COURT FILE NO.: 3856808
DATE: 20210913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DUC TUNG HOANG
Xenia Proestos, for the Crown
Alan D. Gold, for the Applicant, Mr. Hoang
HEARD: June 21, 2021
REASONS FOR JUDGMENT ON MOTION PURSUANT TO S. 8 AND 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS
R. Maxwell j.
[1] The applicant, Mr. Hoang, is charged with multiple counts of possession for the purpose of trafficking cocaine, heroin, fentanyl, carfentanil, and MDMA, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”), possession of proceeds of crime, contrary to s. 355 of the Criminal Code (the “Code”), and careless storage of a firearm and careless storage of ammunition, contrary to s. 86(1) of the Code.
[2] He brings an application under s. 8 of the Charter of Rights and Freedoms (the “Charter”) to set aside the General Warrant dated July 12, 2018 and exclusion of evidence subsequently obtained, under s. 24(2) of the Charter.
Background
[3] As part of a large-scale investigation, the Toronto Police Drug Squad received information from a confidential source about a person trafficking drugs in the Greater Toronto Area. The police ultimately concluded that the person the confidential source described was the applicant. The police then began an investigation into the applicant.
[4] Between April and July of 2018, police conducted surveillance on the applicant. The investigation revealed that the applicant resided at (and is one of the registered owners of) 1539 Sherway Drive in Mississauga. Two vehicles were regularly seen parked at the address – a black GMC Sierra truck with licence plate AV55932, which was registered to the applicant, and a black Hyundai Tucson with licence plate ARBD171, which was registered to his girlfriend.
[5] Police also determined that the applicant parked another vehicle, an Acura MDX with licence plate BYXB 989 in the underground parking lot of a condominium building located at 385 Prince of Wales Drive, Mississauga. Investigation revealed that another male, Patrick Lee, lived at the condominium building. Mr. Lee, a former police officer, had been convicted of criminal offences of breach of trust and conspiracy to commit an indictable offence and was believed to be involved in drug trafficking.
[6] A search of Ministry of Transportation records revealed that the Acura MDX was registered to the applicant.
[7] On June 28, 2018, police applied for a General Warrant authorizing covert entry into the parking garage of 385 Prince of Wales Drive to deploy a drug detection dog to assist in identifying an optimal location for a covert camera, set up the covert camera, and swab surfaces to detect the presence of controlled substances.
[8] On June 28, 2018, shortly after the first General Warrant was issued, the police located the applicant’s Acura MDX parked in the underground parking garage at 385 Prince of Wales Drive. As a result, the General Warrant which was issued was never executed.
[9] As part of the investigation, the police used the investigative technique of a pole camera outside of the applicant’s residence at 1539 Sherway Drive. The camera was installed in a public place.
[10] Between July 9-17, 2018, police recorded the outside of 1539 Sherway Drive, including anyone who may have attended at the address and anything going on outside the house.
[11] On July 12, 2018, police obtained another General Warrant (the “July 12th General Warrant”) authorizing covert entry into four vehicles, including the applicant’s Acura MDX. Paragraph 9 of the July 12th General Warrant authorized the police to:
(a) Copy, photograph, record, sample and/or seize anything that may provide or contain information concerning the offences in paragraph 6;
(b) Examine any telecommunication device located within the vehicles to identify the device’s phone number, serial number, IMEI number or PIN number;
(c) Covertly copy the data from a computer, electronic storage device or telecommunication device found in the vehicles. The data may be further examined pursuant to this order when specifically related to that computer, electronic storage device, or telecommunication device.
[12] The grounds set out in the Information to Obtain the July 12th General Warrant did not include any information derived from the pole camera surveillance.
[13] On July 18, 2018, police executed the July 12th General Warrant authorizing covert entry into the Acura MDX. The police discovered significant quantities of controlled substances, a shotgun, and a large quantity of money inside the Acura MDX.
