His Majesty The King v. Anthony Edwards, 2023 ONSC 4437

Court File and Parties

COURT FILE NO.: CR-22-57 DATE: 2023/07/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – ANTHONY EDWARDS Defendant

COUNSEL: J. Piszczek, for the Federal Crown M. Mazursky, for the Provincial Crown G. Clark, for the Defendant

HEARD: July 31, 2023

Reasons for Decision on Application

ELLIES R.S.J.

[1] Mr. Edwards applies for leave to cross-examine the affiant and sub-affiant whose information was relied upon by a judicial officer in granting a warrant to search a residence located on Arthur Street, in Sturgeon Falls. During the execution of the warrant on March 30, 2021, the police arrested Mr. Edwards as he was trying to crawl out of a basement window. They subsequently found and seized a Glock 9mm pistol in a garment he had thrown out ahead of him and a sizeable quantity of drugs, including fentanyl, in the bedroom from which he was attempting to leave.

[2] As a result of the search and seizure, Mr. Edwards faces a number of charges, including possession of fentanyl for the purpose of trafficking and possession of a loaded, restricted handgun.

[3] It was agreed prior to the application proceeding that it might be helpful to dispose of the issue of Mr. Edward's standing to challenge the search warrant in question before dealing with any of the other issues, including the leave issue.

[4] To be able to challenge a search warrant under s. 8 of the Charter, a defendant must be able to establish a reasonable expectation of privacy in the place searched: R. v. Edwards, [1996] 1 S.C.R. 129, at para. 45. In Edwards, Cory J. set out a non-exhaustive list of factors that may be considered as part of the totality of the circumstances in determining whether such an interest has been established. These include:

(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.

[5] In R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, the Supreme Court of Canada held that, for the purposes of a s. 8 claim, a defendant may rely on the Crown's theory of the case and may ask the court to assume as true any fact alleged or to be alleged in the prosecution against him: at para. 32. On behalf of Mr. Edwards, Mr. Clark submits that the allegations in the Information to Obtain ("ITO") sworn in support of the warrant are sufficient to establish the necessary expectation of privacy. I am unable to agree.

[6] Cases decided since Jones have clarified that, while a defendant is entitled to rely on the Crown's case to establish a privacy interest, the court before which a s. 8 application is brought must still examine the objective evidentiary basis for the Crown's theory to determine whether such an interest has been established: R. v. Labelle, 2019 ONCA 557, at para. 31; R. v. Greer, 2020 ONCA 795, at para. 85; R. v. Mawick, 2021 ONCA 177, at para. 44.

[7] In this case, the totality of the circumstances includes a statutory declaration sworn by Cassandra Louise Puskas, who deposes that she has been living alone at the searched premises on Arthur Street for 13 years and that Mr. Edwards was present in the residence on March 30, 2021, with Sean Collins, the father of her son. She deposes that Mr. Collins and Mr. Edwards asked her that day if they could stay and "sleep for a bit".

[8] Mr. Clark objects to the declaration being admitted as evidence on the basis that the deponent is not present for the purposes of cross-examination. However, I would not give effect to this objection because the statutory declaration was provided to Mr. Clark early enough that he could have asked the Crown to produce the deponent or, alternatively, subpoenaed her himself for that purpose. He did neither, objecting for the first time today to the admission of the declaration.

[9] Nonetheless, even if I were to exclude the declaration, I would still not find that Mr. Edwards has established an expectation of privacy in the bedroom at Arthur Street. The only evidence of the type mentioned in Edwards is Mr. Edwards (Anthony) being present at the time of the search, the evidence in the ITO from confidential informants that a person the Crown now alleges is Mr. Edwards had been trafficking fentanyl and staying at an unidentified residence in Sturgeon Falls for that purpose as early as September 2020, and the evidence of the affiant that the police observed a car connected to Mr. Edwards in front of the Arthur Street residence for a period of time on March 23 and again on March 30, 2021.

[10] The statement by the affiant at para. 24 of the ITO that executing a search warrant "at the residence occupied by two unknown black males” is of no real assistance to Mr. Edwards for two reasons. First, I do not interpret the statement to be a suggestion that Mr. Edwards resided at the Arthur Street home. The affiant does not describe the two unknown men to be occupants of the home. I interpret the statement to refer to the mere presence of the men at the residence in the sense that anyone occupies any place in which they find themselves to be.

[11] Secondly, even if interpreted in the way suggested on behalf of Mr. Edwards, the statement is conclusory only and is not supported by the information I have referred to in the rest of the ITO. Nor is it supported by what was discovered after the warrant was executed. There was no evidence discovered that would lead to a reasonable inference that Mr. Edwards was anything other than a temporary house guest in the Arthur Street residence. Everything that was seized as evidence was either located in plain sight, on a nightstand, or found in a fanny pack, a gym bag, or in his clothing. While it is possible that a temporary house guest may have a reasonable expectation of privacy in certain circumstances, those circumstances have not been established here: see R. v. Le, 2019 SCC 34.

[12] Because Mr. Edwards has not established a reasonable expectation of privacy in the bedroom at Arthur Street, he has not established that he has standing to challenge the warrant in this case. As a result, the application must be dismissed.

M.G. Ellies R.S.J. Released: July 31, 2023