R. v. Jordan, 2020 ONSC 6149

COURT FILE NO.: CR–19-0435

DATE: 2020-10-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON JORDAN

Counsel:

Phil Tsui, for the Crown

Brian Crothers, for Jason Jordan

HEARD: September 14-16, 2020

Ruling on Charter Application

P.J. Monahan J.

1Jason Jordan is charged with unlawful possession of a loaded Smith and Wesson handgun, contrary to s. 95 (1) of the Criminal Code, possession of cocaine for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act (the “CDSA”), as well as various other related charges.

2The charges result from CDSA search warrants that were executed on November 20, 2018 at two private residences and a motor vehicle. These search warrants relied upon information that was received from a confidential informer (“CI”) indicating that Mr. Jordan was trafficking cocaine and in possession of firearms, as well as from police surveillance of Mr. Jordan conducted on the basis of an earlier tracking warrant that had been obtained based on information from the same CI (the “Tracking Warrant”).

3Mr. Jordan argues that there were no reasonable and probable grounds for the issuance of either the Tracking Warrant or the search warrants, such that the tracking of his location and the searches of the private residences were a violation of his rights protected under s. 8 of the Canadian Charter of Rights and Freedoms. He seeks an order under s. 24 (2) of the Charter excluding the evidence obtained through the searches.

4The Crown takes the position that Mr. Jordan lacks standing to challenge the search warrant executed at one of the residences since it was not his home and he had no reasonable expectation of privacy in that location.

5The Crown further argues that upon review of the unredacted versions of the Informations to Obtain (“ITO”), there were reasonable and probable grounds for the authorization of both the Tracking Warrant and the search warrants, and thus no Charter violations were involved in their execution. In the alternative, if a Charter violation did occur, the Crown submits that the evidence should not be excluded pursuant to s. 24 (2) of the Charter.

6I find that there were reasonable and probable grounds for the issuance of the Tracking Warrant. The unredacted version of the relevant ITO contained compelling and credible information indicating that Mr. Jordan was engaged in drug trafficking activity and was in unlawful possession of firearms. Although the summary of the CI’s criminal record inadvertently omitted three entries, that omission was minor in the circumstances and would not have affected the assessment of the CI’s credibility.

7Mr. Jordan has standing to challenge the search warrants for both of the residences that were searched. However, there were ample grounds to support the issuance of these warrants. Following the issuance of the Tracking Warrant, the CI had provided additional firsthand information describing Mr. Jordan’s drug trafficking activity. Through their surveillance of Mr. Jordan, police had observed what they believed to be drug trafficking activity involving Mr. Jordan. Police surveillance also associated Mr. Jordan with both of the residential locations in question, therefore supporting the reasonable belief that evidence of his drug trafficking activity would be found there. The omission of the final page of the ITO, which contained five entries of the CI’s criminal record, was inadvertent and minor in the circumstances.

8Even if, contrary to these findings, there had been a breach of Mr. Jordan’s s. 8 rights, the admission of the evidence would not bring the administration of justice into disrepute. The evidence would therefore have been admissible, even in the event of a breach of the Charter.

9Mr. Jordan’s application to exclude evidence is accordingly dismissed.

Summary of the Facts

a. Information Received from the CI Regarding Mr. Jordan

10In September 2018, Toronto police received information on four separate occasions from a CI that led them to believe that Mr. Jordan was trafficking in illegal drugs and was in possession of firearms.

11The CI told police that a very active cocaine and crack dealer named “Jigz”, whose real name was Jason Jordan, was trafficking illegal drugs from inside his vehicle, as well as elsewhere, and was in possession of firearms. The CI advised police that Mr. Jordan was currently driving a white four-door Acura with the license plate CCLL 417 and that his phone number was 416-875-5497. The CI provided specific, detailed and current information about Mr. Jordan’s possession of firearms. The CI also told police that Mr. Jordan was involved with the Get Money Nation clothing brand.

12As a result of this information, police commenced an investigation into Mr. Jordan. Police investigators confirmed that Mr. Jordan had been involved in a motor vehicle accident on August 14, 2015. The accident report listed his address as 18 Parkview Avenue, #1116, Toronto and his phone number as 416-875-5497. Police subsequently determined that this phone number was still active.

13Police also confirmed through an open source Internet search that Mr. Jordan was associated with the Get Money Nation clothing brand. Police database checks confirmed that the license plate CCLL 417 was registered to a white four-door Acura registered to a Stefanie Doukas, who was also confirmed to be associated with Get Money Nation. At the time of the motor vehicle accident on August 14, 2015, Mr. Jordan was operating a motor vehicle owned by a Stefanie Doukas.

14In addition to the August 14, 2015 motor vehicle accident report, provincial offenses tickets dated November 26, 2014 and May 19, 2017 listed Mr. Jordan’s address as 18 Parkview Avenue, #1116, Toronto.

15An MTO check on Mr. Jordan revealed that Mr. Jordan had a valid driver’s license with a registered address of 18 Parkview Avenue, #1116, Toronto and a mailing address of 66 Parkwoods Village Drive, #506, Toronto.

