COURT FILE NO.: CR-22-90000407-0000
DATE: 20240611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FAIAZ AHMED
Applicant/Defendant
David Quayat, for the Respondent Crown
Kim Schofield, for the Applicant/Defendant
HEARD: March 4, 5, 6, 7, 8, 11, 2024
J. R. Presser J.
REASONS FOR DECISION IN PREliminary MOTIONS
I. INTRODUCTION
[1]. On June 15, 2021 police attended at 85 Queens Wharf Road in response to a 911 call. Autumn Osborn, the domestic partner of the applicant Faiaz Ahmed, asked building security to call the police because the applicant had been abusive to her, and had been using fentanyl. The applicant was charged with domestic assault and arrested. In the arrest process, the applicant was questioned by police about his car after he asserted the right to counsel, but before he was given an opportunity to talk to his lawyer. He was not afforded the opportunity to consult with his lawyer for approximately one hour and 35 minutes after his arrest. The complainant made a videotaped statement to police in which she said the applicant assaulted her because she confronted him about having a large quantity of fentanyl in the unit they were living in with her young son. She said that the applicant loaded the fentanyl into a Fit4Less gym bag, left the apartment immediately after she did, and, she assumed, went to put the gym bag in his car. PC Majid found the applicant’s car parked on the road near 85 Queens Wharf Road and entered it, without a warrant, to retrieve the complainant’s child’s car seat. This officer re-entered the applicant’s unit without a warrant to secure it and look for a child’s toy. On this re-entry into the unit, PC Majid observed what he believed to be drug packaging and a digital scale in plain view. He testified that he did not realize until the morning before he testified these items may not have been present in the residence when he was first there to investigate the domestic assault. PC Harding attended at the building and with the assistance of security officers viewed building surveillance videotapes of the applicant carrying a Fit for Less gym bag, leaving his unit behind the complainant, in the elevator going down to the parking garage, getting into his car with the gym bag, and driving away. She recorded these surveillance videotapes on her body-worn camera (“BWC”).
[2]. Police sought and obtained a warrant to search the applicant’s apartment and his car. In the Information to Obtain the Search Warrant (“ITO”) DC Yepes relied on information police received from the security concierge who had called 911, the complainant’s videotaped police statement, the building surveillance videotapes recorded on PC Harding’s BWC, PC Majid’s observations in the unit, and Ministry of Transportation of Ontario (“MTO”) records relating to the applicant and his car.
[3]. The search warrant was executed on the applicant’s home and car in the early hours of June 16, 2021. In searching the car, police found and seized: significant quantities of fentanyl, cocaine, and crystal methamphetamine, over $40,000 in cash, a Glock .40 calibre handgun with seven rounds of ammunition, and some identification in the applicant’s name. Nothing of significance was found in the residence. The applicant, who was still detained on the domestic assault charges, was further arrested on drug and firearm charges and given his rights to counsel.
[4]. The applicant was tried before me on a blended Charter voir dire and trial. He was arraigned on counts 1, 2, 3, 4 and 7 on the indictment, namely: one count each of possession for the purpose of trafficking of cocaine, fentanyl, methamphetamine, contrary to s. 5(2) of the CDSA; one count of possession of the proceeds of crime over $5000 contrary to s. 354(1)(a) of the Criminal Code; and one count of possession of a loaded restricted firearm without authorization, licence or registration certificate, contrary to s. 95(1) of the Criminal Code. The applicant pleaded not guilty to all counts. He brought preliminary challenges to the admissibility of prosecution evidence. He sought exclusion of the drugs, gun, ammunition, cash, and BWC video of the surveillance videotapes under s. 24(2) of the Charter. He argued that police violated his rights under ss. 8, 9, 10(a) and (b) of the Charter multiple times. He also challenged the search warrant, arguing that when the necessary excisions and amplifications of the search warrant are made, the warrant could not have issued. Accordingly, the applicant argued, the search of his vehicle was unreasonable and violated s. 8 of the Charter. The applicant further argued that police conduct was so egregious as to have subverted the search warrant process, such that the warrant must be quashed. In the event that I do not exclude the BWC video of the surveillance videotapes under s. 24(2) of the Charter, the applicant submits that the BWC video is inadmissible because the Crown has not met its burden of establishing authenticity.
[5]. The Crown resists the applicant’s pre-trial challenges to the admissibility of the prosecution evidence, arguing that all the evidence is admissible. The Crown’s position is that, with two exceptions, there were no breaches of the applicant’s Charter rights. Crown counsel concedes two breaches of the applicant’s right to be free from unreasonable search and seizure under s. 8 of the Charter. The first arises from PC Majid’s warrantless entry into the applicant’s car, and the second arises from PC Majid’s warrantless re-entry into the applicant’s residence. However, in the Crown’s submission, the admission of the evidence would not bring the administration of justice into disrepute. Instead, in the Crown argument, the proper remedy for these Charter violations is excision from the ITO of information obtained in violation of the Charter. Even with excision, according to the Crown, the warrant could still have properly issued. The Crown further submits that the applicant has not met the high threshold required to establish that the police subverted the search warrant process. Finally, the Crown submits that it has properly met all requirements for admission of the BWC recordings of the building surveillance videos, and that these are therefore admissible at trial.
[6]. I have carefully considered the evidence, the written and oral arguments of counsel, and the governing authorities. I have come to the conclusion that the applicant’s right to be free from unreasonable search and seizure under s. 8 of the Charter was violated twice: when PC Majid entered his car and seized the child’s car seat without a warrant; and again when PC Majid re-entered his residence without a warrant and made observations. I have further concluded that the applicant’s right to counsel under s. 10(b) of the Charter was violated after his arrest on the domestic assault charges because he was not given immediate access to counsel, without justification. None of the other alleged Charter violations have been established. In my view, the admission of the evidence would not bring the administration of justice into disrepute. The appropriate remedy for the violations is excision of unconstitutionally obtained information. When appropriate excisions and amplifications are made to the ITO, the warrant could still have issued. The applicant has not established that police conduct subverted the search warrant process. The application for exclusion of evidence under s. 24(2) of the Charter is dismissed. Finally, I have concluded that the Crown has met its burden of authenticating the BWC copy of the building surveillance video and the requirements of the best evidence rule. The videos are admissible. These are my reasons for decision on these preliminary motions.
II. THE EVIDENCE
[7]. On June 15, 2021 Mr. Fenil Gorjiya was working as the security concierge at the front desk of 85 Queens Wharf Road. Between 11:30am and noon, Autumn Osborn, who Mr. Gorjiya knew as the partner of the tenant of unit 526 (the applicant), came down to the front desk and asked him to call 911 on her behalf. She told Mr. Gorjiya that her partner was being abusive to her, there was fentanyl in the unit, her son was in the unit, and she was afraid for her son’s safety. Mr. Gorjiya called 911. He considered this to be part of his job.
[8]. At approximately 12:00 pm, PCs Paul Millar and Cole Ridsdale received a call from their dispatcher to attend at 85 Queens Wharf in response to the intimate partner interaction called in by Mr. Gorjiya. They arrived at the building at 12:23pm and spoke with Mr. Gorjiya. At 12:32pm, the officers knocked on the door of unit 526. The applicant and the complainant both answered the door. The complainant’s young son was in the unit. PC Millar asked the applicant to step out into the hall to talk with him. PC Ridsdale spoke with the complainant in the unit. PC Ridsdale testified that the officers were trying to figure out why 911 had been called.
[9]. PC Millar asked the applicant what was going on. The applicant said that he was arguing with the complainant. He told PC Millar he could not say why the complainant was upset. He said she hates him, and that she is very emotional and gets very loud when they argue. The applicant verbally identified himself to PC Millar but did not have any identification.
[10]. The complainant told PC Ridsdale that she and the applicant had been fighting a lot. The argument on this day was about things she said the applicant was involved with, things she did not want in the house. PC Ridsdale asked whether that was drugs, and told the complainant that police were not there to get the applicant in trouble for drugs. The complainant either did not answer the question, or gave an answer that was inaudible on the officer’s BWC. PC Ridsdale testified that the complainant nodded affirmatively, but this was not visible on the BWC. The complainant told PC Ridsdale that the applicant was connected. She told PC Ridsdale that the applicant had pinned her to the floor by putting his knee into her ribs, and smacked her face twice. The complainant showed PC Ridsdale bruises on her forearms that she said were caused by the applicant.
[11]. At approximately 12:40pm, PC Terik Majid arrived at unit 526. PC Majid is a crisis intervention officer, who is often called in to assist on domestic calls. He entered and spoke with PC Ridsdale, who told him that he was going to arrest the applicant for domestic assault.
[12]. At 12:47pm, PC Ridsdale stepped out of the unit into the hallway, arrested the applicant, and charged him with assaulting the complainant. PC Millar read the applicant his rights to counsel from his memo book. The applicant said he wanted to contact counsel. PC Millar said that police would let him call a lawyer as soon as they were able to do so, when they could facilitate that in private.
[13]. PC Majid asked whether the applicant had identification. He said he did not, but that it was in his wallet. Officers asked where the applicant’s wallet was. He said it was in his car. Officers asked whether the car was parked in the building’s underground parking garage. The applicant responded that it was not. He said it was parked on the street nearby. Officers asked the applicant what kind of car he drives. He responded that it is a silver Hyundai Santa Fe SUV. PC Majid noted that the applicant’s ID could be confirmed by accessing MTO records. Officers conducted a pat down search of the applicant and located his house and car keys and a package of cigarettes. Then PC Millar read the applicant a caution.
[14]. The officers handcuffed Mr. Ahmed to the rear and escorted him out of the building. At 12:55pm, PCs Millar and Ridsdale seized the applicant’s keys and put him in the scout car. At 12:56pm, PC Ridsdale confirmed the applicant’s identity on the MTO database on the connected laptop in the scout car. The officers transported the applicant to 14 Division, arriving at approximately 1:16pm. PC Millar testified that they had to wait approximately 20 minutes at the station before the applicant was paraded before the Staff Sergeant. At 1:40pm, he was frisked, searched, and lodged in a cell.
[15]. At 2:00 pm, police placed a call to counsel Kim Schofield at the request of the applicant. Ms. Schofield returned the call at 2:21pm and spoke with the applicant.
[16]. PC Majid remained at unit 526 with the complainant, who was packing up her and her child’s possessions to leave the unit. Only the applicant was listed as a tenant of the unit. The complainant did not have keys, and was concerned about whether she would be able to get back into the unit to collect her and her child’s possessions after she had attended at the police station to give a statement.
[17]. The complainant’s child’s father, Marcus Nurse, arrived at the unit with his new partner, two children, and a dog. They were there to pick up the complainant and Mr. Nurse’s son and take him back to Mr. Nurse’s residence in Guelph. Between 12:53pm and 1:14pm, different combinations of the complainant, Mr. Nurse, Mr. Nurse’s partner, and the three children were unattended by police in unit 526. PC Majid left them in the unit while he waited in the hall, saying he would let the complainant “get organized.”
[18]. At 1:14pm, PC Majid stood in the door of the unit and had a conversation with the complainant, Mr. Nurse, and his new partner. They told him they needed the complainant’s child’s car seat to drive the child to Guelph. The car seat was in the applicant’s car. Different options for obtaining a car seat were discussed. Ultimately, PC Majid volunteered to take the applicant’s car keys from the police station when he took the complainant in to make a statement, find the applicant’s car, retrieve the car seat, and return with it to Mr. Nurse.
[19]. At 1:18pm, PC Majid left 85 Queens Wharf with the complainant. He left Mr. Nurse, Mr. Nurse’s partner, the two kids, and the dog in unit 526. He told the security concierge that they would be staying in the unit until his return. PC Majid drove the complainant to 14 Division, departing in his scout car at 1:22pm.
[20]. At 1:36pm, PC Majid and the complainant arrived at the police station. She met with DC Beaulac and gave a sworn videotaped statement. In it, the complainant said that that morning she saw that the applicant had left balls of what she believed to be fentanyl on the stove in the kitchen. She described these as four or five big balls that looked like rocks, dark grey in colour, wrapped in vacuum sealed bags. The complainant said that she confronted the applicant about what she found on the stove, and he slapped her across the face. She said that the applicant threatened that if she told anyone what she had seen, he would have someone take care of her. The complainant started getting her child ready to leave the unit. She said that the applicant would not let her and her child leave. He blocked the door to prevent them from leaving and took her phone. The complainant said that the applicant put the stuff from on top of the stove into a black and yellow Fit4Less gym bag. She tried to run out of the unit, but she said the applicant grabbed her by the hair, threw her to the ground, and pinned her down by digging his knee into her ribcage. The applicant then dropped her cell phone. She quickly picked it up and ran out of the unit. She said she ran down the stairwell to the lobby of the building and asked security to call 911. The complainant believed that when she ran out of the unit, the applicant followed her out of the unit, and took the Fit4Less gym bag down to his silver Hyundai SUV.
[21]. After leaving the complainant with DC Beaulac to give her statement, PC Majid retrieved the applicant’s keys from his property at the police station. He searched the MTO database and got the applicant’s car’s licence plate. He then drove around the streets near 85 Queens Wharf Road, looking for the applicant’s car. He located it parked on a city street, approximately three minutes’ walk from the building. At 2:08pm, PC Majid activated his BWC. He approached the applicant’s car and took multiple photos of its exterior from every side to document its condition. Then PC Majid unlocked the car using the applicant’s key. He opened the rear passenger door, removed the child car seat, closed the door, and locked the car. He did not open any other car doors or the trunk of the car. He put the car seat in his scout car and returned to 85 Queens Wharf Road.
[22]. PC Majid met Mr. Nurse in the lobby of the building at 2:23pm and gave him the child’s car seat. Mr. Nurse told PC Majid that he was concerned about his son being in harm’s way living with the applicant, and told the officer to pay close attention to what was on the couch in unit 526.
[23]. Mr. Nurse wanted to go back into the unit to look for his son’s toy trains. PC Majid, Mr. Nurse, and his partner went back to the fifth floor. As they approached the door to unit 526, PC Majid said that he needed to make a call because he wanted to make sure that he didn’t do anything “sideways.” He said he wanted to make sure he had grounds to go into the unit. He muted his BWC and called the Criminal Investigation Bureau at 14 Division. He spoke to Det Mansour, who advised him that because the unit had been left unsecured and unattended, he should enter the unit, make sure no one was inside, and then secure the unit.
[24]. PC Majid told Mr. Nurse and his partner that they could not enter the unit with him because they were not tenants. He re-entered the unit at approximately 2:30pm. He walked through the unit, announcing himself as Toronto police. No one was in the unit. PC Majid testified that he paused in the living room because he was trying to observe what Mr. Nurse had referred to. He observed what he thought appeared to be drug packaging on an upholstered chair in the living room. He also observed a digital scale in the kitchen. He did not find the toy trains Mr. Nurse had been looking for.
[25]. PC Majid exited the unit at 2:32pm and called Det Mansour to advise of the possible presence of drugs in the unit, based on his observations. Det Mansour told PC Majid to secure the unit and hold it for a search warrant. PC Majid waited in the hall outside unit 526 until he was relieved by other officers at 4:50pm. PC Majid did not re-enter the unit at any time after his exit at 2:32pm.
[26]. After he was relieved at the door of unit 526, PC Majid returned to the station and spoke with officers in the Major Crime Unit (“MCU”). He did not recall who he spoke to. He could not recall whether he ever spoke with DC Yepes, the search warrant affiant. He said he did not have any notes of a conversation with her.
