Court File and Parties
COURT FILE NO.: CR-23-0092-00 DATE: 2024-05-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Counsel: M. Haque, for the Crown
- and -
Fatah Kulmiye
Counsel: M. Izadi, for the Accused
HEARD: April 4, 2024, at Thunder Bay, Ontario
BEFORE: R.S.J. W.D. Newton
Reasons on Criminal Standing Application
Overview
[1] Fatah Kulmiye and Mustaf Yusuf are jointly charged with seven offences related to trafficking in cocaine, possession of a prohibited firearm, and possession of the proceeds of crime. Mr. Yusuf is separately charged with breach of an undertaking, and possession a firearm when prohibited from doing so.
[2] On June 23, 2021, Thunder Bay Police Service officers executed a CDSA search warrant at 121 Maplewood Street South, in the City of Thunder Bay.
[3] That residence was owned and occupied by Janette Schutte.
[4] Upon execution of the search warrant, four individuals were found inside the residence: Janet Schutte, April Maclaurin, Mustaf Yusuf (who did not participate in this application and is believed to be in prison in Somalia: see R. v. Yusuf, 2023 ONCA 783), and Fatah Kulmiye.
[5] Mr. Kulmiye brings this application for an order that he has standing to challenge the search warrant.
The Facts
[6] Following R. v. Jones, 2017 SCC 60, Mr. Kulmiye relies upon the theory of the Crown’s case as the factual basis to establish the elements necessary for standing for s. 8 of the Charter.
[7] The facts are gleaned from the ITO, a statutory declaration from the homeowner (Ms. Schutte), and the application records filed by the parties.
The ITO
[8] On June 23, 2021, DC Bartol submitted the ITO for a warrant to search 121 Maplewood Street South, Thunder Bay. The information set out in the ITO included the following:
- an unnamed male and his associates are from the Toronto area and are currently operating a drug trafficking organization in Thunder Bay selling primarily cocaine
- using several locations within Thunder Bay
- three unidentified males are currently working together and selling from 121 Maplewood Street South
- Janet Schutte is believed to be instrumental in the distribution and sale of the controlled substances from her residence at 121 Maplewood Street South
- information from confidential informants regarding the sale of drugs from 121 Maplewood Street South has been corroborated through physical surveillance and computer checks
- Schutte works the door when they are selling from her place
- “Dion” and “Julio” are using Janet Schutte’s to sell from
- Dion described as dark black, very tall, skinny, 30s
- Julio described as Hispanic, 5’8”- 9”, fussy hair, beard, skinny
- Dion and Julio still at Schutte’s house – there right now
- there are two black males selling there
- side entrance is barricaded
Execution of the Search Warrant
[9] Mustaf Yusuf was arrested in the northwest bedroom. Found on his person was identification noting his address as an apartment in North York.
[10] Mr. Kulmiye was arrested in the hallway after running out of the northwest bedroom. When searched incident to arrest, Mr. Kulmiye had on his person approximately 65.24 grams of cocaine and $3,685 in Canadian currency. He identified himself and gave a Toronto address.
[11] In the northwest bedroom, the police found about 1,424 grams of cocaine with a street value of $142,000, cash in the amount of $45,110, a 9 mm semi-automatic handgun, and 76 rounds of 9 mm ammunition in a clear plastic bag.
Statutory Declaration of Janette Schutte
[12] Janette Schutte swore a statutory declaration on February 10, 2023, surrounding the execution of the search warrant and the items found within her residence. She deposed that she did not own, nor possess at any time, the items found in the northwest bedroom.
Positions of the Parties
The Accused
[13] Relying on R. v. Jones, 2017 SCC 60, counsel for Mr. Kulmiye submits that it is not a high burden or threshold to establish a reasonable expectation of privacy.
[14] Counsel submits that the description of one of the males is not incongruent with the description of the accused therefore establishing something more than a transient or momentary connection to the searched premises. With respect to the factors in R. v. Edwards, counsel argues that the accused’s presence at the time of the search and prior, are proof that he could regulate access to the premises leading him to possess a subjective and objectively reasonable expectation of privacy.
