Her Majesty the Queen v. The Dung Nguyen

Court File and Parties

COURT FILE NO.: CR-20-90000305

DATE: 20220216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

THE DUNG NGUYEN

Counsel:

Sarah Egan, for the Crown

Ashli Pinnock and John Struthers, for the Applicant

HEARD: February 8, 2022

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS

LEIPER J.

Introduction

Nature of the Application

[1] The Applicant, The Dung Nguyen, is charged with multiple counts of possession of controlled drugs and substances (fentanyl, MDMA and cocaine) for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act (“CDSA”) and two counts related to possession of a handgun and ammunition, contrary to the Criminal Code (the “Code”).

[2] On February 8, 2022, the Applicant brought a s. 8 and s. 24(2) Charter motion to challenge two warrants used to seize evidence against him: a covert entry warrant issued under the general warrant provisions in s. 487.01 of the Code (the “General Warrant”) and a search warrant issued under s. 11 of the CDSA (the “Search Warrant”). The Applicant seeks to exclude the evidence obtained from the execution of these warrants.

[3] The General Warrant was requested to make up to 10 covert entries over a 60-day period into a unit in a condominium building on Telegram Mews in Toronto. The Search Warrant was to enter and search the Applicant’s home on Kingshill Drive in Richmond Hill, based on the evidence found in the Telegram Mews location under the General Warrant.

[4] Crown counsel submits that the Application should be dismissed because the information sworn in support of the warrants provided reasonable grounds to the judicial officers who issued them.

[5] Counsel agree that if the grounds to obtain the General Warrant were insufficient, the Search Warrant, which relied on the same grounds and the evidence obtained under the covert entry warrant, would likewise be unsupported by adequate grounds.

The Legal Framework

Section 8 of the Charter and Warrants

[6] Section 8 of the Charter provides, “Everyone has the right to be secure against unreasonable search or seizure.”

[7] Warrants are presumptively reasonable intrusions into the lives of citizens by the state. They balance privacy and law enforcement by requiring fixed, objective criteria, which are reviewed by a judge or justice before the warrants are issued.

[8] The police are not held to a standard of perfection in drafting their grounds for the warrant. An Information to Obtain a Search Warrant (“ITO”) should be reviewed having regard to the totality of the information within it. However, because this is an ex parte process, the police must make full and frank disclosure to the issuing judge or justice.

[9] Suspicion, hunches and conjecture fall short of the minimally acceptable standard from both a common law and constitutional perspective. Nor does “probable cause” arise from a purely conclusory narrative. However, reasonable grounds are not equivalent to the standard of proof required to convict nor to the test of a prima facie case. See: R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 20 O.R. (3d) 468 (S.C.) at p. 16.

General Warrants

[10] A general warrant is a particular type of warrant that permits an array of investigative techniques, not otherwise available to police. It is intended to provide flexibility to law enforcement with safeguards to prevent its misuse. The application must be made to a judge. A general warrant is not available if the authorities can carry out the investigative technique or procedure using other provisions of the Code or another federal statute. Where the investigative technique sought is substantively close to other available investigative techniques, the issuing judge should proceed with “extra caution.” see R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3 at paras. 16-19, 81.

[11] Section. 487.01 of the Code provides the criteria to issue a general warrant. The issuing judge must be satisfied on reasonable grounds that:

An offence has been or will be committed and that information concerning the offence will be obtained by the investigative means authorized in the warrant;
The issuance of the warrant would be in the best interests of the administration of justice; and
No other provision in the Code or other federal legislation provides for a warrant authorizing the investigative technique, procedure or device sought.

See: R. v Bijelic, Flammia, et al., 2018 ONSC 6676 at para. 106; TELUS at para. 16.

[12] A general warrant may be granted to authorize covert entry into a place as an investigative technique. It can be used to gather “additional and possibly better evidence than that which could be seized immediately through the execution of a search warrant”. See R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751 at para. 42.

[13] The Court of Appeal concluded in Ha that the affiant had satisfied the best interests of justice requirement by including evidence which strongly pointed to the existence of a prohibited drug laboratory and the accused having a major role in it. The Court of Appeal concluded that the general warrant was not merely a “fishing expedition” (at para. 49).

[14] General warrants have been described as warrants of limited resort, to be used sparingly and subject to heightened scrutiny by the issuing judge: TELUS at paras. 56 and 77 (concurring reasons of Moldaver, J.).

[15] Commentators have identified the potential for constitutional mischief arising from the use of general warrants to surreptitiously enter private dwellings to “confirm or deny” police suspicions in the absence of fully crystallized reasonable grounds for a search warrant. See: Hutchison’s Canadian Search Warrant Manual 2005 (Toronto: Thomson Carswell, 2005) at pp. 176-177. In such circumstances, a general warrant for surreptitious entry could be used in the absence of full grounds to enter to search and seize. This is not consistent with the concept of a general warrant as a warrant of limited resort.

The Task on Review of a Warrant

[16] On review, the appropriate question to ask is whether the ITO contained sufficient information on which the issuing judge could rely to authorize the warrant: see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1452.

[17] If, based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, the judge should not interfere: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51, citing Garofoli at p. 1452.

[18] The parties may seek to amplify the record on review to correct minor errors, to excise inaccurate or unconstitutionally obtained information, or to add to the record: see Garofoli at pp. 1452-1454.

[19] Where information in an ITO is obtained unlawfully, even in a minor or technical way that might not support a s. 24(2) remedy, it is subject to the remedy of excision at the instance of the applicant: R v. Jaser, 2014 ONSC 6052 at para. 17, relying on R. v Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.), R. v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.), and R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.).

[20] On a review of a general warrant, the Court of Appeal for Ontario has observed that it is preferable for the reviewing court to consider the evidence that was before the issuing justice on each of the criteria in s. 487.01(1): R. v. Brown, 2021 ONCA 540 at para. 47.

[21] Bearing this direction in mind, I turn to the issues on this Charter application.

The Issues

[22] The issues on this application are:

a) The Request for Excision: Were portions of the ITO erroneous or based on unconstitutionally obtained material?

b) Was there sufficient credible and reliable evidence, after any excisions from the ITO, to permit the issuing judge to find that each of the three criteria in s. 487.01(1) were satisfied in this case (as follows)?

i. An offence has been or will be committed and information concerning the offence will be obtained through the investigative means authorized in the warrant;

ii. Issuing the warrant would be in the best interests of justice; and

iii. No other provision in the Code or other federal legislation provides for a warrant authorizing the investigative technique, procedure or device sought.

c) If the General Warrant breached the Applicant’s s. 8 rights, should the evidence seized under that warrant be excluded by virtue of s. 24(2) of the Charter?

Analysis of the Issues

a. The Request for Excision: Were portions of the ITO erroneous or based on unconstitutionally obtained material?

Overview of the Parties’ Positions

[23] Counsel for the Applicant submitted that the ITO fell short of reasonable grounds to meet the first criterion required by s. 487.01(1). They submit that the activities of the Applicant amounted to meeting on two occasions with a suspected middleman, who had in turn met twice with a person who had engaged in street dealing behaviour in July of 2019. The balance of the ITO amounts to unremarkable observations of the Applicant interacting with several people, carrying bags, including gift bags during November and December of 2019, and moving between his residence in Richmond Hill and a condominium building at 25 Telegram Mews in Toronto.