[27]. At 4:30pm that day, PC Harding was tasked by Det Mansour with attending at 85 Queens Wharf to inquire about building surveillance videos and how to obtain them. Det Mansour told her that this was in relation to a domestic assault investigation. He directed her to look at the videos to see if the applicant was carrying a Fit4Less gym bag to his vehicle.
[28]. PC Harding arrived at 85 Queens Wharf at 4:47pm. She spoke with two security concierges, Yash Patel and Harish Kojhgurl. She told them she was there in relation to an incident that had taken place earlier in the day and said that she was looking for the applicant on building surveillance videos. She told them she was there in relation to a domestic assault investigation. They knew what she was talking about and had been expecting her. The security concierges did not ask PC Harding for a search warrant or a production order before letting her view the surveillance videos. She did not obtain a signed consent to search from them.
[29]. Some of the relevant videos were stored at 85 Queens Wharf, while others were stored at 75 Queens Wharf. These are two “sister” high rise condo buildings, managed by the same condominium corporation, the same management company, and the same security company.
[30]. The security concierge at 85 Queens Wharf, Mr. Gorjiya, testified that he met with PC Harding when she first arrived. He confirmed that he did not ask her for a search warrant or a production order because she was asking to see surveillance videos that related to the investigation of the case for which he had called 911. Mr. Gorjiya called his manager, who was at 75 Queens Wharf, to seek permission to show surveillance videos to PC Harding. Mr. Gorjiya said that his manager asked him some questions, including why he had called 911. Mr. Gorjiya told his manager what had happened, and the manager told him it was fine to give the surveillance video to the police. The videos of the fifth floor, the elevator, and the parking garage viewed and recorded by PC Harding were accessed at 75 Queens Wharf by a security concierge there. Mr. Gorjiya said he would have shown those videos to police if they had asked.
[31]. One of the security concierges at 75 Queens Wharf sat with PC Harding and reviewed surveillance videos until she found the relevant segments. The security concierge told PC Harding that there was a 5 to 10 minute difference between the time on the video time stamps and actual time. Neither of the security concierges made PC Harding aware of any problems or malfunctions with the surveillance videos. Mr. Gorjiya was not aware of any problems with the security cameras, other than that the timestamps were often off by 5 to 10 minutes.
[32]. PC Harding activated her BWC and recorded the relevant portions of the building surveillance videos. In the videos, a blonde woman whose clothing and appearance are the same as those of the complainant as depicted on PCs Millar, Ridsdale, and Majid’s BWC videos, runs down the fifth floor hallway and exits to the stairs. She is followed down the hall by a man whose clothing and appearance are the same as those of the applicant as depicted on PCs Millar, Ridsdale, and Majid’s BWC videos. He is carrying a black gym bag with yellow lettering. PC Harding testified that the lettering on the bag in the video said Fit4Less. The applicant gets on the elevator, exits to the garage on the P1 level, approaches a silver SUV parked in spot #53, gets into that vehicle with the black gym bag, and drives out of the parking garage.
[33]. PC Harding’s BWC recordings of the surveillance videos were shown to Mr. Gorjiya. He identified the blonde woman in one of the videos as the person who had asked him to call 911 on June 15, 2021. He identified the man carrying the black gym bag as the tenant in unit 526 of 85 Queens Wharf Road, the applicant.
[34]. After viewing and recording the relevant surveillance videos, PC Harding called Det Mansour and DC Moyer. She advised them that she had found videos showing what Det Mansour had asked her to find. She was asked to share the info she had found with DC Yepes. She did so.
[35]. At trial, the applicant sought and was granted leave to cross-examine the search warrant affiant on a limited number of areas. DC Yepes testified that she started her shift on June 15, 2021 at 4:00pm. She was assigned to the MCU. When she started her shift, she received information from the Criminal Investigation Bureau that there was a domestic assault that had given rise to a drug investigation. She spoke to DC Beaulac, who had taken the statement from the complainant, and reviewed DC Beaulac’s notes of the interview. DC Yepes understood that the complainant had said that the applicant put fentanyl in his car. This was the basis of her decision to continue the drug investigation into the applicant. She volunteered to be the search warrant affiant.
[36]. At 4:17pm, DC Yepes received an email from DC Moyer indicating the make, model, licence plate number, and location of the applicant’s car, and indicating the PC Majid had the car keys. DC Yepes testified that she spoke with PC Majid at 4:40pm. He told her that he had retrieved the keys from the applicant’s property at the police station. She testified that she did not ever know how officers had located the applicant’s car. PC Majid did not tell her that he had spoken with the applicant. PC Yepes had understood that other officers had arrested the applicant. She did not know that PC Majid was present at the time of the arrest. She did not know that PC Majid had spoken with the applicant.
[37]. When DC Yepes spoke with PC Majid, he also told her that he had entered unit 526 because he had been directed to clear and secure the unit. He told her that he had seen a digital scale and drug packaging in the unit, and that the unit was being held for a search warrant. She did not know and was not told whether the applicant was ever in the unit with the drug packaging, or what happened in the unit between the applicant’s arrest and PC Majid’s entry. DC Yepes testified that she assumed that the unit was held secure by police from the time of the applicant’s arrest.
[38]. At 5:45pm, DC Yepes spoke with PC Harding, who was at the applicant’s building at the time. PC Harding conveyed what she had seen on the surveillance videos; that the security concierges had told her that the applicant was the registered tenant in unit 526, and that they had told her he had parking spot #53 in the building on P1.
[39]. In drafting the search warrant ITO, DC Yepes included the information police received from: Mr. Gorjiya about the complainant’s statements to him; the complainant’s videotaped police statement; the building surveillance videotapes recorded on PC Harding’s BWC, and other information PC Harding learned at the building; and PC Majid’s observations in the unit, and MTO and CPIC records relating to the applicant and his car. The search warrants were authorized.
[40]. On June 16, 2021 at 1:19am, police executed the search warrant on the applicant’s silver Hyundai Santa Fe. They entered the vehicle using the keys that were seized from the applicant at the time of his arrest. By Agreed Statement of Fact, the applicant admitted that police found and seized the following items from his car:
• Registration and insurance documents for the vehicle in the applicant’s name;
• A black Lacoste satchel containing identification in the applicant’s name, including an Ontario Driver’s Licence, an Ontario Health Card, several bank and credit cards, and $680 in Canadian currency;
• A green Zara backpack and a black Fit4Less gym bag in a compartment in the trunk of the car. Police opened this compartment using a pry bar;
• Inside the green Zara backpack and the black Fit4Less bag, police located and seized what later tested to be: 5.32 kilograms of fentanyl; 791.80 grams of cocaine; 740.59 grams of crystal methamphetamine; 5.74 grams of crack cocaine;
• Inside the green Zara backpack, police also located and seized a black Glock .40 calibre handgun, which was loaded with seven rounds of ammunition; and
• Also inside the green Zara backpack, police located and seized $40,000 in Canadian currency, in four bundles of $10,000 each.
[41]. By Agreed Statement of Fact, the applicant admitted that the value of the fentanyl was between $239,400 and $855,000; the value of the cocaine was between $53,732 and $87,098; the value of the crystal methamphetamine was between $14,457 and $59,247; and the value of the crack cocaine was between $459 and $1,434. He admitted that the quantity of the drugs was such that their possession would have been for the purpose of trafficking. He further admitted that the gun met the Criminal Code definition of a prohibited firearm, and that he was not the holder of any permit or authorizations required by law to own or possess a firearm.
[42]. Police completed the search of the applicant’s vehicle at 1:46am on June 16, 2021. At 3:19am, the applicant was arrested on drug and firearms charges arising from the execution of the search warrant on his car. He was still detained in custody on the domestic assault charge at the time. He was given his rights to counsel and indicated that he wanted to speak with his lawyer. At 3:29am, a police officer telephoned the applicant’s counsel of choice, Kim Schofield. Voicemails were left for Ms. Schofield at 3:30am, 3:31 am, and 3:33am. An associate of Ms. Schofield’s returned the call at 9:05 am and spoke with the applicant.
[43]. On June 17, 2021, a police officer attended at 85 Queens Wharf to seize a copy of the building’s relevant surveillance videotapes. That video was corrupted. The only available evidence of the surveillance videos was PC Harding’s BWC copy of the videos.
III. THE ISSUES
[44]. The applicant seeks the exclusion of the drugs, gun, ammunition, cash, and PC Harding’s BWC copy of the surveillance videos. He seeks exclusion to remedy what he asserts were multiple Charter violations, and to remedy a bad search warrant that could not have issued once corrected and that he asserts arose from intentional police subversion of the search warrant process.
[45]. The issues to be determined on this application are:
• Did police violate the applicant’s rights under ss. 10(a) and 10(b) of the Charter by immediately investigatively detaining him in relation to the domestic assault allegation without advising him of his detention, the reason for it, or his right to counsel?
• Did police violate the applicant’s rights under ss. 9, 10(a), and 10(b) of the Charter by immediately detaining him in relation to the drug investigation without advising him of this investigative detention, the reason for it, or his right to counsel? Did these breaches continue for over 14 hours until the applicant was formally arrested on drug and firearm charges?
• Did police violate the applicant’s rights under s. 10(b) of the Charter by failing to hold off questioning him about his car and its location after he had asserted the right to counsel but had not yet been given access to counsel?
• Did police violate the applicant’s rights under s. 10(b) of the Charter by not facilitating immediate access to counsel?
• Did police violate the applicant’s rights under s. 8 of the Charter by entering the applicant’s car without a warrant to retrieve the car seat?
• Did police violate the applicant’s rights under s. 8 of the Charter by entering the applicant’s residence without a warrant?
• Did police violate the applicant’s rights under s. 8 of the Charter when they searched and seized surveillance videos from the applicant’s building without a warrant?
• Were portions of the ITO erroneous or based on unconstitutionally obtained material; or were there material omissions, such that excisions or amplifications of the ITO are required?
• Is there sufficient credible and reliable evidence in the ITO, after appropriate excisions and amplifications are made, to permit the issuing justice to find reasonable and probable grounds to believe that an offence was committed, and that evidence of the offence would be found in the applicant’s residence and vehicle?
• Even if there are still reasonable and probable grounds for the issuance of the search warrant, was police conduct so subversive of the search warrant process as to effectively amount to an abuse of process and require that the warrant be set aside?
• If the applicant’s Charter rights were breached, would the admission of the drugs, gun, ammunition, and BWC copy of the surveillance videos bring the administration of justice into disrepute? And
• If not, has the Crown met the evidentiary requirements for the admission of the BWC copy of the surveillance video in evidence at trial?
IV. ANALYSIS
A. THE FREE-STANDING CHARTER CHALLENGES
1. Did police violate the applicant’s rights under ss. 10(a) and 10(b) of the Charter when they arrived at unit 526 and began investigating the domestic assault complaint?
[46]. The applicant submits that he was immediately investigatively detained when PCs Millar and Ridsdale arrived at his residence and began investigating the call to 911. He submits that the officers breached his rights under ss. 10(a) and 10(b) by failing to advise him that he was detained, the reasons for the detention, and that he had the right to counsel at that time. The Crown submits that the applicant was not immediately investigatively detained. Rather, the police officers were broadly investigating the reasons for the 911 call. They had not yet formed grounds for detention or arrest. Because the applicant was not detained until his arrest on the domestic assault charge, police had no obligations under ss. 10(a) or 10(b) when they arrived and began investigating. The Crown submits that the applicant’s ss. 10(a) and 10(b) rights were not breached in this way.
[47]. I have concluded that the applicant was not immediately investigatively detained when PCs Millar and Ridsdale arrived at his residence and began investigating the domestic assault call to 911. Accordingly, his rights under ss. 10(a) and 10(b) were not engaged at that time. There was no Charter violation.
[48]. Police may investigatively detain an individual where, in the totality of the circumstances, there are objectively reasonable grounds to suspect that the person is connected to a particular offence and the detention is necessary: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. Not every interaction with police amounts to a detention, “even when the person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with police”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 23; Mann, at para. 19; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 36. When police believe that a crime has been, or may have been, recently committed, they may engage in preliminary questioning without giving rise to a detention within the meaning of ss. 9 and 10 of the Charter: Suberu, at paras. 3, 28; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 27.
[49]. A person in contact with police is detained, as opposed to delayed, when they no longer have the option to choose to walk away: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 25. This will arise when a person is physically or psychologically restrained by police: Grant (2009), at paras. 25, 28. Psychological detention can arise either where a person is legally required to comply with police direction or demand; or where there is no legal requirement to comply but a reasonable person in the subject’s position would feel obligated to do so, reasonably believing there is no choice to do otherwise: Grant (2009), at paras. 30-31; Le, at para. 25.
[50]. To determine whether a police interaction has crossed the line from delay to detention, a judge should consider three non-exhaustive factors against the backdrop of all the circumstances. These are: (i) the circumstances giving rise to the police encounter as they would reasonably be perceived by the individual; (ii) the nature of the police conduct; and (iii) the particular characteristics or circumstances of the individual: Grant (2009), at paras. 31, 44.
[51]. Investigative detention engages the right to be advised promptly of the reasons for the detention, under s. 10(a) of the Charter: Mann, at para. 21. It also engages the right to counsel, and the right to be informed of that right, immediately, under s. 10(b) of the Charter: Suberu, at para. 40.
[52]. In this case, the police attended at unit 526 in response to a 911 call. PCs Millar and Ridsdale were advised by their dispatcher and Mr. Gorjiya that the complainant had asked Mr. Gorjiya to make the call on her behalf in relation to a domestic incident. They were advised that the complainant was upset, had said her partner was abusive, that her child was in the residence, and that there was potential drug involvement. Mr. Gorjiya told the officers that the complainant had no visible injuries. He told them that the applicant had come down to the security desk while the complainant was there. They said the applicant was calm, did not put hands on the complainant, and asked her to return to the unit with him. Mr. Gorjiya told them that the complainant initially refused to return to the unit. She ultimately did return there before the officers arrived.
[53]. PCs Millar and Ridsdale discussed whether they should immediately go up to the unit, or wait until the crisis intervention officer, PC Majid, arrived. They weren’t sure of whether the complainant was a person in crisis. They weighed the potential risks to the complainant of waiting against the potential risks to their safety of inserting themselves into an unknown domestic situation. They considered that the complainant had had no visible injuries when she attended at the security desk. They spent approximately 10 minutes at security before deciding to wait no longer. When the officers arrived at unit 526, they listened at the door before knocking.
[54]. It is clear to me that while these officers knew they were responding to a domestic call, they were quite unsure of what they were heading into. They went into the residence with a view to ensuring that everyone in it was safe, and to investigating what had prompted the call to police. Indeed, PC Ridsdale testified that when he and PC Millar separated the applicant and the complainant and spoke to each of them separately, the officers were trying to figure out why 911 had been called. PC Millar testified that they were there to inquire into what had happened with the disturbance.
[55]. When the officers knocked on the door, the applicant answered. The complainant was there as well. PC Millar testified that the situation seemed innocuous. He said the applicant was calm and mild mannered. He noted that the complainant’s eyes were puffy and looked like she had been crying. He thought this meant that at a minimum, the parties had argued. The officers said they wanted to separate and interview the parties. PC Millar said they wanted to get information about whether anyone was injured, and to figure out who the victim was, if anyone. He wanted to get the applicant’s version of what had happened. He testified that he was investigating a domestic situation but wanted to learn whether this was just an argument or whether there had been an assault.
[56]. PC Millar talked to the applicant in the hallway, about five feet from the door of the unit. His language and tone were respectful and conversational throughout this interaction.
