COURT FILE NO.: CR-21-90000452-0000 DATE: 20220622
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LUAN NGO and JUN PENG WU
Defendants/Applicants
A. Francis, for the Crown/Responding Party
B. Fox, for the Defendant/Applicant, Ngo
S. Kimberg, for the Defendant/Applicant, Wu
HEARD: March 14, 2022, by Zoom
MOLLOY J.
REASONS FOR DECISION
A. THE APPLICATIONS
[1] I was appointed to hear pre-trial applications brought by Luan Ngo and Jun Peng Wu in this matter. The trial is scheduled for September 2022. There are two other co-accused (Hernandez and Mandal) but they did not participate in the applications before me.
[2] Both accused face multiple charges under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The charges flow from an investigation conducted by the Ontario Provincial Police into suspected methamphetamine (“meth”) production. In particular, the police conducted extensive surveillance of a commercial property at 889 Kipling Avenue in Toronto, which they believed to be a meth lab. In May 2020, officers executed multiple search warrants at locations throughout Toronto and the surrounding area, including 889 Kipling Avenue.
[3] The defendant, Luan Ngo, seeks to exclude the evidence obtained through warrants authorizing the search of 889 Kipling, his personal residence, and his car. He maintains that there were no reasonable grounds to support the warrants and that they were issued in violation of his rights under s. 8 of the Charter. In addition, he objects to the “no knock” entry into his home to execute the warrant as being unjustified in the circumstances.
[4] The defendant, Jun Peng Wu, takes no position on the search warrant for 889 Kipling. However, the evidence connecting Mr. Wu to that address was obtained from a video surveillance camera mounted on a billboard on top of a neighbouring commercial property. The camera, which was in place for approximately three weeks, focused on the back of 889 Kipling and showed the parking lot and rear entrance of that building. Mr. Wu takes the position that the surveillance camera interfered with his reasonable expectation of privacy and should be excluded from evidence. Without the video evidence connecting Mr. Wu to 889 Kipling, there would have been no basis for the search warrant issued for his residence.
[5] For the reasons that follow, the applications are dismissed. The evidence from all of the searches is admissible at trial.
B. THE SURVEILLANCE CAMERA
Factual Context
[6] The building at 889 Kipling Avenue is not a residence. It is a single-storey commercial building, surrounded by other commercial buildings of various low-rise heights. The building has a driveway down one side leading to a rear parking lot, where there is a back entrance to the building. High fences surround the parking lot and there are other buildings behind it and on both sides of it. There is no back alleyway. There did not appear to be any retail or customer service component to this building. No activity was detected at the front of the building.
[7] The police obtained permission from the owner of an adjacent commercial building to install two surveillance cameras on a billboard on the roof of that building. The cameras look down on the rear parking lot and back entrance of 889 Kipling Avenue. The cameras were in place for approximately three weeks of uninterrupted round-the-clock surveillance.
[8] The surveillance video shows a number of individuals coming and going from 889 Kipling, including an “unknown Asian male” who parked a grey Subaru with license plate BFKW 268 at the rear of the building on multiple occasions, and brought things in and out of the building. The grey Subaru was followed by the police on numerous occasions and the driver was observed entering the residence at 121 Petworth Crescent.
[9] Based in part on the video footage obtained from this surveillance, as well as other evidence from the ongoing investigation, the police obtained a warrant to search 889 Kipling Avenue and 13 other locations, including 121 Petworth. Those warrants were executed at the same time on May 11, 2020.
[10] The search of 889 Kipling revealed it to be an active synthetic drug manufacturing lab. It contained substantial manufacturing equipment, chemicals, and ephedrine in tablet and pure extracted form and methamphetamine in various stages of production from liquid to finished product.
[11] Mr. Wu was arrested at his residence at 121 Petworth when the police arrived there to execute the warrant. In the residence, the police found a fully operational MDMA lab, two pill presses, and 42.55 kg of MDMA pills.
[12] But for the observations of Mr. Wu on the surveillance video going in and out of 889 Kipling and the police following him to his residence at 121 Petworth, there would have been no basis for a search warrant for that residence, nothing tying Mr. Wu to the activities at 889 Kipling, and no evidence upon which to base any charges against him.
Position of the Parties
[13] Mr. Wu argues that: the police required a warrant to conduct video surveillance of the rear parking lot at 889 Kipling; all evidence obtained from the video surveillance was therefore unlawful and should be excised from the Information to Obtain (“ITO”) the search warrants; and, all evidence obtained from the search of his home should be excluded from the evidence at trial. The inevitable result is that the charges against him would be dismissed.
[14] The Crown’s position is that the people coming and going from the parking lot to the rear door of the commercial building had no reasonable expectation of privacy with respect to that place or activity. Therefore, the police did not require a warrant to install the surveillance cameras. Alternatively, the Crown submits that the evidence should nevertheless be admitted pursuant to s. 24(2) of the Charter.[^1]
General Legal Principles
[15] Section 8 of the Charter guarantees that everyone “has the right to be secure against unreasonable search or seizure.” For a search to be reasonable: (i) it must be authorized by law; (ii) the authorizing law must itself be reasonable; and (iii) it must be conducted in a reasonable manner.[^2]
[16] For s. 8 to be engaged, an accused must demonstrate that he or she had a reasonable expectation of privacy that was intruded upon by actions of the state.[^3] The criteria for determining whether a reasonable expectation of privacy exists are succinctly summarized in the decision of Maxwell J. in R. v. Hoang (“Hoang”) as follows:
In order for s. 8 of the Charter to be engaged, a person must have a reasonable expectation of privacy: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128. The Supreme Court of Canada in R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67 at para. 32, modified the criteria for determining whether a reasonable expectation of privacy exists in circumstances of surreptitious recordings:
i. What is the subject matter of the recording;
ii. Did the party claiming a privacy interest have direct interest in the subject matter of the recording;
iii. Does the party claiming a privacy interest have a subjective expectation of privacy in the subject matter of the recording;
iv. If so, was the expectation reasonable, having regard to:
a. the place where the alleged “search” occurred;
b. whether the subject matter was in plain view;
c. whether the subject matter was abandoned;
d. whether the subject matter was already in the hands of a third party;
e. whether the police technique was intrusive in relation to privacy interests;
f. whether the use of surveillance technology was itself objectively reasonable;
g. whether the recording exposed intimate details of the party’s lifestyle, or information of a biographical nature.[^4]
[17] In determining the subject matter of the search, the court should consider “what the police were really after” based on the totality of the evidence.[^5] In this case, the police were seeking to identify any persons entering the building and to determine, if possible, what they were transporting into and/or out of the building.
[18] With respect to the applicant’s interest in the subject matter, the Supreme Court has recognized three broad, often over-lapping, types of privacy interests: territorial; personal; and informational. Privacy of the person is the most protected of the privacy interests as it involves bodily integrity. Territorial privacy typically involves the protection of privacy within a person’s personal residence where our most intimate and private activities are likely to take place.[^6] The informational aspect of the privacy interest relates to “a biographical core of personal information” which would include “intimate details of the lifestyle and personal choices of the individual”.[^7] The Supreme Court also recognized that informational privacy includes “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”[^8]
[19] It is clear from the case law that the threshold to establish a subjective expectation of privacy is a low one. Further, the Supreme Court of Canada confirmed in R. v. Jones that on this issue an applicant is entitled to rely on the Crown’s theory of the case. In this case, the Crown’s theory is that Mr. Wu was involved in the manufacturing of illicit drugs at 889 Kipling. The Crown alleges that Mr. Wu frequented 889 Kipling almost daily between April 6 – May 11, 2020, that he entered and exited at will, and that on multiple occasions used a key to access the premises. The Crown’s theory is that Mr. Wu was in control of the premises and of the illicit drugs contained therein. Given the Crown’s theory and the conduct of Mr. Wu, it is clear he had an interest in the subject matter and there is a clear inference that he had a subjective expectation of privacy. The real issue in this case is whether his expectation of privacy was reasonable.