[14] The Acura MDX was seized without a warrant on the basis of the “public safety” exception and kept at a police garage. On July 18, 2018, police applied for and obtained two CDSA search warrants – one for the applicant’s residence at 1539 Sherway Drive and the other for the applicant’s Acura MDX.
[15] A search of the Acura MDX resulted in police seizing 7.495 kg of cocaine, 494.09 grams of carfentanil, 4.308 kg of heroin and fentanyl, 4000.15 g of heroin, fentanyl and carfentanil, $118,000 in bundled Canadian currency, a shotgun, and ammunition for the shotgun.
[16] A search of 1539 Sherway Drive resulted in police seizing smaller quantities of controlled substances, $148,200 in bundled Canadian currency, $1044 in bundled US currency, money counters, a cocaine press, drug paraphernalia, and various legally owned firearms registered to the applicant.
[17] On July 19, 2018, the applicant was arrested and charged with multiple firearm and drug-related offences.
Position of the Parties
[18] On behalf of the applicant, Mr. Gold argues that the applicant’s rights under s. 8 of the Charter were violated because the July 12th General Warrant was issued without the requisite reasonable grounds under s. 487.01 of the Code. This violation tainted the warrantless seizure of the Acura MDX and the CDSA search warrants for the applicant’s residence and the Acura MDX and all evidence thereby obtained.
[19] Specifically, he argues that the Information to Obtain sworn in support of the July 12th General Warrant did not provide any evidence that “information” regarding the alleged offences would be found in the Acura MDX on July 18, 2018, the date the July 12th General Warrant was executed. In the absence of grounds to believe that the Acura MDX would contain “information”, such as data from a telecommunications device, computer, or electronic storage device, there were insufficient grounds to obtain the July 12th General Warrant.
[20] He further argues that another Charter breach occurred when police installed a warrantless covert camera on a pole outside the applicant’s residence at 1539 Sherway Drive. Although no information from the pole camera formed part of the grounds to obtain the July 12th General Warrant, he argues that this breach compounds the seriousness of the police conduct, a relevant consideration to the assessment of whether the evidence ultimately seized from the Acura MDX and from 1539 Sherway Drive should be excluded under s. 24(2) of the Charter.
[21] On behalf of the Crown, Ms. Proestos submits that the Information to Obtain sworn in support of the July 12th General Warrant establishes reasonable grounds for the warrant, based on the cumulative information from the investigation. She further argues that, even if the July 12th General Warrant was not valid and the resulting observations are excised from the Information to Obtain in support of the CDSA search warrants, the CDSA search warrants still establish reasonable grounds to believe that evidence of the offences would be located in the Acura MDX and the applicant’s home.
[22] She further argues that there is no violation of the Charter in the police setting up a pole camera in a public area and which captured an area of the applicant’s property which was visible to the general public.
Analysis
Standard of Review of an Authorization to Grant a General Warrant or a Search Warrant
[23] A search warrant is presumed to be valid and the onus is on the applicant to show that there is insufficient credible and reliable evidence to permit a justice to issue the warrant: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.), at para. 30; R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (Ont. C.A.), at para. 45, aff’d 2016 SCC 32.
[24] The court reviewing a search warrant Information to Obtain does not stand in the place of the justice who issued the warrant, nor is it an opportunity for the reviewing court to substitute her view for the one of the issuing justice: R. v. Sadikov 2014 ONCA 72, [2014] O.J. No. 376 (Ont. C.A.), at paras. 84-87. Rather, as Watt J.A. summarized in R. v. Mahmood et al., 2011 ONCA 693, at para. 99, leave to appeal refused [2012] S.C.C.A. No. 111:
[…] the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant.
[25] The standard of persuasion for the issuance of a warrant, reasonable and probable grounds, is a “credibly-based probability”. It requires more than an experienced-based hunch or “reasonable suspicion”: Sadikov, at para. 81. It does not however mean “proof beyond a reasonable doubt” or even the establishment of a prima facie case: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 127-128; R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166. The standard is that the affiant subjectively believes that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched.