[57]. Mr. Ahmed stood leaning against the wall, in what appeared in my review of PC Millar’s BWC video to be a relaxed posture. The officer asked general questions about what gave rise to the 911 call. His questions were related to the information he had received from the 911 call and Mr. Gorjiya. PC Millar also inquired about the complainant’s mental health, and the applicant’s mental health. He asked whether the applicant was well. He testified that he considered it possible that the applicant was a victim, or also a victim. He considered it possible that the complainant had assaulted the applicant, and that the applicant was trying to protect her. PC Millar testified that he thought the applicant might be arrested, but that this was only one of a number of potential outcomes.
[58]. At one point during the hallway conversation with PC Millar, the applicant indicated that he wanted to go into the apartment to get a drink of water. PC Millar did not prevent him from doing so. He accompanied the applicant into the unit, and then asked the applicant to step back into the hall with him once the applicant had retrieved a bottle of water from the fridge.
[59]. PC Millar did not consider the applicant to be investigatively detained during the hallway conversation. He did not consider that he had grounds to detain. He said he did not want the applicant to leave and expected that the applicant would remain. PC Millar said that if the applicant had tried to leave, he might have become suspicious and detained him at that point. PC Ridsdale also testified that he did not think that the applicant had been detained by PC Millar.
[60]. I am satisfied that Mr. Ahmed was not immediately detained when police arrived at his residence, or when PC Millar initially questioned him in the hall. All the circumstances of this interaction satisfy me that the applicant was neither physically nor psychologically restrained by police. Police were conducting an investigation into a 911 call alleging domestic abuse, without having come to a view about whether an offence had been committed or, if it had, about who the perpetrator or perpetrators were. The officers were entitled, perhaps even required, to do so. They were engaging in preliminary questioning that did not give rise to a detention. An objectively reasonable person in the applicant’s circumstances would not have felt psychologically detained, given: the range of open-ended questions asked of the applicant by PC Millar; the officer’s physical distance and lack of physical contact with the applicant; the officer’s calm and respectful language and tone that did not convey a requirement of compliance; and his inquiries after the applicant’s and the complainant’s mental health. Mr. Ahmed was delayed for investigation, but not detained.
[61]. Accordingly, police were not required to advise him that he was detained, the reasons for detention, or that he had a right to counsel. There was no breach of the applicant’s ss. 10(a) and 10(b) rights when the officers arrived at his residence and began their investigation.
2. Did police violate the applicant’s rights under ss. 9, 10(a), and 10(b) of the Charter in relation to a drug investigation?
[62]. The applicant submits that he was immediately arbitrarily detained in relation to a drug investigation when PCs Millar and Ridsdale arrived at his residence and began investigating the 911 call, in contravention of his rights under s. 9 of the Charter. He submits that the officers did not advise him of this investigative detention, the reason for it, or his right to counsel, thereby violating his rights under ss. 10(a) and 10(b) of the Charter. The applicant further argues that these violations of his rights continued for over 14 hours until he was formally re-arrested and charged with the drug, firearm, and possession of proceeds offences. The Crown disagrees, arguing that the applicant was not detained in relation to the drugs until he was formally arrested in relation to them. The Crown submits that there was no obligation for the police to advise the applicant of an evolving investigation, particularly in light of the fact that they did not question him in relation to it or seek his cooperation with it. In the Crown submission, there was no violation of the applicant’s ss. 9, 10(a), or 10(b) rights in relation to the drug investigation.
[63]. I have concluded that the applicant was not detained in relation to the drug investigation until he was arrested and charged with respect to the drugs on June 16, 2021 at 3:19am. The police had no obligation to advise the applicant of an ongoing investigation where they did not seek to interview, co-opt, or conscript him to provide information or otherwise assist in that investigation. There was no violation of his ss. 9, 10(a), or 10(b) rights in this way.
[64]. PCs Millar and Ridsdale were aware that there was a possible drug angle in this case. They were advised by their dispatcher and by Mr. Gorjiya that the complainant had mentioned the involvement of fentanyl in the domestic situation.
[65]. PC Millar asked the applicant whether he had taken any drugs in the preceding 48 hours. The applicant said he had consumed some “weed.” PC Millar asked whether the applicant had taken any fentanyl or other narcotics. The applicant said he had not. The officer asked whether there were any drugs in the house, explaining that he was asking for the sake of the child’s safety. The applicant said there were not. PC Millar testified that, although he was aware that fentanyl may have been involved, he did not see this as a drug investigation. He saw this as primarily a domestic assault investigation.
[66]. When PC Ridsdale spoke with the complainant in the unit, she told him that she had argued with the applicant because of some “things” he was involved with that she did not want in the house. The officer asked her whether this was drugs. She did not give an audible response to the question, but PC Ridsdale testified that she nodded affirmatively. He told the complainant that police were not trying to get the applicant into trouble for drugs. Rather, PC Ridsdale said, he was trying to understand what the domestic argument was about. Later, the complainant told the officer that the applicant was very “connected.”
[67]. PC Ridsdale explained in his testimony that he understood the possibility that fentanyl was involved in this incident. However, he said he thought it was personal use of fentanyl. The officer testified that he did not see anything drug-related when he was in the unit. He was focused on investigating the domestic assault and did not turn his mind to investigating any possible drug-related offences. PC Ridsdale explained that civilians use the phrase “connected” in different ways. He said he did not take the complainant’s description of the applicant as “connected” too seriously. PC Ridsdale believed he was there to investigate a domestic assault.
[68]. PC Majid testified that he had no concerns about possible drug offences in this case until Mr. Nurse told him to pay attention to what was on the couch at 2:32pm. This officer was not present for the conversation PCs Ridsdale and Millar had with Mr. Gorjiya before they went up to unit 526. Nor was he present for PC Ridsdale’s initial questioning of the complainant. As a result, the only information he could have had about possible drug involvement would have come from police dispatch. He may well have had no reason for concern about drugs at this early stage in the case.
[69]. I accept the police officers’ evidence that they were not investigating possible drug offences. They were obviously aware that fentanyl may have played some role. But PCs Millar and Ridsdale’s interactions with the applicant and complainant – the questions they asked and the things they said about drugs – were focused on investigating the domestic situation and ensuring safety for the inhabitants of the residence. PC Ridsdale asked the complainant whether she had argued with the applicant because he had drugs in the unit and assured her that he was not there to investigate drugs. PC Millar’s questions were broadly focused on trying to learn the nature of the dispute between the parties, whether both parties were mentally and physically well, whether the presence of drugs or their use led to a confrontation or argument, and whether the complainant’s child was at risk. Neither officer pursued questioning in relation to drugs after their initial questions. By contrast, both officers asked multiple questions designed to discover and confirm what had happened in the domestic incident that led to the 911 call.
[70]. At this initial stage of police involvement, this was a domestic assault investigation, not a drug investigation. Police did not have grounds to detain Mr. Ahmed in relation to a drug investigation at this stage, and I find that they did not do so. There was no violation of the applicant’s rights under ss. 9, 10(a), or 10(b) when PCs Millar, Ridsdale, and Majid initially attended, investigated the domestic incident, and made the domestic assault arrest.
[71]. The applicant was arrested and charged with the assault on June 15, 2021 at 12:47pm. In my view, it was not until later that the drug investigation began. Two events subsequent to the applicant’s arrest on the domestic assault charge prompted the drug investigation.
[72]. One was PC Majid’s receipt of Mr. Nurse’s ‘tip’ and observation of a digital scale and what he believed to be drug packaging in the applicant’s residence at 2:30pm. He conveyed this information to Det Mansour at 2:32 pm and was told to hold the unit for a search warrant.
[73]. The other was the information provided by the complainant in her sworn videotaped police statement. The complainant had spoken cryptically, almost evasively, about the applicant’s involvement with drugs when she initially spoke with PC Ridsdale at the residence. By contrast, in her videotaped police statement, the complainant gave specific and detailed information about a large quantity of fentanyl. She gave evidence under oath that the domestic incident began when the applicant had four or five balls of fentanyl on the stove. She said that when she confronted him about it, he assaulted her, and then packed the drugs into a gym bag and left the unit. She said she believed he had put the gym bag containing the fentanyl into his car. This evidence from the complainant, alongside PC Majid’s observations, alerted the police to possible drug offences that went beyond mere personal consumption by the applicant.
[74]. The complainant gave her KGB statement at 14 Division after the applicant was arrested for domestic assault. This would have taken place sometime between 1:36pm when the complainant arrived at the station with PC Majid, and 4:00 pm when DC Yepes was advised that there was a domestic assault that had given rise to a drug investigation. DC Yepes spoke with DC Beaulac, who had interviewed the complainant at the station, and reviewed DC Beaulac’s notes of the interview. On the basis of the information provided by the complainant, DC Yepes decided to continue the drug investigation.
[75]. The information from the complainant, alongside PC Majid’s observations, alerted the police to possible drugs offences that went beyond mere personal consumption by the applicant. The information from both of these sources arose after the applicant’s domestic assault arrest.
[76]. The police had no obligation to advise the applicant that he was under investigation for drug offences, or advise him of his right to counsel in respect of it. There was no evidence that he was detained for investigation of the drug offences, and no suggestion or evidence that he was ever questioned in relation to it.
[77]. By the time the police began the drug investigation, they likely had grounds to investigatively detain the applicant in respect of it. If he had been at liberty and not otherwise detained at the time, police might well have detained him to investigate possible drug offences. But this does not mean that he was investigatively detained in relation to the drugs. Detention of the applicant for investigation into possible drug offences was not necessary in these circumstances. He was already in custody on the other charge. There was no risk of him destroying evidence, evading police, creating safety concerns for investigating officers or members of the public including himself, or committing further offences. Police did not question him about his involvement with drugs, or in any way seek to elicit information from him about drug offences. An objectively reasonable person in the applicant’s position would not have considered himself detained in relation to drug offences, or for any reason other than that he had been charged with a domestic assault and was awaiting a bail hearing. The applicant was not investigatively detained on the drug offences.
[78]. As a result, there was no violation of the applicant’s right to be free from arbitrary arrest or detention contrary to s. 9 of the Charter as the drug investigation commenced and evolved.
[79]. The applicant submits that police did have an obligation to advise him that he was being investigated for drug offences, and to advise him of his right to counsel because his jeopardy had changed. He relies on the Supreme Court decisions in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, and R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869. These cases establish that police are required to give a detained person a further opportunity to consult with counsel where there is a change in jeopardy such that the detained person is now facing (or potentially facing) significantly more serious charges than when they initially consulted counsel: Sinclair, at paras. 2, 52; Evans, at p. 892.
[80]. I agree that Sinclair and Evans stand for the proposition that in some circumstances, the constitution requires that a detainee be re-advised of their right to counsel, and given further opportunity to exercise that right. However, this constitutional requirement will arise “where developments in the course of the investigation make [it] necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not”: Sinclair, at para. 2. The police are only required to provide a further opportunity to speak with counsel if this is necessary to give the detainee “the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so,” and to allow him “to get the advice he needs to exercise his right to choose in the new situation”: Sinclair, at paras. 47-48.
[81]. In this case, the police did not question the applicant in relation to the drug investigation. They did not interview him or ask him to participate in that investigation in any way. The applicant did not have to make any choices about whether to cooperate with police or decline to do so; about whether to answer questions or exercise his right to remain silent. As a result, he was not in need of legal advice relevant to his right to make meaningful choices about whether to cooperate with the drug investigation or not. He was not asked to cooperate, and he did not do so. There was no violation of the applicant’s right to counsel when the drug investigation commenced and evolved.
3. Did police violate the applicant’s rights under s. 10(b) of the Charter by questioning him about his car after he asserted the right to counsel but had not yet spoken with counsel?
[82]. The applicant submits that police violated his right to counsel by questioning him about his car before he had been given an opportunity to consult with his lawyer. The Crown argues that police questioning about the applicant’s car did not violate his right to counsel. Police elicited information about the applicant’s car and its location because they were trying to identify him. He did not have any ID on his person or in his residence. His ID was in his wallet, which was in his car. In the Crown’s submission, the applicant’s car and its location did not have any investigative relevance at the time these questions were asked. The Crown submits that the duty to hold off questioning does not include questions unrelated to the investigation or the reason for the arrest.
[83]. In my view, police questioning about the applicant’s car was unrelated to the investigation and to the reason for his arrest. Police officers asked questions that were intended to help them positively identify the applicant. They were entitled to ask these questions as part of their identification of the applicant, a routine part of the arrest process. Police did not violate their obligation to hold off questioning the applicant until after he had spoken to his lawyer. There was no breach of s. 10(b) arising from these questions.
[84]. Section 10(b) of the Charter guarantees the right, upon arrest or detention, to retain and instruct counsel without delay and the right to be informed of that right. The right exists, among other reasons, to ensure that detained persons are aware of their right to silence and help guard against the risk of self-incrimination: Suberu, at para. 40; R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 71.
[85]. A detainee’s right to counsel creates three corresponding duties for the police officers detaining them. These are: (1) the duty to inform a detained person of their right to counsel (the informational duty); (2) the duty to give a detained person who wishes to do so a reasonable opportunity to exercise the right without delay (the implementational duty); and (3) the duty not to seek to elicit information from a detained person until they have had a reasonable opportunity to retain and instruct counsel (the duty to hold off): Lafrance, at para. 72; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at para. 21; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-12; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at p. 140.
[86]. It is the third of these duties that is at issue on this alleged breach of s. 10(b), the duty to hold off. In R. v. Dupe, 2010 ONSC 6594, the issue was whether the duty to hold off precluded the asking of standard questions as part of the booking process at a police station after arrest. The court held that there is no duty on police to hold off asking questions that are not asked for the purpose of eliciting incriminating evidence, or evidence relating to the offence at issue. Similarly, in R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 81, Code J. held that asking routine booking questions to obtain identifying information such as date of birth, address, height, and weight did not violate the duty to hold off. This is because such questions would not amount to “eliciting evidence from the detainee”; such questions “have no evidentiary value in relation to the charges against the accused”: Learning, at para. 81. In Dupe at paras. 24 – 25, Dambrot J. held:
[I]t seems clear that Lamer J. did not intend, in Manninen, to oblige the authorities to stop all questioning of the accused while he or she is given the opportunity to consult counsel. The use of the words “cease questioning or otherwise attempting to elicit evidence” to describe the requirement to hold off sheds light on the sort of questioning that is prohibited – questioning intended to elicit evidence, sometimes referred to as investigative questioning. Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited by the language in Manninen. Nor should they be. Prohibiting such questions would not enhance the purpose of s. 10(b). An accused does not require the advice of counsel to assist him or her in determining how to answer such questions, while the best interests of not only the accused but those around him demand that they be asked. An accused only requires the advice of counsel to assist him or her in determining how to answer questions designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation.
My understanding of the purpose of s. 10(b) is reinforced by the view expressed by Professor Stuart in Charter Justice in Canadian Criminal Law (5th ed.), (Toronto: Carswell, 2010), at p. 360, where he looks to Bartle, supra, to say that concerns about “protect[ing] the disadvantaged from the risk of self-incrimination” are at the core of s. 10(b), as an individual needs to be knowledgeable about how to exercise his or her legal rights. The fact that the answer to an innocuous question asked for a different purpose may prove to be useful to the Crown does not change the character of the questioning. [Emphasis added.]