[24] Crown counsel submits that read as a whole, the ITO allowed the issuing judge to infer there was a fentanyl trafficking network that was operating from a unit at Telegram Mews, which included the Applicant. The Crown submits that the police observations led them from the street level to the Applicant because of the meetings with S.S. who in turn had met with A.B. earlier in their investigation.

[25] The Crown submits that these are logical inferences. Street dealers must obtain their product from somewhere. The Applicant’s meetings with the S.S. were short, in public parking lots, and consistent with meetings to transfer product. Several weeks after Durham Regional Police Service (“DRPS”) observed S.S. with the Applicant, the Applicant was seen carrying bags between his home in Richmond Hill and another residential address at Telegram Mews in Toronto.

[26] Counsel for the Applicant submit that the ITO is a series of conclusory statements without the necessary information to connect the Applicant to the commission of any offences or to connect the unit at Telegram Mews to the commission of any offences. It assumes that the Applicant is a supplier and fits the observations to the starting assumption.

[27] Counsel for the Applicant also argue that portions of the ITO were misleading or exaggerated and are subject to excision. In one instance, the affiant relied on unconstitutionally obtained evidence, but did not disclose the Charter breach to the issuing justice. In response, Crown counsel made submissions that there were no Charter breaches because the video information obtained was recorded in the publicly accessible part of the residential building.

[28] I will first summarize the contents of the ITO and then turn to the requests for excision prior to deciding whether there were sufficient grounds to issue the General Warrant.

The Observations and Information in the ITO for the General Warrant

Summary of the Investigation

[29] The affiant for the ITO for the General Warrant, DC Baldini, was part of an investigative team with DRPS. In March and July of 2019, DRPS received information from two confidential sources that one A.B. was engaged in street dealing in fentanyl. DRPS tracked and conducted surveillance on A.B. who had multiple short meetings out of her car in the Durham Region over a two-week period in July of 2019.

[30] DRPS’ observations led them to identify A.B.’s potential supplier, S.S. After observing two meetings between S.S. and the Applicant, DRPS then focused their investigation on the Applicant. Using the results of surveillance, production orders and vehicle tracking undertaken in November and December of 2019, DRPS swore the ITO at issue. The evidence obtained under the General Warrant and a subsequent Search Warrant led to the Applicant’s arrest on the present charges.

July 2019: A.B. and Suspected Fentanyl Dealing Activity in Durham Region

[31] In March and July of 2019, DRPS received information from two confidential sources. The first source had previously provided information to the DRPS, but that information had not led to arrests or seizures. The second source had not previously provided information to DRPS.

[32] DC Baldini swore that he was not solely relying on the information from the confidential sources. He swore that the CI information was corroborated by the investigation.

[33] Both confidential sources told DRPS that A.B. supplied fentanyl in different colours to her customers from her car. The confidential sources told police that A.B. picked up large quantities of fentanyl at a time from her supplier.

[34] On six days between July 17 and 31, 2019, DRPS saw A.B. having multiple short meetings in her vehicle in Durham Region. DC Baldini swore that this was activity consistent with drug purchasing based on his experience as a drug investigator.

[35] The ITO contained no corroboration that A.B. was selling fentanyl. The ITO did not include any reports of surveillance of A.B. after July 31, 2019.

Between September 3 and November 2, 2019, S.S. Meets with A.B. in Durham Region and on Two of These Dates S.S. Meets Briefly with the Applicant in Markham

[36] On September 3, 2019, DRPS identified for the first time a person named S.S., who met with A.B. in a parking lot inside a car driven by S.S. DRPS could not confirm whether S.S. carried anything to that meeting or gave anything to A.B.

[37] Based on his observations, his experience as a drug investigator, and the brevity of the meeting, DC Baldini swore that he believed that S.S. was supplying A.B. with fentanyl.

[38] A criminal record search revealed that S.S. had a prior record for aggravated assault and attempted murder.

October 24: An Unknown Male Driving a Grey Infiniti Meets S.S. In Markham

[39] On October 24, 2019, tracking data on A.B.’s vehicle placed it in an Ajax parking lot between 8:36 p.m. and 9:14 p.m. There was no surveillance to confirm that A.B. was the driver.

[40] Tracking data on S.S.’s vehicle placed his vehicle at a shopping plaza in Markham at 7:57 p.m.

[41] At 8:43 p.m. on October 24, 2019, an Infiniti (no plate captured at this meeting) was identified on Closed-Circuit Television (“CCTV”) at a Markham plaza. An unknown male left the Infiniti carrying a bag, and entered S.S.’s vehicle, briefly, then left with the bag and returned to the Infiniti. The Infiniti and S.S.’s vehicle left the parking lot at 8:44 p.m.

[42] Based on this observation, DC Baldini swore that he believed the unknown male “may be a fentanyl supplier for [S.S.]”.

[43] At 9:11 p.m., S.S.’s vehicle was tracked to the Ajax parking lot where it stayed for one minute and then left. DC Baldini swore that he believed that S.S. and A.B. met at the Ajax parking lot because this was where S.S. and A.B. met on September 3, 2019.

October 29: S.S. and A.B. Meet in Ajax

[44] On October 29, 2019 at 10:46 a.m., DRPS surveillance observed S.S. and A.B. meeting at the Ajax parking lot where they met briefly in S.S.’s car. No items were seen to change hands.

[45] DC Baldini swore that he believed this short meeting was indicative of drug trafficking.

November 2: S.S. and an Unknown Male in a Grey Infiniti Meet in Markham

[46] On November 2, 2019 at 11:22 a.m., S.S. was seen meeting with an unknown male driving a grey Infiniti in the Markham plaza. The unknown male was seen entering S.S.’s vehicle carrying a white plastic bag and leaving a short time later without the bag. Officers believed the unknown male was the Applicant.

[47] DRPS was able to obtain the licence plate for the grey Infiniti.

[48] S.S.’s vehicle was later tracked to the Ajax parking lot at 11:45 a.m. where A.B.’s vehicle was also located. The vehicles were parked in the same location in the parking lot as at the prior meetings.

The Applicant is Identified as the Owner of the Grey Infiniti

[49] On November 7, 2019, DC Baldini identified the Applicant and his spouse, X.J. as the registered owners of the grey Infiniti. The Applicant and X.J. had a residential address on Kingshill Road in Richmond Hill. The Applicant had a driving record for driving under suspension. The ITO contained no criminal history for the Applicant or his spouse.

[50] DRPS began surveillance of the grey Infiniti, the Applicant and Ms. Jia. The ITO sets out observations of the Applicant over seven days between November 21 and December 4, 2019.

[51] The Applicant was seen leaving his residence on Kingshill Road in Markham and travelling to a condominium address at a multi-unit building in Toronto, at Telegram Mews, Toronto on November 21, 23, 26, 27, 28 and December 3 and 4, 2019.

[52] On five of those seven days, the Applicant and/or his spouse were seen carrying various gift bags, plastic bags and/or backpacks. During this period, neither the Applicant nor his spouse were seen meeting with S.S. or A.B.

[53] On November 21, 2019, the Applicant was seen on a video recording using a key fob to enter the building at 25 Telegram Mews. The key fob used by the Applicant was linked to Unit 2806.

[54] On November 28, 2019, DRPS obtained a production order which showed that the Applicant was neither the landlord nor the tenant of Unit 2806, 25 Telegram Mews. Officers obtained a 2017 lease for the unit. It showed three named persons on the lease, and a note that three fobs and three keys had been issued to the tenants.