General Warrants vs. Search Warrants
[26] General warrants under s. 487.01 of the Code authorize the use of investigative techniques and procedures that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where “there is no other [legislation] that would provide for a warrant, authorization, or order permitting the technique, procedure, or device to be used or the thing to be done.”
[27] As Moldaver J. explained, in R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 80, this requirement ensures that general warrants are used “sparingly”, engage investigative techniques that are distinct in substance from an investigative technique accounted for by another legislative provision, and are not used to circumvent other authorization provisions that are available but contain more onerous pre-conditions. To draw from the example in Telus, the use of a general warrant to circumvent the more stringent pre-conditions of a Part VI authorization would constitute an invalid exercise of general warrant search powers.
[28] As between a s. 487.01 general warrant and a conventional search warrant under s. 487 of the Code or s. 11 of the CDSA, the general warrant imposes more stringent pre-conditions in that it can only be authorized by a judge and the affiant must satisfy the additional requirement that issuing the general warrant is “in the best interests of the administration of justice”.
[29] Both general warrants and search warrants require the issuing justice to be satisfied there are reasonable grounds to believe an offence has been committed and evidence of that offence will be found through the proposed search: R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, at para. 110, leave to appeal dismissed [2014] S.C.C.A. No. 460; R. v. Christensen 2017 ONCA 941.
[30] A general warrant requires information on oath which establishes:
reasonable grounds to believe that an offence has been or will be committed: s. 487.01(1)(a) of the Code, and
reasonable grounds to believe that information concerning the offence will be obtained through the use of the technique, procedure, or device of the thing: s. 487.01(1)(a) of the Code, and
the judge is satisfied the issuance of the warrant is in the best interest of the administration of justice: s. 487.01(1)(b) of the Code.
[31] The Court of Appeal for Ontario has interpreted the language of s. 487.01 of the Code to “…authorize the search for evidence and other information that is not known to exist at the time the warrant is granted: Lucas, at para. 110. Before issuing a general warrant, the authorizing justice must be satisfied that an offence has been or will be committed and that there are reasonable grounds to believe that information concerning the offence will be obtained through the use of the authorized procedure: Lucas, at para. 113.
[32] In contrast, a search warrant may issue when there are reasonable grounds to believe that:
Under s. 11 of the CDSA:
a. a controlled substance or precursor in respect of which this Act has been contravened,
b. any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
c. offence-related property, or
d. any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code.
is in a place […].
Under s. 487(1) of the Code:
a. anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
b. anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
c. anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or
d. any offence-related property […]
[33] Courts have concluded that the police may seek to investigate using a general warrant even where they are in a position to obtain a search warrant. The British Columbia Court of Appeal observed in R. v. Ford, 2008 BCCA 94, 2008 56 CR (6th) 39, at paras. 50-51:
…there is nothing in the language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. Resort to a general warrant is only precluded when judicial approval for the proposed “technique, procedure or device or the doing of the thing” is available under some other federal statutory provision.
That the police are in a position to obtain a search warrant does not prevent them from continuing to investigate using all other lawful means at their disposal. Having regard to the requirements of s. 487.01(1)(a), I expect that in many cases the information that police present in support of an application for a general warrant would also support an application for a search warrant. I see nothing wrong in utilizing a general warrant to obtain information with a view to gathering additional and possibly better evidence than that which would be seized immediately through the execution of a search warrant. In addition, I expect there will be some cases in which investigative action taken under a general warrant will result in an investigation, or an aspect of it, being abandoned; e.g., where a covert entry reveals that a property does not contain a marihuana grow operation.
See also R. v. Jodoin, 2018 ONCA 638, at para. 12; R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751, at paras. 52-53; R. v. Wise, 2020 ONSC 7716, at para. 99.
[34] Where the authorization for a prospective search, contemplating that a warrant be executed in the future upon the occurrence of specified contingency, (such as waiting for the accused’s attendance at a particular location in order to link him or her to a controlled substance) a general warrant may be the appropriate technique to use because police seek to do more than a simple search and seizure: Jodoin, at paras. 12-19.
