COURT FILE NO.: CR-21-50000312-0000
DATE: 20220616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SALMAN JOGIYAT ET AL.
Applicants
C. Otter and S. Scratch, for the Crown
E. Lam and L. Morgan and Marianne Salih, for the Applicants
HEARD: June 13, 14 and 15, 2022
JUSTICE S. NAKATSURU
[1] Three issues are to be decided on this pretrial motion: (1) whether any of the applicants has standing to a challenge a December 7, 2019 search warrant, executed at 1006-199 Richmond Street West; (2) whether the Crown has met its disclosure obligations respecting the search of a phone seized from Muhammad Hassan on April 7, 2020; and (3) whether the applicants require leave to cross-examine officers who formed reasonable and probable grounds to intercept private communications in reliance on a “resort-to” provision of the authorization.
[2] At the end of oral argument, it was agreed that issue (2) can be deferred for the moment. Whether it needs to decided will depend upon the nature and extent of further Crown disclosure which will be soon coming.
A. Standing To Challenge the December 7, 2019, Search Warrant
1. Relevant Legal Principles
[3] To have standing, a person must prove that they have a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access. To establish a reasonable expectation of the privacy in the subject matter of the search, the person must subjectively expect it would be private and that this expectation was objectively reasonable. Whether a reasonable expectation of privacy exists must be assessed in the totality of the circumstances. See R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608.
[4] In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, Cromwell J. explained that four lines of inquiry may assist in guiding the required analysis (para. 18):
(1) an examination of the subject matter of the alleged search;
(2) a determination as to whether the claimant had a direct interest in the subject matter;
(3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and
(4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
[5] R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 at para. 52-56 rejected the notion of automatic standing or that merely being a target of a search conferred a reasonable expectation of privacy. The Supreme Court provided factors to consider in determining whether a reasonable expectation of privacy exists in the context of a physical search of a location:
(a) Presence at the time of the search;
(b) Possession or control of the property or place searched;
(c) Ownership of the property or place;
(d) Historical use of the property or item;
(e) The ability to regulate access, including the right to admit or exclude others from the place;
(f) The existence of a subjective expectation of privacy; and
(g) The objective reasonableness of the expectation.
[6] In R v Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 the subject matter of the search was the electronic conversation between Mr. Jones and his co-accused. Cote J. permitted Mr. Jones to rely on the Crown's theory that he authored those text messages for the purposes of establishing his direct interest in their subject matter and his subjective expectation of privacy in the messages. She held that an accused mounting a s. 8 Charter claim is permitted ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire. This is consistent with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self-incrimination.
2. Analysis
[7] On December 6, 2019, D.C. Perilli swore an ITO that formed the basis for a search warrant issued the following day for unit 1006, 199 Richmond Street West. When the police executed the search warrant, they found several people, including Salman Jogiyat inside. During the execution of the search warrant, the police observed an individual from within the unit exit through the balcony and scale the exterior of the building. This unknown individual entered a neighboring condominium unit through an unlocked balcony door and secreted a firearm underneath a couch cushion while its occupant was sleeping. Nothing was seized from unit 1006 and none of the occupants were charged with any criminal offence.
[8] In the Charter challenge to the Part VI wiretap authorization, the applicants wish to challenge the constitutionality of this search warrant which formed a part of the affidavit for the wiretap authorization. To do so, Mr. Jogiyat needs to establish he has standing.
[9] For the following reasons, I find that Mr. Jogiyat has standing to challenge the December 7, 2019, search warrant for 1006-199 Richmond Street West.[^1]
a. Reliance on the Affiant’s Theory
[10] D.C. Perilli, averred that Mr. Jogiyat rented the unit to be searched through AirBnB, and that he used the condominium as a “safe house” from which to operate his criminal enterprise. Mr. Jogiyat submits that D.C. Perilli’s theory, a state theory of investigation, establishes standing. He supports his argument relying on the case of Jones.
[11] The Crown submits that Jones can be distinguished on the basis that there it was the Crown theory that provided the evidentiary foundation. Here, the Crown theory does not allege that Mr. Jogiyat had a reasonable expectation of privacy in the unit. In fact, there is no Crown theory of prosecution as to who owned or occupied the unit. The Crown does not seek to tender any evidence from the search of the unit. No charges arose from the search. The Crown submits that the applicant’s argument is tantamount to the “target theory” of establishing a reasonable expectation of privacy discredited in Edwards.
