COURT FILE NO.: CR-23-32 DATE: 2024/05/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KEMAR AKEEM SCARLET – and – HALEY MARIE PEYMAN Applicant/Accused

COUNSEL: J. Tekenos-Levy, for the Crown S. Agbakwa, for the Applicant/Accused, Mr. Scarlet J. Easton, for the Applicant/Accused, Ms. Peyman

HEARD: April 29, 2024

HOLOWKA J.

REASONS FOR DECISION

Section 8: STANDING

Overview

[1] The applicants bring an application for an order in the nature of a declaration that the applicant’s rights under section 8 of the Canadian Charter of Rights and Freedoms have been violated by the police. In terms of remedy, the applicants seek an order allowing the application and excluding all evidence pursuant to section 24 (2) of the Canadian Charter of Rights and Freedoms.

[2] The Crown concedes that Haley Peyman has standing to bring the Charter application but contests the right of Kemar Scarlet to do so. The Crown’s position is that Mr. Scarlet lacks standing to bring the application as he does not possess a reasonable expectation of privacy in the target apartment from which drugs were allegedly being sold.

[3] Orally, I have ruled that Mr. Scarlet has standing to pursue the Charter application with written reasons to follow. These are those reasons.

Positions of the Parties

Position of the Crown

[4] The Crown submits that the applicant, Mr. Scarlet, does not have standing to challenge the search warrant as he does not have a reasonable expectation of privacy in the apartment that was the target of the search.

[5] The Crown relies on R. v. Osman, 2023 ONSC 7199. That case applies R. v. Edwards, [1996] 1 S.C.R. 128, the leading case regarding the test to determine whether a reasonable expectation of privacy exists.

[6] In Osman, the police sought search warrants for two locations: a trap house (where illegal drugs were sold to consumers) and a safe house (where the product and money were securely kept).

[7] Justice F. B. Fitzpatrick found that Mr. Osman did not have a reasonable expectation of privacy in either of the two locations under consideration based on the factual matrix before him. Concerning a “trap house,” applying the Edwards analysis, he concluded that an alleged illegal use without a predicate legal one did not create a reasonable expectation. Mr. Osman’s mere presence at the time of the search did not establish a reasonable expectation of privacy. There were no indicia that Mr. Osman had any control over the location or even permission to be at it.

[8] In relation to the “safehouse”, the court found that there was minimal connection to it. He was not a privileged guest nor even an invited one. Examining the totality of the circumstances, the court concluded that Mr. Osman had a reasonable expectation of privacy. In coming to this conclusion, the court applied R. v. Jones, 2017 SCC 60, which permits an applicant to ask the court to assume as true any fact the Crown alleges against him without the need to adduce evidence probative of those facts on the application.

[9] The Crown submits that the applicant, like Mr. Osman, was merely present when the warrant was executed. The Crown alleges that Ms. Peyman rented the apartment. The Crown asserts that he is not relying on Mr. Scarlet’s knowledge and control of the items in the residence, merely the items in close proximity to him at the time of the search. He relies on the reasoning set out in Osman as dispositive of the question of standing.

The Position of the Applicant

[10] The applicant relies upon Jones and the Crown's allegations to establish that he had a reasonable expectation of privacy in the apartment. The applicant asserts that he is entitled to rely on the totality of the allegations against him despite the Crown's argument that the Crown is only relying on the items in close proximity to the applicant at the time of the warrant execution. The applicant submits that he was charged with possession of things in the apartment beyond his immediate proximity.

The Governing Law

[11] A claim for Charter relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. As a general rule, two distinct inquiries must be made in relation to the section 8 analysis. First, does the accused have a reasonable expectation of privacy? Second, if he has such an expectation, was the search by the police conducted reasonably?

[12] A reasonable expectation of privacy is to be determined based on the totality of the circumstances. See R. v. Colarusso, [1994] 1 S.C.R. 20 and R. v. Wong, [1990] 3 S.C.R. 36.

[13] The factors to be considered in determining whether a reasonable expectation of privacy exists include but are not limited to the following:

a. Presence at the time of the search; b. Possession or control of the property or place searched; c. Ownership of the property or place; d. Historical use of the property or item; e. The ability to regulate access, including the right to admit or exclude others from the place; f. The existence of a subjective expectation of privacy; and g. The objective reasonableness of the expectation.