Were the Pre-Conditions to Obtain a General Warrant Met in this Case?
[35] The applicant does not challenge that the first requirement for issuing the July 12th General Warrant, reasonable grounds to believe that an offence has been or will be committed, is established in the Information to Obtain sworn in support of the July 12th General Warrant. A confidential source provided information that a male (later identified as the applicant) deals in large quantities of cocaine in the Toronto area. Further, the affiant detailed numerous incidents in which the applicant was observed engaging in suspected drug transactions, including as follows:
On April 12, 2018, the applicant drove to a mall, picked up a male, parked in the mall, looked at his lap and dropped the male off at the mall entrance 20 minutes later;
On May 28, 2018, a male entered the applicant’s GMC Sierra at Humber College, empty-handed. They drove to another part of the parking lot and two minutes later, the male exited with a square object in his hand;
On June 12, 2018, the applicant picked up a male from a Starbucks coffee shop. Shortly after, the male exited the applicant’s vehicle carrying a package;
On June 13, 2018, the applicant went to a Canadian Tire store parking lot in Kitchener where he met a male. The applicant put a weighted package into his vehicle and left;
On July 17, 2018, the applicant retrieved a backpack from the Acura MDX, drove to the mall and had two meetings in two vehicles, each lasting two minutes, before he took the backpack back to the Acura.
[36] These observations and information amply support a conclusion that the first branch of the test, that there are reasonable grounds to believe that an offence has been or will be committed, has been met.
[37] However, the applicant contends that the Information to Obtain sworn in support of the July 12th General Warrant fails to establish that reasonable grounds to believe that “information” concerning the drug offences would be obtained in the Acura MDX. He argues that although the investigators obtained a general “sneak and peek” warrant, they actually conducted a “confirm or deny” search on the Acura MDX, to confirm or deny the presence of contraband because they had no basis to believe that information would be found in the Acura MDX at the time of entry.
[38] I do not agree that the Information to Obtain in support of the July 12th General Warrant fails to disclose reasonable grounds to believe that information related to the drug offences would be found in the Acura MDX. It is important to bear in mind the affiant’s stated objective in requesting a general warrant, rather than a search warrant, at this stage of the investigation.
[39] The affiant stated, at paras. 73 and 78 of the Information to Obtain in support of the July 12th General Warrant, as follows:
Based on the information provided in this application by the [Confidential Human Source] and surveillance, I believe that conducting covert entries into the named vehicles to confirm the location of HOANG and LEE’s storage area for bulk cocaine will further this investigation and possibly identify the origin of the product and supplier. I believe that the covert entry will allow investigators to gather further evidence in (sic) the offence of possession for the purpose of trafficking and trafficking of a controlled substance (emphasis added).
As a police officer with 13 years of experience, I know that drug traffickers will often use storage locations not associated to them to store drugs and money. This is to avoid criminal liability in the event that a search warrant is executed on their home and to keep an “arms-length” from the drugs and money. HOANG and LEE use a parking space not associated to either of them. Unless investigators are able to capture video or static observation of them attending that vehicle there would be no way to locate this current storage location.
[40] The affiant went on, at paras. 80-82, to explain why a general warrant was the best investigative option:
A search warrant pursuant to s. 11(1) of the Controlled Drugs and Substances Act is not practical at this time. Once a warrant is executed, HOANG and LEE will be alerted to the investigation surrounding their criminal activity and valuable evidence could be lost. This is particularly important as he/they likely store drugs and money in several different locations.
At this time, the proposed General Warrant is the best investigative option for me to use to gather further information concerning the offences of drug trafficking and the possession of a schedule 1 substance for the purpose of trafficking. A Search Warrant pursuant to section 11 of the Controlled Drugs and Substances Act may, if used by investigators at this time, compromise this current investigation, notifying the suspects of the ongoing investigation and thus cause loss of evidence.
