COURT FILE NO.: CR-1211/21
DATE: 2022-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Jacob Aubrey
Accused/Applicant
Michael N. Jones, for the Crown/Respondent
P. Berk Keaney & Stephanie A. Farrell, for the Accused/Applicant
HEARD: August 30 & 31, 2021 and October 7, 2021
DECISION ON APPLICATION
K.E. cullin, j.
Overview of the Application
[1] Mr. Aubrey appears before this court charged with 30 offences pursuant to both the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and the Criminal Code, R.S.C., 1985, c. C-46. The offences involve allegations of possession of cocaine for the purpose of trafficking, unlawful possession of cannabis for the purpose of sale, unlawfully obtaining and altering cannabis, unlawful possession of firearms and ammunition, possession of prohibited or restricted weapons and ammunition, careless storage of firearms, and possession of proceeds of crime. The charges arose from a search of his residence on August 1, 2019; the search followed a lengthy police investigation known as Project Skylark.
[2] Mr. Aubrey has brought a pretrial application alleging that the police breached his rights under s. 8 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”), by virtue of the following acts:
a. By conducting video surveillance of his residence without seeking prior judicial authorization;
b. By proceeding with a dynamic entry into his residence;
c. By searching and clearing the outbuildings located on his property, including a detached garage and a shed, without prior judicial authorization; and,
d. By searching for, and seizing, items beyond the scope of their search warrant.
[3] These written reasons follow my oral decision, delivered on December 10, 2021.
Summary of the Facts
Facts Relevant to Video Surveillance
[4] During the Project Skylark investigation, the police developed a theory that the applicant’s residence, 145 Riverside Drive in Sudbury, was being utilized as a stash house.
[5] The co-lead investigator for Project Skylark was Detective Constable Larochelle. His role included managing the Sudbury component of the investigation. During the investigation, the police applied for and were granted a general warrant. The warrant was signed by Superior Court Justice M.A. Code on April 5, 2019 and authorized video surveillance at a number of residences, including two locations in Sudbury. The applicant’s address was not one of those residences.
[6] Despite the applicant’s address not being listed in the warrant, Detective Constable Larochelle requested that a public view camera be installed outside of the residence of the applicant. During the Preliminary Inquiry, Detective Larochelle testified that he did not believe that prior judicial authorization was required for video surveillance of the applicant’s residence because of his belief that the camera was a “public view camera”, it provided a very limited view of the driveway of the residence, and it did not look through the windows and was therefore not intrusive.
[7] The camera was installed and used during the months of April 2019 through to July 2019. It substantially replaced physical surveillance of the residence and recorded the area 24 hours a day, 7 days a week. The intention of the camera was to observe the interactions, if any, between targets of the investigation and the applicant, as well as the comings and goings of the applicant in particular. It was positioned such that it recorded a portion of the applicant’s driveway as well as the front of his residence. Ultimately, the images and observations captured from the recordings were included in the Information to Obtain (“ITO”) that granted the police authorization to enter and search the applicant’s residence.
[8] In addition to the installed video camera surveillance, the police also conducted physical surveillance of the property from the street. Although much of the surveillance was, “eyeball surveillance”, some video recording was undertaken which is also the subject of this Application.
Facts Relevant to the Dynamic Entry into the Applicant’s Residence
[9] On August 1, 2019, police tactical and search teams attended at 145 Riverside Drive in Sudbury to execute a search warrant issued on July 31, 2019.
[10] Constable Lapointe, a member of the tactical team, entered the applicant’s residence by breaching his door with a battering ram. The police did not knock or announce their presence in advance. This technique is known as a “dynamic entry”.
[11] The decision to employ a dynamic entry was made by the tactical supervisors in consultation with the lead investigators.
[12] Constable Lapointe testified at the Preliminary Inquiry that the objectives of the entry were to create a safe scene for the investigating officers and to prevent the imminent destruction of any evidence. It was his evidence that these were the objectives in executing all CDSA search warrants; officer safety was identified as a particular concern in executing such warrants.
[13] The tactical decisions with respect to entry were informed by officer experience and the investigation’s theory that the property was a drug “stash house”. The lead investigators testified at the Preliminary Inquiry that they had received and reviewed the search warrant in advance; the warrant included a detailed ITO providing particulars about the applicant, his associates, and the investigation.
Facts Relevant to the Search of the Detached Garage and Shed
[14] A detached garage and a shed were present on the property of the applicant; the detached garage was approximately 20 feet from the house. While executing the warrant at the property, police conducted a search of both outbuildings.
[15] Constable Lapointe cleared the detached garage and the shed after first clearing the residence. No evidence searches were conducted of the garage and the shed; the purpose of the search was identified as the clearance of the premises to ensure the safety of the investigating officers on the scene.
Facts Relevant to the Search and Seizure of Items Beyond Those Included in the Warrant
[16] The search warrant for 145 Riverside Drive was obtained pursuant to s.11 of the CDSA. It authorized them to search for and seize a number of items particularized on the face of the warrant, including drugs, scales, packaging, debt lists, banking records, money, telecommunications devices, and relevant documents.