16As a result of these inquiries, on September 20, 2018 police attended at 18 Parkview Avenue in an attempt to locate Mr. Jordan. A photograph of Mr. Jordan was shown to building security who advised that they did not recognize him as a resident of 18 Parkview Avenue. Security also confirmed that Mr. Jordan was not one of the tenants of unit 1116. Police checked the underground parking lot of the building for any of the vehicles associated with Mr. Jordan with negative results.

b. The Tracking Warrant

17In early October 2018, police concluded that they were unable to determine a place of residence for Mr. Jordan and unable to conduct surveillance of him. Accordingly, police decided to apply for a warrant under s. 492.1 (2) of the Criminal Code that would permit them to track the location of the cellular device with the telephone number 416-875-5497 that had been associated with Mr. Jordan.

18An ITO was prepared outlining the information provided by the CI, along with the results of the investigations that had been undertaken to that point by the police. The ITO also described the criminal record of the CI. However, during a subsequent review of the ITO, it was discovered that three convictions had been omitted from the summary of the CI’s criminal record.

19On October 11, 2018, judicial authorization was granted for a warrant to track the location of the cell phone that had been associated with Mr. Jordan.

20Between October 12, 2018 and November 19, 2018, police periodically tracked the location of the relevant cell phone. Over that time frame, Mr. Jordan was frequently observed operating a white four-door Acura with license plate CCLL 417. On November 4 and 5, 2018, police observed what they believed to be drug transactions occurring in Mr. Jordan’s Acura involving unidentified third parties. Mr. Jordan was also observed from time to time entering and/or exiting three residences: 58 Rainsford Road, Markham; 66 Parkwoods Village Drive, Toronto; and 812 Fetchinson Drive, Oshawa.

c. The Search Warrants

21On November 19, 2018, police sought judicial authorization for CDSA search warrants for the Acura being driven by Mr. Jordan, as well as for the three private residences which police surveillance had associated with him. The ITO described the information that had been received from the CI, as well as the results of the investigations that had been undertaken since the granting of the Tracking Warrant.

22Judicial authorization was granted to search the Acura as well as the residences at 58 Rainsford Road and 66 Parkwoods Village Drive. However, the warrant to search the Fetchinson Drive residence was refused.

23On November 20, 2018 at about 7:08 PM, police arrested Mr. Jordan while he was operating the Acura in Durham, Ontario. Keys were found on his person during a search incident to arrest.

24At about 7:46 PM, a search warrant was executed at 58 Rainsford Drive, Markham, which police believed to be Mr. Jordan’s family residence. Entrance to the home was gained by using keys seized from Mr. Jordan at the time of his arrest. Search officers located a locked safe in one of the bedrooms. The safe was opened using one of the keys seized from Mr. Jordan at the time of his arrest. 42.8 grams of cocaine were located inside the safe.

25At about 9:48 PM, another warrant was executed at 66 Parkwoods Village Drive, #506, Toronto. Using a key obtained from the building management, search officers were able to enter the unit, where they located two females. One female was a visitor, while the other, Rhonda Carpenter, indicated that she was associated with Mr. Jordan.

26While searching the bedroom of the residence, officers located a locked safe. Officers were able to open the safe using keys seized from Mr. Jordan at the time of his arrest. Inside the safe, officers located several bags of cocaine amounting to 172.2 grams, along with a loaded magazine and loose rounds of ammunition. Elsewhere in the bedroom, officers located a shoebox containing a pair of men’s boots and a loaded Smith & Wesson semiautomatic nine mm handgun with the serial number removed.

27In preparation for this Charter application, police reviewed an unredacted version of the search warrant ITO. It was discovered that the last page of the ITO, which contained five entries of the CI’s criminal record, was missing.

Procedure on the Application

a. Garofoli “Step 6”

28Given that the ITOs contained information obtained from a CI, the Crown provided defence counsel with heavily redacted versions in order to protect the identity of the CI. The Crown conceded that the redacted versions of the ITOs were insufficient to support the issuance of the warrants. Accordingly, the Crown proposed and defence counsel agreed to implement the “Step 6” procedure outlined in R. v. Garofoli.¹

29Pursuant to Step 6, I was provided with the unredacted versions of the two ITOs. The Crown prepared a proposed summary of the redacted portions of the ITOs with a view to providing sufficient information to allow the defence to mount a challenge of the redacted details in argument and/or by evidence.

30With the consent of defence counsel, I conducted an in camera hearing with Crown counsel in order to review the proposed judicial summaries of the redacted portions of the ITOs. I identified certain redactions in the ITOs which I found to be unnecessary to protect the CI’s identity. I also modified certain of the Crown’s proposed summaries of the redacted parts of the ITOs to include additional information for the defence. I found that the judicial summaries as amended provided the defence with sufficient information regarding the excised material to challenge the ITOs in argument or by evidence, in accordance with the requirements for a judicial summary as outlined in R. v. Crevier.² The amended judicial summaries were accepted by the Crown and provided to the defence.

b. Cross-Examination of CI Handler and ITO Affiant

31As described above, the description of the criminal record of the CI in the two ITOs was incomplete. The Crown agreed to provide Detective Constable Khalid Coroughly (“Coroughly”), the police “handler” for the CI, as well as Detective Sergio Simas (“Simas”), the affiant for both ITOs, for cross-examination on these omissions. The defence also sought and obtained permission to cross-examine both police officers on certain other aspects of the ITOs.