Furthermore, continuing the investigation with the assistance of a General Warrant may aid in the identification of drug suppliers, co-conspirators and other criminal associates, which may lead to altering the current investigative plan. It is my intent to not only arrest and charge HOANG and LEE for the trafficking of drugs but to identify a larger drug network associated to both parties.
[41] In my view, the affiant set out sufficient grounds to believe that the applicant was using the Acura MDX, the GMC Sierra, and Hyundai Tucson to store, conceal, transport, or otherwise facilitate drug transactions and that covert entry into the vehicles would permit officers to gather information about where the bulk supply of controlled substances was being stored, possibly identify of the origin of the product (and therefore, the suppliers), and obtain further evidence of the offences. The affiant summarized the information and observations to support his belief, including that:
The applicant was observed on numerous occasions accessing 385 Prince of Wales Drive using a fob, even though he is not a registered tenant of the building. He used the fob to access the level P3 parking garage and remained in the garage for only short periods of time;
The fob used to access the building was associated with a unit registered to Patrick Lee, an individual suspected to be involved in drug trafficking;
On April 12, 2018, the applicant was again observed in the underground parking of 385 Prince of Wales Drive. He was met by Mr. Lee and the applicant departed approximately seven minutes later. The applicant then met an unknown male in the parking lot of the Square One Mall for what was consistent with a drug transaction;
On June 13, 2018, the applicant was observed meeting with an unknown male at a Canadian Tire store. The applicant was observed placing a weighted package into his vehicle prior to both parties departing. The affiant believed this was a drug transaction and that the weighted package was money that the applicant received from the unknown male;
On June 18, 2018, the applicant attended 385 Prince of Wales Drive in his black Hyundai Tucson, proceeded into the parking garage, and approached a Dodge Ram pick-up truck registered to Mr. Lee. He was observed near the rear bed of the Dodge Ram for a short time, before leaving the parking garage in his Hyundai Tucson;
On June 27, 2018, the applicant entered the underground parking of 385 Prince of Wales Drive and proceeded to park his GMC Sierra alongside an Acura MDX. He proceeded to unload a weighted bag from the rear of the Acura MDX and place it in the rear of his GMC Sierra. He was also observed removing a white rectangular package from the rear of the Acura MDX and placing it in the GMC Sierra. Mr. Lee then entered the view of the CCTV camera carrying a weighted reusable bag. He and the applicant had a brief conversation before the applicant departed the parking garage in the Acura MDX, leaving his GMC Sierra behind containing the weighted bag and white rectangular package.
[42] Given the frequency with which the applicant appeared to be involved in suspected drug transactions, the frequency with which the applicant used the Acura MDX in connection with suspected drug transactions (referenced briefly above and summarized in greater detail below in para. 54 of these reasons), and the fact that the applicant appeared to use the Acura MDX and the parking lot of 385 Prince of Wales Drive to transfer and store suspected contraband, the affiant had reasonable grounds to believe information related not only to the applicant’s drug trafficking activities, but a larger drug trafficking scheme would be located in the Acura MDX, including confirming where the contraband was stored.
[43] The applicant argues that the language in paragraph 9(a) of the July 12th General Warrant authorizing police to “copy, photograph, record, sample and/or seize anything” that may contain information requires the police to believe that a physical item, such as a photograph or written document, and not controlled substances, would be in the Acura MDX. He argues there is no basis to believe that any such type of item or document would be located in the vehicle.
[44] I do not accept this argument. Section 487.01 of the Code “provides a flexible range of investigative procedures, ranging from various forms of surveillance to the search and seizure of tangible objects.”: Ha, at para. 35. Given the flexible range of investigative techniques contemplated, the potential sources of “information” is also necessarily broad. The Court of Appeal for Ontario recognized this in Lucas where the court stated, at para. 110, that s. 487.01 of the Code authorizes the search for “evidence and other information.”