[12] The following is D.C. Perilli’s description in his ITO of Mr. Jogiyat’s link to the relevant unit on Richmond Street West:
Mr. Jogiyat was described as the “owner or occupant” of the residence and vehicle to be searched.
Items to be searched for included documents/items in relation to recent ownership, occupation, possession and association with the search location and property found within the search location.
Mr. Jogiyat was named as the target, and he was described as being a “person of interest associated with the location”.
Mr. Jogiyat was described as the POI (Person of Interest) for vetting purposes.
The affiant swore “I believe that the types of items to be searched for and seized, and described in Appendix “A” are routinely found in location such as the address in which the Persons of Interest resides…”
The affiant swore “I believe that the Person of Interests’ electronic data storage devices and personal documents, and items as described above, will normally be found within reach of the Persons of Interest, in the place where they have based the operation of their criminal enterprise.”
The affiant swore “With specific reference to this investigation, it is my belief that the addresses associated are the ‘safe’ base of operation for the Person of Interest’s criminal enterprise. The residential addresses offer a ‘safe’ base of operation to the Persons of Interest, where they can have every confidence and ability to control the storage of any or all of the items to be searched for. In addition, the motor vehicles utilized by the Persons of Interest allow them the ability to transport any or all of the items to be searched for….It is my belief, based on my experience and the information garnered from this investigation, that the Persons of Interest will have every confidence and ability to store any or all of the items to be searched for at any or all of the address and/or in the vehicle they control.
The affiant summarized confidential source information that there would be a large party at the AirBnB rented by the POI for his birthday. The source advised that the POI has rented the condo for the night at 199 Richmond Street West at apartment #1006…. [Emphasis added.]
[13] For similar reasons given by Cote J. in Jones, I find that the evidentiary threshold for standing has been met by Mr. Jogiyat.
[14] First, the evidentiary threshold is not high. It is a modest threshold that does not require evidence from the applicant(s) to meet.
[15] Second, to obtain the search warrant, the affiant placed before the issuing judge, the facts and his belief that substantiated Mr. Jogiyat’s connection to the unit as grounds to search the premises. In essence, he relied upon Mr. Jogiyat having a reasonable expectation of privacy in the unit as a basis to secure the warrant to search it. On the facts of this case, it would wrong and unfair to permit the Crown to repudiate this position to defeat his opportunity to challenge the warrant on the grounds of his lack of standing.
[16] Third, I see little to distinguish a Crown theory of prosecution and the affiant’s theory for obtaining the search warrant, when it comes to forming the evidentiary basis for standing. Both are state actors. Both have critical roles in the investigation and prosecution of the applicant. Both are closely connected to the relevant search warrant that is being judicially reviewed; the affiant in obtaining it and the Crown in defending its validity. I point out that what is being relied upon by is not merely a police investigative theory about Mr. Jogiyat’s connection to 199 Richmond Street West. Something held by some general member of the Project team. Rather, it is the affiant who swore the ITO to obtain the search warrant. In Jones a claimant was entitled to ask the court to assume as true for s. 8 purposes any fact that the Crown alleges against them in the prosecution. I find that they should be in the same position with respect to any facts that the affiant in the ITO has alleged against them when it comes to substantiating a reasonable expectation of privacy.
[17] Fourth, to permit the Crown to defeat standing on the basis that the Crown theory of prosecution has changed from that of the affiant’s theory could be open to abuse. In this case, the Crown does not intend to present any evidence that was seized from the unit during the execution of the search warrant. Hence, there is no prosecutorial reason to have a theory that Mr. Jogiyat rented the unit. However, I am confident that had weapons, drugs, or other evidence been found and seized within the unit, the Crown theory of prosecution would look very different. In the circumstances of this case, the lack of a Crown theory of prosecution should not be determinative against the finding of standing.
[18] Fifth, although the concern for self-incrimination is not so strong in this case as it was in Jones, it must be acknowledged that there is a tactical disadvantage imposed on the applicant if he was not permitted to rely upon the affiant’s theory. The applicant may have to testify on the voir dire to prove standing. While the Crown does not allege anything incriminating was found in the unit, the applicant would nonetheless be subject to cross-examination on his knowledge of and participation in how the individual who scaled the balcony with a loaded gun came to be in the unit. Even if the applicant professes no awareness of this, his testimony will still be tested and potentially used later at trial if he should give up his right to remain silent and testify in his own defence.