32Coroughly testified that as the handler for the CI, he was responsible for providing information on the CI’s criminal record to Simas, the affiant. He indicated that he has no set procedure that he follows when providing a CI’s criminal record to an affiant. Sometimes he might “cut and paste” the CPIC print out while at other times he might retype it. Coroughly was unable to recall which method he had employed in the present case. However, at the time he believed that he had provided a complete and accurate summary of the CI’s criminal record to Simas. It was only upon reviewing the ITO sometime in 2019 that he discovered that three entries in the CI’s criminal record had been inadvertently omitted. The three entries that had been omitted involved offenses committed at different points in time. He immediately brought the omissions to the attention of the Crown who, in turn, informed the defence.

33Simas testified that when he submitted the search warrant ITOs for judicial approval, he believed that the CI’s criminal record was complete and accurate. However, sometime in 2019, he reviewed the search warrant ITOs and found that the last page, which contained five entries from the CI’s criminal record, was missing. He believes it is possible that this final page was included in the package that was sent to the authorizing justice but is not certain that this is the case.

34With respect to the three entries that were omitted from the CI’s criminal record in both the Tracking Warrant and the search warrant ITOs, Simas does not believe that inclusion of those three entries would have affected the authorizing justice’s assessment of the CI’s credibility.

35Simas was asked why he had not verified whether Mr. Jordan was the subscriber for the telephone number 416-875-5497. Simas indicated that it was no longer possible to obtain subscriber information from cell phone service providers without a production order. Simas was further asked whether he was concerned about the fact that the most recent connection between Mr. Jordan and the cell phone number provided by the CI was from 2015. Simas was of the view that he had provided accurate information regarding the connections between Mr. Jordan and the cell phone number so as to enable the authorizing justice to assess the significance of the relevant dates.

36The search warrant ITO stated that according to the MTO database, Mr. Jordan had a mailing address of 66 Parkwoods Village Drive, #506, Toronto. However, no timeframe was provided with respect to when that mailing address had been in effect. Simas indicated that he was not concerned by this since recent police surveillance had associated Mr. Jordan with the Parkwoods Village Drive address.

Issues

37The following issues arise on this application:

i. Were there reasonable and probable grounds for the issuance of the Tracking Warrant;

ii. Does Mr. Jordan have standing to challenge the issuance of the CDSA search warrant for 66 Parkwoods Village Drive, #506;

iii. Were there reasonable and probable grounds for the issuance of the CDSA search warrants for 58 Rainsford Road and 66 Parkwoods Village Drive, #506; and

iv. If there were no reasonable and probable grounds for the issuance of either the Tracking Warrant or the CDSA search warrants, should the evidence obtained from the searches be excluded pursuant to s. 24 (2) of the Charter.

Validity of the Tracking Warrant

a. Governing Principles

38Section 492.1 (2) of the Criminal Code provides for the issuance of a warrant authorizing police to track an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual. Before such a warrant can issue, the authorizing justice must be satisfied that:

i. There are reasonable grounds to believe that an offence has been or will be committed; and

ii. Tracking the individual’s movements by identifying the location of a thing that is usually carried or worn by them will assist in the investigation of the offence.

39The “reasonable grounds to believe” standard does not require proof beyond a reasonable doubt nor even proof on a balance of probabilities. Rather, what is required is a credibly-based probability. If the inferences of criminal conduct on the facts disclosed are reasonable, the warrant could be issued.³

40I note that, unlike in relation to search warrants, issuance of a tracking warrant does not require a belief that evidence of an offence will be found at a particular location or place. It is sufficient if there are reasonable grounds to believe that an offence has been or will be committed, and that tracking that person’s movements will assist in the investigation of the offence in question.

41Warrants, as issued, are presumptively valid and the scope of warrant review is narrow. The reviewing justice is not to substitute their own views for those of the issuing justice but, rather, is limited to assessing whether, on the basis of the ITO provided, the authorizing justice could have issued the warrant. The issue, then, is whether there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds that an offence has been committed.⁴

42There is a duty on the affiant to provide full, fair and frank disclosure so that the issuing justice can make an informed decision as to the existence or lack thereof of reasonable and probable grounds. The reviewing court must exclude erroneous information included in the original ITO and may also consider additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO but does not extend to deliberate attempts to mislead the authorizing judge.⁵ At the same time, inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead.⁶

43Where a search warrant relies on information provided by a CI, it is necessary to assess the reliability of that information based on the three factors identified in R. v. Debot,⁷ namely, whether the information was compelling, whether it was corroborated and whether the CI was credible. The three Debot factors are to be assessed as a whole such that weaknesses in one or more of the factors may, to some extent, be compensated for by strengths in the others.⁸

b. Positions of the Parties

44Mr. Jordan challenges the validity of the Tracking Warrant on the following grounds:

i. The application was premature since there were other leads which the police could have investigated prior to seeking the Tracking Warrant. In particular, the police database checks had indicated that the mailing address for Mr. Jordan’s driver’s license was 18 Parkview Avenue, #1116, and yet the police failed to investigate that address. Police also failed to investigate an address in Bradford, Ontario associated with Stefanie Doukas, the owner of the white Acura which was alleged to be used by Mr. Jordan to traffic cocaine;

ii. The omission of three convictions from the criminal record of the CI meant that the issuing justice did not have a full, fair and frank disclosure of the CI’s criminal record; and

iii. Mr. Jordan’s criminal record was quite dated and should not have been included in the ITO since it had the potential to bias the issuing justice against him.