[17] During the search, police located and seized a number of items beyond those specified in the warrant including firearm parts, a crossbow, jewelry, and a Rolex watch. The police rationale for seizing these items was the possibility that they were illegal or proceeds of crime. The police did not seek further prior judicial authorization to search for and seize the items not specified in the warrant.
Overview of the Law - Search & Seizure Under the Charter
[18] Section 8 of the Charter provides that every individual has the right to be secure against unreasonable search or seizure by the government or its agents.
[19] In R. v. Yu, 2019 ONCA 942 at para. 63, the Court of Appeal endorsed the following approach to conducting a s. 8 analysis:
For s. 8 of the Charter to be engaged, the accused person must possess a reasonable expectation of privacy: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 45. Once it is determined that the accused has a reasonable expectation of privacy, a warrantless search that intrudes on that expectation will be presumptively unreasonable. The onus is on the Crown to show that the search was authorized by law: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 30. The authorizing law must be reasonable, and the search must have been conducted in a reasonable manner: Caslake, at para. 10.
[20] Whether there is a reasonable expectation of privacy is not merely an assessment of facts. As noted by the court in R. v. Spencer, 2014 SCC 43, [2014] S.C.J. No. 43 at para. 18, “while the analysis is sensitive to the factual context, it is inevitably laden with value judgements which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.”
[21] The approach of conducting a “risk analysis” as a means of assessing an individual’s “reasonable expectations” has been rejected by the Supreme Court of Canada: R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36 at para. 11; R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30 at paras. 30-31; R. v. Wise, 1992 125 (SCC), [1992] 1 S.C.R. 527 at paras. 81-82; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488 at para. 68. That is, evidence obtained through surreptitious electronic surveillance is not exempt from Charter scrutiny merely by virtue of the fact that an individual has conducted illegal activities in the face of a risk that those activities will come to the attention of agents of the state.
[22] In assessing whether a reasonable expectation of privacy exists, the Supreme Court of Canada in Spencer at para. 18 identified the following four factors which must be examined by the court:
a. The subject matter of the alleged search;
b. The claimant’s interest in the subject matter;
c. The claimant’s subjective expectation of privacy in the subject matter; and,
d. Whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
The Subject Matter of the Alleged Search
[23] When determining the subject matter of a search, the question to be answered is “what the police were really after” (R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 15). This involves an examination of the totality of the evidence.
Interest in the Subject Matter
[24] The court has historically observed three broad types of privacy interests: territorial, personal, and informational. As noted, however, by Binnie J. in R. v. Tessling, 2004 SCC 67, [2004] 3 SCR 432 at para. 24:
The distinction between personal, territorial and informational privacy provides useful analytical tools, but of course in a given case, the privacy interest may overlap the categories. Here, for example, the privacy interest is essentially informational (i.e., about the respondent’s activities) but it also implicates his territorial privacy because although the police did not actually enter his house, that is where the activities of interest to them took place.
[25] The court in Spencer at para. 36 described the analysis of privacy interests as follows:
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. 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.
Subjective Expectation of Privacy in the Subject Matter
[26] The threshold to establish a subjective expectation of privacy is low. The court is at liberty to draw reasonable inferences regarding an individual’s subjective expectation of privacy (R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37; R. v. Sandhu, [2018] A.J. No. 209 (ABQB) at para. 37).
[27] The subjective expectation of privacy is, for all intents and purposes, a foregone conclusion in the context of an individual’s private residence. As noted by Binnie J. in Tessling at para. 22:
The original notion of territorial privacy (“the house of everyone is to him as his castle and fortress”: Semayne’s Case, [1558-1774] All E.R. Rep. 62 (1604), at p. 63) developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place (Evans, supra, at para. 42; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, per Cory J.: “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”; R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, at para. 43), in diluted measure, in the perimeter space around the home (R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3; R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at pp. 237 and 241; R. v. Wiley, 1993 69 (SCC), [1993] 3 S.C.R. 263, at p. 273)…
Objective Reasonableness of the Expectation of Privacy
[28] The objective reasonableness of an accused’s expectation of privacy is assessed having regard to the totality of the circumstances. As noted by Binnie J. in Patrick at para. 38: “The reasonable expectation of privacy “can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion”: R. v. Colarusso, 1994 134 (SCC), [1994] 1 S.C.R. 20, at p. 53; see also R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 22, 23 and 24.”
[29] In R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 18, Arbour J. provided the following non-exhaustive list of factors to be considered in assessing, “the totality of circumstances”:
The factors to be considered in assessing the totality of the circumstances include, but are not restricted to, the accused’s presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item, ability to regulate access, existence of a subjective expectation of privacy, and the objective reasonableness of the expectation (Edwards, at para. 45).
Analysis
Does the warrantless video surveillance of the applicant’s residence engage s.8 of the Charter?
1. Installed Video Camera Surveillance
[30] In Wong at para. 8, the Supreme Court of Canada found that surreptitious video surveillance by agents of the state constituted a search and seizure within the meaning of s. 8 of the Charter:
I note at the outset that the pronouncements of this Court in R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, make it superfluous to enter into a lengthy discussion as to whether surreptitious video surveillance by agents of the state constitutes a search and seizure within the meaning of s. 8 of the Charter. In Duarte, this Court held that unauthorized electronic audio surveillance violates s. 8 of the Charter. It would be wrong to limit the implications of that decision to that particular technology. Rather 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.
