COURT FILE NO.: CR-22-0256-00
DATE: 2023-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
R. Poirier, for the Crown
- and -
Elmi Osman
S. Senra, for the Accused
Accused
HEARD: December 11, 2023, at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Judgment on Standing Application
Background
[1] On April 27, 2021, the Applicant, Elmi Osman, was charged with the following offences:
Possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA).
Possession of the proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code.
Unauthorized Possession of a Prohibited Weapon, contrary to s. 91(2) of the Criminal Code.
Unauthorized Possession of a Prohibited or Restricted Weapon Knowingly, contrary to s. 92(2) of the Criminal Code.
[2] The matters at issue occurred in Thunder Bay. On this application, Mr. Osman seeks a declaration that he has standing to challenge the execution of a search warrant on an apartment complex located at 53 Cumberland St. S, specifically unit 202 of that complex, a property located at 263 Lincoln Street and the warrantless searches of the common areas of 53 Cumberland St. S. and by the camera adjacent to the building. He asserts he had a reasonable expectation of territorial privacy which grounds his standing to challenge the warrant-based, and warrantless, police searches of those properties. In his written materials he also claimed an informational privacy interest in the camera recordings.
[3] The Crown assets Mr. Osman has no standing to challenge the warrant nor the warrantless searches.
The Facts
[4] Mr. Osman relies on the facts asserted by the Crown in its theory of the case against him. He did not advance any specific pieces of evidence on this application relying on the decision of the Supreme Court of Canada in R. v. Jones, 2017 SCC 60, which permits an applicant to ask the court to assume as true any fact the Crown has alleged or will allege against him without the need to adduce evidence probative of those facts on the application.
[5] From the materials filed, I make the following findings of facts on this application.
[6] On April 27, 2021, the Thunder Bay Police Service executed a CDSA search warrant at two properties in the city of Thunder Bay, Ontario:
-53 Cumberland Street South Apt 202. (the “Safehouse”)
-263 Lincoln Street (the “Trap House”).
[7] I use descriptions of these properties given to me by counsel for Mr. Osman. From my work on numerous drug cases here in Thunder Bay, I recognize the description of a safehouse as the place a drug dealer keeps the product and proceeds from sales. For tactical and business reasons, a safehouse is a separate location from the trap house, where drugs are retailed to users.
[8] On April 28, 2021, police searched and seized property from above ceiling tiles in a common hallway and laundry room at 53 Cumberland St S. Mr. Osman alleges this search was warrantless. The property included a large amount of crack and soft cocaine as well as over $27,000 in cash. The police allege they have a fingerprint from Mr. Osman on one of the bags of drugs that was found in areas other than in the demise of Apartment 202.
[9] Further, from April 14, 2021, to April 21, 2021, the police had conducted surreptitious surveillance on 53 Cumberland St. S using a camera from inside an adjacent building. This surveillance was done without warrant (the camera search).
[10] While executing the warrant on April 27, 2021, police found a wallet containing Mr. Osman’s driver’s licence inside the Safehouse at 53 Cumberland St. S. The driver’s licence was not submitted on this application. Counsel referred to Mr. Osman as being “from Toronto”. I accept that as a fact on this application.
[11] In the Safehouse, police also found a functioning digital scale with a white powdery substance on it, elastic bands, packaging material, three cellphones, $16,777 in cash and rental receipts for the apartment in the name of Dustin Swanson. Mr. Swanson’s health card was also found inside the Safehouse. No persons were found inside Safehouse at the time the police entered and commenced the search.
[12] Mr. Swanson, Mr. Osman and five others were in the Trap House, 263 Lincoln Street, when police executed the warrant at that address. $3,665 in cash was found in Mr. Osman’s pocket. A small amount of drugs, drug paraphernalia, brass knuckles, some packaging material and an electronic bike were also seized by police. On the key chain that had the key to the electronic bike Mr. Osman was riding, there was a second key, which was ultimately used by the police to open Apartment 202 at 53 Cumberland Street South.
[13] Casa Mia Property management (Casa Mia), a company, is the landlord of the Safehouse. Casa Mia leased Apartment 202 to Mr. Swanson.
[14] There was no evidence on this application as to who was either the owner or was in lawful possession of the Trap House.
The Law
[15] The parties were in agreement as to the legal test to establish a reasonable expectation of privacy in the context of a claim under section 8 of the Charter. Both counsel relied on the leading case of R. v. Edwards, 1996 CanLII 255 (SCC), 1996 1 S.C.R. 128 [Edwards]. It is a fact-based inquiry. As a general rule, the more private or confidential the place or item to be searched, the more likely the individual will have a reasonable expectation of privacy. A claim of an expectation of privacy must be both objectively and subjectively reasonable. Without a reasonable expectation of privacy, a person has no standing to challenge a search. In assessing the objective reasonableness of a subjective belief, counsel for both parties relied on the non-exhaustive list of factors from Edwards. These factors are:
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.
