Court File and Parties

COURT FILE NO.: CR-21-RG19925-A DATE: 2023/01/13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING – and – ZEKEIM OGILVIE, WARSAME ABDULLAHI, and AKOL AKOL

Counsel: Jason Neubauer and Emilie Farrell, for the Crown Biagio Del Greco, for Mr. Ogilvie

HEARD: October 11-12, 2022

RULING Pre-trial Charter Application

corthorn J.

Introduction

[1] Zekeim Ogilvie is charged with 13 offences arising from a shooting that is alleged to have occurred on June 29, 2020. The offences with which Mr. Ogilvie is charged include two counts of aggravated assault (s. 268(2) of the Criminal Code); two counts of discharge of a firearm with intent to wound (s. 244(2)); assault with a weapon (s. 267 (a)); two counts of reckless discharge of a firearm (s. 244.2(3)); and a series of firearms-related charges.

[2] The application stems from an August 27, 2020 search of a vehicle. In the early morning hours on that date, a vehicle in which Mr. Ogilvie is a front seat passenger is pulled over on a Highway 417 off-ramp for a traffic stop. One of the items admitted to be in the vehicle at the time of the search is an Apple iPhone (“the Phone”). The Crown alleges that the Phone belongs to Mr. Ogilvie.

[3] Two Ottawa Police Service (“OPS”) officers involved in the traffic stop both observe bins on the rear seat of the vehicle and containing what appear to be bottles of alcohol. That observation is a factor upon which the officers rely in forming the belief that they have reasonable and probable grounds to conduct a warrantless search of the vehicle pursuant to s. 32(5) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (“LLA”). Section 32(5) provides that a “police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.”

[4] While the LLA search is being carried out, one of the officers comes across a firearm. The officers end the LLA search and commence a criminal investigation in relation to the firearm. Within minutes, a second firearm is discovered in the vehicle.

[5] Mr. Ogilvie, the driver of the vehicle, and a third occupant of the vehicle are arrested on firearms charges. The vehicle is impounded.

[6] As of the date of the traffic stop and vehicle search, Mr. Ogilvie is a person of interest with respect to the June 29, 2020 shooting. In the days and weeks following the impounding of the vehicle, members of the OPS involved in the investigation of the shooting,

• conduct a judicially authorized search of the vehicle;
• find the Phone on the front passenger seat and connected to the charger in the centre console of the vehicle;
• seize the Phone;
• conduct a judicially authorized forensic examination of the Phone and create a data extraction report;
• conclude, based on a review of the data extraction report, that the Phone belongs to Mr. Ogilvie;
• obtain production orders for specific data from several mobile phone service providers, including Rogers Communications Canada (“Rogers”); and
• on review of the data produced by Rogers, identify that, on the day of the shooting, the Phone interacted twice with a cell phone tower in the area where the shooting occurred. Those interactions were at approximately nine minutes and ten minutes before the time of day at which the shooting is alleged to have occurred.

[7] In support of its case against Mr. Ogilvie, the Crown intends to call evidence related to the Phone and the data extracted from it.

[8] On this application, Mr. Ogilvie asserts that the officers involved in the traffic stop lacked reasonable and probable grounds to conduct a search of the vehicle pursuant to the LLA or any other statute. Mr. Ogilvie asks the court to find that the warrantless search of the vehicle violated his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Mr. Ogilvie relies on s. 24(2) of the Charter and asks the court to exclude evidence obtained after the discovery of the first of the two firearms found in the vehicle.

The Issues

[9] Mr. Ogilvie’s application gives rise to the following issues:

1. Does Mr. Ogilvie have standing to challenge the validity of the search incidental to the traffic stop?
2. If Mr. Ogilvie has standing to challenge the validity of the search incidental to the traffic stop, did the search violate his s. 8 right to protection against unreasonable search and seizure?
3. If Mr. Ogilvie’s s. 8 right to protection against unreasonable search and seizure was violated, should the evidence obtained after the discovery of the first firearm be excluded?