[31] The subject matter of the search in this case was, as described by the court in Yu at para. 77, “information about the [Applicants'] comings and goings”. The video surveillance provided police with information about the identities of visitors to the applicant’s residence, the length of their stays, and the presence of items brought into or out of the residence.
[32] In my view, the applicant had a privacy interest both in the area which was the subject of the surveillance, and in the information which was captured on the video images. Although the applicant was a tenant at 145 Riverside Drive, it is apparent that he had possession and control of the property. The video surveillance effectively permitted the police to breach the barriers surrounding the applicant’s residence by providing a view of the applicant’s property not otherwise available to the public. It captured information about the applicant and his guests, including his activities and personal choices.
[33] Having determined that the applicant had a privacy interest, it is reasonable to infer that the applicant had a subjective expectation of privacy with respect to what was happening in and around his residence. While he may have accepted that passersby could make casual observations of him and the exterior of his residence, it is reasonable to conclude that he did not expect to be subjected to constant recorded video surveillance while on his property, out of public view, and for those recordings to be the subject of review by police.
[34] This leaves as the lynchpin issue the objective reasonableness of the applicant’s expectation of privacy. In my view, having regard to the totality of the evidence, the applicant’s expectation of privacy was objectively reasonable, and his reasonable expectation of privacy was breached by the actions of the police in installing video camera surveillance directed at his residence and the surrounding private property I find that the installation and use of a video camera to conduct continuous surveillance of the applicant’s residence and its surrounding property was a breach of his rights pursuant to s. 8 of the Charter.
[35] In examining the totality of the circumstances, numerous factors are relevant, specifically the following:
Place of the Surveillance
[36] In this case, the camera monitored activity in a defined space, namely the driveway and the front of the applicant’s residence. That was a space over which the applicant had control; he was able to preclude access to his property to members of the public should he wish to do so. Much of that space was obscured from public view unless, as was the case here, exceptional methods were employed by the viewer.
[37] Upon reviewing the video surveillance, it is apparent that the applicant was aware of potential street-level sightlines into his property and that he adopted countermeasures to limit those views. The applicant and his visitors entered the house from the rear entrance as opposed to the front entrance. The applicant and his visitors also often interacted in the driveway behind the lifted hood of a vehicle. While it is possible that they were plagued by engine troubles, it is more likely that he and his guests were seeking to communicate privately and out of public view.
[38] I do not accept the Crown’s argument the applicant had no reasonable expectation of privacy on the basis that the observations made by the police could have been seen by any member of the public. The video camera was installed specifically because the police view of the property from the street was limited. It is objectively reasonable that the applicant would not have expected the police to install a video camera to surveil his residence from a superior vantage point in the absence of a warrant. As noted by Laforest J. speaking for the Supreme Court in Wong at para. 15:
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.
Purpose and Use of the Surveillance
[39] The purpose of the video surveillance was to assess the applicant’s involvement if any, in potential criminal offences and to corroborate his association to other targets of the investigation. Images and information obtained from the surveillance were included in an ITO to assist the police in gaining entry into the applicant’s residence. It can also be reasonably anticipated that the Crown will seek to use the video surveillance at trial to support its theory that the applicant’s residence was being used as a stash house and as evidence of the applicant’s knowledge of and control over the items found during the police search of the residence.
[40] It is objectively reasonable that the applicant would not have expected recorded video surveillance of his residence to be used by the police in the manner that it was here. The camera operated 24 hours a day, 7 days a week, throughout the period from April 2019 to July 2019. It provided access to a live feed that was observed by numerous police officers in the course of their duties. The police were able to pause, replay, enhance, and study the video captured. The images were reviewed by police working both within and outside of the jurisdiction of the City of Greater Sudbury. Police were also able to reproduce still shots for use in search warrant applications and court proceedings.
[41] As noted by the Court of Appeal in Yu, at para. 129:
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. As the application judge noted, this evidence had “considerable probative value” because it revealed the frequency of Mr. Mai’s attendance at the unit, what he was carrying with him when he came and went, and which persons he associated with.
Legislative Requirement to Obtain a Warrant
[42] In R. v. Wong [2017] B.C.J. NO. 360 at paras. 46-47 (BCSC), Kent J. discussed s. 487.01 of the Criminal Code and the onus it places on the police to obtain a general warrant prior to conducting electronic surveillance of a person’s property:
[46] While it is possible to distinguish Wong on its facts, i.e., a hotel room instead of a backyard, the case contains powerful pronouncements to the effect that any unauthorized surreptitious video surveillance is a "pernicious threat to privacy", all the more so where the state is creating "a permanent electronic recording of one's presence in a given location". The Court expressly observed that Parliament should legislate the matter of video surveillance and the conditions under which police might employ video surveillance technology in their fight against crime. Section 487.01 of the Criminal Code was then enacted to provide for the general warrant procedure. In my view, these factors far outweigh mitigating considerations such as the absence of any police trespass or the public visibility of backyard activities from the alleyway.
[47] In my view, 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. The failure of the police to obtain a general warrant authorizing such surveillance results in a violation of an individual's rights under s. 8 of the Charter.