[45] Real evidence, such as controlled substances, can provide compelling “information” about a crime, including observations about the quantities involved and the nature of the drugs present. The presence of other paraphernalia could provide information about the traffickers’ activities and methods of distribution. The specific characteristics of the drugs and how they are packaged could provide information about suppliers or co-conspirators. On the basis of the surveillance alone, the affiant had a credibly based probability of finding relevant information by examining the content of the Acura MDX.
[46] Further, I do not accept the applicant’s argument that, even if “information” included controlled substances, the police had no reasonable basis to believe controlled substances would be inside the Acura MDX because they observed the applicant move a weighted package and a rectangular package from the Acura MDX to the GMC Sierra. As I understand the argument, the applicant asserts that there was no basis to believe there would be any “information”, in the form of contraband substances, in the Acura MDX because all the contraband had been moved to the GMC Sierra.
[47] It is true, as the affiant stated at paragraph 51(xi) of the Information to Obtain that, after seeing the applicant move items from the Acura MDX to the GMC Sierra that, “Investigators now believe that HOANG and LEE are utilizing his GMC Sierra to store his bulk-controlled substance supply”. However, that does not extinguish the affiant’s reasonable belief that the Acura MDX would afford evidence and/or information about a larger drug trafficking enterprise, as the affiant had reasonable grounds to believe that the Acura MDX was being used to store and/or transport controlled substances. The vehicle was linked to the applicant as well as Mr. Lee (both were seen in or around the vehicle while it was parked at 385 Prince of Wales Drive), and to the applicant’s home address of 1539 Sherway Drive, and was used in the course of suspected drug transactions.
[48] The officers could (and in fact, did) photograph and create a record of the information located, as contemplated by the July 12th General Warrant. There is no basis to suggest, as the applicant does, that the words “copy, photograph, record, or sample/seize” means that the affiant needed to have reasonable grounds to believe specifically, that documents, photographs, or other types of records would be located. No doubt any such documents would assist in the affiant’s stated goal of finding information that could “possibly identify the origin of the product and supplier”, but so could locating real evidence, such as controlled substances or evidence of a storage facility.
[49] The applicant fairly points out that paragraphs 9(b) and (c) of the July 12th General Warrant reference examining telecommunication devices located within the vehicle and covertly copying any data from a computer, electronic storage device, or telecommunications device found in the vehicle. I agree that the Information to Obtain in support of the July 12th General Warrant does not disclose a reasonable basis to belief that telecommunication devices, computers or electronic storage devices would be located in the Acura MDX.
[50] However, this is not a basis to invalidate the July 12th General Warrant. Even if it was overbroad in this respect, no devices were seized, searched, or copied. The Information to Obtain in support of the July 12th General Warrant amply supported the remainder of the order permitting police to “copy, photograph, record, or sample/seize anything that may provide or contain information concerning the offences.”
[51] Finally, I accept that it was in the interests of the administration of justice to request a general warrant in the circumstances of this case. The affiant set out that, in order to continue the investigation into a larger drug network, it was necessary to employ investigative steps which would not alert the applicant and Mr. Lee to the investigation and compromise the investigation into a larger drug network. A CDSA search warrant, or an immediate arrest of the applicant and/or Mr. Lee would not have permitted the investigators to continue as effectively with their ongoing investigation of a larger drug network.
[52] In my view, the Information to Obtain sets out a sufficient basis for the issuance of the July 12th General Warrant.
Validity of the Search Warrants for the Acura MDX and the Applicant’s Residence
[53] Even if the observations of the contraband in the Acura MDX were excised from the Information to Obtain in support of the CDSA search warrants, there was still a sufficient basis to issue the CDSA search warrants for the Acura MDX and the applicant’s residence.