Analysis: Applying the General Expectation of Privacy Principles to Video Surveillance
[20] The general principles relating to the protection of privacy rights were established in cases going back several decades, long before video surveillance cameras were part of our everyday lives, but they continue to be applied in cases involving modern technology.
[21] R. v. Duarte, decided by the Supreme Court of Canada in 1990, is one of the early decisions dealing with the impact of electronic surveillance on privacy interests.[^9] In that case, the Court held that private communications between individuals could only be intercepted electronically if prior judicial authorization was obtained, stating:
The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: "Electronic surveillance is the greatest leveler of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.[^10]
[22] Eleven months after Duarte was decided, the Supreme Court of Canada, in R. v. Wong, (“Wong-Hotel Room”) extended the principles established therein to video surveillance by police, noting that “what the Court said in Duarte must be held to embrace all existing means by which the agencies of the state can electronically intrude on the privacy of the individual, and any means which technology places at the disposal of law enforcement authorities in the future.”[^11] In that case, with the consent of a hotel’s management, but without prior judicial authorization, the police had placed a hidden video camera in a hotel room they believed was being used to conduct illegal gambling. The Supreme Court held that this constituted a breach of s. 8 of the Charter because “persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.”[^12] Justice LaForest (writing for the majority) held:
I am firmly of the view that if a free and open society cannot brook the prospect that the agents of the state should, in the absence of judicial authorization, enjoy the right to record the words of whomever they choose, it is equally inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. George Orwell in his classic dystopian novel 1984 paints a grim picture of a society whose citizens had every reason to expect that their every movement was subject to electronic video surveillance. The contrast with the expectations of privacy in a free society such as our own could not be more striking. The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government. As in the case of audio surveillance, to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society. There are, as R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at pp. 428‑29, tells us, situations and places which invite special sensitivity to the need for human privacy. Moreover, as Duarte indicates, we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy.
R. v. Duarte was predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. It is thus an important factor in considering whether there has been a breach of a reasonable expectation of privacy in given circumstances.[^13]
[23] Sometimes, changing times require some adaptation in how to apply these principles. The Supreme Court of Canada grappled with those concepts in R. v. Marakah[^14] (involving text messages stored in somebody else’s cellphone) and R. v. Mills[^15] (a child luring case where an undercover police officer, posing as a 14-year-old girl, recorded online chats and other exchanges with the accused). In Mills, the Supreme Court of Canada held that the police officer could record the online chats without violating any privacy rights of Mr. Mills. Justice Brown (with Abella and Gascon JJ. concurring) distinguished Duarte on the basis that Mills was conversing with a stranger, whom he believed to be a child, and the nature of the interaction was immediately known to the police because they had created the fictitious child with whom Mills initiated that contact. Justice Karakatsanis (with Wagner C.J. concurring) distinguished Duarte on the basis that a person communicating online cannot expect to keep those communications private from the person to whom they are sent (in this case, a police officer posing as a child). Justice Karakatsanis also noted that the means of the communication itself was already electronic and that the interception of those communications did not involve surreptitiously converting them from an oral communication into an electronic recording. Justice Moldaver agreed with the reasons of both Karakatsanis and Brown JJ., holding that the same result could properly be reached through either route, and that the bottom line was that recording the online chat did not violate s. 8 of the Charter. In her reasons, Karakatsanis J. stated:
The right to be secure against unreasonable searches and seizures must keep pace with technological developments to ensure that citizens remain protected against unauthorized intrusions upon their privacy by the state: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 102; see also R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36, at p. 44. However, as technology evolves, the ways in which crimes are committed — and investigated — also evolve. This case implicates both of these consequences. It requires us to consider what, if any, judicial pre-authorization is necessary when a common police investigative technique — an undercover operation — is conducted electronically to “identify and apprehend predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”: R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 24.[^16]
My conclusion that s. 8 is not engaged in this case does not mean that undercover online police operations will never intrude on a reasonable expectation of privacy. As technology and the ways we communicate change, courts play an important role in ensuring that undercover police techniques do not unacceptably intrude on the privacy of Canadians. Particularly in the context of the digital world, it is important for courts to consider both the nature and the scale of an investigative technique in determining whether s. 8 is engaged. With respect to the concern about the prospect of broader surveillance made possible by technological advances, as Binnie J.[^17]
[24] At the time of the Supreme Court’s decision in Wong-Hotel Room, there was no legislative provision for police to obtain prior judicial authorization to conduct video surveillance. That gap was filled in 1993 with amendments to the Criminal Code[^18] to permit the issuance of a general warrant in certain conditions for the use of any device or investigative technique or procedure (including video surveillance) to do anything that would, if not authorized, constitute an unreasonable search or seizure. These provisions contemplate the issuance of a warrant authorizing video surveillance in circumstances where the persons to be observed have a reasonable expectation of privacy. Thus, prior authorization is not required where the circumstances do not give rise to a reasonable expectation of privacy.[^19] It is worth noting that the Criminal Code does not treat video surveillance in the same way as the interception of private conversations between individuals, a factor that may have some impact on the strict application of the principles in Duarte.
[25] One of the first cases to deal with the issue of video surveillance subsequent to these Criminal Code amendments was the 2002 decision in R. v. Bryntwick[^20], in which police had video of a number of ATM machine robberies and sought confirmation of their suspicion that one of the perpetrators was Mr. Bryntwick. The police set up surveillance on the public roadway in front of Mr. Bryntwick’s residence and captured video of him going in and out of his front door and from that door to his garage or car. Justice Dunn dismissed the accused’s application to exclude this evidence, ruling that “walking to and from your front door to a car or a garage, as the case may be, in the plain view of any passers-by, pedestrians or motorists in the street, is not an activity which would justify Charter scrutiny.”[^21]
[26] More recently, in 2020, the Ontario Court of Appeal reached a similar conclusion in R. v. Roy.[^22] Believing that a rural residential property was being used to produce drugs, police set up static surveillance from a ditch next to a public roadway 140 metres from the residence and from a neighbour’s field 400 metres away. The police could see the residence, but could not see anything happening inside the residence. On one occasion they saw the accused outside the residence carrying a rifle and, on another occasion, saw a woman believed to be his wife shooting a rifle from beside the residence. Based on this and other evidence the police obtained a warrant to search the residence. The trial judge dismissed the application to exclude the evidence found during the search, holding that there was no reasonable expectation of privacy for things happening outside the residence. The Court of Appeal upheld the trial judge noting that there was no reasonable expectation of privacy because anybody on the public roadway could have seen and heard the same things that the police did, and that these observations yielded no information about the accused, his core biographical data, the activity taking place at his home, or any other highly personal information. The Court held, “Although the appellant may have believed he would not be observed by anyone because there would not ordinarily be anyone outside of his rural home, the ultimate question is whether anyone owed him an obligation not to observe him – from a distance of up to 140 metres – fire a rifle from his porch.”[^23]
[27] Although neither Roy nor Bryntwick involved remote or covert video surveillance cameras, in my view they support the general proposition that there can be no reasonable expectation of privacy with respect to conduct of a person that can be viewed from an outdoor public place. I note as well that if there is no reasonable expectation of privacy, there is no requirement for a general warrant to conduct video surveillance. If the police are not infringing on a person’s privacy by watching them in an outdoor area, it makes no sense to conclude that police could not photograph or videotape what they are watching. Indeed, in my view, it would be preferable police procedure for the officer conducting such surveillance to record it in some way. Photographs or video-recordings of what the officer is watching are significantly more reliable than the officer’s subjective perspective, note-taking abilities, and memory of the event. A more reliable recording enhances the truth-seeking goal of the trial.