The Affiant’s Conclusions Based on the Surveillance, Tracking Devices and Production Order

[55] Based on DRPS observations, DC Baldini concluded that the Applicant was using Unit 2806, 25 Telegram Mews, Toronto as a place to store fentanyl, also described as a “stash house”. DC Baldini summarized his belief about the use of the unit at Telegram Mews at page 28 of the ITO in this fashion:

Affiant’s Note –I believe that The Dung Nguyen is utilizing 2806-25 Telegram Mews Toronto as a stash location in relation to this fentanyl trafficking network. A.B. has been identified as a fentanyl trafficker, and S.S. as her supplier. On two occasions, S. S. has received a bag from a male believed to be The Dung Nguyen, prior to meeting with A.B. A.B. continues the pattern of behaviour that is part of the basis for my belief that she is trafficking fentanyl. Nguyen has been observed meeting with V.R., a previously identified customer for S.S. before driving directly to 25 Telegram Mews and entering the building while concealing a plastic bag inside of his jacket. Additional surveillance has also had Nguyen entering and exiting the building with bags on other dates. A review of the tracking data, security footage and fob records has placed Nguyen at 25 Telegram Mews several times, using the only assigned fob for unit #2806. Nguyen accesses this location often, almost daily, but surveillance has established that he resides with X.J. at 102 Kingshill Drive, Richmond Hill. The totality of these factors, is basis for my belief that this location is a stash location related to the fentanyl trafficking network of S.S. and Nguyen.

The Investigative Plan in the ITO

[56] The Investigative Plan included a section entitled “Purpose and Objective for Using a General Warrant”. DC Baldini connected the request for up to ten entries into the unit at Telegram Mews to the following observations:

• The Applicant was regularly accessing the building and elevators, using the only fob issued for Unit 2806.

• Based on “the investigation of the occupants listed from the 2017 [lease], investigators [did] not believe there [were] tenants currently residing within unit #2806.”

• Based on the Applicant’s “daily pattern” from the tracking data and fob records, the Applicant was “regularly attending” 25 Telegram Mews, “almost daily.”

• During several of these visits, the Applicant was observed carrying bags into the building.

• The Applicant was observed meeting different individuals before and after attending 25 Telegram Mews.

• Officers wished to use these entries to “attempt to secure charges against individuals that the Applicant meets with and receives bags from by entering after these bags have been taken from the unit.”

[57] The investigative plan listed various investigations that might be undertaken inside the unit including searching for items linked to trafficking, examining any telecommunications devices, and accessing any safes, compartments, desks, cabinets, lockers, or other closed containers. If a large cache of drugs were to be found, the affiant swore that the DRPS might make it appear as though there had been a breaking and entering to avoid signalling that the removal of items for public safety had been by virtue of police activities.

[58] DC Baldini wrote that the goal was to search for items related to the investigation, such as, but not limited to:

▪ Information related to cellular telephone numbers;

▪ Controlled substances;

▪ Weigh scales;

▪ Drug packaging;

▪ Drug paraphernalia;

▪ Currency

[59] DRPS described the possible activities related to any items located during their searches: this list included to examine, sample, photograph, video, mark with identifiers, or ‘remove some or all of the items for investigative purposes.”

[60] DRPS sought to make up to 10 entries in a 60-day period, and also sought permission to conceal their reasons for entry by doing damage to make it appear as though there had been a break and enter. DRPS proposed to notify the tenants of the entries made within 90 days of completion of the investigation.

[61] DC Baldini swore that granting the General Warrant would be in the best interest of the administration of justice because:

• It would provide the best information about the Applicant and his network;

• A traditional CDSA Search Warrant would end the investigation; and

• Although the affiant swore that he had grounds to obtain such a search warrant, obtaining one would have a “drastic impact” on the investigation because it would alert the Applicant to the police investigation.

[62] DC Baldini swore that covert entries required a general warrant. Search warrants do not allow for covert entry.

December 12, 2019: The General Warrant Issues and is Executed

[63] On December 12, 2019, DRPS officers obtained the General Warrant to enter the Telegram Mews unit surreptitiously. The warrant permitted 10 such entries and was valid for 60 days.

[64] DRPS officers knocked at the door of the unit on December 12, 2019. The Applicant answered the door. The officers told him they were checking on the internet connection and there was a brief conversation.

[65] After the accused left the unit, police entered surreptitiously.

[66] DRPS officers found equipment used to cut, mix and color fentanyl. The investigators observed food processors used to mix and cut fentanyl, color in spray bottles and food dehydrators to dry the finished product. Fentanyl was observed in various stages of production.

[67] A further search of this residence located MDMA and cocaine as well as various pieces of equipment and protective clothing.

[68] The total amounts seized were:

• 11,601 grams of fentanyl powder;

• 2,489 grams of methamphetamine; and

• 1,035 grams of ketamine.

[69] The total wholesale value of drugs seized was approximately $981,000.

[70] A red backpack located in the unit matched a similar backpack carried by Mr. Nguyen on December 3, 2019 while under surveillance.

[71] A colourful birthday bag was found in the unit. It matched a similar bag carried by Mr. Nguyen on November 26, 2019.

[72] A bank statement in the name of Mr. Nguyen was found in a fire-resistant box inside a closet in the unit.

[73] The police seized this evidence and prepared a second ITO for the Search Warrant for Mr. Nguyen’s residence located at 102 Kingshill Road, Richmond Hill. DRPS searched Kingshill on December 13, 2019 on the authority of the Search Warrant. There they located and seized a loaded Walther 32 calibre handgun and magazines that contained ammunition for the gun. They also seized:

• 73 x .380 ammunition;

• 38 x 9mm ammunition;

• Approximately $10,000-$15,000 in cash;

• X2 AP watches and a Rolex watch ($50,000 to $75,000 value);

• A bulletproof vest;

• A debt list, with prices for fentanyl at between 2500-3000 per ounce; and

• Key fobs for a unit at Telegram Mews.

Analysis of the Request for Excision

The Video Recording of the Applicant’s Attendance at Telegram Mews on November 21, 2019 (pp. 19-20 of the ITO)

[74] Counsel for the Applicant submit that I should excise from consideration of the ITO, the evidence obtained from video recordings accessed by the DRPS without a warrant on November 25, 2019.

[75] On November 21, 2019 at 9:30 a.m., DRPS officers saw the Applicant and his spouse drive away from their Richmond Hill address. At 11:37 a.m., the Applicant and his spouse were seen near Telegram Mews. The Applicant left the vehicle with a black backpack and a white bag zipped into his jacket. The ITO recorded that the Applicant was then “lost walking in the area near Iceboat Terrace/Telegram Mews, where he entered 25 Telegram Mews”. A footnote to this sentence read:

This information was not learned until November 25th 2019 (SOURCE – Investigative Report of D/Cst Naccarato #3440) but has been referenced here for ease of reference for the reviewing Justice.”

[76] The investigative report of DC Naccarato was not part of the ITO. It was filed on this review. The investigative report described how DRPS knew that the Applicant entered 25 Telegram Mews on November 21, 2019. The report read as follows:

Surveillance – November 21st, 2019

On November 21st, 2019 members from the Drug Enforcement Unit conducted surveillance on The Dung Nguyen. D/Cst Payne was the central note taker on this day. From reviewing D/Cst Payne’s central notes I learned the following information:

a. At 11:37 am The Dung Nguyen attended the area of 10 Capreol Court, Toronto where he exited the vehicle with [X.J.] [The] Dung Nguyen had a backpack and concealed a white bag in his jacket when he exited the vehicle.

b. At 11:39 am [X.J.] was observed getting onto a street car where she was followed. It was determined that [X.J.] was on the street car by herself and they had misplaced The Dung Nguyen in and around the area of 4K Spadina Ave and 25 Telegram Mews entrances on Iceboat Tr.