45The Crown argues that the information provided by the CI was compelling and credible and that, in the circumstances, the police took sufficient steps to corroborate the information provided. It is not necessary for the police to follow up on every potential investigative lead before seeking a tracking warrant. The omission of the three entries in the CI’s criminal record was inadvertent and a minor error which would not have affected the issuing justice’s assessment of the CI’s credibility.

c. Analysis

46I begin with a consideration of the three Debot factors.

47I find, first, that the information provided by the CI was compelling. The CI provided detailed, firsthand information on four separate occasions in September 2018 describing Mr. Jordan’s possession of firearms and his drug trafficking activity. The CI’s firsthand observations were numerous and certain of them were recent.

48The CI also appeared to be credible. They had provided information on other occasions which had proven reliable and actionable, specific details of which were described in the ITO. The ITO set out the criminal record of the CI, including whether the CI had previously been convicted for offenses of dishonesty or against the administration of justice. The ITO described the CI’s motivation for speaking to police, including whether consideration was sought or arranged and whether the CI was instructed on the consequences arising from giving false information.

49Although there were three entries on the CI’s criminal record that were omitted from the ITO, I accept the evidence of Coroughly that the omission was inadvertent. Given the details of the criminal record that were provided in the ITO, the omission of these three entries is properly characterized as a minor error. In the context of the ITO as a whole, I find that even had these three entries been included, it would not reasonably have affected the assessment of the CI’s credibility.

50No objection can be taken to the inclusion of the criminal record of Mr. Jordan in the ITO. Although dated, its inclusion was necessary and appropriate in order to provide full, frank and complete disclosure to the issuing justice. The affiant did not place any particular emphasis on Mr. Jordan’s criminal record and in my view it would not have resulted in any real or perceived risk of bias on the part of the issuing justice.

51The weakest of the three Debot factors in this case relates to the limited corroboration of the information provided by the CI. The police had independently confirmed the connection between Mr. Jordan and the cell phone number provided by the CI. Police also confirmed information about Mr. Jordan’s vehicle and license plate, as well as information about Mr. Jordan’s involvement in a particular clothing line. At the same time, this information was commonplace and anyone could have been aware of it.

52The challenge facing police in their efforts to further corroborate the information provided by the CI was that police had been unable to locate Mr. Jordan. Investigators had attended at 18 Parkview Avenue, #1116, which was the most recent address they had obtained for him based on the registered address for his driver’s license as well as various other database checks. However, building security at 18 Parkview Avenue indicated to police that Mr. Jordan was not a tenant there.

53It is true, as pointed out by Mr. Jordan, that police had not attended at 66 Parkwoods Village, #506, which was the “mailing address” associated with his driver’s license. But there was no indication, from the CI or otherwise, that Mr. Jordan was residing at that address or could be found there.

54There is no requirement for police to corroborate criminal activity before seeking judicial authorization for a warrant. Moreover, as the Court of Appeal noted in Crevier, the strengths in the other Debot factors can compensate for a limited amount of corroboration. I find that the efforts taken to corroborate the information provided by the CI, although limited, were reasonable in the circumstances.

55The information provided by the CI was compelling in its detail. The CI had spoken to police on four separate occasions in the month prior to the issuance of the warrant and had provided specific firsthand information describing Mr. Jordan’s criminal activity. The CI had provided information to police in relation to other investigations in the past that had proven to be accurate and actionable. I find that any weaknesses in the corroboration undertaken by police are offset by the compelling and credible information provided by the CI.

56Mr. Jordan argues that even if there were otherwise reasonable and probable grounds to believe he was involved in criminal activity, the police had failed to exhaust all potential investigative leads before seeking the Tracking Warrant. There is no such precondition for the issuance of a tracking warrant; assuming that there are reasonable grounds to believe a criminal offence has been or will be committed, s. 492.1 (2) merely requires that tracking the movement of an individual by identifying the location of a thing usually carried by that individual will assist in the investigation of the offense in question.

57There is no doubt that this latter condition was met in this case. The police had associated the cell phone identified by the CI with Mr. Jordan. It was reasonable for the issuing justice to form the opinion that tracking the location of this cell phone would enable police to further their investigation of Mr. Jordan.

58I conclude that the information set out in the unredacted ITO provided a reasonable basis for the issuing justice to conclude both that Mr. Jordan had committed various criminal offenses and that the tracking of his movement by identifying the location of the identified cell phone would assist in the investigation of those offenses. I therefore find that the Tracking Warrant was validly issued.