Issue No. 1 - Does Mr. Ogilvie have standing to challenge the validity of the search incidental to the traffic stop?

a) The Positions of the Parties

i) Mr. Ogilvie

[10] Mr. Ogilvie’s position is that he has standing to challenge the validity of the search incidental to the traffic stop. Mr. Ogilvie submits that he had a reasonable expectation of both personal and territorial privacy. Mr. Ogilvie submits that, as a passenger in the vehicle, it was reasonable for him to have some expectation of territorial privacy in the vehicle – including with respect to the Phone.

[11] Mr. Ogilvie acknowledges that at no time, prior to the discovery of the first firearm, was he subjected to a search of his person. Mr. Ogilvie relies on the evidence of the two officers involved in the traffic stop as to their collective stated intention to carry out a search of his person pursuant to the LLA. Mr. Ogilvie submits that the stated intention to carry out that search was sufficient to engage his privacy rights; for the purpose of this application, it is irrelevant that a search of his person, pursuant to the LLA, was not carried out.

ii) The Crown

[12] The Crown’s position is that the only search forming the subject matter of this application is the search of the vehicle pursuant to s. 32(5) of the LLA. The Crown submits that Mr. Ogilvie has not established that he had a reasonable expectation of privacy in the vehicle. The Crown submits that (a) Mr. Ogilvie’s s. 8 rights could not have been infringed by the vehicle search, and (b) as a result, he does not have standing to challenge the validity of the search.

[13] The Crown submits that the officers’ stated intention to carry out a search, pursuant to s. 32(5) of the LLA, of Mr. Ogilvie’s person, (a) does not, in the absence of such a search, engage Mr. Ogilvie’s right to personal privacy, and (b) is irrelevant for the purpose of this application.

b) The Law

i) The General Framework for a s. 8 Analysis

[14] In R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45, the Supreme Court sets out a framework for determining whether an individual’s s. 8 right to be secure against unreasonable search and seizure has been infringed:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.
2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.
3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.
4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.
5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
6. The factors to be considered in assessing the totality of the circumstances may include, but are not limited to, the following: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.
7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second state to determine whether the search was conducted in a reasonable manner.

[15] In R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40, the Court describes the “totality of the circumstances” analysis as (a) a matter of substance, not form, and (b) guided by four lines of inquiry:

(1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

[16] In decisions subsequent to Edwards and Cole, both the Supreme Court of Canada and the Ontario Court of Appeal addressed the concept of and the factors relevant to the totality of the circumstances analysis. Principles which emerge from those decisions include the following:

• The totality of the circumstances is assessed to determine whether the accused has a reasonable expectation of privacy in the “particular territorial space” that is the subject matter of the search: R. v. Labelle, 2019 ONCA 557, at para. 31; and
• An expectation of privacy will be objectively reasonable and “attract Charter protection if reasonable and informed people in the position of the accused would expect privacy”: Cole, at para. 35 and R. v. Steele, 2015 ONCA 169, at para. 17.

[17] Significant to the outcome of this application is the determination of whether Mr. Ogilvie had both a subjective and a reasonable objective expectation of privacy.

ii) A Subjective and a Reasonable Objective Expectation of Privacy

[18] The Edwards framework was applied by Cory J., writing for the majority, in R. v. Belnavis, [1997] 3 S.C.R. 341. In both Edwards and Belnavis, the accused assert their respective privacy rights to places over which the court found they did not control. In Edwards, the place is the apartment of the accused’s girlfriend and the items seized include drugs, which the accused denies are his. In Belnavis, the accused is a passenger in a vehicle; she denies that any one of the several green plastic garbage bags of clothes in the vehicle are hers.

[19] In both decisions, the Court concludes that the individual accused does not have a privacy interest in the place searched; the items seized are admissible as evidence.

[20] The potential to establish a privacy right through ownership of an item seized from the particular territorial space that is the subject matter of the search is relevant to this application. The Crown’s theory of the case includes that the Phone (a) belongs to Mr. Ogilvie, and (b) twice interacted with cell phone towers in the area of the shooting only minutes before it occurred. That theory is reflected in the Agreed Statement of Facts filed solely for the purpose of this application.

[21] The evidentiary foundation required to establish the element of a subjective expectation of privacy is modest: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 21.