Identifying The Dung Nguyen attending 25 Telegram Mews, Toronto

On Monday, November 25th, 2019 I attended the front desk for 4K Spadina Ave and 25 Telegram Mews. I spoke with the security supervisor, Billy Nguyen and advised him that I was trying to identify if some [sic] had attended their buildings. I asked if he would allow me to look at the video from November 21st, 2019 to determine if we could identify him attending wither [sic] 4K Spadina or 25 Telegram Mews. I requested just to see the video for the public entrances for both buildings. Mr. Nguyen allowed me to review the video and assisted me. From reviewing the video, I learned the following:

a. Mr. Nguyen advised that video for 25 Telegram Mews is 20 minutes behind real time.

b. At 11:18 pm (11:38 pm real time) I observed The Dung Nguyen use a fob to gain access to the front lobby of 25 Telegram Mews. The Dung Nguyen walked in the front door and pointed an object at the fob system. At this time the door automatically opened.

c. Mr. Nguyen further advised that they have fob records and video on site and keep them for an extended period of time. Fobs are required for the front doors and elevators.

d. Mr. Nguyen also advised that they keep all tenant / landlord records at this location as well.

Should the Information about the Video of the Applicant Have Been Included in the ITO?

[77] Counsel for the Applicant submit that DRPS obtained this information without a warrant and without the express written consent of the condominium board. They also submit that this portion of the ITO was drafted in a misleading way: it concealed the warrantless search of the video recordings made by building management. Crown counsel submits that the ITO was not misleading because the issuing judge could have inferred that this information was discovered on a later date, thus it had to have been recorded and viewed later by officers.

[78] I disagree with the Crown’s submission. Although the footnote in the ITO says that this information was learned later, it does not provide the source of the information. The video recording, the request of the on-duty security officer, his consent and the ability of the officer to view video footage of the key fob-controlled area at the entrance of the two buildings were all omitted from the ITO. Given the tracking, surveillance and other investigative methods being used, there were other possible sources of this information, potentially discovered by the affiant after the surveillance team “lost” the Applicant on November 21, 2019, including the results of production orders.

[79] Investigative steps which involve a potentially unconstitutional search should be revealed to the issuing justice. This is not irrelevant detail. See R. v. M.(N.N.) (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 at para. 321. This information should have been included so that the issuing judge could have considered its impact on the request, sought additional information, or placed limits on the execution of the warrant.

[80] However, I do not go as far as to find that the affiant deliberately misled the issuing judge. There was no cross-examination of the affiant or the sub-affiant. The affiant provided information sourced to the same video in another affidavit sworn in support of a production order for fob data and video recordings at Telegram Mews.

[81] Counsel for the Crown did not agree that the DRPS breached the Applicant’s s. 8 Charter rights by seeking to view the video without a warrant or production order. I turn next to that issue.

Did the Officer’s Viewing of the Video Engage Section 8 of the Charter?

[82] Crown counsel submits that the Applicant had no reasonable expectation of privacy in the video recordings because the officer carefully tailored his request and limited it to the video of the public entrances of the buildings.

[83] Crown counsel relies on a line of cases that have held there is no expectation of privacy in an individual’s public comings and goings, including in front of one’s residence. In several cases, courts have found no violation of privacy rights by virtue of video recordings being made outside residences, of areas that were visible to anyone on the street: see R. v. Bryntwick, 2002 CanLII 10941 (ON SC), [2002] O.J. 3618 at para. 21 (S.C.); R v. Hoang, 2021 ONSC 6054, [2021] O.J. No. 6173; at para.58; R. v. Elzein (1993), 83 C.C.C. (3d) 455 (Que. C.A.); R. v. Scott (1996). 1996 CanLII 7082 (SK QB), 142 Sask. R. 267 (Q.B.).

[84] However, in some instances, courts have drawn a line between what can be seen by anyone passing by, and video technology installed at a “superior vantage point” or where it is placed such as to make a permanent record of the resident’s movements over a sustained period: see R. v. Aubrey, 2022 ONSC 635 at para. 48; R v. Wong, [2017] B.C.J. No. 360 at para. 47.

[85] The facts here are not completely in line with the line of “visible from the street” cases. The investigative report describes a camera which recorded the Applicant inside the building, although in a publicly accessible area, before he used a fob to enter the controlled area of the building. There are several cases which discuss and consider reasonable expectations of privacy for those who live in condominium buildings that use video technology for building security. I turn to those cases next.

The Limits and Protections for Privacy in Common Areas in Residential Buildings

[86] The Ontario Court of Appeal found in White that even where a relatively large number of people have access to common areas in a residential building, that does not eliminate a reasonable expectation of privacy: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32 at para. 48.

[87] At para. 51 of White, Huscroft, J.A. wrote:

There is nothing “perverse” about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.

[88] This reasoning was applied in the British Columbia decision of Ker, J. in R. v. Latimer, 2020 BCSC 488. Ker, J. drew a distinction between consenting to building surveillance by the management for the security of residents and waiving one’s privacy interests vis-a-vis the state. Ker, J. did not consider the location of the cameras in that case to be determinative: rather, the ultimate question was whether residents of the building consented to or reasonably expected to be watched by the police inside the common areas of the building at all: at para. 161.

[89] In at least two Ontario cases, courts have considered the reasonable expectation of privacy in video accessed in circumstances of pursuit. For example, in R. v. Saciragic, 2017 ONCA 91, police officers requested unit information from building management after seizing a box of cocaine following a hand-to-hand transaction between the accused and another person. Building management looked at its surveillance video and assisted the police by providing them with the accused’s unit number.

[90] The Court of Appeal rejected the submission that the accused had a reasonable expectation of privacy in the information. The Court of Appeal found that informational privacy does not extend to one’s municipal address: Saciragic at paras. 32-34.

[91] In R. v. Khiar, 2021 ONSC 4677, the police issued a warrant for the arrest of the accused in a homicide investigation. Their search was the subject of a press release. Police had information connecting the accused to a condominium building. The building manager allowed investigating officers to view the video footage of the accused leaving and entering the building in the foyer accessible to the public, the exterior of the building and the elevator area.

[92] In Khiar, Code, J. held that there was no violation of the accused’s s. 8 rights and that the building manager had validly consented to police accessing the video footage, given the following:

• There was a reduced expectation of privacy in the areas seen in the video — the cameras were located on the main floor of the building and far from the unit in which the accused was residing;

• The information obtained showed the accused’s comings and goings on only one day;

• The cameras were visible and obvious, as were the monitors from the cameras in the property manager’s office on the main floor;

• The recordings were taken at a discrete point in time, rather than as continuous video surveillance;

• The building’s privacy policy advised residents that personal information would only be used to carry out management’s duties under the Condominium Act — the manager had been advised by police that a homicide suspect had entered the building and consented to release the video as a matter of building security; and

• The manager was not misled by police and understood that she could refuse access to the recordings.

[93] In R. v. Yu, the Court of Appeal considered the extent of one’s reasonable expectation of privacy in common areas of a condominium building: R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260. There, police officers asked building management for permission to enter the common hallways of a building, and to install hidden cameras as part of an ongoing investigation.

[94] The Court of Appeal in Yu found that building management could grant permission for police to enter the common hallways without breaching the accused’s s. 8 Charter rights. This flowed from management’s statutory duty to manage common elements of the condominium: at paras. 91-93.