Standing to Challenge the CDSA Search Warrant for 66 Parkwoods Village Drive, # 506

a. Positions of the Parties

59The Crown takes the position that Mr. Jordan lacks standing to challenge the issuance of the CDSA search warrant for 66 Parkwoods Village Drive, #506. The Crown relies on the fact that the apartment in question was leased by Rhonda Carpenter, who was in a casual romantic relationship with Mr. Jordan. He would occasionally spend the night at her home. Although Mr. Jordan could be characterized as a privileged guest, he did not have possession or control of the premises. Based on the factors identified by the Supreme Court of Canada in R. v. Edwards,⁹ he was no more than a privileged guest and had no reasonable expectation of privacy in the premises. As such, he has no standing to challenge the issuance of the search warrant for this apartment.

60Mr. Jordan notes that while he did not have possession or control of the apartment as a whole, he had been given the right by Ms. Carpenter to store a locked safe in the apartment’s bedroom. Mr. Jordan had the key to the safe and the ability to control access to it. As such, he had a subjective expectation of privacy in relation to the safe and its contents, and that expectation was reasonable in the circumstances. This reasonable expectation is sufficient to permit him to challenge the issuance of the search warrant for the apartment.

b. Reasonable Expectation of Privacy: The Edwards Factors

61As noted above, the Crown takes the position that any privacy claim that Mr. Jordan may have in relation to the apartment at 66 Parkwoods Village Drive is foreclosed by the decision of the Supreme Court of Canada in Edwards.

62In Edwards, police searched an apartment occupied by the girlfriend of the accused. The police found crack cocaine hidden under a cushion in the sofa of the apartment. The issue was whether the search violated Mr. Edwards "reasonable expectation of privacy” such that he had standing to challenge the validity of the search.

63The majority judgement of the Supreme Court was written by Cory J., who conceded that it was possible, in certain circumstances, to establish a reasonable expectation of privacy in things that are seized. However, no such argument could be made by Mr. Edwards since, at trial, he had denied the drugs were his. Thus, the only privacy interest that Mr. Edwards could advance was in relation to the apartment itself, as opposed to in the drugs that were hidden in the sofa.

64Having restricted the privacy interest at issue in this manner, Cory J. had little trouble in concluding that Mr. Edwards had no reasonable expectation of privacy in the apartment itself. Justice Cory identified seven factors which, although not exhaustive, may be considered in assessing whether a person has a reasonable expectation of privacy sufficient to trigger s. 8 of the Charter. These factors include whether the individual had possession, control or ownership of the property, as well as the ability to regulate access to it.

65It was clear that Mr. Edwards had no ability to control access to his girlfriend’s apartment. Since he was no more than a privileged guest, he did not have the right to be “free from intrusion or interference” while in the apartment. Since he had no reasonable expectation of privacy in the apartment itself, he had no standing to challenge the issuance of the search warrant.

c. Four-Part Test for Assessing Reasonable Expectation of Privacy Claims

66While Edwards continues to be regarded as a leading authority in this area, in recent years the Supreme Court of Canada has developed a four-part test for analyzing reasonable expectation of privacy claims. This four-part test subsumes the factors identified in Edwards, while at the same time situating those factors within a coherent and structured framework. It was initially articulated in R. v. Cole,¹⁰ and has subsequently been applied in a growing number of cases and contexts, including R. v. Jones,¹¹ R. v. Marakah,¹² and R. v. Reeves.¹³

67The test proceeds on the premise that the reasonable expectation of privacy standard is normative rather than descriptive. It is also informed by the perspective that privacy is not an all or nothing concept. It is possible for an individual to have a diminished or qualified reasonable expectation of privacy while still retaining the benefit of s. 8 protection. The underlying question is whether “reasonable and informed people in the position of the accused would expect privacy.”¹⁴

68This normative question is to be answered in accordance with the following four-part test:

i. What is the subject matter of the search;

ii. Did the claimant have a direct interest in the subject matter;

iii. Did the claimant have a subjective expectation of privacy in the subject matter; and

iv. Was this subjective expectation of privacy objectively reasonable, having regard to the totality of the circumstances.

69At the first stage of the test, which involves determining the subject matter of the search, the inquiry should be undertaken functionally, as opposed to in terms of the physical acts, spaces or modalities involved. Courts should focus on “the nature of the privacy interests potentially compromised by the state action.”¹⁵ The guiding question is “what the police were really after,” as opposed to where the search was to take place.¹⁶

70At the second stage of the test, whether an individual has a direct interest in the subject matter of the search, Jones significantly changed the legal landscape on this issue by permitting an accused mounting a s. 8 claim to assume as true any fact that the Crown has alleged or will allege in the prosecution against him. Recall that in Edwards the accused was prevented from asserting a privacy interest in the drugs that were seized because at trial he had denied that the drugs were his. Jones overcomes this obstacle by permitting an accused to assert an interest in the subject matter of the search in lieu of tendering evidence probative of those same facts in the voir dire.

71The third inquiry, whether the accused has a subjective expectation of privacy in the subject matter of the search, is not a “high hurdle.”¹⁷ It can be satisfied by showing that the accused subjectively expected the subject matter of the search to be kept private or confidential.