[28] In R. v. Saciragic[^24] police officers obtained information from an apartment building property manager about the use of key fobs to exit and enter an underground parking garage during a time when the accused was observed there. The manager also told them that the accused was associated to a particular apartment in the building, based on the fob information and the manager’s observations of the accused going to the 11th floor. The trial judge found no breach of the accused’s privacy rights in obtaining this information without a warrant, which was upheld by the Ontario Court of Appeal. Justice Miller held:
Of course, in assessing whether an individual has a reasonable expectation of privacy, it is necessary to look not only at the immediate information sought by the police (the address corresponding to the fob, the attendance on the 11th floor), but the further information that it ultimately reveals: Spencer at para 331. In this instance, the ultimate information sought by the police is the particular unit the appellant accessed: the appellant’s municipal address.
Did the appellant have a reasonable expectation of privacy in his municipal address? The appellant did not advance any authority in support of the proposition that, categorically, there is a reasonable expectation of privacy in one’s municipal address. A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access.
Neither, on the record before the court, were there particular circumstances that would indicate a reasonable expectation of privacy in the appellant’s connection to unit 1107. The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police.[^25]
[Emphasis added]
[29] A number of cases have considered the application of these principles to common areas of large multi-dwelling residences, such as apartment buildings and condominiums and found that, depending on the circumstances, there may be no reasonable expectation of privacy in such areas. This arose in a number of ways in two decisions of Code J. in R. v. Brewster dealing with pre-trial Charter applications by 35 accused, including Brewster. Of particular relevance to the case before me are rulings by Code J. that: (1) there was no breach of s. 8 of the Charter as a result of warrantless entries by police into common areas of multi-unit buildings, including parking garages and hallways for the purposes of conducting surveillance;[^26] and (2) the police did not require a warrant to install covert surveillance cameras in the hallways of condominiums, focusing on the entrances to individual units, because there was no reasonable expectation of privacy with respect to the comings and goings from the hallways into individual units.[^27]
[30] Four of the 35 accused involved in the Brewster applications appealed to the Court of Appeal. The accused Brewster was not one of the appellants. The appeal decision is, therefore, titled R. v. Yu.[^28] In Yu, the Court of Appeal upheld Brewster #1, concluding that there was no reasonable expectation of privacy in common areas such as parking garages, lobbies, and elevators of condominium buildings. Warrantless entries into those areas did not breach s. 8 rights. The Court further held that, depending on the individual circumstances of particular buildings, there could be a somewhat greater expectation of privacy in the hallways leading to individual units. However, even in those circumstances, warrantless entries by police with the valid consent of the condominium management did not violate any rights under s. 8 of the Charter. However, the Court of Appeal reached a different conclusion with respect to the Brewster #2 decision, dealing with the police installing covert surveillance cameras in the hallways of one of the condominium units, disagreeing with the conclusion reached by Code J. on that point.
[31] In Brewster #2, Code J. found that the police did not violate s. 8 of the Charter by installing a covert surveillance camera in the ceiling of a condominium hallway at 38 Joe Shuster Way, focused on the doorway of a residence used frequently by one of the targets of the investigation, Ken Mai. The hidden camera recorded people entering and leaving the unit in question, but did not record anything of the interior of the unit. The police did not have a warrant to install the camera, but did have consent of the condominium management. There was a 24-hour concierge in the building. Access to the parking garage, entrances to the building, and the elevators were controlled by fobs issued only to residents. There were security cameras installed by the condominium corporation in the parking garage, elevator lobbies, entrances to the building, and elevators. There were no such cameras in the hallways of the condominium building. Justice Code made specific findings about the images captured by the covert camera as follows:
Turning to the relevant incriminating evidence seized by the surveillance cameras, what is shown is the comings and goings of the suspects, either in the hallway leading from the elevator to a unit or in the hallway coming from a unit to the elevator. This evidence has considerable probative value, in my view. For example, it strongly infers that Ken Mai did not live at the unit on the 17th floor of Joe Shuster Way but that he went there frequently, often carrying bags to and from the unit. Other suspects would occasionally attend at the unit with him or would visit the unit, while he was present. They would often arrive carrying nothing and would then leave carrying a bag. Other suspects, who were associated with guns and drugs, or with some other gang activity (and who have since been charged, and convicted in some cases), would also visit the unit while Ken Mai was present, sometimes transporting bags back and forth between the various units that were under video surveillance.
The totality of this body of evidence, including the hallway camera surveillance, persuasively infers that the 17th floor unit at Joe Shuster Way was under the control of Ken Mai and that it was being used by him as a “stash house” from which he ran a diverse drug trafficking business. It also establishes Ken Mai’s association with certain other suspects in the alleged “criminal organization.”[^29]
[32] Justice Code found that there was a “minimal” privacy interest in the comings and goings recorded by this surveillance camera, stating:
In my view, the facts of the present case do not involve a situation where the warrant requirement applies. Beginning with the privacy interests of the residents, there is a minimal privacy interest in the comings and goings at the external entrance to any private residence. Everything that the police observed in the 17th floor hallway, with the aid of cameras, would be visible from the sidewalk or street if the targets were living in a detached dwelling house. The fact that Ken Mai repeatedly entered and left the hallway leading to his 17th floor unit, sometimes with a bag and sometimes without a bag and sometimes in the company of another suspect, is no different than observations of a homeowner walking along the front yard path leading from the garden gate to the front door of a detached dwelling house. The latter observations have always been the subject of warrantless surveillance by police officers. Those surveillance officers sometimes carry still cameras or video cameras, indeed they are encouraged to use this simple and longstanding technology because it produces much more reliable surveillance evidence.[^30]
As a matter of principle, I can see little distinction between, on the one hand, surveillance cameras showing a suspect arriving or leaving in the parking garage of a condominium building, arriving or leaving in the front lobby of the building, or entering or exiting from an elevator in the building, all of which seems to be commonplace, and on the other hand, the camera installed on the 17th floor which shows a suspect either walking from the elevator to his unit or to the elevator from his unit. The distinction between these two kinds of surveillance cameras is not a principled point at which to draw a bright s. 8 line, requiring a warrant in one case but not the other. The principled line is the one drawn in [Wong – Hotel Room], namely, activities inside the condominium unit, behind closed doors, are protected by the warrant requirement.[^31]
[33] The Court of Appeal reversed only this one aspect of Code J.’s decision, finding that there was a reasonable expectation of privacy in the hallways of the Joe Shuster condominium, albeit at a low level. Dealing with the privacy interest in the hallways, the Court of Appeal held:
Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person’s residence, such as the end of a particular hallway of a particular floor of the building. Even in those less-frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.
A resident or occupant’s reasonable expectations surrounding camera surveillance in a condominium building depend on whether the cameras are visible, and whether the resident has been informed by the condominium management as to the location of any security cameras installed in the building. If there is no visible camera, and if the resident has been told that there are no security cameras, then residents are entitled to expect their movements are not subject to camera surveillance.