[87]. In this case, all three police officers at the scene of the applicant’s arrest, PCs Millar, Ridsdale, and Majid, testified that the applicant’s car and its location had no investigative significance to them at the time. The officers had no interest in the applicant’s wallet or his car, beyond the fact that his identification was in his wallet, which was in his car. PC Ridsdale testified that the questions about the car related to identification, not to the case itself.
[88]. That identification was the purpose of this line of questioning is supported by an interaction between PC Majid and the complainant, caught on his BWC. As the applicant was being arrested, PC Majid went into the unit and asked the complainant whether the applicant had a wallet or any identification. The complainant said she did not know, and then began to search for the applicant’s wallet. She did not find it. It was then that PC Majid stepped back out into the hall to ask the applicant for his identification, which led to the further questioning about the wallet, the car, and its location outlined above.
[89]. The police had no reason to suspect that the car had, or might have, any connection to the domestic assault, or to any other offence, at the time they asked about it. The complainant did not mention her belief that the applicant had taken a gym bag containing fentanyl to his car until she gave her police statement. As noted, the complainant did not provide this information to police until well after the applicant’s arrest, and well after police asked him about his car. The officers who questioned Mr. Ahmed had no reason whatsoever to suspect that the car might have investigative significance to an investigation that had not yet commenced.
[90]. In these circumstances, I am satisfied that the police were not attempting to elicit incriminating evidence when they asked the applicant about his car. These were questions that sought information of no evidentiary value in the moment. They were innocuous when asked, relevant only to identifying the applicant - a routine part of the arrest process. That the questions later developed some significance to the drug investigation does not change the character of the questioning. Police did not violate the applicant’s rights under s. 10(b) of the Charter by failing to hold off questioning him.
4. Did police violate the applicant’s rights under s. 10(b) of the Charter by not facilitating immediate access to counsel?
[91]. The applicant asks the court to find that police violated his right to counsel by not facilitating immediate contact with his lawyer after he was arrested for domestic assault and again after he was arrested for the drug, firearm, and proceeds offences. The Crown position is that police diligently facilitated access to counsel as soon as it was reasonably practicable to do so privately. The Crown asks the court to find that there was no breach of s. 10(b) in this regard.
[92]. In my view, police violated the applicant’s right to counsel by failing to facilitate immediate access to his lawyer after he was arrested and charged with domestic assault. There was no similar breach after the applicant was re-arrested and charged with the second set of offences.
[93]. The informational duty under s. 10(b) of the Charter requires that police inform a detained or arrested person of the right to speak with counsel without delay. If a detained person wishes to exercise the right, police must immediately provide them with a reasonable opportunity to do so: Suberu, at paras. 2, 38, 42; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25. Police have a constitutional obligation to facilitate access to counsel “at the first reasonably available opportunity”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24 – 25.
[94]. There are, however, some circumstances in which courts have recognized that a delay in implementing the right to counsel may be justified: Rover, at para. 26. These include:
• Where required for officer or public safety: Rover, at para. 26; Learning, at para. 75; R. v. Sidhu, 2011 ONSC 2054, at paras. 113-115 and 122;
• Where required for the accused’s safety: R. v. Strehl, 2006 CanLII 39572 (Ont. S.C.), at para. 4;
• Where required to preserve evidence: Rover, at para. 26;
• Where required to gain control of the arrest scene and search for restricted weapons known to be there: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-999, cited in Rover, at para. 26;
• In specific circumstances relating to the execution of search warrants: Learning, at paras. 71 – 75, cited in Rover, at para. 26;
• Where the detained person would not immediately be able to consult with counsel in private. This is because “[c]onsultation in private is a vital component of the s. 10(b) right”: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 77.
[95]. Police must turn their minds to the specific circumstances to determine whether there is some reasonable basis for delaying access to counsel. Delay will not be justified by “concerns of a general or non-specific nature applicable to virtually any” case: Rover, at para. 27. Even where case-specific justifying circumstances do exist, police must still take “reasonable steps to minimize the delay in granting access to counsel”: Rover, at para. 27; R. v. La, 2018 ONCA 830, 366 C.C.C. (3d) 351, at para. 40.
[96]. Where there is delay in giving a detained person access to counsel, the burden is on the Crown to demonstrate that the delay was reasonable in the circumstances: R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 73, citing Taylor, at para. 24.
[97]. In this case, the applicant was arrested and charged with domestic assault on June 15, 2021 at 12:47pm. PC Millar immediately read him his rights to counsel. He responded that he would like to speak with a lawyer. PC Millar told him that police would let him call a lawyer as soon as they were able to do so, when he could speak to counsel privately. Police officers called counsel of choice at 2:00pm. She returned the call at 2:21pm and spoke with the applicant, one hour and 34 minutes after he had indicated his desire to speak to a lawyer.
[98]. PC Millar testified that, in his experience, there is always some delay between giving the right to counsel, assertion of the right, and when the detainee can be given access to the right. PC Millar said he had never immediately facilitated the right to counsel.
[99]. The one hour and 34 minute delay between Mr. Ahmed’s arrest and his telephone call with his lawyer meant that he was not immediately afforded a reasonable opportunity to exercise his right to counsel. It is clear that PC Millar delayed putting the applicant in contact with counsel until he was at the police station to ensure that they could have a private conversation. But it is equally clear that PC Millar did not turn his mind to the specific circumstances of this case to determine whether this was a reasonable basis for delaying access to counsel here. The officer relied, as he effectively said he always did, on the fact that privacy would be easiest to guarantee at the station. This was “a general or non-specific” concern “applicable to virtually any” case: Rover, at para. 27. It was as if PC Millar felt he did not need to facilitate immediate access to counsel, or even to consider how that might be accomplished, because he was excused from doing so by a generalized privacy concern.
[100]. In my view, PC Millar’s non-specific concern for privacy did not justify the delay in facilitating the applicant’s contact with counsel. Police were required to turn their minds to these particular circumstances, and to take reasonable steps to minimize the delay here: Rover, at para. 27. To hold otherwise would make a mockery of the requirement that access to counsel be facilitated immediately. Police could always cite some concern for privacy and never have to put a detainee in contact with counsel right away.
[101]. The Crown called no evidence of case-specific concerns justifying the delay in giving Mr. Ahmed access to counsel. None of the officers who were present at the arrest testified to having safety concerns, other particular reasons for deferring implementation of the right, or to having even considered whether there was a way to give the applicant access to counsel privately more quickly. In these circumstances, I find the Crown has not met its burden of demonstrating that the delay was reasonable. The applicant’s right to consult counsel without delay under s. 10(b) of the Charter was violated after his arrest for domestic assault.
[102]. By contrast, I find that the applicant’s right to counsel was not violated after he was re-arrested on June 19, 2021 at 3:19am. Police officers called the applicant’s lawyer at 3:29am, some ten minutes after his arrest. Voicemails were left for counsel at 3:30am, 3:31am, and 3:33am. An associate of counsel returned the call at 9:05am and spoke with the applicant.
[103]. In my view, police did endeavour to facilitate the applicant’s access to counsel immediately on this occasion. It is through no lack of effort on the part of the police that the applicant did not speak with a lawyer for several hours. The police did not defer or delay implementing access. They did what they could to give effect to the applicant’s right to counsel right away. There was no breach of the applicant’s right to consult counsel without delay under s. 10(b) after his arrest on the drug, firearm, and proceeds of crime charges.
5. Did police violate the applicant’s rights under s.8 of the Charter by entering his car without a warrant and taking the child’s car seat?
[104]. The applicant submits that PC Majid violated his right to be free from unreasonable search and seizure when the officer entered his car and retrieved the child’s car seat, without a warrant. The Crown concedes that this warrantless entry into the applicant’s vehicle violated s. 8 of the Charter.
[105]. I agree.
[106]. A person has a reasonable expectation of privacy in their car, albeit one that is lower than the expectation of privacy in a home: R. v. Belnavis, [1997] 3 S.C.R. 34, at paras. 38-39. I accept that Mr. Ahmed had a reasonable expectation of privacy in his car.
[107]. Where a Charter claimant has succeeded in establishing that there is a reasonable expectation of privacy, a warrantless search will be prima facie unreasonable. The onus rests on the Crown to establish on a balance of probabilities that a warrantless search was reasonable: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 29; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 32.
[108]. PC Majid agreed that he had no lawful authority to take the applicant’s keys from his property at the police station. He agreed that he had no lawful authority to enter the applicant’s vehicle. He explained that he entered the vehicle on a good faith basis to assist with the safe transport of the complainant’s child. He agreed that there were other possible options for getting a car seat suggested by the complainant, Mr. Nurse, and his partner, but that he volunteered to look for the applicant’s car to retrieve the car seat.
[109]. The Crown did not seek to establish that this warrantless entry into the applicant’s car, and seizure from it, were reasonable.
[110]. I am satisfied that PC Majid violated the applicant’s s. 8 rights when he entered the car and took the car seat without a warrant.
6. Did police violate the applicant’s rights under s. 8 of the Charter by re-entering residence without a warrant?
[111]. The applicant asks me to find that PC Majid violated his right to be free from unreasonable search and seizure when he re-entered the applicant’s residence without a warrant. The Crown concedes that this warrantless entry into the applicant’s residence violated s. 8 of the Charter.
[112]. I accept that Mr. Ahmed’s s. 8 rights were violated when PC Majid entered his home without a warrant.
[113]. It has long been recognized that there is an extremely high expectation of privacy in one’s home: R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 19; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 45. R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 41.
[114]. The evidence established that the applicant was the tenant of 85 Queens Wharf Road, unit 526. It was his home. I accept that the applicant had a high expectation of privacy there.
[115]. PC Majid agreed that a search warrant is required before police can enter a private residence. He acknowledged that he did not have one before he re-entered unit 526. Indeed, in the moment, the officer was concerned about whether he had lawful authority to enter the unit. He paused before entering, telling Mr. Nurse and his partner that he wanted to make sure he did not do anything “sideways,” and that he had grounds to enter the unit. PC Majid called Det Mansour, who directed him to enter the unit to clear and secure it. He did so. He also suspected, after receiving Mr. Nurse’s tip, that there might be evidence of drugs on the couch. He wanted to look for that, as well as for toys for the complainant’s child.
[116]. Police entry to secure premises or to prevent the destruction of evidence is a form of search: Silveira, at para. 140.
[117]. Section 11(7) of the CDSA authorizes police to search a place “without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.” In R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, the Supreme Court considered the meaning of “exigent circumstances” in this provision. The Court concluded, at para. 37, that:
[I]n order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives.
[118]. There was some concern in this case that someone could have accessed the unit while it was left unlocked and unattended. Such a person could, in theory, have entered the unit and been in the process of destroying evidence. However, access to the unit was restricted. The evidence from Mr. Gorjiya was that no one could get from the lobby to the elevators or up to the residential floors in the elevators or by the stairs without a key or a fob. As a result, the unit was only accessible to building staff and residents of the fifth floor, or their guests. Moreover, when PC Majid left the unit to take the complainant to give her statement, Mr. Nurse and his party were still there. PC Majid told the security concierge that they were going to remain in the unit until he returned. When PC Majid arrived back at 85 Queens Wharf, approximately an hour and 15 minutes later, Mr. Nurse was in the lobby. It was not clear how long Mr. Nurse had been out of the unit, or why he left it, but the unit may have only been left unattended and unlocked for a very short time.
[119]. On this evidence, the risk of someone having accessed the unit to destroy evidence was speculative and theoretical, unless that someone was Mr. Nurse and his partner. This was unlikely here. Mr. Nurse told PC Majid to be on the lookout for evidence in the unit. This was not something that someone who had destroyed evidence would say.
[120]. The potential risk to officer safety posed by a person who could have entered the unit would have been no greater if PC Majid had waited for a warrant before entering. In fact, risk to officer safety would arguably have been diminished if he had waited to enter the unit with the other officers attending the execute the warrant.
[121]. I conclude that the Crown did not establish that PC Majid’s warrantless re-entry into the unit was compelled by urgency. Nor that the situation called for his immediate action to preserve evidence, officer or public safety. Nor that taking the time to obtain a warrant would have posed serious risk to those imperatives.
[122]. This warrantless entry into the applicant’s residence was unreasonable. It violated his rights under s. 8 of the Charter.
7. Did police violate the applicant’s rights under s. 8 of the Charter when they searched for and seized surveillance videos of common areas of the applicant’s building?
[123]. The applicant submits that his right to be free from unreasonable search and seizure was violated when PC Harding viewed and recorded surveillance videos of the fifth floor hallway, the elevator, and the parking garage at 85 Queens Wharf Road, without a search warrant or production order. He argues that he has a reasonable expectation of privacy in these common areas of his building, which was violated when PC Harding viewed and recorded surveillance videos of him in these areas, without lawful authority. The applicant submits that there was no valid consent by building security authorizing the search and seizure. The Crown’s position is that the applicant’s s. 8 rights were not violated in this way. The Crown submits that the applicant had no reasonable expectation of privacy in the parking garage of his building, and that he had only a very reduced expectation of privacy in the hall and elevator. Notwithstanding a low expectation of privacy in some of the videos, in the Crown submission, the search and seizure was authorized by law. This is because building security validly consented to provide the videos to police, as they are legally entitled to do.
[124]. I have concluded that the applicant’s s. 8 rights were not violated when PC Harding viewed and recorded surveillance videos of the common areas of the applicant’s building. Mr. Ahmed had a very reduced reasonable expectation of privacy in the parking garage, the elevator, and the areas outside the elevators, and a somewhat higher but still low reasonable expectation of privacy in the fifth floor hall. Accordingly, s.8 was engaged. However, I have concluded that the search and seizure were authorized by law because there was a valid consent from building security.
(a) Did the applicant have a reasonable expectation of privacy in the common areas of his building?
[125]. Section 8 of the Charter is only engaged when a person has a reasonable expectation of privacy in the thing or place searched and/or seized: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 159; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 30.
[126]. A person will have a reasonable expectation of privacy in a “biographical core of personal information,” including information which “tends to reveal intimate details of the lifestyle and personal choices of the individual”: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293. Section 8 of the Charter has been held to protect people, not places: Hunter, at p. 159. Nonetheless, there can be a reasonable expectation of privacy in a place, particularly places where intimate and personal activities take place: R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 44- 45; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22. The recognized high expectation of privacy in one’s home is an example of such territorial privacy: Gomboc, at paras. 22, 44-45.
[127]. The determination of whether an individual has a reasonable expectation of privacy is highly context and case specific. It must be assessed in the totality of the circumstances, with reference to a non-exhaustive list of factors set out in Edwards, at para. 45:
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.
[128]. In R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18, the Supreme Court grouped the factors to be considered in assessing the reasonable expectation of privacy under four principal headings for analytical convenience, as follows:
i. The subject matter of the search;
ii. The claimant’s interest in the subject matter;
iii. The claimant’s subjective expectation of privacy in the subject matter; and
iv. Whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
(i) What was the subject matter of the search?
[129]. Courts are to adopt a broad, holistic, and functional approach to characterizing the subject matter of a search, one that examines “the connection between the police investigative technique and the privacy interest at stake”: R. v. Bykovets, 2024 SCC 6, at para. 38, citing Spencer, at para. 26. The subject matter is to be “defined functionally, not in terms of physical acts, physical space, or modalities of transmission”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 15. Properly characterizing the subject matter of the search requires an assessment not only of the information sought itself, but of what that information may further reveal. This requires consideration of the information sought, but also “the tendency of information sought to support inferences in relation to other personal information”: Bykovets, at paras. 38, 42; Spencer, at paras. 26-27, 31.