[43] The importance of warrants authorizing the collection of electronic surveillance was emphasized by Laforest J. (speaking for the majority) in Duarte at paras. 25-28:
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.…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.
This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigation of crime. Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again. But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable.
It thus becomes necessary to strike a reasonable balance between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement. Parliament has attempted to do this by enacting Part IV.1 of the Code. An examination of Part IV.1 reveals that Parliament has sought to reconcile these competing interests by providing that the police must always seek prior judicial authorization before using electronic surveillance. Only a superior court judge can authorize electronic surveillance, and the legislative scheme sets a high standard for obtaining these authorizations. A judge must be satisfied that other investigative methods would fail, or have little likelihood of success, and that the granting of the authorization is in the best interest of the administration of justice. I share the approach of Martin J.A. in R. v. Finlay and Grellette, supra, at pp. 70 et seq., that this latter prerequisite imports as a minimum requirement that the issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been, or is being, committed and that the authorization sought will afford evidence of that offence. It can, I think, be seen that the provisions and safeguards of Part IV.1 of the Code have been designed to prevent the agencies of the state from intercepting private communications on the basis of mere suspicion.
In proceeding in this fashion, Parliament has, in my view, succeeded in striking an appropriate balance. It meets the high standard of the Charter which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record our private communications to external restraint and requiring it to be justified by application of an objective criterion. The reason this represents an acceptable balance is that the imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted. It becomes possible for the individual to call the state to account if he can establish that a given interception was not authorized in accordance with the requisite standard. If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.
[44] That general warrant provisions of s. 487.01 of the Criminal Code provide:
Information for general warrant
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
Video surveillance
(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
(Emphasis added)
[45] In my view, s.487.01 of the Criminal Code contemplates the very circumstances present in this case. Parliament’s clear intention was to allow the police to use video surveillance, or any other devices needed to conduct a search or seizure in respect of a person or a person’s property, only when certain preconditions have been met. The installation of a video surveillance camera directed towards the otherwise private areas of the applicant’s residence and its surrounding property in the absence of prior judicial scrutiny was intrusive and failed to satisfy any objectively reasonable preconditions. In the absence of a warrant, the resulting video surveillance constituted an unreasonable search and seizure.
Conduct of the Police in Conducting Video Surveillance
[46] Also relevant to the assessment of the actions of the police in this case is the fact that the police did obtain a general warrant authorizing video surveillance of the residences of other targets of their investigation, as well as the police agent. That general warrant was obtained pursuant to s. 487.01 of the Criminal Code.
[47] In his Preliminary Inquiry evidence, Detective Constable Larochelle acknowledged that he had received and reviewed the general warrant issued by Justice Code on April 5, 2019 that authorized the interception of communications at specified residences and other locations by means of a television camera or other electronic device. He acknowledged that the applicant’s residence was not one of the specified residences or locations. Although interceptions were permitted at “other places” not specified in the warrant, “a residence, stationary or mobile” was explicitly excluded.
[48] In justifying the installation of the video camera without a warrant, Detective Constable Larochelle testified: “I didn’t believe it was required. It was a public view camera with a very limited view of the driveway. It was not intrusive; it did not look through the windows. I felt comfortable with that view.”
[49] Elsewhere in his testimony, however, Detective Constable Larochelle acknowledged that the video camera in fact provided a view of the applicant’s residence that was not available to passersby on the street:
Q. And what is depicted in that image?
A. That’s 145 Riverside Drive in Sudbury.
Q. And is that an image that was captured by the camera that we’ve been talking about this morning?
A. I believe so, yes.
Q. All right. And this is the image that would be captured by the camera without any zooming in?
A. I believe so. I can't be specific about it.
Q. All right. And having regard to your previous testimony, do you - does this - do you wish to correct as to whether or not the camera captured the house or not?
A. Yes, my recollection was it was just the driveway but obviously here you see it - the full, or partial of the front of the residence on the 23rd of May 2019.
Q. And in the middle of what we’ll look at as the house are three, three windows in what appears to be a porch area?
A. Yes.
Q. There’s another window partially visible to the left of those windows as we look at the photograph?
A. Correct.
Q. All right, and we see shrubbery in the foreground which would obstruct the view of the, the house, correct?
A. Yes.
Q. . If one was looking on, on the same plane or in a vehicle or in a standing position particularly, correct?
A. Correct.
Q. And that obstruction would become more significant obviously during the summer months with, with growth.
A. Yes.
[50] With respect, Detective Constable Larochelle’s rationalization that the camera at issue was a public view camera is untenable. While the camera may have been installed in a public area and have provided incidental views of public areas, its lens was directed to the applicant’s private residence and yard, places the public could not enter or view without an invitation from the applicant. The fact that some areas of the property were visible to the public is, in my view, irrelevant. Indeed, it seems clear to me that the very reason that the camera was installed was to provide views of the applicant’s property, and by extension to obtain information about the activities being conducted on the property, that were not possible from the street and were not subject to public view.