[15] Relying upon R. v. Deol, 2023 ONSC 138, counsel for the accused submits that where the Crown alleges a joint drug trafficking enterprise, even in a home where there is no evidence of actual tenancy, when a residence is used to conduct a trafficking business, the alleged owners and workers of that trafficking enterprise have as much expectation of privacy over it as anybody would have for things such as a storage unit or personal office space.
The Crown
[16] The Crown submits that is the accused’s onus to establish a reasonable expectation of privacy. Applying the Edwards factors, the Crown notes that the accused did not own the house, had no independent control over the premise, no right or authority to regulate access to the house, and, at best, a transient history of occupation of the premises. He was not entitled to be left undisturbed.
[17] The Crown argues that this case is more similar to R. v. Sangster, 2021 ONCA 21, and is distinguishable from Deol. In Sangster, the accused was a guest, had no control over the premises, no ability to regulate access, and no historical use of the apartment, having been a guest for about three weeks.
The Law
[18] In R. v. El-Azrak, 2023 ONCA 440, Fairburn A.C.J.O. provided a helpful summary of s. 8 and standing. She stated:
[27] Section 8 of the Charter does not exist to protect that which people want to keep private, solely because they want to keep it private. Nor does it exist to hide things that are incriminating, solely because they are incriminating. Rather, s. 8 exists for one purpose and one purpose only: to extend constitutional protection against unreasonable state intrusions to those individuals who have a reasonable expectation of privacy over the subject matter of a search. [Citations omitted.]
[28] In determining any s. 8 issue, the court must start by considering whether s. 8 is even engaged, in the sense that there was a search or seizure within the meaning of s. 8 of the Charter. This turns on whether the accused has a reasonable expectation of privacy in relation to the subject matter of the search. It is the accused’s onus to establish a reasonable expectation of privacy, failing which, s. 8 protection is not extended. Conversely, success in establishing a reasonable expectation of privacy is what grants the accused standing to pursue the s. 8 claim. [Citations omitted.]
[32] The factors for consideration in determining whether there exists a reasonable expectation of privacy are well-known and grouped under four headings that allow for analytical convenience. The test asks the following:
- What is the subject matter of the search?
- Does the accused have a direct interest in that subject matter?
- Does the accused have a subjective expectation of privacy in the subject matter?
- Would an expectation of privacy be objectively reasonable in the circumstances of the case? [Citations omitted.]
[33] Only where the answer to the fourth question is “yes” does the claimant have standing to assert a s. 8 right. If the court determines that the answer is “no”, then the state action cannot violate s. 8. The answer here is no. [Citation omitted.]
[19] Objective reasonableness is assessed in the “totality of the circumstances.” R. v. Mills, 2019 SCC 22, at para. 13; Edwards at paras. 31 and 45.
Analysis and Disposition
[20] The subject matter of the search was the house at 121 Maplewood Street South owned by Ms. Schutte.
[21] Although Mr. Kulmiye was found in the home when searched, he was a resident of Toronto. No personal belongings of his were found in the house. He was “just a visitor” (Edwards at para. 47). See also Sangster at para. 23. He had no authority to regulate access to the premises.
[22] If Mr. Kulmiye possessed a subjective expectation of privacy, that expectation of privacy was not objectively reasonable in the circumstances of this case.
[23] Contrary to what was argued by counsel for Mr. Kulmiye, the facts of this case are distinguishable from the facts in Deol. Mr. Deol’s link to the premises searched in that case was as the “directing mind” of Mr. Boya who was the registered tenant of those premises which were used as a storage unit.
[24] I conclude that Mr. Kulmiye has not established that he had a reasonable expectation of privacy in 121 Maplewood Street South or in the northwest bedroom of that residence.
[25] The application for standing is dismissed.
“originally signed”
Regional Senior Justice W.D. Newton
Released: 2024-05-06