[130]. In this case, police sought video recordings of the applicant’s movements within his building on June 15, 2021. They wanted these videos because they were seeking information that they hoped would link the applicant, unit 526, a black Fit4Less gym bag, and the applicant’s car. This was information that could, if it existed, connect the applicant to the movement of illegal drugs, corroborate the complainant’s police statement, and provide grounds for a warrant to search the applicant’s unit and his car.
[131]. The subject matter of this search was not just Mr. Ahmed’s building address, unit number, or parking spot number. It was not merely to determine his comings and goings from the building. Considered functionally, the subject of this search was broader. Police wanted to search for and seize information about the applicant’s movements and activities within the building, from which some of his activities in his own home, his own car, and outside the building, could be inferred. Adopting a broad and functional approach of the subject matter that considers what the information sought may tend to reveal, I conclude that the subject matter of this search is properly characterized as information about the applicant’s movements and activities, from which some lifestyle choice and biographical core information could be revealed.
(ii) Did the applicant have an interest in the subject matter of the search?
[132]. In my view, Mr. Ahmed had a direct interest in video recorded visual images of him, and in his movements and activities in his building, particularly as these movements and activities had the potential to reveal some of his activities within his home, his car, and outside the building.
(iii) Did the applicant have a subjective expectation of privacy in the subject matter?
[133]. A Charter claimant must have had a subjective expectation of privacy in the subject matter of the impugned search for s. 8 to be engaged. However, subjective expectation of privacy is not a high hurdle. It does not necessarily require explicit testimony. It may be presumed or inferred from the circumstances: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37.
[134]. The applicant did not testify on these preliminary motions. As a result, there is no evidence directly from him that he had a subjective expectation of privacy in the subject matter of this search. That having been said, most people expect at least some degree of privacy or anonymity when they are moving about in the world, even in public places: Spencer, at paras. 41 – 44, 48; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527. The expectation of privacy as anonymity would be especially pronounced in the building one lives in, their own home, and their own car.
[135]. Weighed against the usual expectation of privacy as anonymity that can typically be presumed, is the reality that there were visible surveillance cameras throughout 85 Queens Wharf Road and signs advising people in the building of them. As I will discuss further below, it would have been apparent to residents of the building that their movements were being recorded, at least in some common areas. However, in my view, the visible presence of surveillance cameras may reduce a person’s subjective expectation of privacy without eliminating it. An expectation of privacy may be attenuated without being eliminated: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 48. Privacy is not an all-or-nothing right: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 108. A person may subjectively have a reduced expectation of privacy without having no expectation of privacy at all.
[136]. Moreover, in my view, the visible presence of surveillance cameras is a factor that is more relevant to whether an expectation of privacy is objectively reasonable than to whether the expectation subjectively exists. As a matter of common sense and experience, people may know they are being routinely recorded but assume that in the ordinary course the videos are not viewed, or not viewed by police. They may feel their movements are essentially private notwithstanding the presence of surveillance cameras.
[137]. I am prepared to infer that, in all the circumstances, the applicant had at least some subjective expectation of privacy in his activities and movements in his home, his car, and his building.
(iv) Was the applicant’s subjective expectation of privacy objectively reasonable?
[138]. In a number of cases, courts have considered whether there is an objectively reasonable expectation of privacy in the common areas of multi-unit buildings. The Crown relies on caselaw that stands for the proposition that there is no reasonable expectation of privacy in the parking garage of a multi-unit building: R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, at paras. 78-80; R. v. Drakes, 2009 ONCA 560, 252 O.A.C. 200, at paras. 17-18; R. v. Nguyen, 2022 ONSC 4994, 517 C.R.R. (2d) 215, at para. 30. And only a much-reduced expectation of privacy in other common areas: Yu, at paras. 59, 69; White, at paras. 45, 47-50; R. v. Khiar, 2021 ONSC 4677, at para. 100; R. v. Nguyen, 2022 ONSC 1102, at paras. 96, 104.
[139]. I agree that the cases relied on by the Crown have decided that there is no reasonable expectation of privacy in the parking garages of multi-unit buildings, and only a much-reduced expectation of privacy in other common areas of such buildings. However, in my view, there is no one-size-fits-all categorical rule to be applied to the determination of reasonable expectation of privacy. It must be assessed in the totality of the circumstances, specific to the particular case. For this reason, “[a] more nuanced, contextual approach is required”: White, at para. 41.
[140]. Courts considering the objective reasonableness of an expectation of privacy in common areas of multi-unit dwellings in the totality of the circumstances have assessed a number of factors. These loosely correspond with the non-exhaustive Edwards factors set out above. They are:
• The size of the building. The larger the building, the greater the number of people who are likely to have access to the common areas. Even in a locked building, it is reasonable to assume that the number of people who have access to common areas will depend on the size of the building. The greater the number of people who have access to common areas, the less objectively reasonable an expectation of privacy will be: White, at para. 45; Yu, at paras. 36, 68;
• Whether the building is locked, and whether it has security features to exclude outsiders. Whether the common areas at issue are accessible or visible to the general public. Whether the building has security features that prevent even other residents from accessing certain areas. Whether there is control over access to the building, and even if control is not absolute, whether it would be reasonable to expect that security systems would operate to exclude strangers, including police, from entering common areas without permission or invitation. The greater the control over access to the common areas at issue, the more objectively reasonable an expectation of privacy is likely to be: White, at para. 47; Yu, paras. 68, 80, 82, 87; R. v. Batac, 2018 ONSC 546, 402 C.R.R. (2d) 252, at para. 42;
• Ownership of a unit: White, at para. 45; Yu, at para. 68. A unit owner may have a more objectively reasonable expectation of privacy in a multi-unit building than a tenant or temporary guest. However, ownership is not determinative. A registered tenant or keyholder, or a person who regularly sleeps in the building may also have a reasonable expectation of privacy: Batac, at para. 42;
• Whether property management is conducting video surveillance of common areas. If so, this may suggest that residents have already given up some expectation of privacy in common areas: Yu, at para. 36;
• Whether it would be apparent to residents that the common areas were being recorded by surveillance video, or whether residents would reasonably expect the area to be subject to surveillance. Whether surveillance cameras are visible. Whether management gave notice of the existence and location of cameras. If residents are reasonably aware that common areas are being recorded this may diminish the reasonableness of an expectation of privacy: Yu, at para. 83, 85; Khiar, at paras. 89, 99; R. v. Samir, 2024 ONSC 844, at para. 29;
• Degree of possession or control exercised over the common areas: Yu, at para. 68. Whether the common area being recorded is close to the person’s residence. Whether the common area being recorded is commonly used or is a main area accessed by all residents and guests. The expectation of privacy is likely to be higher the closer the area recorded is to a person’s residence. The expectation of privacy is likely to be lower in commonly used or main areas of the building: Yu, at para. 84; Khiar, at para. 92;
• Whether the surveillance is intrusive by being broad in location and/or time. If the surveillance is continuous, if it covers a long period of time, multiple instances, or a large physical space, there is likely to be a higher expectation of privacy. If the surveillance is for short discrete periods, there is likely to be a lower expectation of privacy engaged: Yu, at para. 89; Khiar, at paras. 92, 99; Batac, at paras. 42-45; and
• Whether the condominium board and property management had the authority to consent to the release of surveillance videos to police, or whether residents ought to have reasonably expected that they did. If building management had the authority to consent to release of videos to police, or residents ought to have expected that they did, this may reduce the reasonableness of an expectation of privacy in the common areas recorded Yu, at paras. 59. 70-75, 90-94; Samir, at paras. 28, 29.
[141]. The evidence relevant to these factors, and to an assessment of reasonable expectation of privacy in the totality of the circumstances of this case, are as follows.
[142]. 85 Queens Wharf Road is a large building. It has 45 floors, and between 400 and 500 units. Its sister building, 75 Queens Wharf Road, is the same size. This means that there would have been 10 or 11 units on each floor of each building, and likely 1000 people or more living in each building.
[143]. The entrance from the foyer into the lobby is locked. There is a security desk in the lobby of the building, where the security concierge sits. There is typically one security concierge working at the front desk at all times. To access the elevators, people have to walk by the security desk. The door from the lobby to the elevators is also locked. Access is restricted to key fob holders or their guests. The elevators also require a fob to be able to access the residential floors. The doors from each floor to the stairs, and from the stairs to each floor, were also locked. The exception to this rule is the doors between the hall and the stairs on every fifth floor, which were unlocked to serve as a cross-over floor. The locked doors between the halls and the stairs required a key. Only building security concierges had master keys that opened all doors between the stairs and the halls on every floor. Residents’ keys only opened the stair doors on their own floor. Residents could purchase a master key that would allow them to access every floor, but Mr. Gorjiya could not recall whether master keys were available for tenants to purchase at the time of these incidents in 2021.
[144]. The parking garage for 85 Queens Wharf was underground on three levels, and was shared with 75 Queens Wharf Road. Access to the parking garage was by fob access or by intercom and buzzer from the outside. A person with a fob could access all three levels of the parking garage. The garage had both resident and visitor parking.
[145]. The applicant was the registered tenant of unit 526. He lived there, slept there, and was the keyholder. It was his home.
[146]. There were security cameras in the common areas of the building, including the halls on residential floors, the elevators, and the parking garage. The cameras were visible, not hidden. They were black globe-shaped surveillance cameras. According to Mr. Gorjiya, they were plainly visible. There was a sign near the security desk in the main lobby notifying everyone that there were surveillance cameras in the building. It said, “you are under surveillance.” Mr. Gorjiya could not recall whether there were similar signs in or near the elevators, halls, or parking garage.
[147]. The videos viewed and recorded by PC Harding were captured by surveillance cameras in the hall on the fifth floor of 85 Queens Wharf Road, the area outside the elevator on the fifth floor, the inside of an elevator, the area outside the elevator on the P1 level of the parking garage, and parts of the P1 level of the garage. The fifth floor hall video depicts the floor on which the applicant’s residence is located. The camera is quite far down the hall from the applicant’s unit, and depicts the hall outside quite a few units. This is an area that would have been accessible to all of the residents of the fifth floor, their guests, and building management and security. The video of the area outside the fifth floor elevator does not show the applicant’s residence. It was also an area that would have been visible to anyone on the elevator when the doors opened on the fifth floor. The videos of the inside of the elevator depicts a space that was common to all residents of the building and their guests. The video of the areas outside the elevator on the parking garage level P1 and of the parking garage itself would have been accessible to all residents of 75 and 85 Queens Wharf who parked their cars in the building, as well as anyone using the visitor parking.
[148]. Each video depicts a relatively discrete area. Each is of very short duration, no longer than three minutes. All of the videos relate to the same date and time period. According to the date and time stamps on the original videos, all of them were created on June 15, 2021, over a short period just before noon. It should be noted that the authenticity of these videos, including the accuracy of their date and time stamps, is challenged by the applicant in these preliminary motions, a matter to which I will return below. For the purposes of assessing the applicant’s expectation of privacy in the common areas that were videotaped, the salient factor is that all the videos relate to the same single day, all within a short timeframe.
[149]. There was no evidence as to whether building management and/or security had authority to consent to the release of surveillance videos to the police. Mr. Gorjiya, who was no longer working at 85 Queens Wharf by the time of trial, could not remember the building policies around release of surveillance videos to police. However, he testified that the practice of building security was to consent to release of videos and provide resident information in cases where security had called police, with authorization from a manager or supervisor.
[150]. On these facts, I find that the applicant had a very reduced reasonable expectation of privacy in the parking garage, the elevator, and the areas outside the elevators; and a somewhat higher, but still low, reasonable expectation of privacy in the fifth floor hall.
[151]. This was a very large building, with many residents. All of its residents had access to the elevators. All of them would have seen the area outside of the elevator on the fifth floor when they were on the elevator and the doors opened there. The building shared its parking garage with 75 Queens Wharf. All tenants who parked in either building had access to all levels of the joint parking garage and the areas outside the elevators on the parking levels. The fifth floor was accessible to fewer people, typically only those who lived there and their guests, and building staff. The sheer number of people who had access to all common areas recorded here, with the possible exception of the fifth floor hall, suggests that that the applicant did not have a reasonable expectation of privacy in those areas.
[152]. However, the building strictly controlled access. Only fob or key holders, and those invited or permitted in, could access the building’s common areas. This would have created the correct impression in a reasonable person that even the common areas were not open to the public. One might not have a reasonable expectation of privacy as against one’s neighbours or building management in a large building like this, without losing a reasonable expectation of privacy as against the general public. It would have been reasonable for the applicant to expect that the building’s security systems and concierges would function to exclude strangers, including the police, from common areas without permission or invitation: White, at paras. 47-48. This was a situation in which the applicant’s expectation of privacy was attenuated, but not completely eliminated: White, at para. 48.
[153]. There was no evidence as to the location of visitor parking relative to residents’ parking, or as to whether the residents’ parking was visible from the visitors’ parking. However, this parking garage was not open to the public. It was not a lot into which anyone could drive, take a ticket, and pay to park. Visitors to the building had to be brought into the parking garage by a tenant with a fob, or buzzed in by the security concierges. The movement of people and cars within the garage would have been visible to many other residents and their guests, but not to anyone else. In a public parking garage, open and accessible to all and sundry, there would be no reasonable expectation of privacy: Nguyen, 2022 ONSC 4994, at para. 30. However, in this parking garage, it would have been reasonable for the applicant to expect that strangers would be excluded, without permission or invitation. In these circumstances, the applicant had a very attenuated but not completely eliminated expectation of privacy in the garage.
[154]. The applicant did not own his unit. But he was the registered tenant and keyholder. He was ordinarily resident in it. As a non-owner tenant, he would not have had an ownership interest in the common spaces. And he would not have had the same control over building policies in relation to building security systems, access, or control as owners likely did through the condominium corporation. The applicant would have had a very limited to non-existent ability to regulate or control access to the common areas of the building. But because he was ordinarily resident in a building in which there were so many security measures to keep out non-residents, it would have been reasonable for him to have at least some expectation of privacy as against non-residents.
[155]. The applicant would have known that there was video surveillance of the common areas in the building. The cameras were visible and obvious. There were signs, at least in the lobby, giving notice of the surveillance. There were monitors running surveillance camera footage on the security desk in the lobby. These were under the counter of the security desk, but were visible as one walked by the security desk toward the door to the elevators. There can be no doubt that a reasonable person would have been aware that the common areas of the building were being recorded, and that the videos were available to be viewed by building security concierges. This would have resulted in a meaningfully reduced expectation of privacy vis-à-vis building security and management, but not necessarily vis-à-vis agents of the state: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 57.
[156]. The security concierges’ practice of consenting to provide surveillance videos to police in cases where they had called police with authorization from their manager or supervisor suggests that they had authority to consent to release of this material. A reasonable person would have expected that building management or security could give police access to building surveillance videos: Yu, at para. 92. This is because, “[t]he video cameras were there for security, and it would be reasonable to expect that the police may become involved in security issues”: Samir, at para. 28. This would have reduced the objective reasonableness of an expectation of privacy in the common areas of the building, even vis-à-vis agents of the state.
[157]. There are factors here that tell in favour of a finding that the applicant had an objectively reasonable, if low, expectation of privacy. And other factors that indicate that a reasonable person would have known that they had extremely limited or no privacy at all. At the end of the day, as the Supreme Court held in Bykovets, at para. 71:
Defining a reasonable expectation of privacy is an exercise in balance. Individuals are entitled to insist on their right to be left alone by the state. “At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection” (Tessling, at para. 17).