[16] Not every entry into or onto a property will necessarily invoke a reasonable expectation of territorial privacy. The totality of the circumstances is to be assessed.
Disposition
[17] I find Mr. Osman had no reasonable expectation of territorial privacy in premises located at 53 Cumberland Street South. I find Mr. Osman had no reasonable expectation of territorial privacy in premises located at 263 Lincoln Street. I find Mr. Osman had no reasonable expectation of informational privacy in the covert camera surveillance taken of him which is relied upon by the Crown. I make these findings for the following reasons.
[18] In argument, Mr. Osman admitted that his claim was restricted to an allegation of a breach of his territorial privacy. In his written material, he did refer to an informational reasonable expectation of privacy with respect to the covert camera. I will deal with all of these arguments in the course of giving my reasons for decision.
263 Lincoln Street (the “Trap House”)
[19] Mr. Osman’s claim to a reasonable expectation of privacy at this location is very weak. Using the lens of the Edwards factors to assess the objective reasonableness of Mr. Osman’s subjective expectation of privacy in that space, he satisfies only one category. He was there. That is it.
[20] The police allegation that Mr. Osman was at 263 Lincoln Street, illegally selling drugs, does not create or require a corresponding underpinning that he was in possession of the premises to the degree that would create in him, either subjectively or objectively, a reasonable expectation of privacy for that space. The evidence points to this location being a trap house. Mr. Osman’s presence in such an environ, carrying an excessive amount of cash, coupled with a small amount of drugs, drug paraphernalia, and working scales in my view does not create a reasonable expectation of privacy on his part. It suggests an illegal use. An illegal use lacking a predicate legal use does not create an expectation of privacy. The facts in this matter do not suggest any indicia of control or even permission to be there that would give rise to a reasonable expectation of territorial privacy on the part of Mr. Osman.
53 Cumberland Street South (the “Safehouse”)
[21] The degree of a reasonable expectation to territorial privacy that could possibly be enjoyed by Mr. Osman varies when it comes to this location. I see these expectations as being different for the outside camera observations, the searches in the hallway and laundry room, and the search of Apartment 202 proper.
[22] In my view, Mr. Osman’s highest possible reasonable expectation of territorial privacy would exist within the demise of Apartment 202.
[23] There is no evidence or suggestion in the Crown theory of the case that Apartment 202 was Mr. Osman’s private residence. From the submissions of counsel, I found that Mr. Osman was from Toronto, and drew the conclusion that he was not even ordinarily resident in Thunder Bay. His driver’s licence was found. This was not placed in evidence and no particulars were given in the Crown synopsis of the address shown on the licence. Had it been “53 Cumberland St. S.” or “256 Lincoln” or even somewhere in the Thunder Bay region, that would have been of assistance to Mr. Osman. For the purposes of this application, Mr. Osman was from Toronto. This suggests he was not living at 53 Cumberland Street South at any relevant period.
[24] Mr. Osman’s wallet was found in the Apartment 202. A wallet containing a driver’s licence is an important piece of personal property. It was in the one bedroom of the unit. An inference could be drawn that Mr. Osman had placed it there. He was observed coming in and out of 53 Cumberland St. South. It can be inferred that he was staying at the Apartment for at least some period of time. In my view this degree of occupation is transient at best. It is insufficient to create a reasonable expectation of territorial privacy on his part. He was not the tenant. Mr. Swanson was. I am not prepared to accept that because an “unknown black man” paid the rent to Casa Mia for Mr. Swanson’s unit, this leads to an inference that the “unknown black man” was Mr. Osman. It is too great a leap.
[25] Further there is no evidence about the relationship between Mr. Swanson and Mr. Osman. Mr. Swanson was the tenant. I have no evidence to indicate that he actually permitted Mr. Osman to be in Apartment 202.
[26] Mr. Osman was observed riding an e-bike. He was seen taking the e-bike into the 256 Lincoln Street property. The key chain that had on it a key for the e-bike, also did have a key that opened the door of Apartment 202 at 53 Cumberland Street South. There was no evidence to suggest this e-bike actually belonged to Mr. Osman. His use does not create a property interest in the bike, or the keys that went along with the bike. The ability to enter a place with a key, in this case considering the totality of all the other evidence, does not create an inference that there was a corresponding ability to possess and control the property, or to regulate and exclude others from that property, that is sufficient to say that it satisfies these important elements of the Edwards test and the jurisprudence that has followed that decision.