[51] It is difficult to understand why the police in this case, having taken the prudent step of obtaining authorization to conduct video surveillance of other private residences, would not have done the same prior to installing continuous video surveillance of the applicant’s residence. In my view, the limitations of the warrant, particularly as it pertained to private residences, were clear and were not open to interpretation. In their submissions, counsel for the applicant described this conduct as a “flagrant and egregious breach” of the applicant’s s. 8 rights; I find it difficult to disagree with this assessment
2. Physical Surveillance
[52] The applicability of s. 8 to recordings made during the physical surveillance conducted by the police of the applicant’s property at 145 Riverside Drive in Sudbury was also raised during counsel’s submissions.
[53] The video recordings were filed as an exhibit. From this and evidence contained in the Preliminary Inquiry transcripts, I determined the following:
a. That physical surveillance of the applicant’s property commenced on or after November 14, 2018, following observations made in conjunction with another investigation called Project Bowen. The applicant was not a target of that investigation.
b. That the initial surveillance consisted of physical surveillance or, “eyeball surveillance” of the applicant’s property. Such surveillance consisted of watching the movements of an individual or individuals at and around the property in a covert way.
c. That there were disadvantages to physical surveillance including cost, use of countersurveillance tactics by the target, surveillance gaps, human error, and observational limitations.
d. That some video recordings of the applicant and visitors to his property were captured during the physical surveillance.
e. That the video camera installed by police substantially replaced the physical surveillance conducted by them.
f. That one reason the video surveillance was initiated was to permit the police to conduct their surveillance covertly; there was a danger that the operation would be exposed by conducting physical surveillance.
[54] It must be acknowledged that the police are at liberty to conduct physical surveillance without the necessity of obtaining a warrant. This includes surveillance of an individual or surveillance of places where an individual resides or frequents. Provided that the police do not trespass on private property, they are not constrained in their ability to employ physical surveillance as an investigative technique.
[55] The question to be answered here, in my view, is whether the police are permitted to memorialize their personal surveillance through the use of photographs and video recordings in the absence of a warrant, or whether they are limited to note-taking and personal recall.
[56] In R. v. Shortreed (1990), 1990 10962 (ON CA), 54 C.C.C. (3d) 292, 75 C.R. (3d) 306, Lacourcière J.A., noted in obiter at p. 304:
The police are not obliged to obtain the consent of a suspect before taking his photograph in a public place, provided no physical compulsion is involved. For the same reasons that the assertion of one's right to silence does not impose an obligation on the police to cease asking non-coercive questions as part of the continuing investigation (R. v. Hicks (1988), 1988 7148 (ON CA), 42 C.C.C. (3d) 394, 64 C.R. (3d) 68, 8 M.V.R. (2d) 191 (Ont.C.A.)), the refusal of a suspect to allow himself to be photographed should not preclude appropriate efforts by the investigating officers to obtain one. If this is done in a non-intrusive way and without trespass or other improper means, I do not regard the efforts as a breach of privilege, an invasion of privacy or a violation of Charter rights.
[57] This reasoning was subsequently adopted by the Court of Appeal in R. v. Parsons, 1993 3428 (ON CA). In R. v. Bryntwick, 2002 10941 (ON SC), it was adopted by Dunn J. in finding that videos and photos taken from a public area adjacent to an accused person’s residence depicting them entering and exiting their residence did not infringe upon the accused’s reasonably objective expectation of privacy.
[58] In Bryntwick at para. 19, Dunn J. noted that police are not given a carte blanche to situate themselves outside of an accused person’s residence and record their activities:
The purpose of the surveillance or photography and the use to which any video or picture is put is relevant. In these circumstances the surveillance was for the purpose of obtaining the likeness of the accused/applicant and to further a criminal investigation. The video taping itself was not for the purpose of observing any criminal conduct or activity.
[59] In the present case, the purpose of the physical surveillance and the recorded images captured during that surveillance did not differ from that of the installed video cameras. It was the objective of the police to further their criminal investigation by collecting evidence to support an ITO. Their observations and recordings may also serve as circumstantial evidence of the applicant’s knowledge of and control over the items subsequently found during the search of his residence.
[60] The key differences between the recordings conducted by officers during their physical surveillance and those conducted by the installed video camera were the manner in which they were obtained and the views that they provided.
[61] The video taken during the physical surveillance served as a record of the “eyeball surveillance” which was lawfully undertaken by the police. The surveillance was recorded from an area accessible to the public and provided only those views available to members of the public passing by the property or, in this case, police officers lawfully conducting physical surveillance. While the video images could be “zoomed in”, this could also have been done during lawful physical surveillance using a pair of binoculars.
[62] Conversely, the installed video cameras provided a view of the applicant’s property that was not otherwise available to the public or to police conducting lawful physical surveillance. The installed cameras effectively permitted the police to visually trespass onto the applicant’s property. In my view, this trespass was fatal to the use of the installed cameras in the absence of a warrant.
[63] 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.
[64] 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.
Did the police decision to proceed with a dynamic entry into the applicant’s residence engage s. 8 of the Charter?
[65] Police are permitted to draw on their experience in determining how to execute a search. They cannot, however, simply rely on a general police practice or blanket policy. Rather, in advance of a search, police must make an individualized assessment about the appropriate manner of search (R. v. Pileggi, [2021] O.J. No. 32 at paras. 36-37 (ONCA); R. v. Bahlawan, [2020] O.J. No. 627 at paras. 21, 41, 43, 44, 51 and 52 (ONSC); R. v. Lau, 2003 BCCA 337, [2003] B.C.J. No. 1307 at paras. 34 and 39 (BCCA)).
