not establish reasonable and probable grounds that Mr. Prince had committed or would commit and offence. However, it cannot be said that the police acted in bad faith, since they took the step of obtaining a warrant, and having obtained the warrant, were entitled to execute it.
130Considering these factors together, I find that the seriousness of the breach is neutral – it favours neither admission nor exclusion of the evidence.
(ii) Impact of the breach on the defendant’s constitutionally protected interests
131The impact of the breach on Mr. Prince was very serious. His residence were searched by police in the absence of reasonable and probable grounds to believe that he had committed or would commit an offence.
132It is well-established in our law that a person’s home is a place where there is the reasonable expectation of privacy is high: R. v. Silveira, [1995] 2 S.C.R. 297, 1995 89, at pp. 363, 367-68; R. v. Feeney, [1997] 2 S.C.R., 1997 342, at pp. 45-47. The general warrant in this case permitted multiple entries into the residential units (and the vehicles), and multiple entries were made. For this reason, the impact on Mr. Prince’s constitutionally protected interests resulting from the searches of the two residential units when there were not reasonable and probable grounds to support the warrant issuing is very significant. This factor strongly favours exclusion of the evidence.
133I have considered whether the cocaine found in the vehicle should be treated differently because it was found in a vehicle, and not within the residential units, and whether this makes the balance different from the items found in the two condominium units. As I have outlined above, I accept that Mr. Prince did not have a reasonable expectation of privacy in the common garage (and thus, in relation to the police observing his movements in the common garage). However, I find that the search of the vehicle itself is different. The vehicle was parked at Mr. Prince’s home. Although it was in the common garage, in my view, when considering entry into the vehicle itself, it should not be treated differently than if it were parked in a driveway or a one-car garage. I note that although I found that there is no reasonable expectation of privacy in the garage, Mr. Prince had parked his vehicle in the parking at his home that was designed the secure the vehicles of the occupants of the buildings.
134Further, the search of the vehicle in this case is contextually linked to the search of the condominium units. The searches all arose from the same general warrant. And the police obtained the key to enter the vehicle from one of the condo units.
135Finally, the considerations that lessen the expectation of privacy in a vehicle when it is on a public highway are not applicable when a vehicle is parked at a person’s home (possibly excepting circumstances where police are pursuing from a just-committed offence – an issue I need not decide here). In my view, in the circumstances of this case, the search of the vehicle should not be separated from the search of the condominium units. Thus, I find that second branch of the analysis favours exclusion of the evidence seized from the condominium units and from the Land Rover.
136In sum, I find that the impact of the breach strongly favours exclusion of the evidence.
(iii) Society’s interest in an adjudication on the merits
137There is no question that the offences that Mr. Prince is charged with are serious. Trafficking of hard drugs like cocaine causes great harm to the community in terms of addiction, and in terms of secondary offences committed by individuals living with addiction in order to feed their addiction. The amount of cocaine seized, approximately 1 kg, is significant. The physical evidence of the drug and the money seized is reliable evidence. The Prosecution cannot sustain its case without it. There is a high public interest in a trial on the merits. But this is not the only relevant factor under the third branch of the analysis.
138There is also a public interest in the constitutional right of individuals to privacy in their residences being respected, and in the protection and respect of constitutional rights. In the long-term, the reputation of the administration of justice will be harmed if the courts routinely admit evidence gathered in violation of the Charter. Again, I note the importance that members of the public feel that their right to privacy in their homes will be protected in the absence of police establishing reasonable and probable grounds.
139On balance, I find that the third factor favours admissibility, but not overwhelmingly so.
Conclusion on admission or exclusion under s. 24(2)
140As the Court of Appeal noted in R. v. McGuffie, 2016 ONCA 365 at paras. 60-64, 73-74, the s. 24(2) analysis requires both fact-finding, and the weighing of various often competing interests. In terms of guidance for how to weight the three Grant factors, the Court of Appeal observed that where the first two factors make a strong case for exclusion, the third factor will seldom tip the balance in favour of admissibility. Where the first two inquiries provide weaker support for inclusion, the third factor will usually confirm admissibility of the evidence.
141This case falls between those two situations. The first factor is neutral, and the second factor strongly supports exclusion. The third factor supports admission, but not overwhelmingly so.
142In my view this case is a close call on the s. 24(2) analysis. On balance, I find that the long term repute of the administration of justice, and respect for constitutional rights protection requires the exclusion of the evidence.
143For these reasons, I find that Mr. Prince’s rights under s. 8 of the Charter were infringed by the searches of the condominium units and the Land Rover. I further find that the admission of the fruits of the searches into evidence would bring the administration of justice into disrepute. Mr. Prince’s Charter application is granted, and I exclude from evidence the items seized in the two condominium units and in the Land Rover.
144As indicated at the outset, when I provided the results of this ruling on May 13, 2019, with reasons to follow, counsel for the Public Prosecution Service indicated that he would not call any evidence, and asked that the charges against Mr. Prince be stayed pursuant to s. 579 of the Criminal Code.
Justice J. Copeland
Released: September 30, 2019
COURT FILE NO.: CR-17-90000-687-0000
DATE: 20190930
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PATRICK PRINCE
REASONS FOR DECISION ON CHARTER APPLICATIONS
Justice J. Copeland
Released: September 30, 2019
Footnotes
- The Prosecution bears the onus with respect to the warrantless searches prior to the warrant being issued in this case. But only if the Defence establishes a reasonable expectation of privacy with respect to the premises or the information at issue in the warrantless searches.
- This evidence is summarized at paras. 29-44, and 103 below.
- I note that 650 Sheppard appears to be an exception regarding having a note of a specific street number. But from the ITO it is clear that this was an address known to the police as associated with Mr. Richards and Mr. Henry.
- I understand all of the references in the ITO to “weighted” bags to mean that the officer making the observation believed based on its appearance that the bag contained something – was not empty – but did not have any information about what the something was.