[95] However, the Court of Appeal found that building management could not consent to installing hidden cameras for police purposes in the common areas. Although residents in multi-unit buildings will often be aware that there are cameras in use in the common areas due to the visibility of those cameras, residents have a reasonable expectation that management will not permit police to install hidden cameras for police purposes and record them in their condominium building: at paras. 122-133. Similar reasoning can be found in R. v. Hassan, 2017 ONSC 233 at paras. 91-93, 119. See also R. v. Batac, 2018 ONSC 546 at paras. 47-56; R. v. Laforge, 2020 ONSC 7043 at p. 3; R. v. Kim, 2019 BCSC 2150 at paras. 52, 59; R. v. Nafke, 2018 ABPC 139 at paras. 78, 81; and R. v. Sandhu, 2018 ABQB 112 at para. 49.

Application of the Privacy Principles to the Video Viewed without a Warrant on November 25, 2019

[96] Returning to the ITO and the warrantless search of the video showing the entryway to the building, I apply the following principles:

• Residents in condominium buildings have a reasonable expectation of privacy in common areas of the building: White at para. 52; Yu at para. 81.

• The realities of urban dwelling do not require residents of multi-unit buildings to forego reasonable expectations of privacy: White at para. 48.

• A balance must be struck between the interests of security and safety and privacy rights: Yu at paras. 90-92.

• Building management may grant permission to police to conduct investigations on site and to enter common areas of residential multi-unit buildings. A fact-specific inquiry may lead to a conclusion that consent has been validly given on notice to the occupants, and that management may provide the authorities with information about a resident’s movements as a matter of building security. See, for example, Yu at para. 102, Khiar at paras. 99-100.

• Building management may not consent to the installation of hidden cameras in common areas of multi-use buildings: see, for example, Yu at para. 133.

[97] Where police ask for access to video footage of residents inside common areas of a building, a contextual analysis is required. The circumstances in the case at bar, unlike Khiar and Saciragic, did not concern building management cooperating with police in the pursuit of persons for whom police had reasonable grounds to make an arrest. In Saciragic, the police were not given access to the video images, but information about the unit and floor accessed by the accused, after building management looked at the video and cross-referenced to the key fob.

[98] In Khiar, there was a warrant for the arrest of the accused for a shooting, and the building management assessed the situation as a matter of building security, which allowed for release of the video footage under the building’s privacy policy.

[99] Here, as Crown counsel acknowledges, the investigation was at an early stage. At this stage, there was no evidence that the security officer allowed the officers to view the video as a matter of building security or in accordance with any privacy policy. Although Crown counsel argues it can be inferred that the security officer had the authority to consent, in the absence of any direct evidence on this point, or about this building’s privacy policy, I decline to draw that inference.

[100] There were no exigent circumstances: the video was requested and viewed four days after the surveillance team lost sight of the Applicant near Telegram Mews.

[101] An expectation of privacy may well be reduced in the foyer outside the controlled area of a building, just as there is in the common areas inside the lobby, the elevators, or the hallways. However, these areas are part of the commonly owned areas of a condominium building, which have been found to attract some reasonable expectation of privacy.

[102] In photographs tendered as part of the Crown’s supplementary submissions, three cameras can be seen: one is above the front door to the buildings, and two others are inside the foyer, before the second door that is only accessible by key fob. It is unclear from the record which camera views were accessed. The photographs of the cameras do not demonstrate that passersby could have seen the movements of those inside the front door, or as they passed through the fob-controlled entrance, which appears to be what DC Naccarato was able to see from the building video footage. The video footage itself was not tendered at the argument of this Application.

[103] In the case of an ITO to obtain a warrant, the consideration is whether there was a breach of a Charter right in obtaining information: a breach is a breach regardless of where on the scale of seriousness it falls. Section 24(2) considerations do not apply at this stage of the analysis.

[104] I conclude that the Applicant had a reasonable expectation of privacy, albeit a low one, in the video of his movements inside the front entrance of the building on November 21, 2019. The warrantless search of the video by asking building management to show these images to the DRPS was contrary to his s. 8 rights under the Charter.

[105] The portions of the ITO referring to the police observations from viewing the video of the Applicant’s movements on November 21, 2019 will be excised from consideration.

The Assertion in the ITO that the Applicant was the Sole User of a Key Fob Issued for the Telegram Mews Unit (p. 27 of ITO)

[106] Counsel for the Applicant seeks to excise several references in the ITO to the Applicant being the sole user of a key fob for Unit 2806. This is because the ITO mentions a 2017 tenancy agreement and gives the names of three tenants but fails to include the notation in that agreement showing that three key fobs had been issued in 2017. The other missing piece of information was that DRPS learned that the fob in use by the Applicant was issued in the name of another person, J.R.Z.

[107] Crown counsel submits that the issuing judge was provided with the information about the tenancy agreement, and that the further information about the three fobs issued under that agreement was of no moment. There was no obligation to investigate further as to the difference between the two pieces of information about the fobs in circulation.

[108] I disagree. The ITO gives the reader the impression that the Applicant was a frequent and exclusive user of Unit 2806. The fact that the Applicant used the only fob issued for the unit is repeated and given prominence, including in the summary portions of DC Baldini’s grounds for the investigative means sought in the warrant. The investigative plan leads with the assertion that the Applicant was accessing the building and elevators “using the only fob issued for unit 2806”.

[109] The issuing judge was entitled to know at the very least that there was conflicting information about the number of fobs issued. In particular, the issuing judge was entitled to know that the information that there were three fobs issued came from the 2017 residential tenancy agreement with three named tenants on it.

[110] Further, the Investigative Plan section of the ITO states the belief that there are no tenants in Unit 2806 based on the investigation of the occupants listed in the 2017 tenancy agreement. This is some indication that DC Baldini turned his mind to the tenancy agreement and the fact that the potential presence of tenants in the unit needed to be addressed before the issuing judge. Yet, the only investigative steps found in the ITO concerning the three tenants were police computer checks, which showed no Canadian Police Information Centre or Ministry of Transportation records for any of the named tenants.

[111] The investigative steps in the ITO do not rule out that this tenancy was still in force in 2019. There was an incomplete foundation for the affiant’s assertion that there were no tenants in Unit 2806.

[112] The potential access by other people to a unit could have been relevant to the issuing of a warrant. A residential tenancy could undermine some of the inferences being drawn by the affiant and have a bearing on whether Unit 2806 was being used as a fentanyl stash house.

[113] I will consider the ITO corrected by adding the information that three fobs were issued to three named tenants in the 2017 residential tenancy agreement. The impact of this correction is to consider there to be conflicting information as to the number of fobs and persons with access to the unit. The security officer told police that there was one fob issued for Unit 2806, but the 2017 residential tenancy agreement showed three tenants with three fobs issued to them. I conclude, as a result of this information, that DRPS had not ruled out access or occupancy of the unit by others at the time they sought the General Warrant.

Was the Assertion in the ITO that the Applicant Had Regular Meetings with Other Individuals After Attending at Telegram Mews an Exaggeration?

[114] Counsel for the Applicant submit that ITO exaggerated by describing the Applicant having an established pattern of going to Telegram Mews and then meeting with other people. For example, at p. 28 of the ITO, the grounds for the belief that 25 Telegram Mews was a stash house included the following:

Based on Nguyen’s daily pattern, established through surveillance, reviewing the tracking data of the grey Infiniti and fob records, Nguyen is regularly attending 25 Telegram Mews, almost daily. During several of these visits to 25 Telegram Mews, Nguyen has been observed carrying bags into the building. Nguyen has been observed meeting with several individuals before and after attending 25 Telegram [M]ews.”