[27] In total, Mr. Osman’s connection to the apartment was minimal. He was not a privileged guest. There is no evidence that he was even an invited guest. In my view, the totality of the evidence is not sufficient to create a reasonable expectation of territorial privacy that would allow Mr. Osman to challenge the warrant for the search of Apartment 202.
[28] I turn to a discussion of Mr. Osman’s potential reasonable expectation of privacy in the warrantless searches of the common areas of the safe house. Mr. Osman relied on the decision of the Ontario Court of Appeal in R. v. White, 2015 ONCA 508, to submit that a reasonable expectation of privacy can be established in a common space, such as a condominium building when certain contextual factors are considered.
[29] I agree with the Crown submission, that the decision in White does not go so far as to create a reasonable expectation of privacy in common areas that are not generally accessible to anyone, like above ceiling tiles. I say this applies whether in a condominium or an apartment building, where the quality of the legal control exerted by persons over common areas can be different.
[30] The police had the consent of the building owner to search the common areas of the building. In my view, the area above ceiling tiles would not be considered a “common area” for tenants. This does not vitiate the consent given by the landlord to the place to search the areas they did. The area above ceiling tiles are spaces that are not available for use by the legal residents of the building. Hiding things above drop ceiling tiles or in vents inside a demise over which a person has legal entitlement is one thing. In a common area, in an apartment complex, it is quite another. I appreciate the Crown will be relying on forensic evidence – a fingerprint – to establish that it was Mr. Osman who hid the bags of drugs in the ceiling of 53 Cumberland Street South. However, in my view, whoever placed the items there had no subjective or objective reasonable expectation to privacy in an area that belongs to someone else, a landlord, and where there is no access to this space in the ordinary course of occupation by others who may lawfully have been permitted to be in the actual common area from time to time.
[31] I conclude with a discussion of the camera observations. I will discuss the aspects of Mr. Osman’s claim of a breach of a territorial and an informational reasonable expectation to privacy in this context.
[32] I agree with the submissions of the Crown that the decision of the Ontario Court of Appeal in R. v. Nguyen, 2023 ONCA 367 [Nguyen], is of greater assistance in dealing with the facts presented in this matter than the decision of Cullin J. in R. v. Aubrey, 2022 ONSC 635, [2022] O.J. No. 455 [Aubrey], relied upon by Mr. Osman. In Aubrey, Cullin J. at paragraphs 32 and 33 identified the key factual findings that founded her finding that surreptitious video surveillance engaged section 8 of the Charter. The fact that the subject in that case was in possession and control of the property and that the surveillance breached “the barriers surrounding the applicant’s residence by providing a view of the applicant’s property not otherwise available to the public” is a different scenario from what occurred in this case. The camera surveillance here was of an area in plain public view. It did not reveal what occurred once anyone went beyond the door at the top of the rear stairs.
[33] In Nguyen, at paragraph 37, Hoy J.A. accepted that Mr. Nguyen had a subjective expectation of privacy in images captured in video surveillance. However, Hoy J.A. concluded that after assessing the circumstances in which the video was taken, that Mr. Nguyen did not have a reasonable expectation of privacy. At paragraph 38, factors such as Mr. Nguyen’s lack of control over the area at issue, the size of the building, the lack of security features baring anyone from being in the area at issue, the fact Mr. Nguyen did not reside at the subject property and that the information gathered did not substantially compromise an informational privacy interest, led the court to conclude that Mr. Nguyen did not have a reasonable expectation of privacy.
[34] In this matter, the video was taken of an area where there was no other security feature barring access. Also Mr. Osman did not live at 53 Cumberland Street South, he could not otherwise control the space, and it was available to be observed by the public. All of this leads me to agree with the Crown submission that the video surveillance does not create a reasonable expectation of privacy for Mr. Osman such that he would have standing to challenge that aspect of the search, warrantless or otherwise. He would not have a territorial expectation of privacy for an area that was in plain view of the public. Like in Nguyen, I find that as Mr. Osman was not living at 53 Cumberland Street South, and the gathering of information that could be done by anyone who was simply standing by and looking at the stairway, does not substantially compromise any reasonable expectation to informational privacy that may be asserted by Mr. Osman.
[35] For all the above reasons the application is dismissed.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: December 20, 2023
COURT FILE NO.: CR-22-0256-00
DATE: 2023-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
Elmi Osman
Accused
JUDGMENT ON STANDING APPLICATION
Fitzpatrick J.
Released: December 20, 2023