[14] The issue of whether there was any violation of the Charter need not be determined if the applicant cannot establish standing based on their own rights being infringed. In Edwards, the court held that the applicant had not established that any personal rights had been affected by the police conduct at a search of a third party's premises. Accordingly, the court found it unnecessary to examine the police conduct. The applicant could not contest the admissibility of the evidence under section 24 (2) of the Charter.

[15] R. v. Jones, 2017 SCC 60 changed the landscape concerning standing. Jones held that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him instead of tendering evidence probative of those same facts on a voir dire. The applicant is entitled to rely on the Crown theory to establish facts to ground standing to challenge the warrant.

[16] As noted in R. v. Labelle, 2019 ONCA 557, “the overriding point of Jones is that an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order assert standing to challenge the reasonableness of a search.”

[17] The approach in Jones does not create automatic standing in territorial privacy cases. On this point, Labelle at, para 31, provides the following guidance:

The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the "totality of the circumstances" to determine whether the accused had a reasonable expectation of privacy in a particular territorial space: see Edwards, at para. 45; see also R. v. Reeves, 2018 SCC 56 (S.C.C.), at para. 28. Here, the appellant could rely on the Crown's position that the apartment searched was his residence in advancing his s. 8 claim. This was relevant both to establishing a subjective expectation of privacy and the objective reasonableness of that expectation. While possession or control of the place searched and/or ownership of the place searched are significant factors in the Edwards analysis (particularly in respect of the search of a residence), they are not by themselves determinative of whether an accused has a reasonable expectation of privacy in a particular place.

Analysis

[18] I find that Mr. Scarlet had a reasonable expectation of territorial privacy in the premises at 212-381 Bagot Street in Kingston, Ontario (“the apartment”).

Presence at the Time of the Search

[19] Mr. Scarlet was present at the apartment on July 14, 2021. Kingston police breached the door to the apartment to execute the section 11 Controlled Drug and Substances Act (“CDSA”) warrant. He jumped from the second-story balcony and was arrested shortly after that.

Possession or control of the property or place searched

[20] I find that Mr. Scarlet had some degree of control over the place searched, even if he is not the apartment renter.

[21] He is alleged to have possessed drugs for the purpose of trafficking, a firearm, ammunition and money in the apartment. Part of the allegations are that he possessed paraphernalia associated with drug trafficking. While the Crown argues that the Crown theory relies only upon the items in the immediate proximity of Mr. Scarlet, the apartment is small, and the allegations connect him to virtually all of the apartment except the bedroom.

[22] Mr. Scarlet is jointly charged with Ms. Peyman with the following offences:

a. Possession for the Purpose of Trafficking in a Schedule I substance (Fentanyl), contrary to section 5(3)(a) of the CDSA. b. Possession for the Purpose of Trafficking in a Schedule I substance (Cocaine), contrary to section 5(3)(a) of the CDSA. c. Possession of Property Obtained by Crime (Canadian Currency Exceeding Five Thousand Dollars), contrary to section 355 (a) of the Criminal Code. d. Possession of a Restricted Firearm Knowing Its Possession is Unauthorized (Ruger Model C9 Handgun), contrary to section 92(3) of the Criminal Code. e. Possession of Prohibited Ammunition Knowing Its Possession is Unauthorized (Three 9mm rounds), contrary to section 92(3) of the Criminal Code. f. Possession of Restricted Firearm Contrary to a Prohibition Order (Ruger Model C9 Handgun), contrary to section 117.01(3) of the Criminal Code. g. Possession of Restricted Firearm Contrary to a Prohibition Order (Ruger Model C9 Handgun), contrary to section 117.01(3) of the Criminal Code. h. Possession of Ammunition Contrary to a Prohibition Order (Three 9mm rounds), contrary to section 117.01(3) of the Criminal Code. i. Possession of Ammunition Contrary to a Prohibition Order (Three 9mm rounds), contrary to section 117.01(3) of the Criminal Code.