[115] The Applicant concedes that on four of the seven days of police surveillance he was observed carrying bags in the direction of 25 Telegram Mews. However, he submits that the investigative reports reveal that he was not observed meeting different individuals before or after attending the unit at Telegram Mews — apart from being regularly observed in the company of his wife, X.J. They submit that these are exaggerated observations, in an attempt to establish a pattern, and to leave an impression that the Applicant was conducting hand-to-hand transactions. Counsel submit there was no evidence of any hand-to-hand transactions and no pattern, and any reference to a pattern of behaviour should be excised from consideration on review.

[116] Crown counsel submits that the investigative summary was an accurate description of the various observations and investigative findings. There were meetings with three other individuals on three of the dates when the Applicant went to Telegram Mews. These meetings happened either before or after his attendance at Telegram Mews. Crown counsel argues that the Applicant was repeatedly accessing a downtown condominium where he didn’t live, going in and out with bags. This provides reasonable grounds to believe that he was using this location for drug trafficking, particularly when connected to the prior meetings with A.B.’s apparent supplier.

[117] The ITO uses qualifiers to suggest a pattern by the Applicant, to support the issue of the General Warrant. I turn to the question of whether these were reasonable and fair characterizations.

[118] A table summarizing the Applicant’s attendances at Telegram Mews and “meetings with other individuals” follows. I have omitted the information obtained by the warrantless search of the video on November 25, 2019 from the table.

Table 1: Summary of Observations of the Applicant and Other Individuals From October 24, 2019 to December 4, 2019

Date	Observations of the Applicant/Applicant’s Grey Infiniti at Telegram Mews	Applicant Seen with Other Individuals Before or After Driving to Telegram Mews?	Affiant’s Belief as a Result
November 21, 2019	Applicant is seen with his spouse, X.J. in the neighbourhood of Telegram Mews with a black backpack and a plastic bag zipped inside jacket. Spouse boards a streetcar. Applicant is lost to view.	Yes: V.R. enters Kingshill residence at 8:40 a.m. and stays for 5 minutes. Applicant and spouse depart Kingshill at 9:30 a.m. Applicant and spouse arrive in area of Telegram Mews at 11:32 a.m.	This information furthers the affiant‘s belief, based on V.R. and S.S. meeting on September 3, 2019, that S.S. and Applicant are part of a trafficking network.
November 22-23, 2019	Applicant’s grey Infiniti is tracked to Telegram Mews (12:40 a.m.) and then to Applicant’s residence on Kingshill.	No.	No statement of belief based on these observations.
November 26, 2019	Applicant and spouse Drive in grey Infiniti to Telegram Mews (arriving at 11:37 a.m.) with a backpack and gift bags.	No.	The carrying of bags to Telegram Mews furthers the affiant’s belief that the Applicant is using Telegram Mews as a possible stash location for his fentanyl network.
November 27, 2019	Applicant and spouse drive grey Infiniti to a restaurant and then attend Telegram Mews (at 6:40 p.m.). Spouse has a black backpack. At Telegram Mews, Applicant is seen with a black bag, getting into the grey Infiniti. On return to the Kingshill address, Applicant has a black bag, and spouse a black purse.	Yes: At 7:56 p.m. at a convenience store in Richmond Hill, DRPS see the Applicant “fist bump” an unknown male driving a Jaguar, at a convenience store.	The removal of a black backpack from Telegram Mews and meeting with the unknown male further the affiant’s belief that Telegram Mews is being used as a “stash location” for the Applicant‘s fentanyl network.
November 28, 2019	Applicant and spouse drive to Telegram Mews, arrive at 8:43 p.m. At 8:45 p.m. Applicant uses fob to enter. No bags noted.	No.	Furthers the affiant’s belief that Applicant has access to and control of a unit within 25 Telegram Mews.
December 3, 2019	Applicant and spouse drive to a location in Markham, where spouse drops off Applicant. Applicant seen at a parking lot. He is picked up in a white Hyundai and dropped off at a GO station, where he is picked up by spouse again. He has a red and white backpack. Applicant and spouse drive to Telegram Mews. Applicant enters building carrying red and white backpack and a black backpack.	Yes: Applicant is picked up by a white Hyundai at a parking lot and is dropped at the GO station. Driver of Hyundai is not identified.	The “distinct red and white bag” furthers the affiant’s belief that the Telegram Mews location is a stash location for the Applicant’s fentanyl network.
December 4, 2019	Applicant and spouse drive to Telegram Mews, leaving at 9:40 a.m. and arriving at 10:52 a.m. Later that day (1:15 p.m.), Applicant gets off a streetcar and is seen entering North doors of 25 Telegram Mews. No note of the Applicant carrying any bags.	No.	Furthers the Affiant’s belief that Applicant has key access to Telegram Mews.

[119] There is no discernible pattern here. There are three short contacts with other individuals on days when the Applicant and his spouse left the Kingshill address and went to Telegram Mews. There are a variety of bags being carried on four of the days summarized.

[120] I find that the use of words such as “daily”, “almost daily” and “daily pattern” repeated in the ITO exaggerated the facts. I excise these qualifiers from the grounds provided in the ITO.

The Omission of Fob Information Showing the Applicant Did Not Enter Telegram Mews on November 23, 2019

[121] Counsel for the Applicant argue that the ITO omitted another fact which should have been included.

[122] The ITO describes three dates in November (21st, 23rd and 26th) when the Applicant was placed at Telegram Mews. The production orders for key fob data showed he used the key fob assigned to Unit 2806 on two of those dates, the 21st and 26th of November.

[123] Applicant’s counsel submit that the ITO ought to have revealed that on a day when he was tracked to the area, the Applicant did not use that key fob for Unit 2806. Crown counsel conceded this omission but submitted that it did not amount to an error that would have misled the issuing judge.

[124] I accept this as a reasonable correction. Overall, it adds other possibilities to the narrative before the issuing judge, including the possibility that the Applicant had other business in the area and/or he did not always enter Telegram Mews using a fob.[^1]

b(i). Was there sufficient credible and reliable evidence, after any excisions from the ITO, to permit the issuing judge to find that an offence has been or will be committed and that information concerning the offence will be obtained through the investigative means authorized in the warrant?

[125] Having considered and excised the portions of the ITO which refer to the video on November 21, 2019, references to a “sole key fob”, the assertion that “the family was not living there”, and the assertions of a daily attendance, or a pattern of attending Telegram Mews and then meeting with other individuals, I turn next to whether the remaining information in the ITO was sufficient to meet the first criterion in s. 487.01(1).

[126] Crown counsel relies on the Applicant’s meetings with the supplier to the street dealer on two occasions, followed by his attendances at a condominium unit, sometimes with bags in hand, in downtown Toronto. This, coupled with evidence of several meetings with other persons on those days before or after visits to Telegram Mews, is submitted to be reasonable grounds to support a conclusion that an offence had been or would be committed and that evidence related to that offence could be located inside Telegram Mews.

[127] Crown counsel argues that there was credible, corroborated information that A.B. was dealing fentanyl. Drug trafficking does not happen in a vacuum and relies on a chain of supply. Here, DRPS carefully observed and discovered the supply chain to A.B. The actions of the Applicant provided DRPS with good reason to believe that this is where drugs were located. His actions were consistent with drug trafficking. As counsel put it in her factum, “They were right.” This latter point invites after-the-fact reasoning.