The only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed. As soon as they open their door, or exit their unit, it is reasonable to expect that they may be observed, with that level of expectation increasing the closer they get to the main areas of the building or to any security cameras.
On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. At the Joe Shuster Way building, security cameras are installed in the lobby, the ramp to the parking garage, at the elevator lobby, and in the elevators – but not in the hallways outside units. The appellants had some limited reasonable expectation of privacy in those areas.[^32]
[34] Notwithstanding these findings that some privacy interest is engaged in the hallways of the building, the Court of Appeal found that the residents would also have reasonably believed that management could authorize police to enter from time to time. Therefore, the observations made by police from the hallways when they were admitted by management were found to be lawful, without any infringement of a reasonable expectation of privacy.[^33] However, the Court held that this did not extend to the police installing hidden cameras in those hallways because this was not something “condominium residents would reasonably expect the board to do in carrying out its management duties.”[^34]
[35] The Court of Appeal in Yu, also noted that continuous surveillance by police is more intrusive upon privacy interests than is the case for occasional observations, even when made in the same area, stating:
Furthermore, the nature of the information the police were seeking engaged heightened privacy interests. As the appellants put it, the camera never blinks. Continuous surveillance over an extended period of time reveals more personal information about its subjects than do discrete and purpose-oriented individual entries. By the point the cameras were installed, the police had already determined where Mr. Mai resided, and were now pursuing information about who he associated with, and his living patterns in terms of when and how often he frequented the unit.[^35]
[36] Because of the heightened privacy interests at stake, the Court of Appeal held that the condominium corporation could not lawfully consent to surreptitious recording by the police. Accordingly, the installation of the covert cameras in the hallway was a breach of Mr. Mai’s rights under s. 8 of the Charter. Because Code J. had found no s. 8 breach, he did not consider the impact of s. 24(2) of the Charter. Therefore, the Court of Appeal conducted its own s. 24(2) analysis and found that, notwithstanding the breach, the evidence should still be admitted. In coming to that conclusion, the Court referred to the state conduct as “not overly serious”[^36], noting that this is a “grey area” of the law and the fact that the police minimized the impact on the rights of third parties, obtained the consent of the condominium management, and sought legal advice from the Ministry of the Attorney General. The Court also considered that this was a highly dangerous situation, the suspects were known to be armed at times, and the police decision to use the surveillance camera was related to safety concerns, not just a matter of convenience for the police.
[37] In considering the impact of the breach on the Charter-protected rights of the accused, the Court found that the impact was “moderate”, stating:
In applying these principles to the case at bar, I find that the impact of the hallway camera on Mr. Mai and Mr. Saccoccia’s Charter rights was moderate. The camera revealed some personal information. With respect to Mr. Mai, the evidence obtained from the camera strongly suggested that he did not live at Joe Shuster Way but did visit his unit there frequently. It identified his associates. It suggested that Mr. Mai was using his unit as a stash house for a drug operation, rather than as a residence. With respect to Mr. Saccoccia, the evidence from the camera revealed his relationship with Mr. Mai. This information was personal, but not exceptionally so, as it was available for public observation. It was much less significant than, for instance, the personal data contained in a computer. As discussed above, Mr. Mai and Mr. Saccoccia’s expectation of privacy in the hallway was diminished, as what they did there could be in the view of whoever entered the building and went to their hallway.[^37]
[38] The Court then noted that the evidence from the camera was highly reliable and essential to the Crown’s case. Given society’s interest in the adjudication of the case on its merits and the truth-seeking function of the criminal-trial process, the Court held that the repute of the justice system would be adversely affected if the evidence from the camera was excluded in these circumstances.
[39] Obviously, the facts before the Court in Yu are quite different from the case before me, most notably because the surveillance camera was inside a residential building where there was an expectation that access to non-residents was restricted. However, the general principles are clearly relevant. Before turning to my analysis of how these principles apply in the case before me, I will review a number of cases that are more similar on their facts, but not necessarily binding upon me.
[40] The most directly applicable decision to the situation before me is that of my colleague Maxwell J. in Hoang,[^38] a case in which the police mounted a covert surveillance camera on a pole which was on public property, with the camera focused on the exterior front of the accused’s house. The recordings captured the movement of people and vehicles coming and going from the house. The surveillance was continuous, but did not involve any enhanced tools such as telescopic lenses. Justice Maxwell held that the police did not require a warrant to conduct such surveillance, distinguishing Yu on the basis that the surveillance was outside a building and in public view, and relying on Bryntwick and Saciragic. This determination, however, was obiter dicta as there was nothing from this covert camera that formed the basis of the general warrants and search warrants that were the main subject of the application. The defence had argued that the warrants obtained were invalid and that the additional s. 8 breach with relation to the pole camera was a factor to be considered in determining whether the evidence obtained from the warrants should be excluded from evidence. Justice Maxwell found that there was no breach of the Charter in respect to the various warrants. Therefore, it was not strictly necessary for her to consider whether the surreptitious pole camera breached the accused’s reasonable expectation of privacy.
[41] One year later, on similar facts, Cullin J. in R. v. Aubrey,[^39] came to the opposite conclusion. In that case, without first obtaining a warrant, the police installed a hidden surveillance camera with a view of the front of the accused’s house and a portion of the driveway. The camera ran continuously for approximately three months and recorded the comings and goings from the front of the house and some of the accused’s interactions with visitors to the home in the driveway and in front of the house. Justice Cullin held that the covert video surveillance violated the accused’s reasonable expectation of privacy.
[42] In addition to the camera surveillance in Aubrey, the police also conducted “eyeball surveillance” of the home by covertly watching comings and goings at the front of the residence and in some cases, videotaping what they observed. Justice Cullin found that the physical surveillance of the property by the police was lawful as it involved observations of things that could be seen by anyone passing by. She also ruled that video recordings of these observations by the police did not interfere with any reasonable expectation of privacy stating as follows:
There is an argument to be made that video images provide a permanent record that can be reviewed and examined after the fact, thereby making them more intrusive than mere physical surveillance. In my view, this is where the purpose of the surveillance becomes relevant. Had the police been seeking to collect self-incriminating evidence against the applicant to prove the commission of a crime, a general warrant would have been advisable and likely necessary. In this case, where the primary purpose was to support an ITO, the recordings were simply another tool in the police investigative arsenal and, in my view, they did not require a warrant provided that they were the by-product of lawful physical surveillance.