[158]. The applicant had a high expectation of privacy in his activities in his residence and a somewhat diminished but still real expectation of privacy his car. Some of these, which reflected lifestyle choices, tended to be revealed from his movements through the common spaces in his building. At the same time, he lived in a large multi-unit dwelling in which he had little control over, or ability to regulate access to, common areas that he knew were surveilled.
[159]. The “many Canadians who live in multi-unit dwellings” are entitled to a “measure of privacy protection,” “no less than those who live in detached homes”: White, at para. 51. Balancing that imperative against the important need for effective law enforcement in the totality of the circumstances of this case, I conclude that the applicant had a low expectation of privacy in the common areas of his building.
(b) Were the search and seizure of the surveillance videos authorized by law?
[160]. A warrantless search that intrudes on a reasonable expectation of privacy is presumptively unreasonable. The onus shifts to the Crown to establish that the search was authorized by law: Yu, at para. 63.
[161]. In multi-unit buildings, building management may grant permission to police to enter and investigate. Management may consent to provide surveillance videos and/or information to police. Actual consent by building management will provide lawful authority for a search and seizure: Yu, at paras. 73, 75. Police search and seizure of building surveillance videos after valid consent is given by building management or security will not violate s. 8 of the Charter: Yu, at para. 102.
[162]. The applicant argues that the consent given by the security concierge in this case was not valid, or not proven by the Crown, for two reasons. The first is that while Mr. Gorjiya obtained permission from his manager to share the videos with police, he was not the security concierge who actually shared them with PC Harding. The security concierge at 75 Queens Wharf Road who did share the videos with the officer did not testify at trial. There was no evidence that that security concierge had obtained permission to share videos with the police.
[163]. With respect, I do not accept that this undermines a finding of consent on the part of building security in all the circumstances. Mr. Gorjiya testified that he met with PC Harding, obtained permission from his manager, and showed the officer the surveillance videos of the complainant attending at the security desk at 85 Queens Wharf requesting a call to 911. He said that PC Harding then had to go over to 75 Queens Wharf Road to view the videos of the other common areas of the building. PC Harding testified that the security concierge from whom she obtained the videos at issue was expecting her, knew what she was there to investigate, assisted her in locating the relevant portions of video, and knowingly allowed her to record them on her BWC. I infer that the security concierges in the two sister buildings conferred about PC Harding’s investigation, and that the consent of Mr. Gorjiya’s manager was conveyed to the security concierge who gave PC Harding access. I find that Mr. Gorjiya called the security concierge at 75 Queens Wharf Road, explained the situation that gave rise to the police investigation, including building security’s involvement in it, and told the other security concierge that the manager had authorized them to cooperate with police by sharing videos. The second officer’s advance knowledge of the reason for PC Harding’s attendance, and his willingness to assist by showing her the videos, would not make sense otherwise.
[164]. The second reason for which the applicant says the consent of security personnel was not valid is that, in the defence submission, Mr. Gorjiya’s consent was based on inaccurate and misleading information about the nature of the police investigation. He would not have consented if he had had accurate information.
[165]. PC Harding told Mr. Gorjiya she was there to investigate the domestic assault incident. She did not say anything about investigating possible drug offences. Mr. Gorjiya did not ask the officer for a search warrant or a production order. He explained that when security concierges in the buildings called 911, they did not ask police for a court order authorizing police search and seizure of information as part of their investigation in the matter. Mr. Gorjiya said that because he had called police, he was prepared to show them videos in relation to why he had called them. In cross-examination, Mr. Gorjiya said that he would have shared any videos and information related to the domestic assault investigation, but he would not have shown them anything unrelated to the domestic assault investigation without a court order. He said he would not have shared videos with police who just walked in off the street, unrelated to an investigation he had called them for, unless they had a search warrant.
[166]. I do not accept that Mr. Gorjiya’s consent was invalid in this way. In my view, a fair understanding of Mr. Gorjiya’s evidence was that he would not require a court order to share information relating broadly to an investigation arising from a 911 call he had made. I did not understand him to have been saying that he would only share information in relation to a specific charge, in this case, a domestic assault charge. Rather, I understood him to be saying that he would share information in relation to the police investigation of an incident he had called in, even in the absence of a warrant. It was not clear that Mr. Gorjiya knew that the domestic assault in this case evolved into a drug investigation and charges, even when he testified at trial. This was not put to him. As a result, I am not satisfied that he appreciated that he was being asked whether he would have shared videos if he knew PC Harding was investigating drug charges as opposed to domestic assault charges, both of which arose out of the incident about which he had called 911. The only reasonable interpretation of Mr. Gorjiya’s evidence in these circumstances is that he would have consented to the release of the videos even if he had known that police were investigating drug offences because police were investigating the matter about which he had called 911.
[167]. In any event, Mr. Gorjiya did receive information from the complainant that the applicant had used drugs. He reported this to 911 and to PCs Millar and Ridsdale. The drug investigation in this case arose, albeit in small part, from Mr. Gorjiya’s involvement in this case. If PC Harding had only been investigating possible drug offences, that would have qualified as being an investigation into the incident about which the security concierge called 911. Even on the applicant’s narrow interpretation of the basis of Mr. Gorjiya’s consent, he validly gave his consent here.
[168]. In addition, PC Harding testified that she had been instructed to obtain surveillance videos in furtherance of a domestic assault investigation. She had limited information about the applicant possibly being in possession of drugs or a gun. But she was directed to investigate a domestic assault, and that is what she believed she was doing. I have no reason to disbelieve or reject her evidence on point. In fact, the surveillance videos were relevant to the domestic assault investigation because they had the potential to corroborate the complainant’s police statement. Not only in relation to the applicant’s involvement with drugs, but also in relation to the domestic assault allegations. PC Harding told Mr. Gorjiya that she was investigating a domestic assault charge, which she believed. I accept that she was. Even if Mr. Gorjiya did only consent to release of the surveillance videos on that basis, as the defence contends (and I do not accept), his consent was premised on an accurate appreciation of what was being asked of him, and why. That the surveillance videos might also further a drug investigation did not invalidate his consent.
[169]. The Crown has succeeded in establishing that building management validly consented to provide the surveillance videos to police. The search and seizure was authorized by law. The applicant’s right to be free from unreasonable search or seizure was not breached.
[170]. I note that the applicant alleged a further related s. 8 breach arising out of information that building security personnel shared with police. He submitted that information about the location of his parking spot in the building garage, and the car that was registered to that spot, were obtained by police from building security in violation of his s. 8 rights. PC Harding testified that she obtained this information from one of the security concierges. Mr. Gorjiya testified that he would have shared this information with police if he had been asked, for the same reasons he gave for his willingness to share the videos without a warrant. He was prepared to assist the police in their investigation of the incident for which he had called 911. I accept that the applicant had a reasonable but low expectation of privacy in relation to the information about his vehicle and where he parked it in the building. However, for the same reasons outlined above in relation to the surveillance videotapes, I find that building security validly consented to share this information with police. There was no s. 8 breach in relation to it.
B. THE CHALLENGES TO THE SEARCH WARRANT
1. Overview
[171]. The applicant seeks a sub-facial review of the search warrant. He submits that unconstitutionally obtained evidence should be excised from the ITO. He further submits that the ITO should be amplified to include information that was omitted by the affiant in contravention of her duty to make full, fair, and frank disclosure to the issuing judge. The corrected ITO, according to the applicant, could not have issued. In the alternative, the applicant argues that police conduct was so subversive of the search warrant process as to amount to an abuse of process and require that the warrant be quashed. The Crown agrees that the observations made by PC Majid on his warrantless re-entry into unit 526 in violation of s. 8 should be excised from the ITO. The Crown position is that no other excisions, and no amplifications, are required. In the Crown submission, there were still sufficient grounds in the corrected ITO for the warrant to issue. The Crown submits that police conduct was not subversive of the search warrant process, and that the applicant has not met his burden of establishing that the warrant should be quashed on this basis.
[172]. I have concluded that the observations made by PC Majid on his unconstitutional entry into the applicant’s residence should be excised from the ITO. No other excisions or and no amplifications are required. Even with the required excision, there is still sufficient credible and reliable information in the ITO for the warrant to have issued. Police conduct did not amount to subversion of the warrant process. I decline to set the search warrant aside.
2. Applicable Legal Principles
[173]. A search warrant is presumptively valid. The burden is on the party challenging a warrant to establish that it is not. On review, the question for the reviewing judge is whether the ITO contained sufficient credible and reliable information to allow the judge at first instance to issue the warrant: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. The test for issuance of a warrant is whether there are reasonable and probable grounds to believe that an offence was committed, and that evidence of that offence would be found at the time and place of the proposed search: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
[174]. A search warrant challenge may be facial or sub-facial: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 2017, at para. 120. A facial challenge asks the reviewing judge to determine whether, on the face of the ITO as it was presented to the issuing judge, the test for the issuance of a warrant was met: World Bank, at para. 120. A sub-facial challenge asks the reviewing judge to determine whether the record before the issuing judge did not accurately reflect what the affiant knew or ought to have known, and whether, if it had, the warrant could have issued: World Bank, at paras. 120-121; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 48.
[175]. On a sub-facial challenge, the reviewing judge:
• Excises any unconstitutionally obtained information from the ITO: World Bank, at para. 120, citing R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223;
• Excises any information that the affiant knew or should have known was false, inaccurate, or misleading, from the ITO. The test is not whether the information in the ITO is ultimately true, but what the affiant knew or ought to have known at the time they swore it: World Bank, at paras. 34, 119, 121; R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at paras. 57-59; and
• Amplifies the ITO by adding any material information that was improperly omitted in contravention of the affiant’s duty to make full, fair, and frank disclosure. This includes information that would hinder a finding of reasonable and probable grounds, and information that challenges the reliability and credibility of the information the affiant relied on to establish grounds for the warrant. An ITO will be amplified with additional information if the applicant establishes that the affiant knew or ought to have known the information and included it in the ITO in order to make full, fair, and frank disclosure: World Bank, at paras. 120-122; Phan, at para. 50; Booth, at paras. 55-59.
[176]. Once the necessary excisions and amplifications have been made, the reviewing judge assesses whether the warrant could have issued on the basis of the corrected ITO. The test is whether there is sufficient credible and reliable information upon which the issuing judge could find reasonable and probable grounds to believe that an offence was committed, and that evidence of it would be found at the time and place of the proposed search: Phan, at para. 53.
[177]. Even where a warrant could have issued on the basis of an ITO as corrected by excision and amplification, the reviewing judge has a residual discretion to quash a warrant on the basis of police subversion: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 62, 69. For the issuing judge to exercise this discretion, the applicant must establish that police conduct was so egregious as to subvert the search warrant process, effectively amounting to an abuse of process: Paryniuk, at paras. 62, 69; R. v. Downes, 2022 ONSC 4308, 514 C.R.R. (2d) 153, at para. 43.
3. Were portions of the ITO erroneous or based on unconstitutionally obtained material; or were there material omissions, such that excisions or amplifications of the ITO are required?
(a) Excision of unconstitutionally obtained information
[178]. The applicant asked me to excise all information obtained in violation of his Charter rights from the ITO. In his submission, that included all information:
• About his car and its location, that he says was obtained when police breached their obligation to hold off questioning him in violation of his s. 10(b) rights;
• About his car and its location, that he says was obtained when police violated his s. 8 rights by entering his car without a warrant;
• About police observations in his residence, when they violated his s. 8 rights by re-entering his residence without a warrant; and
• About the surveillance videos from his building, that he says were obtained by police in violation of his s. 8 rights.
[179]. The Crown agrees that the breach of the applicant’s s. 8 rights when police re-entered his residence without a warrant should result in the excision of the observations made at that time. In the Crown submission, there are no other excisions required.
[180]. I agree that PC Majid’s observations in the applicant’s unit, made during the officer’s unconstitutional entry, should be excised. This was information obtained in violation of the applicant’s s. 8 rights, and it has no place in the ITO. The following will accordingly be excised from the warrant:
• Paragraph 15(i): “During this time PC MAJID observed a scale as well as drug packaging in plain view inside the unit.” The balance of paragraph 15(i) is not excised, and remains in the ITO: “The unit is being held by Police pending this ITO”; and
• Paragraph 26(d): “During the time that police attended the unit, they observed in plain sight drug scales as well as empty drug packaging.”
[181]. I decline to excise the information relating to the surveillance videos of the common areas of the applicant’s building. I have already found that there was no breach of the applicant’s right to be free from unreasonable search and seizure occasioned by PC Harding’s viewing and recording of these videos. As a result, no excision is required.
[182]. This leaves the question of whether information about the applicant’s car and its location should be excised from the ITO. The ITO contains the following information related to the applicant’s car:
• Paragraph 8 – that the affiant provided a videotaped police statement in which she said that she believed the applicant had concealed a bag containing four or five large balls of what she believed to be fentanyl in his vehicle;
• Paragraph 9(b) – the affiant sets out that she is seeking a warrant to search 526-85 Queens Wharf Road and a silver Hyundai Santa Fe – CMFX347 – parked on Queens Wharf Road, west of Dan Leckie Way;
• Paragraphs 15(b) and 15(c) – that PC Kenny [who now goes by the name of PC Harding] attended at 85 Queens Wharf Road and learned from the security concierge that the applicant has parking spot #53 on the P1 level of the parking garage, and the licence plate number of the vehicle registered to that spot;
• Paragraphs 15(d)(ii), (iii), (iv), (v), (vi), and (vii) – observations of the applicant in the parking garage, attending at his vehicle, and driving away in it, made by PC Harding on her review of the surveillance videos, including screen captured photos of the applicant and the car from the video;
• Paragraphs 15(e), (f), and (g) – that that applicant was in possession of his car keys on arrest; that PC Majid retrieved the car keys from the applicant’s property at 14 Division after the complainant said she needed her son’s car seat, which was located in the applicant’s car; and that PC Majid delivered the car seat to the complainant’s child’s father;
• Paragraphs 18, 19, and 20 – information about the applicant and his car’s make, model, colour and licence plate number that the affiant learned from her searches on the MTO and CPIC databases;
• Paragraph 27 – a summary of the above information;
• Paragraph 29 – a statement of the affiant’s belief that evidence of drug offences will be located in unit 526 at 85 Queens Wharf Road and in the silver Hyundai Santa Fe bearing licence plate CMFX347, parked outside on Queen Wharf Road and Dan Leckie Way
[183]. In my view, none of the information about the applicant’s car or its location should be excised from the ITO.
[184]. I have already found that police did not violate the applicant’s rights under s. 10(b) of the Charter when they asked him questions about his car and its location. And that police did not violate the applicant’s rights under s. 8 of the Charter when they obtained information about the applicant’s car and parking spot from building security. No excision of information is required on these grounds.
[185]. The live remaining question is whether PC Majid’s warrantless entry into the applicant’s vehicle in violation of s. 8 requires some excisions from the ITO. I conclude that it does not. PC Majid’s entry into the vehicle and seizure of the car seat violated the applicant’s right to be free from unreasonable search and seizure. But PC’s Majid’s finding of the vehicle parked on a city street did not. PC Majid had lawfully obtained information that the applicant’s car was a silver Hyundai Santa Fe, parked on the street nearby. He queried the MTO database and learned the vehicle’s licence plate number, which he was legally entitled to do. Armed with this properly obtained information, PC Majid drove around to look for the applicant’s vehicle and found it. There was nothing untoward in him having done so. It was proper police investigative work. That PC Majid used the applicant’s keys, that he had no authority to take, to make an unlawful entry and seizure from the car, does not change the lawful nature of his location of the car. The car’s position on the street was discoverable through normal and legal police work, even without PC Majid’s subsequent Charter-violative search and seizure. The information about the applicant’s car and its location were not unconstitutionally obtained. They will not be excised from the ITO.