72Even if an individual has a subjective expectation of privacy, that expectation must be reasonable in the circumstances in order to engage s. 8. This question turns on what the individual, in all the circumstances, should reasonably have expected. In considering the objective reasonableness of an expectation of privacy, courts should have regard to the purpose of s. 8, which is “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.”¹⁸ It is important to recognize that the analysis of this question turns on the strength of the privacy claim in relation to the subject matter of the search, not the legal or illegal nature of the items sought.¹⁹

73Control, ownership, possession and historical use continue to be relevant in determining whether a subjective expectation of privacy is objectively reasonable.²⁰ However, none of these factors is dispositive. In particular, lack of control is not fatal to a privacy interest; indeed, a categorical factor like control should not have “a dominating impact on whether a person has a reasonable expectation of privacy.”²¹ The Supreme Court has repeatedly recognized a reasonable expectation of privacy in places and things that are not exclusively under the claimant’s control. For example, in R. v. Buhay, a person was found to have a reasonable expectation of privacy in a bus depot locker where he had locked belongings, even though a company owned the lockers and could access them at any time.²² Likewise in R. v. Law, an individual keeping financial documents in a locked safe which was stolen and later recovered, open, in a field, retained a privacy interest in the documents.²³

d. Application of Four-Part Framework to Mr. Jordan

74The “subject matter” of the search of 66 Parkwoods Village Drive, #506—that is, “what the police were after”—can be gleaned from the ITO and the CDSA search warrant. The police were seeking “contraband,” described as cocaine, drug paraphernalia, cash and debt lists, as well as evidence revealing possession and control of the contraband, including cellular devices. This contraband and related material was therefore the subject matter of the search.

75The Crown theory of the case is that the contraband and firearms found in the apartment belonged to Mr. Jordan. Jones establishes that Mr. Jordan is entitled to rely upon the Crown’s position for the purposes of the voir dire. Mr. Jordan therefore has an interest in the subject matter of the search.

76The drugs and firearms seized had been stored in a locked safe, as well as in a shoebox. While Mr. Jordan could not regulate access to the apartment, it is evident that he expected that the contraband in the safe and the shoebox would be kept private. I thus find that he had a subjective expectation of privacy in the items and materials seized.

77The most challenging issue is whether Mr. Jordan’s subjective expectation of privacy in the things seized was reasonable in the circumstances.

78It is clear that Mr. Jordan could not control access to Ms. Carpenter’s apartment. Nevertheless, he had stored certain items in a locked safe to which he had a key. There is no evidence to suggest that Ms. Carpenter had a key to the safe and thus an ability to access it herself or to grant such access to others. It is also evident that disclosure of the materials stored in Ms. Carpenter’s apartment would reveal “intimate details of the lifestyle and personal choices of the individual [i.e. Mr. Jordan].”²⁴

79As the Supreme Court has repeatedly emphasized in recent years, privacy is not an “all or nothing” concept. While Mr. Jordan did not have absolute control over the items in question, neither had he relinquished his claim over them. Indeed, it can be inferred that the material was stored in the safe and the shoebox precisely to keep these items hidden and not accessible to others.

80I conclude that a reasonable and informed person in the position of Mr. Jordan would have expected that the items stored at Ms. Carpenter’s apartment would have been kept private. As such, I find that his subjective expectation of privacy was reasonable in the circumstances. Therefore, Mr. Jordan has standing to challenge the issuance of the search warrant in relation to 66 Parkwoods Village Drive, #506.

Validity of the CDSA Search Warrants

a. The Warrants

81The CDSA search warrants authorized searches of a white Acura motor vehicle as well as two private residences, 58 Rainsford Road (a detached two-story home in Markham), and 66 Parkwoods Village Drive, #506 (a unit in a lowrise apartment building in Toronto). Police believed that they would find cocaine, cash and other evidence revealing possession and control of contraband at those locations. Mr. Jordan alleges that there were no reasonable and probable grounds for the issuance of the search warrants for 58 Rainsford Road or 66 Parkwoods Village Drive.

82The same governing principles outlined above in relation to the validity of the Tracking Warrant apply in relation to the CDSA search warrants and will not be repeated here.

b. The ITO

83The ITO for the CDSA search warrants relied on information provided by the same CI. However, since the issuance of the Tracking Warrant, the CI had met with his police handler on two subsequent occasions (once in October and a second time in November 2018) and provided additional firsthand information regarding Mr. Jordan’s drug trafficking activity.

84In addition, the police had undertaken extensive surveillance of Mr. Jordan between October 12 and November 19, 2018. Police had observed Mr. Jordan in locations identified by the CI as ones in which Mr. Jordan engaged in drug trafficking activity. Police had also observed Mr. Jordan engaging in what they believed to be drug transactions on a number of occasions:

i. At approximately 10:54 PM on November 4, 2018, police observed Mr. Jordan double parking the white Acura on the street outside a convenience store. An unknown male exited the convenience store and got into the front passenger seat of the Acura. Three minutes later, this unknown male exited the Acura and ran into a nearby complex while noticeably looking around his surroundings. A detective observing these events believed that interaction to be a drug deal.

ii. At approximately 11:06 PM on the same evening, police observed an unknown male get into the passenger side of the Acura as it was parked on the side of the road near Willowdale Avenue. A minute later this unknown male exited the Acura and walked away southbound on Willowdale Avenue. A detective observing this interaction believed it to be a drug deal.

iii. At approximately 10:36 PM on November 5, 2018, police observed the white Acura parked on the side of Laurentide Drive. An unknown male approached the Acura and leaned into the passenger side of the vehicle, appearing to have some exchange with Mr. Jordan, who was sitting in the driver’s seat. This unknown male then walked away and stood on the corner while the Acura drove away. A police detective observing this interaction believed it to be a drug deal.