I find that the applicant’s reasonable expectation of privacy was not infringed by the video recordings undertaken by the police during their physical surveillance. It was objectively reasonable to expect that activities conducted in plain view would be observed by members of the public, including the police. Further, it was objectively reasonable to expect that, in this day and age, when most members of the public carry personal electronic recording devices to document the minutiae of their lives, and many members of the public have recording devices installed on their homes and in their vehicles, at least some of the applicant’s activities conducted in plain view would be recorded. Given some of the counter-surveillance tactics observed on the videos, it is my view that the applicant likely also had a subjective expectation of police surveillance. In the circumstances, the video images recorded secondary to physical police surveillance did not breach s. 8 of the Charter.[^40]
[43] In R. v. Kwiatowski[^41] the British Columbia Court of Appeal found no infringement of s. 8 of the Charter in relation to photographs of rural greenhouses taken by an RCMP officer from a helicopter flying at a minimum altitude of 1000 feet. The photographs were taken with a camera using a zoom lens. Through the translucent walls of the greenhouse, and an open greenhouse door, the officer observed what be believed to be marijuana plants. These observations from the helicopter were made on three separate dates, each time while flying around, but not over, the property at a radius of one-half mile. This was a large rural property, which also contained a residence and other out-buildings, but the greenhouses were located at the rear of the property. They were partially obscured by a stand of trees and the doors opened toward the trees. A tarp was strung across a gap in the trees, which obscured the ground level view of the greenhouses from the neighbouring property. The Court of Appeal upheld the trial judge’s ruling that this aerial search and photographs did not intrude upon any reasonable expectation of privacy, noting that this type of surveillance “did not reveal the kind of private activities that courts are concerned to protect from observation in dwelling houses or other private structures” and that no private, personal, or core biographical information was at risk or obtained.[^42]
[44] The defence in the case before me relies on the decision of Kent J. of the British Columbia Supreme Court in R. v. Wong,[^43] (“Wong - Backyard”) in which the police installed a video surveillance camera on a power line behind the accused’s residential property and recorded activities of the accused in the rear driveway and backyard of a residence. The evidence captured was very similar to what was observed in the case before me – the accused going back and forth between his vehicle, the garage, and the rear entrance of the house carrying various objects. Searches conducted pursuant to subsequent search warrants revealed that there was a meth lab inside the house. Like the case before me, the police did not encroach upon private property to install the camera; the camera had a fixed focal lens without zoom; it was somewhat elevated (20 feet above street level); and it was continuously recording (in that case for about three weeks). Notwithstanding that the camera was somewhat elevated, the trial judge accepted that the activities captured on camera would have been plainly visible to any person observing from the alleyway behind the residence’s backyard. Justice Kent held that “three weeks of covert 24-hour video surveillance by the police creating a permanent electronic record of activities in the backyard of a private residence is precisely the type of investigative technique that s. 487.01 of the Criminal Code was designed to address”[^44] and that the failure to get a general warrant was a violation of the accused’s s. 8 Charter rights. Although not expressly stated in the reasons, I infer a finding that the accused had a reasonable expectation of privacy in these circumstances. Again, although not expressly stated, I infer that the most significant factor underlying that conclusion was the fact that this was a continuous recording over a period of three weeks. The motions judge referred to the decision in Bryntwick without distinguishing it, and likewise referred to the British Columbia Court of Appeal decision in Kwiatowski (which would have been binding) without distinguishing it. The only difference I can see in these situations is the length of time captured by continuous remote surveillance.
[45] My conclusion in this regard is reinforced by the 2019 decision of the British Columbia Court of Appeal in R. v. Edwardsen.[^45] In that case, the police had installed a video surveillance camera across from, but not on, the residential property of the accused. It provided a view of the property similar to that to a view of a person standing outside the property. The camera allowed police to conduct surveillance of the residence, without being physically present. The camera was in place for about nine months, but it did not produce recordings; it merely permitted officers to watch what was happening at the front of the residence in real time. The trial judge found no violation of s. 8 of the Charter. The Court of Appeal agreed. The Court of Appeal distinguished Wong – Hotel Room on the basis that it related to a hotel room which had a greater expectation of privacy than the exterior of a residence. The Court of Appeal also ruled that there had been no misapplication of the principles from the trial decision in Wong - Backyard, distinguishing the two cases on the basis that Wong - Backyard “was materially different because in that case such a record was created by covert 24-hour video surveillance.”[^46]
[46] A similar distinction was made by the Alberta Queen’s Bench in R. v. Piasecki.[^47] In that case, the police had obtained a tracking order to put a tracking device on Mr. Piasecki’s vehicle. He was tracked many times to a residence owned and occupied by his mother. The police set up a van with a video camera across the street from the mother’s home. The camera was capable of producing a 24/7 record of what was happening at the front of the mother’s home. However, it was not set up to record. Rather, when the tracking device showed Mr. Piasecki was at his mother’s home, an officer could access the video camera remotely using an iPad, could watch the front of the house in the same manner as a person standing on the street, and could capture screenshots of anything considered relevant. Apart from those screen captures there were no recordings obtained from the camera. Justice Germain held that in these circumstances, no general warrant was required because there was no reasonable expectation of privacy. He distinguished the decision in Wong – Backyard on the basis that there was no long-term and permanent recording being created by the video camera in the van.
[47] In R. c. Elzein, the Quebec Court of Appeal considered photographs and videotapes taken by an RCMP officer obtained without a warrant and used at trial to corroborate the testimony of an undercover agent’s evidence as to his purchases of cocaine at the accused’s place of business. The Court upheld the trial judge’s decision that there was no reasonable expectation of privacy and therefore no s. 8 breach in respect of these recordings. The Court of Appeal distinguished the Supreme Court of Canada’s decision in the Wong- Hotel Room case, stating:
The videotaping and photographing were carried out from outside the areas where certain activities in which the appellant was involved took place, which premises were in addition commercial places and therefore accessible to all who came by. A person who enters or exits from a business establishment cannot reasonably expect that his actions will be protected by the privacy principle and I cannot see how the fact that a person, whether or not a police officer, photographs him while he is carrying out this activity infringes the right that he may have to enjoy the privacy of those premises.[^48]
[48] I was also referred to the Saskatchewan Queen’s Bench decision in R. v. Scott,[^49] which deals with a situation similar to Bryntwick. RCMP officers investigating suspected drug dealing set up video surveillance camera on property next to a suspect’s home. The camera captured a view of the front exterior of the house and the driveway. It was motion activated and could be viewed remotely from the RCMP detachment. Over the two months the camera was operational it recorded 3600 instances of persons attending the suspect’s residence, the equivalent of 52 visits a day. Justice Wright found that this did not interfere with any reasonable expectation of privacy because “the areas observed were in plain sight to anyone on the street or in the area” and there were no observations of the house or through windows or the doorway.[^50]
Analysis: Applying These Principles to the Facts of This Case
[49] The police in this case set up the surveillance camera on the roof of a neighbouring property. In doing so, they did not trespass upon the physical property in which the accused might have a privacy interest. The video camera recorded what the police would have been able to see with the naked eye if they had been standing in the same position as the camera. Although the back parking area of 899 Kipling was surrounded by a high fence, it was visible from other buildings around it. Anybody watching from these vantage points would have been able to see what was happening in the parking lot.
[50] The property in question was not a residence. This significantly reduces any expectation of privacy. The case law is clear that there is no expectation of privacy with respect to the comings and goings at the front of a residence: Bryntwick; Edwardsen; Piasecki; Yu. Although the Ontario Court of Appeal held in Yu that there was some expectation of privacy in the hallways of a condominium building with controlled access, the Court specifically distinguished this from people entering and leaving the building itself, and found no reasonable expectation of privacy in the common areas such as lobbies, elevators, and parking garages.
[51] There is clearly less of a privacy interest attaching to a commercial building than would be the case for a residence. On the other hand, there is likely a greater expectation of privacy with respect to the backyard of a home than there is for the front entrance and driveway. For some homes, backyards are shielded from public view and become almost an extension of the interior living space. In my view, there can be no blanket rule for the backyard of a home as it will depend greatly on the nature of the yard and how it is used. However, the same does not apply to the back parking lot of a commercial building. In this case, the police cameras sought to, and did, capture images of people going in and out of the building carrying various containers and also the images of the vehicles they were driving. These images reveal nothing about lifestyle, personal choices, or anything approaching a “biographical core of personal information.” There may be situations where recording persons entering and leaving certain commercial establishments, like a drug rehabilitation center or an abortion clinic, that could reveal intimate personal information. However, that is not this case. The building at issue here was simply a commercial building with no particular customer use. There was nothing about attending there that created a privacy interest.