[54] The applicant concedes that the observations arising out of four months of surveillance provided reasonable and probable grounds to believe that the applicant was engaged in drug trafficking. When viewed in its totality, even without the observations arising from the July 12th General Warrant, the Information to Obtain in support of the CDSA search warrants discloses a sufficient basis to believe that evidence of the offence of drug trafficking would be found in the Acura MDX and in the applicant’s residence at that relevant time. The information and observations include:
On April 11, 2018, Mr. Hoang was observed leaving his home in a black GMC Sierra truck; he travelled to 385 Prince of Wales Drive and entered the underground parking garage; approximately 2 hours later. He left the parking garage and was followed back to his residence where he was seen removing a duffle bag from the bed of the truck and carrying it into the garage of the residence;
The applicant accessed the parking garage of 385 Prince of Wales Drive using a FOB associated to a tenant of the building, Mr. Lee, a suspected drug trafficker;
On April 12, 2018, the applicant was observed leaving his residence in a black GMC Sierra truck and traveling to the parking garage of 385 Prince of Wales Drive. He stayed for eight minutes before leaving for Square One Mall. At Square One Mall, he was observed to be involved in a suspected drug meeting with an unknown male;
On May 28, 2018, the applicant was observed in the black GMC Sierra truck at The Humber College Centre where he met with an unknown male for two minutes inside his truck, believed to be a drug meeting;
On June 12 and 15, 2018, the applicant was observed to be involved in suspected drug transactions at various locations;
On June 18, 2018, the applicant was observed entering the parking garage of 385 Prince of Wales Drive in the black GMC Sierra and parking the truck next to an Acura MDX. He obtained an empty backpack from the rear of the GMC Sierra and walked toward the rear of the Acura MDX. The lights of the Acura MDX flashed, indicating the door of the vehicle had been unlocked. Two minutes later, the applicant was captured on surveillance moving from the rear of the Acura MDX back to the GMC Sierra with the backpack, which now appears to have some weight to it. He placed the backpack into the bed of the truck and departed;
On June 27, 2018, the applicant again entered the underground parking garage at 385 Prince of Wales Drive in the black GMC Sierra and switched vehicles, parking the truck, unloading bags from the Acura MDX into the GMC Sierra, then leaving in the Acura MDX;
On July 17, 2018, the applicant was observed leaving his home with a black backpack and traveling to 385 Prince of Wales Drive in the Acura MDX. He entered the parking lot and switched vehicles to the GMC Sierra, then returned home. He then entered the Hyundai Tucson and travelled back to 385 Prince of Wales Drive where he was observed retrieving the black backpack and loading it into the Hyundai Tucson. He then travelled to Square One Mall where he engaged in suspected drug meetings before returning to 385 Prince of Wales Drive, placing the black backpack in the Acura MDX then returning to his residence.
[55] All of these observations occurred before the execution of the July 12th General Warrant and amply demonstrate reasonable grounds to believe that the applicant was involved in trafficking controlled substances and that a search of the Acura MDX (among other vehicles) and the applicant’s residence would yield evidence of the crimes. The execution of the July 12th General Warrant added further information to support the request for the CDSA search warrants, but sufficient grounds for the CDSA search warrants existed without those observations.
The Pole Camera Surveillance
[56] The applicant’s final argument is that the use of pole surveillance without a warrant constitutes a further violation of his Charter rights. While no information from the pole surveillance formed part of the grounds for obtaining either the July 12th General Warrant or the CDSA search warrants, the applicant argues that the compound effect of this breach with the other breaches militates in favour of exclusion of the evidence.
[57] I have found that there was no breach of Mr. Hoang’s Charter rights under s. 8 of the Charter related to the July 12th General Warrant or the CDSA search warrants. Further, the applicant does not argue that the alleged Charter breach in using pole camera surveillance would, on its own, merit exclusion of the evidence, given that no information from the surreptitious recording formed part of the grounds to obtain the warrants. Therefore, it is not strictly necessary for me to address this argument. However, I will address it briefly for completeness.
[58] I do not accept that the use of the pole camera, mounted on public property and capturing only the outside area of the applicant’s residence, constitutes an illegal search.