[66] In the absence of exceptional circumstances, police officers are required to announce their presence prior to entering an individual’s residence. In Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739, at p. 747, the court noted that such an announcement should consist of: “(i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry”.
[67] In R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 at para. 20 (SCC), Cromwell J., speaking for the majority, identified the following requirements to justify a departure from the “knock and announce” principle:
Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so. If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications: see R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at pp. 89-91; R. v. Gimson, 1991 24 (SCC), [1991] 3 S.C.R. 692, at p. 693. I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusion that “there were grounds to be concerned about the possibility of violence”: p. 90. I respectfully agree with Slatter J.A. when he said in the present case that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present”: para. 24.
[68] When the police entered the residence at 145 Riverside Drive on August 1, 2019, they were operating on the theory that the residence was a drug stash house. They expected that there would be large quantities of drugs present, and that there was a risk that the drugs would be disposed of quickly in the event of an announced entry.
[69] In my view, there was no objectively reasonable concern that any appreciable amount of evidence would be destroyed absent a dynamic entry. This was, for all intents and purposes, acknowledged by the officers who testified at the Preliminary Inquiry.
[70] I do find, however, that the particulars disclosed in the Search Warrant and its accompanying ITO would have, at minimum, been reviewed by the lead investigators and tactical supervisors co-ordinating the tactical and search teams at the residence and would have informed their directions to them regarding officer safety. The ITO disclosed the involvement of organized crime, Mr. Aubrey’s prior convictions for possession of prohibited or restricted weapons and crimes of violence, and the seizure of multiple firearms during a recent search at a property in Hamilton, Ontario related to the same investigation.
[71] In my view, the police were not operating on a blanket policy or a general police practice, but rather on an individualized assessment of the residence being entered based upon the police theory regarding the nature of the activities being conducted there and their information regarding the applicant and his associates. In my view, it would have been objectively reasonable for officers to expect a large quantity of drugs to be present. It would also have been objectively reasonable for officers to expect that there would be individuals in the residence to “mind the store”, as it were, and for there to be firearms present to protect those individuals and the product. There would have been objectively reasonable concerns about the possibility of violence during an announced entry.
[72] Officer safety would have been an objectively reasonable concern having regard to the available information, and in my view would have been a paramount concern for the supervising officers who co-ordinated and directed the entry into the residence. I therefore find that the police decision to proceed with a dynamic entry was reasonable in the circumstances.
Did the police search and clearing of the outbuildings located the applicant’s property, without prior judicial authorization, engage s. 8 of the Charter?
[73] In R. v. Chuhaniuk, 2010 BCCA 403 at para. 65, Frankel J. noted:
There can be no question that police officers are acting in the exercise of a lawful duty when they execute a search warrant. The critical issue is whether conducting what I would call “security checks” of places or premises on the same property as the place or premises covered by a warrant is a justifiable use of a power associated with that duty. In my view it is. As Rowles J.A. stated in Duong, “police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties”. Accordingly, if police officers have reasonable grounds to be concerned that there is a possibility that someone who poses an immediate risk to their safety or the safety of others is in such other place or premises, then they can take reasonable steps to minimize that risk.
[74] The ability of the police to conduct “security checks” is not unfettered. As observed by Frankel J. at para. 59 of Chuhaniuk:
In my view, when a warrant has been issued to search one place or premises on a particular property, the police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others. However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns. Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk.
[75] At the outset, I would note that no evidence was seized from the outbuildings, nor were any individuals located and arrested there; in my view, this search is a non-issue in this case, except in the broader context of assessing the conduct of the police in executing the search warrant.
[76] In my view it was reasonable for the police to enter and clear the outbuildings adjacent to the residence, and this action by the police did not engage s. 8 of the Charter. In arriving at this conclusion, I have considered the following:
a. The outbuildings at issue were in close proximity to the residence, being only 20 feet from it;
b. The evidence of Cst. Lapointe at the Preliminary Inquiry that the purpose of the search was solely to ensure officer safety and not to conduct a search for evidence;
c. The evidence of Cst. Lapointe that he did not have specific information regarding who was, or was not, situated at the property, giving rise to a need to clear the property to avoid unexpected surprises for the investigating officers; and,
d. The particulars disclosed in the ITO which would have informed the directions given to the tactical and search teams by their supervisors, including the surveillance observations of multiple different individuals attending at the residence, the inability of any surveillance to observe the back entrance of the residence as well as the entrances to the outbuildings, and the seizure of firearms during a recent related search.
[77] I find that officer safety would have been a specific, and objectively reasonable, concern for the officers conducting the search. On the facts before me this purpose, and the manner in which the buildings were searched and cleared, was a justifiable use of lawful police authority in connection with the execution of the search warrant.
Did the police search for, and seizure of, items beyond the scope of the search warrant engage s. 8 of the Charter?