[22] Mr. Ogilvie is entitled to rely on the Crown’s theory set out in para. 22, above, to establish the facts in support of the submission that his s. 8 Charter rights were infringed: Jones, at para. 9 and Labelle, at para. 31. Specifically, Mr. Ogilvie is entitled to rely on the Crown’s theory to establish that, as the owner of the Phone, he had a subjective privacy interest in the Phone. In that regard, Mr. Ogilvie is distinguishable from the accused in each of Edwards and Belnavis; he has established both an ownership interest and a subjective privacy interest in the Phone.

[23] Even when an accused establishes that they have a subjective privacy interest in a possession or an item of property, it remains necessary to consider whether the accused has an objectively reasonable expectation of privacy in the place in which the possession or property is found: R. v. Greer, 2020 ONCA 795, at para. 88.

c) Analysis

[24] “First, properly characterizing the search is vital”: Jones, at para. 14.

[25] The August 27, 2020 search of the vehicle was the subject of a s. 8 Charter application by Mr. Ogilvie in the proceeding arising from the firearms charges. Mr. Ogilvie sought relief pursuant to s. 24(2) – the exclusion from evidence of the firearm found under the front passenger seat. The application was dismissed. Mr. Ogilvie was convicted on all nine firearms offences with which he was charged: R. v. Ogilvie, 2022 ONCJ 200 (“Ogilvie No. 1”).

[26] At para. 17 of Ogilvie No. 1, the trial judge concluded that Mr. Ogilvie “had a reasonable expectation of privacy against the search of his person and his immediate area within the vehicle.” In reaching that conclusion, the trial judge relied on several factors, including the scope of the search authorized by the LLA – meaning a search of “the vehicle or boat and [ ] any person found in it”: at para. 16. The trial judge also relied on the fact that Mr. Ogilvie was detained, required to exit the vehicle, and told that he would be subject to a search of his person: at para. 16.

[27] This court is not bound by the decision in Ogilvie No. 1.

[28] Using the language from para. 31 of Labelle, I will consider the totality of the circumstances to determine “the particular territorial space” that is the subject of the search – the vehicle as a whole or, as described by the trial judge in Ogilvie No. 1, Mr. Ogilvie’s immediate area within the vehicle.

i) The Totality of the Circumstances

[29] I begin the totality of the circumstances analysis by reviewing the seven non-exhaustive factors listed in item 6 of the Edwards framework (see para. 14, above):

(i) Mr. Ogilvie was present at the time of the search. The search had an impact on his liberty in that he was required to exit the vehicle and remain at the roadside while the search of the vehicle was conducted. In addition, there existed the potential for the search to impact Mr. Ogilvie’s person because of the officers’ stated intention to carry out a search, pursuant to s. 32(5) of the LLA, of the person of each of the occupants. A search of their respective persons was not carried out. The LLA search was terminated before it reached that stage; (ii) At the time of the traffic stop and the search pursuant to the LLA, the vehicle was in the driver’s possession and control. There is no evidence to suggest that anyone other than the driver had control of the vehicle; (iii) Mr. Ogilvie owned the Phone. There is no evidence to suggest that Mr. Ogilvie had an ownership interest in the vehicle. The evidence supports a finding that the vehicle was registered in the driver’s name; (iv) There is no evidence as to the historical use of the Phone other than that, at the time of the search, the Phone was connected to the electronic device charger in the centre console of the vehicle. There is no evidence as to Mr. Ogilvie’s historical use, if any, of the vehicle; (v) There is no evidence that Mr. Ogilvie had the ability to regulate access, including the right to admit others to or exclude others from the vehicle. Nor is there any evidence that Mr. Ogilvie had the ability to regulate where the non-driver occupants were seated in the vehicle; (vi) Based on the Agreed Statement of Facts and the Crown’s theory of the case, I find that the Phone is owned by Mr. Ogilvie and that he had a subjective expectation of privacy in relation to the Phone.

[30] The subjective expectation of privacy, as found in para. 29(vi), above, is not, on its own, sufficient to engage Mr. Ogilvie’s privacy rights. Item (vii) of the Edwards factors requires that, for Mr. Ogilvie’s privacy rights to be engaged, he must establish, on a balance of probabilities, that he had an objectively reasonable expectation of privacy in the particular territorial space where the phone was situated at the time of the search. For the reasons that follow, I find that Mr. Ogilvie has failed to establish that he had the requisite expectation.