(b) Amplification by inclusion of omitted material information
[186]. The applicant submits that DC Yepes failed in her duty as affiant to make full, fair, and frank disclosure in the ITO in two ways. The first was in failing to disclose that some of the information included in the ITO was obtained in potentially unconstitutional ways. The second was in failing to disclose that the digital scale and drug packaging observed by PC Majid on his re-entry into the unit were not present when he first attended at the unit. The scene had been tampered with, or staged, to incriminate the applicant. The applicant submits that this information should have been disclosed to the issuing judge. It was materially relevant to whether there were reasonable and probable grounds for the search warrant to issue, and to the credibility and reliability of the complainant and her information. The applicant asks me to amplify the ITO by including this information. The Crown position is that there were no material omissions from the ITO. The only Charter violation that resulted in information that was included in the ITO was PC Majid’s warrantless entry into the applicant’s residence. Any issues arising from the omission of this information, in the Crown’s submission, is fully remedied by excising PC Majid’s observations in the unit. The Crown submits that the apparent tampering with the applicant’s residence does not require any amplification of the ITO, either in relation to the grounds for the issuance of the warrant or in relation to the credibility and reliability of the complainant. This is because the affiant did not know that the scene had been staged, and there no reason to conclude that she ought to have known about it. This was not a failure of the affiant’s duty to make full, frank, and fair disclosure.
[187]. In my view, no amplifications of the ITO are required.
[188]. A search warrant affiant is required to disclose potentially unconstitutional investigative steps that led to information relevant to the ongoing investigation: R. v. N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.), at para. 321. Such disclosure may be relevant to the issuing judge’s exercise of their discretion to issue or refuse a warrant, and also to whether the judge asks for more information or considers imposing conditions on the execution of the warrant: N.M., at para. 321.
[189]. DC Yepes should have disclosed to the issuing judge that PC Majid’s entry into the applicant’s car was warrantless. However, in my view, the omission of the warrantless nature of the entry into the car was not material. This entry did not yield any information that contributed to the grounds for the issuance of the warrant. It was an omission that would not have affected the issuing justice’s decision to issue the warrant. I decline to amplify the ITO to reflect the unconstitutional entry into the applicant’s car.
[190]. DC Yepes also should have disclosed that PC Majid’s observations of a digital scale and drug packaging were made on a warrantless entry into the applicant’s residence. However, the omission of the warrantless nature of the of the entry into the residence is fully remedied with the excision from the ITO of all information derived from PC Majid’s observations in the unit. No further remedy is required. The ITO will not be amplified to reflect the warrantless re-entry into the applicant’s residence.
[191]. The question of tampering arose because, as noted, when PC Majid re-entered the applicant’s residence on June 15, 2021 at approximately 2:30pm, he observed drug packaging and a digital scale. These items were not present in the unit when PCs Ridsdale and Millar arrived there at 12:32pm, nor when PC Majid arrived there at 12:40pm. The complainant, Mr. Nurse, and his partner had been left unattended in the unit by PC Majid between 12:53pm and 1:14pm. Mr. Nurse and his partner were left alone and unattended in the unit when PC Majid and the complainant departed for the police station at 1:18pm. The applicant notes that someone – likely either the complainant or Mr. Nurse – planted the digital scale and the drug packaging after the applicant’s arrest.
[192]. Counsel for the applicant cross-examined PC Majid about the changes to the scene at the applicant’s residence between 12:47pm when the applicant was arrested and 2:30pm when the officer made his observations of drug paraphernalia. PC Majid agreed that when he first arrived at unit 526, he was the third officer, there to offer support. PC Millar was talking to the applicant in the hall. PC Ridsdale was talking to the complainant in the unit. PC Majid agreed that this left him free to take a broader view and survey the scene. As he entered the apartment, he would have looked for anything that was relevant to the investigation and to officer safety. He was aware that fentanyl was possibly involved in this domestic altercation, and agreed he would have been looking for any evidence of drugs in the residence. PC Majid agreed in cross-examination that he did not see a digital scale in the kitchen or drug packaging in the living room at that time. He agreed he would have noticed them if they were there. PC Majid then corrected himself to say that he was not sure of whether these items were there when he first went into the unit. He said he would need to see the video to confirm whether they were. The officer went on to say that when he re-entered the unit at 2:30pm and saw the digital scale and the drug packaging, he did not notice a discrepancy from what he had seen earlier. He testified that, in the moment, he did not appreciate that things had been altered in the unit in his absence. PC Majid testified that he only noticed the change in the residence when he watched his BWC video to prepare on the first morning of his testimony. He agreed that he did not say anything about this when he testified in-chief. The officer agreed that the unit was occupied by the complainant and others in the absence of police at various times. He thought it was fair to say that there was ample opportunity for the complainant and others to stage the scene.
[193]. DC Yepes testified that it never occurred to her that someone may have changed the scene or planted evidence between when the applicant left and when the unit was cleared. She explained that she assumed the unit was secured and held by police continuously from the time of the applicant’s arrest, which was standard policing practice. DC Yepes was not aware that officers did not see drug packaging or a digital scale when they attended to investigate. She did not ask whether the drug packaging was in the unit when the applicant was there, and she was not told. DC Yepes said she did not know that PC Majid had been in the unit before he went into it to clear it. She knew the other officers had arrested the applicant. She did not know that PC Majid was there at the time of arrest, nor that he had spoken with the applicant.
[194]. PC Majid testified that he did not recall whether he had a telephone conversation with DC Yepes after he re-entered the unit. DC Yepes testified that she spoke with PC Majid after he went into the unit. She said he told her that he had the applicant’s car keys and had provided the car seat to Mr. Nurse. She knew that PC Majid had entered and cleared the unit, and that he had been directed to do so.
[195]. The applicant asked me to infer that PC Majid was aware that the digital scale and drug packaging had been planted after the applicant was arrested and transported from the scene; that he shared this information with DC Yepes; and that the two of them colluded to omit this information from the ITO to deceive the issuing justice. The applicant argues that DC Yepes’s exclusion of information about tampering with the scene was a material omission that violated her duty of candour in the ITO.
[196]. I have very carefully considered the evidence of PC Majid and DC Yepes. I have come to the conclusion that PC Majid truly did not appreciate that evidence had been planted between when the applicant was arrested and when he re-entered the scene. This was substandard policing, even unacceptable negligence in the execution of his duties. But there was no intentional lying, intentional withholding of information, or collusion to deceive the issuing justice. I find that PC Majid, who did not realize at the time that the digital scale and drug packaging had been planted, did not convey this information to DC Yepes. She, in turn, did not fail in her obligation to make full, fair, and frank disclosure in the ITO.
[197]. I will explain my conclusions with respect to PC Majid’s observations and disclosures further when I consider the applicant’s challenge to the warrant on the basis of alleged police subversion. Here, in assessing whether the ITO needs to be amplified to remedy material omissions in the service of full disclosure, I need only assess whether the affiant had “a reasonable belief in the existence of the requisite statutory grounds”: Phan, at para. 51, citing R. v. Pires; R. v. Lising, 2005 SCC 66, [2006] 3 S.C.R. 343, at para. 41. This requires an assessment of what the affiant knew or ought to have known when she swore the ITO: World Bank, at paras. 34, 119, 121; Phan, at para. 51. On a sub-facial assessment of a warrant, unlike on an assessment of subversion, it is only the conduct and knowledge of the affiant that is at issue: Downes, at paras. 116 – 117. If I conclude, as I do, that DC Yepes did not know that the scene had been staged, and that such knowledge should not reasonably be imputed to her, I need not amplify the ITO accordingly.
[198]. As noted, to determine whether information about the staging of the scene should be added in to amplify the ITO, I must consider what DC Yepes knew or ought to have known about it. The applicable test was set out in World Bank, at paras. 122-123:
An error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it. Testing the affidavit against the ultimate truth rather than the affiant’s reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent.
When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation. [Citations omitted.]
[199]. I accept DC Yepes’s evidence. It was consistent and made sense. It was reasonable for her to assume that the applicant’s residence was held by police continuously from the time of the applicant’s arrest, in accordance with standard police practice. If it had been, as DC Yepes reasonably assumed it was, there would have been no opportunity for anyone to get into the residence and plant evidence. DC Yepes knew that two other officers, neither being PC Majid, had arrested the applicant. She did not know that PC Majid was present in unit 526 before and at the time of the arrest. In these circumstances, DC Yepes could not have known or had reason to inquire into whether the scene had changed between the time of arrest and time of PC Majid’s re-entry. She could not have known or had reason to inquire of PC Majid whether what he observed on re-entry was different from what he had observed on his initial entry. DC Yepes was entitled to assume that her colleagues had shared all relevant information about the arrest and their relevant observations. She was entitled to assume that standard policing protocols around preservation of the scene had been followed. There was no reason here for DC Yepes to be suspicious or inquire further. She testified that it never occurred to her that someone may have changed the scene or planted evidence. I accept that this is so. The unusual way these events unfolded was not something that a reasonable police officer or a reasonable search warrant affiant ought to have anticipated or been alerted against.
[200]. For these reasons, I am satisfied that DC Yepes did not know that the drug paraphernalia had been added to the scene after the applicant’s arrest, and that there is no reason to conclude she ought to have known about it. She did not fail in her obligation of candour. I decline to amplify the ITO.
[201]. Before leaving this issue, I want to address the issue of the telephone call between DC Yepes and PC Majid. PC Majid testified that he could not recall whether he had a conversation with DC Yepes after he re-entered unit 526. He said he did not have any note of such a conversation. By contrast, DC Yepes testified that she had spoken with PC Majid at 4:40pm on June 15, 2021. She said she had gotten the time of this call from PC Majid’s notes, which had been uploaded to Versadex (a Toronto Police Service platform for sharing information). PC Majid was obviously not correct when he testified that he had no notes documenting a telephone conversation with DC Yepes. The defence asked me to infer from this that PC Majid lied to the court about his conversation with DC Yepes. And that he did so because he wanted to conceal the fact that the officers had discussed the change to the scene and colluded to keep this information out of the ITO to deceive the issuing justice.
[202]. I decline to make this inference. DC Yepes did give evidence of having spoken with PC Majid. She testified as to what he told her in this conversation. That did not include any information about changes to the scene. If PC Majid had told DC Yepes that the scene had been staged, and they had decided together to keep this information out of the ITO, DC Yepes could have said nothing at all about her conversation with PC Majid when she testified before me. If the officers had colluded to deceive the issuing justice, it would have made sense for both of them to keep quiet about their conversation in order to also deceive this court on the warrant review. But that is not what DC Yepes did. She gave evidence of this call. In my view, she did so candidly and in a forthright manner. She acknowledged the shortcomings in her own notes about it – that she had taken the time of the call from PC Majid’s notes. She agreed in cross-examination that taking the time of an event from another officer’s notes was not the gold standard in note-taking or in testifying in court. This was an officer trying to tell the truth candidly. She was credible. I accept her evidence that PC Majid did not tell her about the changes to the applicant’s residence.
[203]. I also decline to infer that PC Majid was intentionally lying to the court when he said he had no notes of a conversation with DC Yepes. As I will discuss further below, in my view, PC Majid did not recognize that the scene in the applicant’s apartment was changed until the moment he was confronted with this in cross-examination. He was surprised and embarrassed by his oversight. This impacted on his testimony. I find that when PC Majid testified that he had no notes documenting a call with DC Yepes, he was confused, not intentionally lying.
[204]. As a final note in relation to amplification of the ITO, I want to address any lingering concerns about whether omission of information about the staging of the scene may have had an impact on grounds for issuance of the warrant, and on the credibility and reliability of the complainant. In my view, any concerns about the impact of this omission on the grounds for issuance of the warrant are fully addressed by the excision of PC Majid’s observations from the ITO. When the presence of the digital scale and drug packaging are deleted from the ITO, the absence of information about the planting of those items can work no evil in relation to assessment of the grounds for the warrant. Neither can there be any lingering concerns about effect of failing to amplify on the complainant’s credibility and reliability. The complainant could not have been the person who planted the drug paraphernalia. PC Majid’s BWC video reveals that when he left unit 526 with the complainant at 1:18pm, the digital scale and drug packaging were not yet where he later observed them. The complainant did not return to the unit before PC Majid made his observations. It was only after the complainant left the unit, not to return, that the items were placed where PC Majid observed them. There can be no negative effect on the complainant’s credibility and reliability as a result of the planted evidence.
4. Could the search warrant have issued on the basis of the corrected ITO?
[205]. I have concluded that the search warrant could have issued on the basis of the corrected ITO. There is sufficient credible and reliable evidence in the ITO, after the above-noted excision is made, to permit the issuing justice to find reasonable and probable grounds to believe that a drug offence was committed, and that evidence of that offence would be found in the applicant’s residence and vehicle.
[206]. The corrected ITO contains information from Mr. Gorjiya’s call to 911, from his statement to PCs Millar and Ridsdale, from the complainant’s videotaped police statement, from the surveillance videos at the applicant’s building, from building security concierges, from PC Majid’s location of the vehicle, and from the MTO and CPIC databases. All of these sources, taken together, provide reasonable and probable grounds to believe that the applicant had fentanyl in unit 526 on June 15, 2021, loaded it into a black Fit4Less bag, put the bag containing fentanyl into his car, drove it out of the building, parked it on a nearby city street, left the car containing the bag and the fentanyl there, and returned to unit 526, all within a very short time period, shortly before police arrived in his residence and arrested him. On this information, there were reasonable and probable grounds to believe that a drug offence had occurred, and that there was evidence of that offence to be found in the applicant’s residence and vehicle.
5. Did police conduct subvert the search warrant application process?
[207]. The applicant submits that police conduct was so egregious as to amount to subversion of the search warrant process. He points to what he argued were multiple, cascading, and serious Charter breaches, and to what he submitted was PC Majid and DC Yepes’s collusion to deceive the issuing justice. The Crown submits that there was no egregious police conduct, and that the applicant has not met the high threshold of establishing that police subverted the search warrant process.
[208]. I find that police conduct did not subvert the search warrant process.
[209]. As mentioned earlier, I accept that PC Majid did not realize that the scene in unit 526 had been altered between his initial attendance and when he re-attended and observed drug paraphernalia there. He did not realize it at the time. He did not realize it after June 15, 2021 either. He never realized it until he was confronted with it in cross-examination. I observed PC Majid when he testified. I could see the shock on his face and in his body language when he was first asked about the alteration to the scene. He was surprised, and then ashamed, of this failing on his part. He gave conflicting answers about whether the scene had changed, and about whether he had noticed the change. He ultimately testified that he had not noticed the discrepancy between how the residence appeared at first and then later, until he watched his BWC video in preparation for trial. He then said that, despite having noticed the change before starting to testify, he never mentioned it in his evidence-in-chief.
[210]. PC Majid was not totally honest or forthright when he testified. But, having observed him carefully, I find that this was because he was surprised and embarrassed by his failings at the scene. He tried to recover from this shock and embarrassment while testifying. He struggled to accept the reality of his significant oversight, explain it, engage in damage control for himself, and still tell the truth about the facts of the case. He was confused and somewhat befuddled.