85Police surveillance and other investigations had connected Mr. Jordan with both the Rainsford Road residence and the apartment at 66 Parkwoods Village Drive.

86Police believed that Mr. Jordan’s primary place of residence was 58 Rainsford Road in Markham. He had been observed parking in the garage of the home and accessing the front door with a key. His cell phone was tracked to that location frequently at all hours of the day and night. In particular, between October 12, 2018 and November 19, 2018 his cell phone had been tracked in the area of 58 Rainsford Road 45 times on 20 different dates. This address had also been listed as a home address on previous reports with the Toronto Police Service.

87Mr. Jordan’s cell phone had been tracked in the area of 66 Parkwoods Village Drive four times on three different occasions. Police had observed him attending at that location late at night and close in time to the occasions on which the police had observed Mr. Jordan engaging in what they believed to be drug transactions. For example, Mr. Jordan had attended at 66 Parkwoods Village Drive at approximately 9:45 PM on November 4, 2018. He left the building at approximately 10:35 PM. Approximately 20 minutes later, police observed the interaction between Mr. Jordan and the unknown male outside the convenience store. After attending various other locations, including Willowdale Avenue where the alleged drug transaction took place at 11:06 pm, Mr. Jordan returned to 66 Parkwoods Village Drive at approximately 1:07 AM on November 5, 2018.

88At 10:39 PM on November 5, 2018, just minutes after observing the interaction between Mr. Jordan and the unknown male on Laurentide Drive, police observed Mr. Jordan parking at 66 Parkwoods Village Drive and entering the building. At 1:00 AM on November 6, 2018, Mr. Jordan had not exited the building, at which point surveillance was discontinued.

89Police had also attended at 66 Parkwoods Village Drive on November 5, 2018 and spoken to a building representative. The building representative indicated that two females lived in unit 506 and one of them had a boyfriend. A photo of Mr. Jordan was shown to the building representative, who stated that the person in the photo could possibly be the boyfriend. Police also reviewed the building surveillance video from the previous night and confirmed the observations made by officers of Mr. Jordan entering and exiting the building.

90The ITO had also set out the criminal record of the CI. As noted earlier, when reviewing an unredacted version of the ITO, Simas discovered that the last page, which contained five entries of the CI’s criminal record, was missing.

c. Analysis

91Considered in the context of the three Debot factors, it is evident that the ITO for the search warrants had been significantly strengthened by the subsequent investigations and surveillance undertaken on the strength of the Tracking Warrant.

92First, the CI had provided additional firsthand information regarding the drug trafficking activity of Mr. Jordan in October and November 2018.

93Second, the police had obtained extensive corroboration of the information provided by the CI. In particular, the police had corroborated the CI’s statements that Mr. Jordan was engaged in drug trafficking activity. They had observed him late at night engaging in transactions which appeared to them to be drug deals. Police had also confirmed that Mr. Jordan attended at locations identified by the CI as ones where Mr. Jordan engaged in drug trafficking.

94As noted above, it is not necessary for police to corroborate CI information alleging criminal activity before seeking a search warrant. Nevertheless, the fact that police had been able to obtain such corroboration in this case reflects the strength of the corroboration undertaken.

95Simas discovered that the final page of the ITO for the search warrants was missing and may not have been provided to the issuing justice. This page included five entries from the criminal record of the CI. I accept the evidence of Simas that if this page was in fact omitted from the material sent to the issuing justice, it was as a result of inadvertence rather than a deliberate attempt to withhold the information.

96I find that the omission of these five entries was not material in the context of the ITO as a whole. Even in the absence of these five entries, the issuing justice had an accurate understanding of the nature of the CI’s criminal record, including whether he had in the past committed crimes of dishonesty or against the administration of justice. The ITO also included other information which provided the issuing justice with a sufficient basis to assess the credibility of the CI. In any event, the information provided by the CI was compelling and had now been corroborated extensively by the police.

97I conclude, therefore, that the ITO satisfies the three Debot factors and that it was reasonable for the authorizing justice to conclude that Mr. Jordan was engaged in criminal activity.

98The information contained in the ITO must also support a belief, based on reasonable and probable grounds, that evidence of the offenses alleged would be found in the locations to be searched.

99The ITO contained information which appeared to establish significant connections between Mr. Jordan and the residences at 58 Rainsford Road and 66 Parkwoods Village Drive. Police believed the Rainsford Road house was his primary residence, and his cell phone had been tracked frequently in that location at all hours of the day and night. The apartment at 66 Parkwoods Village Drive was believed to be occupied by his girlfriend. Mr. Jordan had been observed on a number of occasions entering and exiting 66 Parkwoods Village Drive late at night and close in time to occasions when he had been observed engaging in what police believed to be drug transactions.