[52] As is clear from cases like Wong (Hotel Room) and Yu, continuous covert video surveillance is more intrusive than is static surveillance by a police officer observing from the street or alleyway. However, that does not mean that covert surveillance is by itself an invasion of privacy that requires a warrant under s. 487.01 of the Criminal Code. The Criminal Code requires a warrant only if there is a reasonable expectation of privacy. The fundamental question then is what is the essence of a reasonable expectation of privacy? In my opinion, it is tied to the nature and circumstances of the activity. It is not tied to how the observations are being made, but rather, what is being observed. If the activity in question can be observed by neighbours from their premises, or by the public passing by, the person engaging in it cannot have a reasonable expectation of privacy. The fact that the suspect may believe that the police cannot see what they are doing has nothing to do with whether a reasonable expectation of privacy attaches to the activity and location.
[53] It is generally accepted that police officers conducting physical surveillance are well-advised to take still or video images of what they are observing. This greatly enhances the reliability of their evidence and assists the truth-seeking objective of the trial. The case law appears to accept that if the police are physically present in a location, and are entitled to make observations of a subject from that location, then they are also at liberty to record what they are watching. Indeed, it is a preferable course of action. Thus, if the police set up round-the-clock physical surveillance and take video while they are watching, there would be no objection.
[54] Further, there are cases (e.g. Edwardsen, Scott, Piasecki) that have found it acceptable for police to set up covert cameras that run continuously, provided that the recordings are only made when officers are actually watching the video feed from another remote location. In my view, this is a distinction without a difference. It would be far more efficient for the officer to review captured video after the fact and skip over things that are clearly irrelevant to the investigation, than to be required to sit and watch the video feed in real-time. A surveillance officer could be watching the events on site as they are being recorded, or watching it in real-time but from a different location, or reviewing the recordings at some point later. None of these surveillance methods affect whether the circumstances and locations themselves give rise to a reasonable expectation of privacy.
[55] On the facts of this case, if the officers took up a location from a neighbouring property and watched people going in and out of the subject commercial building from the back parking lot, there would not be any infringement of a reasonable expectation of privacy. If the officers can observe and make notes of the activity, they can clearly take photographs of it and videotape of it. That is to the advantage of all parties and avoids misidentification and other errors. Finally, if the officers can make observations 24/7 and video record what they are watching, why do they need to be physically present for the whole thing? How does this affect any rights of the accused? Funding and staffing for police are not unlimited. It is inefficient and a waste of resources to run surveillance teams 24/7 when a remote camera can accomplish the same purpose with considerably less manpower and cost.
[56] On this issue, I part company with those judges who sought to distinguish Wong-Backyard on the basis that the nature of the surveillance in their case was something other than a continuous recording. If there is no reasonable expectation of privacy in a particular activity and particular location for a one-hour period when police happen to be watching, then there simply is no reasonable expectation of privacy. The fact that the police might be watching for 24 hours, or for six months does not change that fact. The activity itself is not private. That is not to say that covert video surveillance is not more intrusive on a privacy right than is the casual observation of a passer-by. Nor does it mean that there can never be a point where the length of time that the surveillance cameras are in place can never be a factor. However, in my view, if there would be no reasonable expectation of privacy and no breach of privacy rights for an officer to record particular activities of a person as he is watching them on the ground, it would be a very unusual case where the use of a covert camera to conduct surveillance of those same activities would breach privacy rights.
[57] It must be remembered that it is the location and nature of the activities themselves, and the impact on any person’s privacy if such actions were recorded, that are determinative. The fact that the activity is illegal or may be evidence of a crime or that the individual may believe his actions are secret are not factors in determining whether any expectation of privacy is reasonable. As stated by the Supreme Court in R. v. Spencer:
The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. To paraphrase Binnie J. in Patrick, the issue is not whether Mr. Spencer had a legitimate privacy interest in concealing his use of the Internet for the purpose of accessing child pornography, but whether people generally have a privacy interest in subscriber information with respect to computers which they use in their home for private purposes: Patrick, at para. 32.[^51]
[58] I am mindful that the totality of the circumstances must be considered. Those circumstances include that the camera recording the activities was put in place covertly by the police and was in place for approximately three weeks. However, the location was a parking lot behind a commercial building, not a private residence. The activity involved was merely walking to and from the back door of the building, sometimes carrying objects. It could be seen by others if they happened by or were watching from surrounding buildings. It was innocuous everyday activity. I find that Mr. Wu had no reasonable expectation of privacy with respect to the nature of the car he was driving and the license plate. He was driving it around the city in plain view. I also find that when he parked his car at the back of a commercial building and walked from the car into the building and then back out to his car, his activities and location did not give rise to a reasonable expectation of privacy. Police were entitled to watch the comings and goings without a warrant, and they were free to record such comings and goings, whether by remote covert camera or not.
[59] In my view, this conclusion is consistent with Bryntwick, Roy, and Saciragic. It is also consistent with the principles established in Wong- Hotel Room. The different result is due to the dramatic difference between the expectation of privacy inside the closed doors of a hotel room as compared to an outdoor parking lot at the back of a commercial building. Further, the circumstances of this case are more akin to the underground parking garage and entrances to the condominium building in Yu (where the Court of Appeal) found no reasonable expectation of privacy than it is to an interior hallway to which access is tightly controlled. I am in complete agreement with the decision of my colleague Maxwell J. in Hoang, although her decision was obiter on this point. I consider that decision to be irreconcilable with the decision in Aubrey in relation to the covert camera surveillance. In that aspect of the decision, Cullin J. relied, in my view inappropriately, on the Wong – Backyard decision. It does not appear that Hoang was brought to her attention.
[60] For the reasons I have already stated, I consider Wong – Backyard to be wrongly decided. While recognizing that continuous surreptitious video surveillance is more intrusive than occasional static observations by police officers, the mere fact of the surveillance camera is not sufficient to create a breach of a privacy interest. There must first be a reasonable expectation of privacy before there can be a breach. I am not bound by the decision of the British Columbia Court. Given two conflicting decisions of the Ontario Superior Court, I prefer the reasoning of Maxwell J., which I also find to be consistent with principles established in binding authorities at the Ontario Court of Appeal and Supreme Court of Canada.
[61] Accordingly, I find no breach of s. 8 by the video surveillance in this case. There is no basis to remove that evidence from the Information to Obtain and the warrant was validly issued. All the evidence obtained is admissible at trial.
C. VALIDITY OF SEARCHES AT 889 KIPLING AVENUE, NGO RESIDENCE AND NGO VEHICLE
Validity of the Search Warrant for 889 Kipling
[62] Mr. Ngo was recorded by the video surveillance cameras in the back parking lot of 889 Kipling on a number of occasions. He had a key which he used to access the building and to lock up after he and others left. He sometimes spent long periods of time in the building. The Crown theory is that this was a meth lab, and that Mr. Ngo was actively involved in its operation. Based on the principles established in Jones, I find Mr. Ngo has standing to challenge the validity of the search warrant for 889 Kipling.
[63] Mr. Ngo argues that the Information to Obtain did not contain reasonable grounds to believe there would be evidence of the commission of a crime inside 889 Kipling, but rather amounted only to a suspicion of criminal activity.