[23] The items seized as evidence against Mr. Scarlet came from a variety of locations in the apartment where he was found:

a. Canadian Currency (Location: Black Nike bag in the closet next to the kitchen) b. Three cellphones (Location: Couch in the living room) c. Notebooks containing alleged debt lists (Location: Living room coffee table near couch) d. Canadian Currency (Location: Plastic container in kitchen cupboard) e. Five baggies containing 10.8 grams of Fentanyl (Location: Plastic container in kitchen cupboard) f. Guns and Roses Weigh Scale (Location: On microwave near the kitchen) g. White crack cocaine (Location: On microwave in the kitchen) h. Powder cocaine (Location: On microwave in the kitchen) i. Drug paraphernalia (Location: On microwave in the kitchen) j. Plastic Bags containing cocaine (Location: Bag on the floor near a television on the south wall) k. Three rounds of 9mm ammunition (Location: Black box on the coffee table in the living room) l. Ruger Model C9 Handgun (Location: Black box on the coffee table in the living room)

[24] The information from confidential human sources (“CHS”) detailed in the information to obtain the CDSA warrant alleges that Mr. Scarlet kept the drugs in the kitchen and that he stayed at Ms. Peyman’s place to sell Fentanyl and Cocaine. I find that the allegation of the ongoing sale of drugs from that location by necessity imports a degree of control regarding access to the apartment.

Ownership of the property or place

[25] There is no suggestion or evidence that Mr. Scarlet owns the place to be searched. Indeed, it appears that Ms. Peyman is the registered tenant at the apartment.

Historical use of the property or item

[26] This factor also leads me to conclude that Mr. Scarlet possessed a reasonable expectation of privacy in the apartment.

[27] The CHS information indicates that the black male was dealing drugs at the apartment with Ms. Peyman. This allegation suggests that this was a joint enterprise. There is no suggestion that he was selling drugs at this location without the permission and participation of Ms. Peyman.

[28] The CHS information indicated that the unknown black male, now alleged to be Mr. Scarlet, did not usually leave the apartment. This suggests a consistent, ongoing use of and connection to the apartment.

The ability to regulate access, including the right to admit or exclude others from the place

[29] There is no direct evidence before the court regarding this factor. However, the information from the confidential human sources leads me to the conclusion that given that this was a joint enterprise to sell drugs from the apartment that, Ms. Peyman, the listed tenant at the apartment, and her co-accused had the ability to regulate access to the apartment.

The existence of a subjective expectation of privacy

[30] Mr. Scarlet did not testify on this application. There is no direct evidence of his subjective belief regarding an expectation of privacy.

[31] The threshold for establishing a subjective expectation of privacy is a low one and can be presumed in the absence of any admission or testimony from the applicant.

[32] As noted in Jones at para. 21, “[t]he importance of the subjective expectation element is therefore attenuated in the s. 8 analysis, and the evidentiary foundation required to establish that element is accordingly modest. A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant's testimony or admission at the voir dire (see Patrick, at para. 37; Tessling, at para. 38; Cole, at para. 43).”

[33] In paragraph 22, the Supreme Court in Jones addressed the pragmatic issues at play:

This modest evidentiary foundation also aligns with the practical reality of criminal proceedings. For the defence, it may be a dangerous gambit to call an accused to the stand. That is equally true in a voir dire, insofar as an accused's testimony may later be used for incrimination or impeachment purposes or result in tactical disadvantages. Therefore, to the extent that the subjective expectation element can be presumed or inferred in the circumstances, the law has not required an accused to assume the risks of testifying in order to prove that he subjectively expected privacy in the subject matter of the search.

[34] For this analysis, I presume Mr. Scarlet's subjective expectation of privacy in the apartment.

The objective reasonableness of the expectation

[35] I find that the applicant's expectation of privacy in the apartment is reasonable.

[36] The case before me is easily distinguishable from Osman. In that case, the judge found no expectation of privacy in relation to either a “trap house” or “safe house” associated with drug trafficking. The application judge found minimal connection between Mr. Osman and the two locations. The judge stated in paragraph 27, “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.”

[37] In Osman, the application judge reasoned in relation to the trap house as follows: “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.”

[38] In this case, the allegations, including the results of the search and the CHS information, establish a factual matrix that reveals more than mere presence at the location. The allegations connect him to items throughout the residence. The alleged dealing was not a one-time event. While Ms. Peyman was more closely associated with the apartment by, for example, her driver’s licence, the CHS information indicated that the unknown black male usually remained in the apartment and that the black male and Ms. Peyman were dealing drugs together. Evidence capable of supporting a conclusion that drug dealing was found throughout much of the apartment.

[39] The totality of the allegations establishes this objectively reasonable expectation of privacy.

Disposition

[40] I conclude that the applicant has standing to bring an application pursuant to sections 8 and 24 of the Charter regarding the CDSA warrant for the apartment executed on July 14, 2021.

Mr. Justice Brian Holowka

Released: May 27, 2024