Police Search and Seizure of Items Beyond Those Authorized in Warrant
[78] The “overarching relevant legal principles” governing warrantless searches are succinctly summarized in R. v. Cook, [2008] O.J. No. 4765, at para. 37:
(1) Warrantless searches and seizures are presumptively unreasonable unless the Crown demonstrates on a balance of probabilities their reasonableness in the context of s. 8 principles: R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.) at 324; R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) at 112, 114; R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) at 34; R. v. Peacock-McDonald (2007), 2007 ONCA 128, 218 C.C.C. (3d) 257 (Ont. C.A.) at para. 18.
(2) A warrantless search or seizure may be found to be reasonable where it meets the test in R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.) at 14-15 – (a) the search is authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable.
(3) A warrantless search or seizure may be authorized by law originating in statute (i.e. s. 11(8) of the C.D.S.A.) or in common law (i.e., a plain view seizure).
(4) Section 11(8) of the C.D.S.A. provides:
A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will offer evidence in respect of an offence.
(5) A peace officer may, in appropriate circumstances, seize things without warrant where the pre-conditions for a plain view seizure are met. This narrow exception to the constitutional presumption of search/seizure by prior judicial authorization is a limited seizure power not a general exploratory search authority. A valid plain view seizure must, as a general rule, meet these criteria:
i. when the intrusion on a reasonable expectation of privacy occurs, the police are lawfully in the location or place by
virtue of presence under warrant authority or otherwise present in circumstances consistent with s. 8 Charter principles
ii. the searcher(s) are lawfully positioned when discovery and observation of the things occurs, for example, opening a receptacle of a size consistent with it containing a thing listed for seizure on the search warrant and yet to be seized
iii. the things in question are discovered unexpectedly – where their existence was anticipated and reasonable grounds pre-existed the search, warrant authority ought to be obtained
iv. the criminal character of the thing is readily apparent to the searcher on seeing the thing without investigative examination, testing or other manipulation – the searcher must, on observation, have reasonable grounds to believe the thing has been obtained by or used in the commission of a criminal offence or will afford evidence of a crime.
See: Buhay, at 114-5; R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 (S.C.C.) at para. 27; R. v. Fawthrop (2002), 2002 45004 (ON CA), 166 C.C.C. (3d) 97 (Ont. C.A.) at para. 27-32; R. v. Spindloe (2001), 2001 SKCA 58, 154 C.C.C. (3d) 8 (Sask. C.A.) at para. 24-42, 50; R. v. Longtin (1983), 1983 1746 (ON CA), 5 C.C.C. (3d) 12 (Ont. C.A.) at 16.
(6) “[T]he fact that there may not have been sufficient grounds to obtain a warrant does not justify a warrantless search” (Buhay, at 114) or “constitutionally impermissible investigative techniques”: R. v. Kokesch (1990), 1990 55 (SCC), 61 C.C.C. (3d) 207 (S.C.C.) at para. 45-6.
(7) The Crown cannot rely on “ex post facto justifications” of searches by their results: Kokesch, at 227; R. v. Genest (1989), 1989 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.) at 408.
(8) Because the exercise of warrantless authority amounts to an exceptional instance of government conduct, “it is even more important for the police to demonstrate that they have those same reasonable and probable grounds” which would have supported warrant authority: R. v. Storrey (1990), 1990 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) at para. 14.
(9) A constable is entitled to carry out another peace officer’s direction without inquiry into that officer’s grounds of belief: R. v. Debot (1990), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) at p. 214; Collins, at p. 15; R. v. Backhouse (2005), 2005 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.) at pp. 16, 30; R. v. Le, [2006] B.C.J. No. 2698 (C.A.) at para. 25.
(10) Reasonable grounds requires not only that a police officer “subjectively have reasonable and probable grounds” but also that those grounds “be justifiable from an objective point of view”: Storrey, at para. 16-7; R. v. Calderon (2004), 2004 7569 (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.) at 504; R. v. Squires (2002), 2002 44982 (ON CA), 59 O.R. (3d) 765 (C.A.) at para. 17.
(11) For a police officer to have subjectively-held reasonable grounds of belief, the officer must have a personal and honest belief, at the level of reasonable grounds, actually possessed at the relevant time of the exercise of the search/seizure power, not retrospectively assembled through subsequent considered reflection or taking into account subsequent events. It is not “necessary that an arresting officer resort to particular words to satisfy the subjective component” of the reasonable grounds standard: R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289 (C.A.) at para. 36; R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13 (S.C.C.) at paras. 121-5 per L’Heureux-Dubé J. (in dissent).
(12) In assessing the objective existence of reasonable grounds, one asks whether “the reasonable person in the position of the arresting officer would have concluded there were reasonable grounds” for the asserted subjective belief: Storrey, at para. 16; R. v. Latimer (1997), 1997 405 (SCC), 112 C.C.C. (3d) 193 (S.C.C.) at 205. What is ‘reasonable’ must be assessed in context: R. v. Jackpine (2006), 2006 SCC 15, 207 C.C.C. (3d) 225 (S.C.C.) at 243; R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.) at 234 per L’Heureux-Dubé J., dissenting in the result; R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 18. Objective assessment requires consideration of the totality of the circumstances, including entitlement to draw reasonable inferences, with reasonableness dependent on both the content of the information and its degree of reliability. Depending on the case-specific circumstances, the training and experience of the police officer may factor into the analysis: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501; R. v. Juan (2007), 2007 BCCA 351, 222 C.C.C. (3d) 289 (B.C.C.A.) at para. 19; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105, [2007] S.J. No. 532 (C.A.) at para. 26-7; R. v. Rajaratnam (2006), 2006 ABCA 333, 214 C.C.C. (3d) 547 (Alta. C.A.) at 559. Further, review of police actions should not be critically assessed through the lens of hindsight: R. v. White, [2007] O.J. No. 1605 (C.A.) at para. 54; Crampton v. Walton (2005), 2005 ABCA 81, 194 C.C.C. (3d) 207 (Alta. C.A.) at 221.