[64] Counsel agree on the test to be applied. My role on review is not to substitute my own assessment as to whether there were reasonable grounds to issue the warrant, but rather to consider whether, based on the record, the authorizing judge could have issued it. Further, there is no issue with respect to the standard to be applied. Mere suspicious activity is not sufficient. There must be evidence that give rise to reasonable and probable grounds to believe that a search will provide evidence of the crime or crimes asserted. If there was “at least some evidence that could reasonably be believed on the basis of which the authorization could have issued” then I should not interfere.[^52]
[65] I find that this test is easily met. In a prior investigation leading to the execution of numerous search warrants in March of 2018, investigators seized 25 kg of methamphetamine and learned that an individual named Abu Mandal (“Mandal”) was responsible for supplying chemicals and glassware for a meth lab uncovered in that investigation. Subsequently, further investigations of Mandal revealed that he was still engaged in meetings consistent with purchase and exchange of chemicals used in the production of methamphetamine. Mr. Ngo was observed meeting with Mandal. Investigators obtained tracking warrants for several vehicles (including Mr. Ngo’s vehicle, a 2010 blue Acura MDX, with the license plate BXCH 733) and warrants for transmission data recorders for various cellphones (including cellphones used by Mandal and Ngo). There is no challenge to these warrants. The information received showed meetings between Mandal and Ngo. Between February 2020 and April 2020, there were 219 sessions shown on Mandal’s phone, 49 of which were with Ngo’s phone.
[66] From the tracking data and physical surveillance, investigators linked Mr. Ngo to the property at 889 Kipling. His frequent attendances at this address led the investigators to install the surveillance cameras focused on the rear parking lot and entrance. Mr. Ngo attended the property almost every day and stayed for extended periods. There were three other individuals (Diu, Pham, and the co-accused Wu) who were also at the premises on a regular basis, including being there together. A sign at the front of the building identified it as KNT Renovations, but there was no indication that any renovation business was being carried on there. No customers came and went from the property. The only activity was at the rear; it consisted of the four regular “crew” and one other occasional person coming and going always from the rear entrance. Mr. Ngo and the other three regulars repeatedly attended bringing in what appeared to be supplies including large white buckets, boxes labelled “Lapalm” (a brand of acetone), and other large bags. Sometimes they were observed to be wearing protective gloves. Frequently they left the building with gift bags, which they placed in their cars and drove away. On three occasions when surveillance teams followed Pham and Diu after they left 889 Kipling with gift bags, they were watched engaging in transactions that appeared to be the sale of these gift bags and their contents to others, which the police concluded were likely drug transactions.
[67] Based on the whole of the material before the issuing judge, there was ample evidence from which he could conclude that there were reasonable and probable grounds that 889 Kipling was being used in connection with illegal activity, specifically the production and distribution of illicit drugs. It was very likely that evidence of these crimes would be inside the premises at 889 Kipling.
[68] I find that this warrant was validly issued.
The Search of Mr. Ngo’s Vehicle and Home at 107 Iceland Poppy Trail, Brampton
[69] Mr. Ngo was observed on many occasions transporting things in his vehicle to the premises at 889 Kipling and taking gift bags with him when he left 889 Kipling. He would often return from there to his home. Earlier in the investigation, investigators determined that Mr. Ngo’s home address was 43 Elbern Markel Drive in Brampton. However, he was subsequently believed to have moved to 107 Poppy Trail Drive in Brampton. His telephone number was associated to that address, although the registration address for his vehicle had not been changed. On the afternoon of May 3, 2020, Abu Mandal (believed to be a criminal associate of Mr. Ngo) along with another suspect (Bernadita Manal) visited the residence at 107 Iceland Poppy Drive and stayed for nearly two hours. On May 5, 2020, after being at 889 Kipling since 11:00 a.m., Mr. Ngo left that address at 8:51 p.m. and was surveilled to an address at 107 Iceland Poppy Trail in Brampton, which appeared to be a residence. At 9:19 p.m., Mr. Ngo let himself into that residence with his own key.
[70] There is a clear link between Mr. Ngo’s activities at 889 Kipling and his vehicle. He travelled to and from that address in his vehicle on numerous occasions, both delivering things and taking things away. Based on this evidence, it was reasonable to conclude that there would be evidence of the suspected crimes in the vehicle. The evidence is not as strong with respect to the residence at 107 Iceland Poppy Trail. However, I am not able to say that there was no basis upon which the warrant could have issued. There was a reasonable inference available connecting 889 Kipling to the car and the car to 107 Iceland Poppy Trail. It was also reasonable to conclude that this was Mr. Ngo’s residence. In those circumstances, particularly given the use of the car in transporting things back and forth, it was possible for the issuing judge to believe that the residence would also contain evidence of the suspected criminal activity.
[71] Accordingly, I find that there was a proper basis to issue the search warrants for both the car and the residence, and no basis for me to interfere.
No-Knock Entry at Residence
[72] A team of police officers arrived at Mr. Ngo’s home at 5:01 a.m. on May 11, 2020, and made a dynamic entry, without knocking or announcing their presence before entering. Mr. Ngo was present at the time of the entry. Also in the residence were Mr. Ngo’s common law wife (aged 39) and three children (aged 21, 18, and 11). The defence argues that the search was not carried out in a reasonable manner, that the police should have investigated more fully and determined that there were children in the residence, and that there was nothing about the circumstances that would make it unreasonable for the police to knock and announce their presence before entering the residence.
[73] Both Crown and defence relied on the Supreme Court of Canada’s decision in R. v. Cornell,[^53] which establishes the general principles to be applied in determining whether a dynamic entry of a residence can be considered to be a reasonable manner of executing a search warrant. The starting point is that, except in exigent circumstances (which did not exist here), the police must knock at the door of the residence, announce who they are, and state the purpose for which they are there.[^54] Where police depart from this normal procedure, the Crown bears the onus of providing an evidentiary foundation justifying the police conduct.[^55]
[74] In this case, the Crown filed an affidavit of an experienced police officer, who was also a member of the management team supervising the investigation. The affidavit sets out the basis upon which police believed that a dynamic entry was necessary. The search warrant for Mr. Ngo’s home targeted just one of 14 sites for which search warrants were obtained, all of which were to be executed at the same time. There were four main suspects (of which Mr. Ngo was one) and a number of other associated parties believed to be involved. The decision to use a dynamic entry for all of the buildings to be searched was a considered decision made after consultation with the management team, which included a Detective Superintendent, a Detective Staff Sergeant, and a Detective Sergeant. The affidavit provides four reasons for the decision to make dynamic entries:
the safety of the public, suspects, and officers (The stated concern here is that drug dealers are known to use weapons, to protect themselves in the event of home invasions and robberies, and they live in fear because of the dangerous lifestyle they have chosen. Also, the precursors to methamphetamine could turn into potential weapons if deliberately thrown or accidentally dropped, so the element of surprise was important);
the preservation of evidence (Methamphetamine is a soluble substance that can be easily destroyed, and its precursors are considered dangerous, toxic, and potentially lethal or highly dangerous to health);
the possibility that a residence contained a small meth lab (The additional cited concern is that a working lab is extremely volatile and turning it off abruptly or interrupting one of the applications could have catastrophic results);
simultaneous execution of warrants to prevent warnings to others; (Surveillance revealed that none of the principals started their days before 8:00 a.m., so the raids were timed for early morning when they would still be in bed. The element of surprise was important to prevent any of the participants from having a chance to call others and warn them, resulting in potentially dangerous situations and the possible destruction of evidence.)