[19] Sixth, in this case, it is fair and efficient to permit Mr. Jogiyat to rely on the affiant’s theory. Efficiency was a consideration in Jones. Where there is no serious factual dispute as to who had a reasonable expectation in the premises, trial efficiency is gained by dispensing with the need for the applicant to call evidence. This is not to say that in another case where the state of knowledge of material matters at the time of the search warrant is different from the time the s. 8 challenge is brought, reliance on an affiant’s theory may be inappropriate to prove standing. For instance, later police investigation may have uncovered evidence that the unit was rented and occupied by someone other than the applicant. I agree with the Crown that this may be an important factor to consider. However, that is not the situation here.
[20] Seventh, the Crown argues that the affiant’s conclusory opinion that Mr. Jogiyat owned and occupied the premise is of no probative value. However, it is not just his own conclusion and belief that the affiant relied on. The confidential source provided details about how Mr. Jogiyat was renting the AirBnB for his birthday party that night. Counsel for the applicant also fairly pointed out this is just what is revealed in the unredacted portion of the ITO about the confidential source’s information.
[21] Finally, Jones does not restrict the type of evidence that can establish a reasonable expectation of privacy to only the consideration to the Crown theory of prosecution in terms of meeting the modest evidentiary threshold. I disagree with the Crown argument that to consider the affiant’s ITO is, in the circumstances of this case, simply equating being a “target” of a search warrant to having a reasonable expectation of privacy. Here the ITO does not lay out simply that Mr. Jogiyat was a “target” of the search.[^2] Rather, it is the totality of the circumstances that must be considered as measured against the test for a reasonable expectation of privacy. This can include the affiant’s theory as set out in the ITO. In this instance, it is significant that that theory is founded upon a reasonable expectation of privacy by Mr. Jogiyat in the unit to be searched.
b. Alternatively, the ITO Establishes Standing
[22] Alternatively, if I am wrong that the affiant’s theory can be relied upon to establish standing, even aside from the affiant’s theory in getting the search warrant, the facts set out in the ITO supports the finding of standing. The information itself in the ITO can be relied upon to ground the evidentiary foundation for standing. In Jones at para. 27, Justice Cote pointed out the provision of the ITO where it listed Mr. Jones as a user of the phone as demonstrating that there was no factual dispute as to who the phone belonged to. Likewise in this case, the ITO can be relied upon as some evidence establishing a reasonable expectation of privacy. As in Jones, in this case no substantial factual dispute exists as to who rented out the AirBnB. The Crown concedes it has no other evidence or information to the contrary. Assessment of the factors outlined in Edwards support my conclusion.
[23] First, D.C. Perilli avers that the unit and the car belongs to Mr. Jogiyat on the Modified Form for the Information to Obtain a Telewarrant.
[24] Second, the police investigation in December of 2019, had uncovered a live Instagram feed where Mr. Jogiyat was partying inside an apartment at 199 Richmond Street West. Later the police viewed CCTV surveillance video of Mr. Jogiyat in the lobby of 199 Richmond Street West. Also, he was viewed on the elevator and getting off on the 10th floor. Police officers went by unit 1006 and heard music coming from it.
[25] Third, the confidential source information clearly indicates that Mr. Jogiyat was renting the unit to celebrate his birthday.
[26] Fourth, when the police executed the search warrant, Mr. Jogiyat was found in the premises.
[27] Looking at the totality of the circumstances, the confidential source information along with the police investigation provides an evidentiary foundation for the factual conclusion that Mr. Jogiyat had rented out the unit when the police executed the search warrant. It is not always necessary to have direct evidence to prove standing.
[28] As a renter, even for a short-term rental, I find that Mr. Jogiyat had a subjective expectation of privacy in the unit. Additionally, this expectation was reasonable in the all the circumstances. Renting an AirBnb unit is no different than renting a hotel or motel room. In R. v. Ortega, [2021] O.J. No. 6466, at paras. 69, 92, Justice Backhouse rejected the Crown’s argument that the defendant’s reasonable expectation of privacy in a temporary AirBnb was attenuated, noting that, “…individuals have a reasonable expectation of privacy in rented dwellings, such as hotel rooms and AirBnB units.” See also R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36 at paras. 20-21; R. v. Young, 2019 ONSC 3563 at paras. 69, 22.
[29] In conclusion, Mr. Jogiyat has standing to challenge this search warrant.