(13) Reasonable grounds requires credibly-based probability not a “mere possibility” of finding evidence: R. v. Baron (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 at 532; Hunter v. Southam (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) at 114-5. This standard “is not to be equated with proof beyond a reasonable doubt or a prima facie case…The standard to be met is one of reasonable probability”: R. v. Debot (1986), 1989 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.) at 219 (aff’d (1989), 52 C.C.C. (3d) 193 (S.C.C.) at 198, 213). “There is a vast distinction between a sufficiently grounded belief and mere suspicion: Re Worrall, 1964 161 (ON CA), [1965] 1 O.R. 527 (C.A.) at 536 per Roach J.A. (in dissent).
(14) Reasonableness comprehends a requirement of probability: Baron, at 532. A continuum of probability exists between hunch/speculation/suspicion/a well-educated guess, and, certainty. Neither suspicion nor even reasonable suspicion amounts to reasonable grounds of belief: Mann, at 322. Indeed, reasonable suspicion is, at most, an “intermediate standard” (R. v. Kang-Brown (2008), 2008 SCC 18, 230 C.C.C. (3d) 289 (S.C.C.) at 326 per Binnie J.) and much more frequently wrong than a reasonable and probable grounds application: T. Quigley, “Brief Investigative Detentions: A Critique of R. v. Simpson” (2004), 41 Alta. L. Rev. 935 at para. 20.
[79] The “plain view doctrine” is defined in Fontana in The Law of Search and Seizure in Canada (3rd ed.), (at p.602) as follows:
“Plain view” occurs when evidence falls into the view of an officer who has a right to be in the position he is in to have the view he has had; such items have been held to be subject to seizure. (as cited in R. v. Fawthrop, 2002 45004 (ON CA), par 28.
[80] In my view, given the presence of firearms in the residence which police would have known were prohibited or restricted weapons, it would have been reasonable for the police to seize the gun parts and the crossbow found in the residence. The law does not require the police to have an encyclopedic knowledge of the potential uses of the gun parts and the crossbow; it is reasonable that they be permitted to rely upon the presence of other known illegal weapons to inform their decision-making that these items would afford evidence in respect of an offence.
[81] It is also important to note that the seizure of the gun parts was directed by Detective Constable Larochelle. As one of the lead investigators, Detective Constable Larochelle had reviewed the Search Warrant and the ITO in advance of the search; the ITO identified that the Applicant was subject to a firearms prohibition. This information also would have supported the lawful seizure of these items as evidence in respect of an offence; the officers conducting the search were entitled to rely upon Detective Constable’s Larochelle knowledge and resulting instructions without questioning them.
[82] With respect to the jewelry, there is little evidence before me about the specifics of the jewelry, other than the Rolex watch. In my view the seizure of the Rolex watch was appropriate. In the context of the other items found in the residence, specifically substantial amounts of illegal drugs and money, it was reasonable for the police to surmise that the Rolex watch represented proceeds of crime, thereby making its seizure reasonable applying both the plain view doctrine and s. 11(8) of the CDSA.
[83] With respect to the remaining jewelry, while the rings and bracelets could have been expensive luxury items, it is equally possible that they could have been items in the possession of an individual of modest means. In the absence of further evidence, I find that the Crown has not rebutted the presumption that the seizure of these items was unreasonable and I therefore find that the remaining jewelry was seized improperly and in violation of s. 8 of the Charter.
Disposition
[84] Evidence that has been unconstitutionally obtained must be automatically excluded from consideration if it is included in the ITO (Spencer at para. 74 (SCC); Sandhu para. 50.
[85] I therefore order that all evidence obtained from the unconstitutional video surveillance of the applicant’s residence be excised from the ITO, and that a date be scheduled before me to present arguments about whether the excised ITO supports the validity of the warrant.
[86] With respect to the search beyond the scope of the warrant, the dynamic entry, and the search of outbuildings, at the outset of their arguments counsel for the applicant advised the court that, in the event that it found breaches of the applicant’s s. 8 rights, the issue of the appropriate remedies were being deferred to a later date for argument.
[87] In accordance with my oral reasons, this matter was adjourned to the December 21, 2021. Assignment Court to schedule a date for argument regarding the ITO and any other remedies being sought by the applicant.
The Honourable Madam Justice K.E. Cullin
Released: January 27, 2022
COURT FILE NO.: CR-1211/21
DATE: 2022-01-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Jacob Aubrey
Accused/Applicant
DECISION ON APPLICATION
K.E. Cullin, J.
Released: January 27, 2022