[75] In Cornell, the Supreme Court held that “[i]t is important to look at the facts about the search in issue here in the broader context of the investigation of which it formed a part.”[^56] The search of Mr. Ngo’s home was undertaken at the same time as searches at multiple other locations. Given that methamphetamine is easily disposed of, it is reasonable for the police to be concerned that warning the persons inside the house that the police were outside with a search warrant could risk the destruction of evidence not just in that residence, but in multiple other locations. The preservation of evidence is a well-known basis for effecting a surprise entry.
[76] In the case before me, the police stated their concerns about safety for themselves, the community, and the occupants of the house. In my view, those concerns were reasonable and genuinely held. The defence points out that Mr. Ngo had no history of violence or association with weapons. That may be true. However, it is also true that drug trafficking is a dangerous occupation and the connection between drug trafficking and weapons is undeniable. Based on this experience, the police were alive to the issue that weapons might be present. They were also concerned about the volatile nature of a meth laboratory and the toxic nature of many of the ingredients used in its production. It is not uncommon for meth labs to be found in residences. If a warning was given to the occupants, there was an increased danger of these chemicals being used against the police, or of an abrupt dismantling of the lab causing an explosion, which would present a danger to everyone in the house as well as nearby homes and residents.
[77] A relevant factor cited by the Supreme Court in Cornell is the importance of what the police knew or could reasonably have known at the time, as opposed to what was learned after-the-fact. The Court held that the reviewing court ought not to view this “through the lens of hindsight.” The police in this case were not aware that there would be children inside the home. The defence argues that there should have been sufficient investigation prior to the execution of the warrant to alert the police of this fact. In Cornell, one of the arguments made by the defence was that the police failed to conduct sufficient examination with respect to the occupants of the home. When the nine masked and armed members of the police tactical unit smashed their way into the home in that case, the sole occupant was the suspect’s brother who had a mental disability. Needless to say, that was a very unfortunate result. However, the majority of the Supreme Court of Canada held that this did not render the manner of executing the search warrant unreasonable in all the circumstances. The Court did note that the police had conducted 10 hours of surveillance on the home itself, which was found to be reasonable. That was not done in this case. However, the fact that the police in the Cornell case happened to have done that investigation does not mean that this level of surveillance is required before any dynamic entry can ever be made. Safety concerns and concerns about evidence disappearing are still valid considerations, regardless of whether there is a child in the residence. Indeed, safety concerns could be said to be even more important where there are children present. Further, I note that this search needed to be coordinated with multiple other searches and that Mr. Ngo had only recently moved into this residence.
[78] In Cornell, the Supreme Court of Canada emphasized that these are operational decisions made by police and that they must be given a certain amount of latitude. Justice Cromwell (for the majority) observed:
It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.[^57]
[79] Taking into account all of these circumstances, and in particular the fact that this entry was one of many other coordinated entries making timing a critical factor, I find that the Crown has provided appropriate justification for the police decision to make a dynamic entry rather than knock and announce their presence.
D. CONCLUSIONS
[80] The applications are dismissed.
[81] There was no breach of s. 8 of the Charter in relation to the use of the covert surveillance camera overlooking the rear parking lot of 889 Kipling. Therefore, there is no basis for excising any of the information obtained from that camera from the information filed on the search warrant application.
[82] There was a proper evidentiary basis for the issuance of the search warrants for 889 Kipling, as well as for Mr. Ngo’s personal residence and vehicle. Those warrants were validly issued. Further, the manner of executing the search warrant for the residence was reasonable in all of the circumstances.
[83] All of the evidence obtained from the searches, and including the evidence from the covert surveillance camera, is admissible at trial.
MOLLOY J.
Released: June 22, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LUAN NGO and JUN PENG WU
Defendants/Applicants
REASONS FOR JUDGMENT
Molloy J.
Released: June 22, 2022
[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[^2]: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 120.
[^3]: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at paras. 28-31 and 59.
[^4]: R. v. Hoang, 2021 ONSC 6054, at para. 59.
[^5]: R. v. Marakah, 2017 SCC 59, 2017 CSC 59, [2017] 2 S.C.R. 608, at para. 15.
[^6]: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 20-24.
[^7]: R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at p. 293.
[^8]: Tessling, at para. 23.
[^9]: R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30.
[^10]: R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, at pp. 43-44.
[^11]: R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36 at pp .43-44, (Wong – Hotel Room).
[^12]: Wong Hotel Room; at p. 50.
[^13]: Ibid, at pp 47-48.
[^14]: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608.
[^15]: R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320.
[^16]: Mills, at para. 39.
[^17]: Mills, at para. 58.
[^18]: Criminal Code, R.S.C. 1985, c. C-46 (Criminal Code).
[^19]: Criminal Code, ss. 487.01(1) (4) and (5).
[^20]: R. v. Bryntwick, [2002] O.J. No. 3618, 2002 10941(S.C.) (Bryntwick).
[^21]: Bryntwick, , at para. 21.
[^22]: R. v. Roy, 2020 ONCA 18, 386 C.C.C. (3d) 183, leave to appeal denied, 2020 SCCA No. 155.
[^23]: Ibid, at para 21
[^24]: R. v. Saciragic, 2017 ONCA 91 (Saciragic).
[^25]: Saciragic, at paras. 31-33.
[^26]: R. v. Brewster, 2016 ONSC 4133, (Brewster #1).
[^27]: R. v. Brewster, 2016 ONSC 8038, (Brewster #2).
[^28]: R. v. Yu, 2019 ONCA 942 (Yu), leave to appeal denied, 2020 S.C.C.A. No. 39067.
[^29]: Brewster # 2, paras. 35-36.
[^30]: Brewster #2, para. 55.
[^31]: Brewster #2, para. 59.
[^32]: Yu, at paras. 82-87.
[^33]: Ibid, at paras. 92 and 102.
[^34]: Ibid, at para. 126.
[^35]: Ibid, at para. 129.
[^36]: Ibid, at para. 145.
[^37]: Yu, at para. 151.
[^38]: R. v. Hoang, 2021 ONSC 6054 (Hoang).
[^39]: R. v. Aubrey, 2022 ONSC 635 (Aubrey).
[^40]: Aubrey, at paras. 63 and 64.
[^41]: R. v. Kwiatkowski, 2010 BCCA 124 (Kwiatkowski).
[^42]: Ibid, at paras. 40-41.
[^43]: R. v. Wong, 2017 BCSC 306 (Wong-Backyard).
[^44]: Ibid, at para. 47.
[^45]: R. v. Edwardsen, 2019 BCCA 259.
[^46]: Ibid, at para. 72.
[^47]: R. v. Piasecki, 2017 ABQB 192.
[^48]: R. c. Elzein, (1993), 1993 3860 (QC CA), 82 C.C.C. (3d) 455 (Q.C.C.A.), at para. 37.
[^49]: R. v. Scott, (1996), 1996 7082 (SK KB), 142 Sask. R. 267 (Q.B.) (Scott).
[^50]: Ibid, at para. 43..
[^51]: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36.
[^52]: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51; R. v. Garofoli, 1990 52 (SCC), [1990] 2 SCR 1421, at pp 1446-1447; R. v. Mahmood, 2011 ONCA 693, at para. 99; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42.
[^53]: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 (Cornell).
[^54]: Ibid, at para. 18.
[^55]: Ibid, at para. 20.
[^56]: Ibid, at para. 4.
[^57]: Ibid, at para. 24.