[128] Counsel for the Applicant submit that what remains after excision and correction falls far short of reasonable grounds on which the issuing judge could have issued the General Warrant. The observations took place over a short period of time, after the two meetings at the Markham plaza. The confidential sources which led the police to A.B. gave no information at all about the Applicant. The investigation did not return to A.B. or S.S. The last observations of A.B.’s activities were in July of 2019. They did not corroborate what A.B. was selling.

[129] As for the Telegram Mews observations, counsel for the Applicant submit there were no direct observations of the unit, the hallway or the elevator. There was circumstantial evidence available from the use of the fob, but an utter absence of information about the Applicant, his family, his employment or any context to support the conclusions drawn from his movement in November and December of 2019 when he was under surveillance.

[130] Counsel submit further that the conflicting information about the key fobs issued for unit 2806 did not permit the bald assertion that the Applicant had the only fob to the unit. The evidence of his entry did not permit a conclusion that he was “regularly seen accessing the building and elevators”. Counsel submit this was a “gross exaggeration”.

[131] In sum, counsel submit that this was a case where the investigators had a hunch that they had the supplier of fentanyl to S.S. and in turn to A.B. and they viewed the available information through that lens, which in turn led them to exaggerate their observations to fit the narrative they presented to the issuing judge. The affiant refers repeatedly to “fentanyl” (37 times) throughout the ITO, however the confidential source information that fentanyl was being sold by A.B. in July of 2019 was not confirmed by independent investigation. Further, there was no “closing of the circle” to link the Applicant to either A.B. or to S.S. after the November/December observations of the Applicant at Telegram Mews.

[132] In R. v. Debot, (1986) 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.) at p. 21, Martin, J.A. wrote about the relationship between reasonable grounds for belief where the police receive information from a confidential source and the importance of indicia of the source’s reliability, including “confirmation by part of his or her story by police surveillance.”

[133] Here, the ITO is lacking in some of these indicia. DRPS did not confirm the confidential information that A.B. was trafficking in fentanyl. The specific information about colour and amounts delivered to A.B. were likewise not confirmed by independent investigation. Yet, the ITO repeatedly refers to “fentanyl” and a “fentanyl trafficking network” based on two partially unconfirmed tips.

[134] I conclude that, once the corrections and excisions are made to the ITO, there were insufficient grounds on which the issuing judge could have issued the General Warrant in this case. To connect an offence to the unit in Telegram Mews, and in the absence of direct evidence as to what was happening in the unit, a stronger pattern of conduct that suggests illegality is required. The conclusions drawn by the affiant do not flow logically from the objective recitation of the facts. The presence of a distinct red and white bag is cited as evidence to support Telegram Mews being a stash house. Once in the building, on the occasions he attended there, there is a total absence of evidence of the Applicant’s movements. He is often accompanied to the area by his spouse, yet there is no information about their relationship, their family, their employment or their responsibilities. There is an absence of context that might have overcome the limited number of observations available to the affiant.

[135] This is not to say that DRPS had no reason to investigate: there was sufficient information to investigate. It is the role of officers to follow their hunches, test hypotheses and collect evidence. The use of the word “attempt” to secure charges in the ITO section headed “Purpose and Objective for Using a General Warrant” reveals some uncertainty. This is in keeping with the observations of the Applicant.

[136] However, here, the impression from the exaggerations in the ITO and the early confident statement at page 17 of the ITO, after a second meeting between S.S. and the Applicant, that he was supplying or delivering drugs to S.S., leads all subsequent observations to be viewed through this lens. Once the Applicant is seen accessing a condominium unit in downtown Toronto, where he does not live, the assumption is made that this must be the location of a fentanyl stash house.

[137] Based on what the officers saw, this was not a far-fetched hypothesis. It was possible. But their limited observations and information did not raise the grounds to “credibly-based probability”. There were other possibilities, and further investigation was needed to rule those out, including the obvious possibility that there were tenants in the unit associated with the key fob in the possession of the Applicant.

[138] On the facts of this case, I conclude that the DRPS wanted the General Warrant to “confirm or deny” their suspicions. Essentially, a shortcut. Seven days of observations over a two-week period. Potentially innocuous human behaviour was viewed through the lens of an unconfirmed suspected fentanyl network. The Applicant’s movements on the days he was under surveillance were as consistent with lawful activity (driving, alone or with his spouse, carrying bags, greeting and seeing people) as with supplying illicit substances to persons involved in supplying to dealers (driving, carrying bags, greeting and seeing people).

[139] The affiant swore that the information was sufficient to support issuing a CDSA search warrant. The stated reason for seeking the General Warrant was to avoid having the target learn of the interest of the police in the unit.

[140] However, if indeed the DRPS believed they had sufficient grounds for a search warrant, and they had investigated up to the point of supply, it is illogical to suggest that they needed a General Warrant to avoid tipping off the Applicant. With the required level of belief for a search warrant that this was a fentanyl stash house, there would have been no need to avoid searching and seizing the drugs from the unit at Telegram Mews. The alternative reasonable inference from the grounds in this ITO is that the information fell short of reasonable grounds to search, thus leading to the request for a General Warrant to enter up to 10 times over a 60-day period to conduct intrusive searches. In effect, this eliminated the less invasive but harder work of observing, tracking, and seeking production of information to test the working hypothesis.

[141] This leads to a consideration of the public interest criteria for the issuing of a General Warrant.

b(ii). Was there sufficient credible and reliable evidence to permit the judge to find that issuing the warrant would be in the best interests of justice?

[142] Section 487.01(1)(b) requires the issuing judge to be satisfied that there is sufficient credible and reliable evidence to find that issuing the warrant would be in the “best interests of justice”.

[143] This criterion requires a balancing between the proposed intrusion on privacy against the desire by law enforcement to find evidence. In that regard, the ITO must address the seriousness of the offence, how the investigation will be advanced if the general warrant is granted and the impact on the privacy interests of those affected if it is granted: R. v. Finlay and Grellette, 1985 CanLII 117 (ON CA), [1985] O.J. No. 2680 (C.A.); Search and Seizure, Hasan, Lai, Schermbrucker and Schwartz (Toronto: Emond, 2021) at p. 214.

[144] In TELUS, Cromwell, J. (dissenting on other grounds) observed at para. 190, that s. 487.01(1)(b) is the factor which addresses the potential abuses of the general warrant.

[145] Here, the offences under investigation were undeniably serious. This is implied, although not addressed directly, in the ITO. It was open to the issuing judge to conclude that the offences under investigation were serious and have deleterious impacts on the community.

[146] The affiant asserted that the General Warrant was necessary to obtain evidence to support criminal charges against the Applicant and members of his network. This could be said of any step in an investigation, whether grounds for a warrant are present or not. The ITO was silent on any intrusion on privacy interests of potential third parties, and it did not recognize that this was an exceptional “ask”: to surreptitiously enter a residential address in a condominium building and open anything inside, with the power to make the entry appear to have been the product of a breaking and entering to conceal police involvement.

[147] The broad range of investigatory powers sought by DRPS in this case during the requested surreptitious entries meant that the General Warrant essentially amounted to permission to carry out 10 residential searches and seizures over a 60-day period.

[148] The ITO failed to balance the benefits from the investigation sought against the intrusions on privacy involved: it did not allow the issuing judge to conclude that the intrusions were justifiable. This is particularly so after the correction to the assertion that there was only one fob issued for the unit, and the addition of the information that the tenancy agreement in 2017 showed three fobs issued to three named tenants.