100The ITO affiant stated that from his experience, as well as based on the experience of other officers, a person engaged in drug trafficking activity normally leaves evidence of such activity in locations the person occupies, possesses and/or controls, such as residences and motor vehicles. It was thus reasonable to believe that evidence of Mr. Jordan’s drug trafficking activity would be found in the Acura as well as in the residences on Rainsford Road and Parkwoods Village Drive.

101I therefore find that the ITO establishes reasonable grounds to believe that Mr. Jordan was engaged in drug trafficking activity and that there is evidence to be found of such activity in the locations of the proposed searches. The CDSA search warrants were therefore validly issued.

Had there been a Charter Violation, Should the Evidence be Excluded Pursuant to s. 24 (2)?

102Although I have not found any Charter violation in this case, I nevertheless proceed to consider whether, if I had come to a contrary conclusion, I would have excluded the evidence pursuant to s. 24 (2) of the Charter.

a. Governing Principles

103Section 24 (2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.

104As the Supreme Court of Canada determined in Grant, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach on the Charter-protected interests of the accused; and

iii. Society’s interest in the adjudication of the case on its merits.²⁵

105In considering the first prong of the test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes.²⁶

106With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. As with the first prong of Grant, this requires a consideration of the degree of seriousness of the impact on protected Charter rights. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual or practical significance.

107Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. Although this third line of inquiry typically supports the inclusion of the evidence, in order to further the societal interest in an adjudication on the merits of a case, this will not always be so. As the Supreme Court of Canada observed recently in R. v. Le,²⁷ an adjudication on the merits in a rule of law state presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.

108These three lines of inquiry cannot be applied with mathematical precision according to a fixed formula. Rather, what must be considered is the overall impact that admission of the evidence would have upon the reputation of the administration of justice. This necessarily requires a qualitative assessment of the totality of the circumstances.²⁸

b. Application of the Principles

i. The seriousness of the Charter-infringing state conduct

109In my view, any Charter-infringing state conduct in this case would tend to fall on the less serious end of the spectrum. The police obtained information from a confidential source, who they believed to be reliable, on several occasions. The ITO set forth what the affiant believed to be strong grounds supporting the issuance of both the Tracking Warrant and the CDSA search warrants. I have found that the police officers in this case proceeded in good faith and any omissions in the ITO were inadvertent.

ii. The impact on the Charter-protected interests of the accused

110Had the CDSA searches been unlawful, they would have had a significant impact on Mr. Jordan’s Charter-protected interests. Courts have long recognized that there is a strong privacy interest in a person’s private residence, as well as their cellphone. As such, this factor tends to support the exclusion of the evidence obtained.

iii. Society’s interest in adjudication on the merits

111The charges against Mr. Jordan are serious and the evidence is highly reliable. Moreover, if the evidence is excluded it will bring an end to the Crown’s case. This factor tends to support the admission of the evidence.

iv. Balancing the factors

112I find that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of this evidence would not bring the administration of justice into disrepute. The evidence would therefore have been admissible, even if I had found a breach of the Charter.

Disposition

113Mr. Jordan’s application seeking exclusion of the evidence obtained is dismissed.

P. J. Monahan J.

Footnotes

1. 1[1990] 2 SCR 1421 ("Garofoli").
2. 22015 ONCA 619 ("Crevier"), at paras 70-88.
3. 3R. v. Sadikov, 2014 ONCA 72 ("Sadikov"), at para 81.
4. 4Sadikov, at para 84.
5. 5R. v. Morelli, 2010 SCC 8, at para 41.
6. 6Sadikov, at para 87.
7. 7R. v. Debot, [1989] 2 SCR 1140, at para 60.
8. 8Crevier, at para 107.
9. 9[1996] 1 SCR 128 ("Edwards"), at para 45.
10. 102012 SCC 53 ("Cole").
11. 112017 SCC 60 ("Jones").
12. 122017 SCC 59 ("Marakah").
13. 132018 SCC 56.
14. 14Cole, at para 35.
15. 15R. v. Ward, 2012 ONCA 660, at para 65.
16. 16Marakah, at para 15. It is precisely for this reason that, although this framework was initially developed in the context of informational privacy claims, it is properly understood as a framework of general application applying to all manner of privacy claims.
17. 17Marakah, at para 22.
18. 18Marakah, at para 31 (citing R. v. Plant, [1993] 3 SCR 281, at page 293 ("Plant")).
19. 19R. v. Spencer, 2014 SCC 43, at para 36.
20. 20Marakah, at para 38.
21. 21R. v. Le, 2019 SCC 34, at para 136 ("Le").
22. 22R. v. Buhay, 2003 SCC 30.
23. 23R. v. Law, 2002 SCC 10.
24. 24Plant, at page 293.
25. 25R. v. Grant, 2009 SCC 32.
26. 26See R. v. Boussoulas, 2014 ONSC 5542, at para 157, affirmed, 2018 ONCA 222.
27. 27Le, at para 158.
28. 28See the analysis of Brown J.A. in R. v. Omar, 2018 ONCA 975, at paras 108-121, affirmed, 2019 SCC 32.