[31] First, in Greer, at para. 88, Paciocco J. referred to Edwards and Belnavis to illustrate that “a person can have possessions in a place in which they do not have a reasonable expectation of privacy.”

[32] Second, it is important that the place in which the Phone was situated is a vehicle. The regulation of vehicular traffic addresses the protection of public safety. As a matter of common experience, and for the public good, an individual’s reasonable expectation of privacy in a vehicle must be greatly reduced: Belnavis, at para. 38 and Steele, at para. 18. Where the privacy rights under consideration are those of a passenger and there is no evidence of the passenger’s connection to or historical use of the vehicle, then the passenger’s “greatly reduced expectation of privacy … is then further reduced because [their] relative privacy interest in [the] particular vehicle is low”: Belnavis, at para. 40.

[33] Mr. Ogilvie did not provide the court with any authority, other than the decision in Ogilvie No. 1, in support of his request that the court conclude that the “particular territorial space” that was the subject of the search was the front passenger seat and its immediate area within the vehicle. With respect to the trial judge in Ogilvie No. 1, I find that such a conclusion runs contrary to the descriptions in Belnavis and Steele of the significantly reduced privacy interest attributable to a non-owner occupant who does not demonstrate any historical connection to or use of the vehicle. It would be illogical to conclude that an occupant has a significantly reduced privacy interest in a vehicle as a whole but retains some greater level of privacy interest in the area within the vehicle in which the occupant is seated.

[34] Based on the totality of the circumstances, I find that the “particular territorial space” that was the subject matter of the LLA search is the vehicle in its entirety.

[35] Relying on the decisions in Belnavis and Steele, and on the totality of the circumstances, I find that Mr. Ogilvie did not have an objectively reasonable expectation of privacy in the vehicle.

ii) Weighing the Factors

[36] Mr. Ogilvie’s presence at the time of the search of the vehicle and the potential for a search of his person to be carried out (item (i) in the Edwards framework) do not outweigh the evidence, or lack thereof, and the findings made with respect to the other six factors in the Edwards framework. I find that Mr. Ogilvie has not established that he had a reasonable expectation of privacy in the subject matter of the search (i.e., the vehicle in its entirety). Therefore, Mr. Ogilvie does not have standing to challenge the validity of the search.

d) The Potential Search of Mr. Ogilvie’s Person

[37] I am not persuaded that, in the circumstances of this case, the potential for a search of Mr. Ogilvie’s person to be carried out is relevant to the issue of standing to challenge the validity of the search.

[38] First, the LLA search of the vehicle was not completed and did not progress to a search of each occupant’s person. A roadside stop is a fluid situation: R. v. Beauchamp and Smoke, 2021 ONSC 164, at para. 29. The traffic stop and LLA search of the vehicle on August 27, 2020 were part of a fluid situation. The dynamics of the situation at the side of the Highway 417 off-ramp changed on the discovery of the first firearm. That change in dynamics included the termination of the LLA search and the commencement of a criminal investigation.

[39] Second, there is no evidence to suggest that, at any time before, during, or after termination of the LLA search of the vehicle, Mr. Ogilvie identified the Phone as his. Other than the position of the phone on the front passenger seat, which Mr. Ogilvie had occupied, there is no evidence that the officers had any reason to believe that the Phone could be Mr. Ogilvie’s.

[40] Third, the Phone was ultimately discovered, and thereafter the subject of a judicially authorized search, following a series of events which began with the LLA search of the vehicle and not with a search of Mr. Ogilvie’s person.

e) Summary

[41] I find that Mr. Ogilvie has no standing to challenge the search conducted pursuant to the LLA. It is therefore unnecessary to consider Issue Nos. 2 and 3.

Disposition

[42] Mr. Ogilvie’s application for a determination that his ss. 8 and 9 Charter rights were violated and an order excluding evidence found after the discovery of the first of the two firearms is dismissed.

Madam Justice Sylvia Corthorn Released: January 13, 2023