[149] Given the direction from the Supreme Court of Canada in TELUS about the care to be taken before issuing general warrants, a failure to address the mandatory second component of the test found in s. 487.01(1)(b), is on its own, fatal to the General Warrant.

[150] I find that there was insufficient information on which the learned issuing judge could have concluded that there was sufficient credible and reliable evidence to find that issuing the warrant would be in the “best interests of justice”.

b(iii). Was there sufficient credible and reliable evidence to permit the judge to find that no other provision in the Code or other federal legislation provides for a warrant authorizing the investigative technique, procedure or device sought?

[151] Surreptitious entry into a residential dwelling is not an investigative technique contemplated by any other provision in the Code or federal legislation. The ITO satisfied s. 487.01(1)(c) of the Code.

Should the Court Exercise its Residual Discretion to Invalidate the General Warrant?

[152] A reviewing court has residual discretion to invalidate a warrant in the clearest of cases, where the evidence was obtained in a manner subversive of the prior judicial authorization process: see R. v Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321 at paras. 69-70, 73-75; R. v Strauss, 2017 ONCA 628, 353 C.C.C. (3d) 304 at para. 25.

[153] To exercise this discretion, there must be conduct tantamount to an abuse of process, such as deliberate non-disclosure or bad faith. The Applicant did not seek to cross-examine the affiant or sub-affiant, and the record did not reveal conduct that meets this threshold. This ground to invalidate the search warrant was not pursued in oral argument. I would not invalidate either of the warrants based on residual discretion.

c. If the General Warrant breached the Applicant’s s. 8 rights, should the evidence seized under the warrant be excluded by virtue of s. 24(2) of the Charter?

Section 24(2) of the Charter: The Legal Framework for the Exclusion of Evidence

[154] Section 24(2) of the Charter provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[155] The three-part test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71, continues to be good law. The court should consider:

a. The seriousness of the state conduct;

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

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

Application of the Grant Factors to the Breach of s. 8 of the Charter

a. Seriousness of the State Conduct

[156] I begin with the seriousness of the state conduct. Given the power of the state to infringe on the privacy rights of citizens, including by entering their homes, seizing bodily materials, and listening to private conversations, a level of competence is expected. “Negligence in meeting Charter standards cannot be equated to good faith”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 44.

[157] Crown counsel submits that the DRPS showed regard for s. 8 Charter rights by making its application for a search warrant to an independent judicial officer. The police acted in good faith and reasonably relied on the warrants that were granted. Thus, Crown counsel submits that the conduct is on the low end of the spectrum of seriousness.

[158] I find that the conduct here does not fall on the low end of the spectrum. The errors were not merely technical or inadvertent. The omission of the information about the key fobs issued to three named tenants, the warrantless search of the video recordings to confirm entry into the building and the exaggerated characterization of “pattern” and “near daily” attendances by the Applicant without a factual foundation are cumulatively evidence of a level of negligence and ignoring Charter standards. I cannot conclude that these are good faith errors.

[159] The DRPS sought to access, search, potentially seize and fake a break-in (or break-ins) in a residential unit in a building up to 10 times over a 60-day period. There was no demonstrable urgency that would diminish the seriousness of the police conduct.

[160] Counsel for the Applicant raised the potential systemic issue of racial stereotyping in connecting his client, who is Vietnamese, to trafficking in fentanyl, suggesting that the DRPS took steps that might not have been so engaged for a person with different personal characteristics. Crown counsel acknowledged the reality of systemic racism across the judicial system, and the inferentially the existence of implied bias in choices made by investigators. Without the benefit of cross-examination of the affiant or sub-affiant, the extent to which this factor may have played a role, if any, is unknown. The courts have taken judicial notice of reality of systemic racism, and by extension, implicit bias on the administration of justice in Canada. The choice to include several photographs of the Applicant in the ITO and to make repeated references to “fentanyl” in the absence of confirmation that A.B. was selling that substance, does not rule out entirely the role of implicit bias in the investigative choices made in this case.

[161] Section 487.01 of the Criminal Code or the general warrant section “fundamentally alters the traditional search warrant paradigm”: see Ha at para. 25. It permits the police to seek judicial authority to do something that, absent that authority, would constitute a breach of s. 8. The law on general warrants is not uncertain. There is legislative and judicial guidance available as to the parameters to be followed in seeking a general warrant.

[162] The affiant’s lack of attention to the need to balance potential and real privacy interests against the DRPS’ interest in obtaining evidence meant that an important component required for a general warrant (s. 487.01(1)(b)) was ignored.

[163] The ITO was seriously inadequate. The fundamental elements required to justify such intrusions and powers were missing. I find that the conduct overall is sufficiently serious to weigh in favour of exclusion of the evidence.

b. Impact of the breach on the Charter-protected interests of the accused

[164] The Applicant submits that the broad powers given to the police under the General Warrant should be considered by this Court when assessing the impact of the breach on the Charter-protected interests of the accused. In this case, the police requested that the general warrant be valid for a period of 60 days or 10 entries. The warrant also permitted the police to employ a wide array of “investigative techniques” — including searching closed containers and staging the scene to resemble a break and enter or theft.

[165] The potential impact on the Charter-protected interests of the accused was serious. However, as it happened, there was in fact only one entry, as well as the seizure which led to the further search of the Applicant’s home and his subsequent arrest.

[166] Crown counsel argues that the actual effect on the Applicant of the first search warrant was not serious: it involved a residential unit in which he was not living. He was not present at the time of the search. The warrant was executed once and the additional investigative techniques (including damage as part of a ruse to have the search appear to have been the product of a break and entry) were not required.

[167] This is true. However, the breach of the Applicant’s s. 8 Charter interests created a domino effect: the General Warrant led to an entry and search of the Telegram Mews residential unit, to which the Applicant was connected. The discovery inside this unit and the grounds for the General Warrant in turn were used to seek a Search Warrant of the Applicant’s family residence. As Crown counsel has acknowledged, if the General Warrant falls, the Search Warrant likewise falls.

[168] Residences attract a high level of privacy protection. The General Warrant authorized multiple highly intrusive residential searches and seizures, over a 60 day period, without requisite grounds.

[169] I conclude that this factor favours exclusion.

c. Society's Interest in the Adjudication of the Case on its Merits

[170] It is undeniable that the evidence obtained here is critical to the Crown’s case. Further, society has a strong interest in prosecuting and deterring the trafficking of dangerous and addictive substances, given the associated risks of violence and other predations linked to profit-seeking of this type. Families are affected. Lives are cut short. There are health, economic and social impacts.

[171] That said, “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”: see R. v. McGuffie, 2016 ONCA 365 at para. 63;

[172] This principle may apply even in cases where offence are serious and the search has uncovered real evidence: R. v. Poirier, 2016 ONCA 582 at para. 95.

[173] The Supreme Court of Canada has cautioned against allowing the third branch of the Grant test to overwhelm all other considerations: see Paterson at para. 56.

[174] While this third factor favours inclusion, I conclude in all of the circumstances, including with reference to the first two branches of the Grant test, that the evidence should be excluded.

Conclusion

[175] I conclude that the Applicant’s s. 8 Charter rights were infringed. Pursuant to s. 24(2) of the Charter, I exclude the evidence obtained under the authority of the General Warrant and the Search Warrant.

Leiper J.

Released: February 16, 2022