B. Leave to Cross-Examine Officers Regarding the “Resort To” Provision of the Authorization
[30] As in most if not all Part VI authorizations, there are basket provisions, commonly referred to as “resort to” clauses. The parties dispute who bears the onus to call evidence supporting the interception of private communications on the basis of the “resort to” clause and whether leave is required for the applicants to cross-examine that officer.
[31] The leading case is R. v. Thompson, [1992] 2 S.C.R. 1111 where Sopinka J. comprehensively dealt with this issue. Where the legality of the interception of private communications depends upon a “resort to” clause, the police must have, based on evidence, reasonable and probable grounds that a named person has or will resort to a location or a phone (at para. 41). The type of evidence required must be extrinsic to the identification of the target’s voice on the material intercept (at para. 42). However, it can be established by reference to the substance of a previously authorized interception (at paras. 43-44). In the absence of sufficient evidence, the police have acted unlawfully (at para. 74). It is for the Crown to adduce evidence to establish that the private communications were lawfully intercepted (at para. 78).
[32] These principles are in keeping with Sopinka J.’s reference to a wiretap on a phone “resorted to” by a target as being analogous to the “plain view” doctrine, whereby seizure of evidence in plain view under the scope of the search as authorized but not itself authorized by a justice, is justified. He rejected the defence’s characterization of the “resort to” interception as a new search by the police that was unauthorized. Continuing with that analogy, where the Crown relies on the “plain view” justification for a search or seizure, the Crown calls evidence to establish that the legal requirements for it. When it comes to proving a particular interception is in conformity with the “resort to” clause, it is no different.
[33] Since Thompson, the statutory provision (previously s. 178.16(1)) dealing with the automatic inadmissibility of illegal interceptions has been revoked. Thus, presently, if the police did not have reasonable and probable grounds to establish reliance on the “resort to” clause, this amounts to a s. 8 violation. Section 184.2 still prohibits and criminalizes the interception of any private communications unless made in accordance with the provisions of the Criminal Code. Thus, to avoid a finding that an interception is illegal and thereby a violation of the Charter, the Crown must present properly admissible evidence supporting those reasonable and probable grounds. The applicants do not need leave to cross-examine any witness called by the Crown to establish this. As in the normal course, the applicants are entitled to cross-examine a witness called by the opposing party without leave. If a s. 8 violation is proven, the admissibility of the evidence falls to be determined under s. 24(2) of the Charter.
[34] In summary, the legal burden lies on the applicants to establish a s. 8 breach of the Charter and inadmissibility under s. 24(2). In the absence of a Charter challenge by the applicants, the Crown does not have to lead evidence that the police legally intercepted any particular private communication it seeks admission of at trial. The pathway to admissibility at trial no longer lies upon proof of the legality of the interception. However, when a Charter challenge is brought, to avoid a finding that the interception of private communications was illegal, the Crown will have to show that the police had reasonable and probable grounds that the interception was made in accordance with the “resort to” provision of the authorization. The existence of such reasonable and probable grounds cannot simply be presumed from the validity of the “resort to” clause.
Justice Nakatsuru
Released: June 16, 2022
COURT FILE NO.: CR-21-50000312-0000
DATE: 20220616
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SALMAN JOGIYAT ET AL.
Applicants
REASONS FOR JUDGMENT
NAKATSURU J.
Released: June 16, 2022
[^1]: Mr. Jogiyat is but one of several defendants being prosecuted a part of Project Compound and who are in one manner or another challenging the Part VI authorization. My ruling that Mr. Jogiyat has standing is not tantamount to other defendants having standing. It remains to be determined what effect if any, Mr. Jogiyat’s challenge to this search warrant has on the validity of the Part VI authorization for each of the other defendants.
[^2]: In Edwards, there was no search warrant or ITO. It was a search of the accused girlfriend’s apartment based upon the consent that she gave. In R. v. Pugliese, 1992 CanLII 2781 (ON CA), 71 C.C.C. (3d) 295 (Ont. C.A.) as approved of in Edwards, an ITO to search an apartment owned by a tenant of Mr. Pugliese who was the landlord, seems to have only specified that the police drug investigation “linked” the two together. The Court found Mr. Pugliese had no standing to challenge the search warrant on his tenant’s apartment as “there is nothing in the record that supports any suggestion that the appellant had a reasonable expectation of privacy in [the tenant’s] apartment or in any portion of it where the drugs and drug paraphernalia were seized.” In my opinion, the ITO at issue in the case at bar is significantly different.