[59] In order for s. 8 of the Charter to be engaged, a person must have a reasonable expectation of privacy: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128. The Supreme Court of Canada in R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67, at para. 32, modified the criteria for determining whether a reasonable expectation of privacy exists in circumstances of surreptitious recordings:
i. What is the subject matter of the recording;
ii. Did the party claiming a privacy interest have direct interest in the subject matter of the recording;
iii. Does the party claiming a privacy interest have a subjective expectation of privacy in the subject matter of the recording;
iv. If so, was the expectation reasonable, having regard to:
a. the place where the alleged “search” occurred;
b. whether the subject matter was in plain view;
c. whether the subject matter was abandoned;
d. whether the subject matter was already in the hands of a third party;
e. whether the police technique was intrusive in relation to privacy interests;
f. whether the use of surveillance technology was itself objectively reasonable;
g. whether the recording exposed intimate details of the party’s lifestyle, or information of a biographical nature.
[60] As to the subject matter of the recording, no evidence was filed on the application setting out the specific location of the camera(s) or the specific capabilities of the recording device. However, I accept the characterization of the recording set out in para. 50 of the applicant’s factum in which he states:
The camera was pointed at the Applicant’s house, monitoring and recording everyone who came and went at all times of day from July 9-17, 2018. Police detailed this information in a summary that documented who was coming and going from the house, their licence plate and car model, the time and date they were present and what they were doing.
[61] I take from this description that the recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activities and traffic (both pedestrian and vehicular) at the front of the house, visible to the public eye.
[62] As to the second factor, there is no dispute that the address captured was the applicant’s home address and, as such, he had a direct interest in the subject of the recording.
[63] On the third factor, whether the applicant has a subjective expectation of privacy, the affidavit filed in support of the application to exclude evidence is silent on this point and there is otherwise no evidence of the applicant’s subjective expectation of privacy in the front area of his home which is visible to the public.
[64] Assuming the applicant asserts a subjective expectation of privacy, the pivotal question is whether that expectation was objectively reasonable. Having regard to the factors set out above, the following are the key features of the recordings:
First, the recordings capture the front area of the applicant’s home, recording the movement of people and vehicles in and out of his home and any activities which took place in front of the home;
Second, there is no suggestion that anything captured was not in “plain view” of the public;
Third, there is no evidence that the police used any enhanced recording devices or tools to conduct a more invasive search, such as technology that would allow for recording activities inside the home using telescopic lenses;
Fourth, there is no evidence that any personal or core biographical information was captured by the surveillance. The purpose of setting up the pole surveillance was to capture the applicant’s comings and goings, record what vehicles he used, and identify people and vehicles attending the address. As the Court of Appeal for Ontario held R. v. Yu, 2019 ONCA 942, 383 CCC (3d) 260, at paras. 76-77, gathering basic information such as the fact of residency and an accused’s comings and goings is information which would be available in public view: See also R. v. Saciragic, 2017 ONCA 91, at paras. 31-32; R. v. Bryntwick, 2002 10941 (ON SC), at para. 21;
Finally, while it is well established that surreptitious state recording is highly, if not uniquely, invasive of individual privacy (R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36), there is a notable distinction between recordings made in areas which attract some degree of a reasonable expectation of privacy (such as common areas inside a dwelling) and areas outside a building and in public view. The court remarked in Yu, at para. 82:
Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside… (emphasis added)
[65] In this case, the recording captured the front area of the outside of a home. If there is any expectation of privacy in this area, it is highly diminished. This case is distinguishable from cases involving surreptitious state recordings of common areas in a private condominium building (Yu), or the backyard of a private home bordered by trees and retaining walls preventing a public view of the backyard area (R. v. Wong, 2017 BCSC 306, at para. 33).
[66] Taken together, the applicant’s Charter rights were not breached by the police recording the front of his home from a pole-mounted surveillance camera on public property.
Conclusion
[67] For the reasons set out, the application pursuant to s. 8 and 24(2) of the Charter is dismissed.
R. Maxwell J.
Released: September 13, 2021
COURT FILE NO.: 3856808
DATE: 20210913
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DUC TUNG HOANG
REASONS FOR JUDGMENT
R. Maxwell J.
Released: September 13, 2021