[211]. I do not believe that PC Majid noticed the change to the scene before coming to court, or at any time until he was being cross-examined. He testified that he noticed the change the morning before he testified to try to save face, even to a small degree, in his embarrassment. But I believe that he did not notice the change in the moment, the morning before he testified, or until he was cross-examined about it. Everything in PC Majid’s testimony and the way he gave it satisfies me that is so. It was too great a failing in his execution of his policing duties, and he was too surprised and embarrassed by it, for him to have fabricated his evidence that he did not notice the change at the scene. He did, however, fabricate his evidence that he noticed the change before coming to court the first day of his testimony. But in my view, this was a fabrication that proceeded from PC Majid’s embarrassment, his desire to save face. Not from general dishonesty in his evidence overall.
[212]. Given that PC Majid did not recognize that the drug paraphernalia was staged, he could not have shared that information with DC Yepes. They could not have colluded to keep that information out of the ITO to deceive the issuing justice. There was no intentional deception here.
[213]. That having been said, PC Majid did fail to notice a very important change to the scene. One that he should have noted. It should have been obvious to him. This was certainly, as I noted earlier, substandard policing and perhaps even unacceptable negligence in the execution of his duties as a police officer. But does this departure from what a reasonable police officer would have seen, noted, and disclosed to the affiant amount to subversion of the search warrant process?
[214]. I find that it does not.
[215]. There is a very high threshold that must be met before a warrant can be set aside on the basis of subversion: Paryniuk, at paras. 62, 70. This threshold will be met where the applicant establishes that “non-disclosure was for some improper motive or to mislead the issuing judicial officer”: Paryniuk, at para. 62, citing R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. An affiant or sub-affiant must be shown to have “deliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer”: Paryniuk, at para. 62. The threshold requires subversion of the pre-authorization process “through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”: Paryniuk, at para. 69, citing Colbourne, at para. 40.
[216]. PC Majid failed to properly investigate the scene and observe what he should have observed. But he did not realize that he had failed to do so. These were negligent omissions on his part, not intentional ones. PC Majid did not engage in deliberate non-disclosure, deliberate deception, or fraudulent misrepresentation. He was not intentionally misleading DC Yepes or, through her, the issuing judge. He was not acting for some improper motive or in bad faith. This was bad policing, but not policing that subverted the search warrant process.
[217]. The applicant claims that the search warrant process was also subverted by the multiple serious Charter violations he alleged. I have found that the police violated the applicant’s s. 8 rights by entering his car and his residence without a warrant, and that they breached his s. 10(b) rights by not immediately facilitating his access to counsel. I have also found that the police did not violate the applicant’s rights in the other ways he claimed. In my view, the police conduct that resulted in the three established violations of the applicant’s Charter rights did not rise to the level of subversion. There were three Charter breaches here, but no subversion amounting to an abuse of process. These three breaches can and will be remedied in other ways: through excision from the ITO of information about the Charter-violative entry into the applicant’s residence, and through exclusion of evidence obtained in violation of the Charter under s. 24(2) if its admission would bring the administration of justice into disrepute.
[218]. In sum, I am not persuaded that the police subverted the search warrant process. I decline to exercise my residual discretion to set aside the warrant on this basis.
C. SECTION 24(2): WOULD THE ADMISSION OF THE DRUGS, GUN, AMMUNITION, AND VIDEOS BRING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE?
[219]. I have come to the conclusion that admission of the evidence would not bring the administration of justice into disrepute.
[220]. There are three lines of inquiry in the determination of whether the administration of justice would be brought into disrepute by the admission of unconstitutionally obtained evidence: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the defendant; and (3) society’s interest in having a trial proceed on the merits: Grant (2009), at para. 71. These lines of inquiry must be balanced, considering all the circumstances, to determine whether admission of the evidence would bring the administration of justice into disrepute.
(a) Seriousness of the Charter-infringing state conduct
[221]. PC Majid’s breach of the applicant’s s. 8 rights by entering the applicant’s vehicle without a warrant was a technical breach. He had no right to enter the applicant’s vehicle without a warrant, and he should not have done it. However, the officer entered the vehicle on a good faith basis, to assist the complainant in ensuring that her child was transported safely back to his father’s home. PC Majid did not engage in a broader search of the vehicle or seize anything else from it at the time. He did not peer into the windows, search its interior, or look in the trunk. He opened the door, took the car seat, and closed and locked the car. He was clearly not searching the car for incriminating evidence, and none was found. He was only there to retrieve the car seat, and that is the only thing he did. Moreover, PC Majid activated his body camera and recorded this warrantless entry into the car. He took photographs of the car before he entered it. This careful documentation of the warrantless entry into the car is mitigating. It proves the very limited nature of his entry, search and seizure. It also tells against a finding of bad faith on PC Majid’s part because it demonstrates his awareness of the need for transparency: R. v. Manna-Silva & George, 2024 ONSC 1366, at paras. 9, 66. The officer’s BWC video of this Charter-violating entry into the car demonstrates that he was not intentionally trying to violate the applicant’s rights, gather evidence against him, and hide such misdeeds from the court. I would characterize the seriousness of this breach as minimal.
[222]. PC Majid’s breach of s. 8 by entering the applicant’s residence without a warrant is more concerning. There is a very high expectation of privacy in one’s home. PC Majid knew that he had no lawful authority to enter the applicant’s home without a warrant. He was alive to these concerns, even the moments just before he made his warrantless entry. He gave voice to his concerns, which can be heard on his BWC video. The officer did not want to do anything “sideways,” and wanted to make sure he had grounds to enter the unit. He paused before entering and called a superior officer for guidance. Det Mansour directed him to enter and clear the unit, and then to hold it for a search warrant. By the time of this call, PC Majid had received Mr. Nurse’s “tip.” He had effectively been told by Mr. Nurse to look for evidence of drugs on the couch in the unit. He conveyed this information to Det Mansour in their call. These two officers were aware that there was potentially incriminating evidence in the unit. They knew a search warrant was required. They spoke and decided to affect a warrantless entry anyway.
[223]. I have already found that PC Majid’s warrantless entry was not compelled by urgency, nor by a need for immediate action to preserve evidence, or ensure police or public safety.
[224]. In these circumstances, I can only conclude that this was a knowing and intentional breach of the applicant’s right to be free from unreasonable search and seizure. That the decision to breach the applicant’s rights was made by PC Majid on the direction of a superior officer increases its seriousness. This was a serious breach.
[225]. The violation of the applicant’s s. 10(b) rights by police failure to immediately facilitate his access to counsel was negligent or wilfully blind. PC Millar read the applicant his rights to counsel immediately upon arrest. When the applicant asserted the right, PC Millar said he would facilitate contact with a lawyer as soon as soon as that could be accomplished in private. The officer then made no effort to implement the right for an hour and 34 minutes. He did not even turn his mind to whether this could be done privately and safely sooner, as he was required to do.
[226]. In fact, PC Millar had never immediately facilitated an arrestee’s contact with counsel. In his experience, there was always some delay in implementing the right to counsel. This suggested that he had a routine practice of not facilitating immediate access to contact on the basis of a general concern for privacy.
[227]. Courts in this province have repeatedly found that delays in facilitating access to counsel occur far too frequently, giving this kind of Charter breach an institutional or systemic character: see for example, Rover, at para. 29; R. v. Glatt, [2018] O.J. No 7297 (S.C.J.), at paras. 31, 34; R. v. Atkinson, 2019 ONSC 3717, at para. 227. Institutional or systemic failure by police to ensure that Charter rights are respected may aggravate the seriousness of a breach: R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 2. The evidence in this case did not permit me to go so far as to find that there was a systemic or institutional failure to immediately facilitate access to counsel by the Toronto Police Service, or even by 14 Division. But the evidence did establish that the particular officer charged with immediately facilitating access to counsel had a regular and unexamined practice of failing to do so. I find this aggravates the seriousness of the s. 10(b) breach.
[228]. That having been said, police officers did not ask any incriminating questions or seek to elicit information of evidentiary value from the applicant before he spoke with his lawyer. And the delay in putting Mr. Ahmed in contact with his lawyer was only one hour and 34 minutes. This was not immediate contact, as required, but neither was it contact delayed by many hours. In these circumstances, I would characterize this breach as moderately serious.
(b) Impact on the applicant’s Charter-protected interests
[229]. The focus under the second branch of the s. 24(2) test when s. 8 has been violated is “on the magnitude or intensity of the individual’s expectation of privacy, and on whether the search demeaned his or her dignity”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 91.
[230]. The applicant had a reasonable expectation of privacy in his car, albeit a reduced one: Belnavis, at paras. 38-39. He was not present at the time of this entry into his car. PC Majid removed the child’s car seat, but did not generally search the car or even attempt to make observations of any part of the interior car. This was a very limited entry, search, and seizure. The s. 8 breach in relation to the applicant’s car had minimal impact on the applicant’s Charter-protected interests.
[231]. The search of the applicant’s home in violation of s. 8 was more intrusive of his rights. He had a high expectation of privacy there. PC Majid walked through the entire unit, looking around and making observations. What appeared to be incriminating evidence was observed and relied upon in the ITO. It made some small contribution to the grounds for the search warrant. The observations made within the applicant’s unit that were relied on in the ITO could not have been discovered absent a s. 8 breach. In other words, this evidence was not discoverable at this stage of the investigation in a Charter-compliant manner.
[232]. This would exacerbate the seriousness of the breach on the applicant’s Charter-protected interests, but for the fact that there were grounds for the issuance of the warrant even without PC Majid’s observations. I have already concluded that there were grounds on which the warrant could have issued, even when the observations of drug paraphernalia were excised. For this reason, the s. 8 breach is not causally linked to the ultimate discovery of the drugs, gun, and cash in the applicant’s car. A causal connection between a breach and the evidence at issue is not required to engage s. 24(2) of the Charter: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1003-1004. However, the absence of a causal connection may be a factor that weighs against the exclusion of evidence: R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11. Where the Charter breach does not cause the evidence at issue to be found, the absence of causation may mitigate the impact of the breach on a defendant’s Charter-protected interests on the second branch of the s. 24(2) analysis: Rover, at para. 43; Pileggi, at para. 120. The absence of a causal relationship between the breach and the evidence mitigates the seriousness of the breach on the applicant’s Charter-protected interests.
[233]. I conclude that the s. 8 violation through warrantless entry into the applicant’s home had a moderate impact on his Charter-protected interests.
[234]. The focus under the second branch of the s. 24(2) test when s. 10(b) has been violated is on the magnitude of the breach of the individual’s right to counsel and its impact. Courts have repeatedly emphasized the importance of the right to counsel. It has been recognized as a “lifeline for detained persons,” necessary to ensure that they obtain “not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of police while detained”: Rover, at para. 45.
[235]. The applicant’s right to counsel was not facilitated for an hour and 34 minutes after his arrest, despite his stated desire to speak with his lawyer. During that time, he was not given access to the advice and information to which he was constitutionally entitled. He was deprived of the “psychological value of access to counsel without delay”: Rover, at para. 45. However, police did not interview the applicant, ask him any incriminating questions, or otherwise conscript him into participating in any procedures designed to generate evidence against him until he had spoken with his lawyer. Police officers respected their duty to hold off questioning the applicant until he had exercised his right to counsel. The impact of the breach of the applicant’s right to counsel on his s. 10(b)-protected rights was minimal.
(c) Society’s interest in adjudication on the merits
[236]. The applicant seeks exclusion of the drugs, gun, cash, and BWC copy of the surveillance videos. This is all reliable evidence that is essential to the prosecution case. Exclusion of this evidence would gut the prosecution.
[237]. The charges against the applicant are serious, which cuts both ways in the assessment of the third prong of the s. 24(2) analysis: “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant (2009), at para. 84.
[238]. In assessing society’s interest in adjudication on the merits, I must consider whether the public’s long-term interest in preserving the repute of the administration of justice is better served by admission or exclusion of the evidence. The impact of exclusion or admission on the truth-seeking function of the trial is a key consideration: R. v. Beaver, 2022 SCC 54, 85 C.R. (7th) 1, at para. 129.
[239]. In my view, society’s interest in the long-term repute of the administration of justice militates in favour of a trial on the merits. The evidence is reliable, essential to the prosecution, and the charges are serious. The truth-seeking function of the justice system would be defeated by exclusion of the evidence. This factor pulls strongly toward admission of the evidence.
(d) Balancing
[240]. The final step in the s. 24(2) analysis requires the court to weigh each of the three Grant inquiries and balance them to determine whether the admission of the evidence would bring the administration of justice into disrepute. This is a qualitative exercise, not capable of mathematical precision: R. v. Tim, 2022 SCC 12, 79 C.R. (7th) 68, at para. 98. In Beaver, at para. 134, the Supreme Court gave the following guidance as to how judges should perform this weighing and balancing:
When undertaking this weighing exercise, "it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry" (Lafrance, at para. 90 (emphasis in original)). "[W]hen the two first lines, taken together, make a strong case for exclusion", the third line of inquiry "will seldom tip the scale in favour of admissibility" (Lafrance, at para. 90). The third line of inquiry "becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence" (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, per Doherty J.A.; see also R. v. Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24, at paras. 125-26 and 130). It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused's Charter-protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.
[241]. On the first Grant line of inquiry, I have found one of the s. 8 breaches to have been minimally serious, the other to have been serious, and the s. 10(b) breach to have been moderately serious. Considered as a whole, the Charter-infringing state conduct was moderately serious. This factor favours exclusion, but only moderately so. On the second Grant line of inquiry, I have found one of the s. 8 breaches to have had a minimal impact on the applicant’s Charter-protected interests, the other to have had a moderate impact, and the s. 10(b) breach to have had a minimal impact. Cumulatively, the impact on the applicant’s Charter-protected interests was minimal to moderate. This factor minimally to moderately inclines toward exclusion of the evidence. On the third Grant inquiry, I have found that society has a very high interest in adjudication of this case on the merits. This factor strongly favours admission.
[242]. I have qualitatively, not mathematically, weighed and balanced these factors. I have determined that that cumulative weight of the first two lines of inquiry is overwhelmed by the compelling public interest in admitting the evidence. The long-term and prospective repute of the administration of justice will not be brought into disrepute by the admission of the evidence. Indeed, given the seriousness of the charges and the importance of the reliable evidence to the prosecution case in all the circumstances of this case, exclusion of the evidence would bring the administration of justice into disrepute. The impugned evidence will not be excluded.
D. THE ADMISSIBILITY OF THE BWC COPY OF THE SURVEILLANCE VIDEOS
[243]. The applicant submits that PC Harding’s BWC video recordings of the surveillance videos are not admissible at his trial. He argues that the Crown has not met its burden of establishing the legal tests prerequisite to their admission, namely that the videos are authentic and satisfy the best evidence rule. The Crown disagrees, arguing that the low thresholds for authentication and the best evidence rule have been met. The Crown asks me to admit the BWC video copies of the building surveillance videos.
[244]. I have determined that the videos in question have been authenticated and that the best evidence rule has been satisfied. The videos are admissible and admitted.
(a) Has the Crown met its burden of authenticating the videos?
[245]. Section 31.1 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (“CEA”), sets out that “[a]ny person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is what it is purported to be.” “Electronic document” is defined broadly in s. 31.8 of the CEA as:
[D]ata that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.
[246]. The definition of “data” in s. 31.8 is defined expansively as “representations of information or of concepts, in any form.” Read together, these definitions suggest that the digital documents provisions of the CEA apply to an “imposing breadth” of content tendered from a wide variety of media, including digital video and audio recordings: D. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age,” (2013) 11 Cn J.L. & Tech 181, at pp. 194-195.
[247]. The statutory rules governing authentication of digital documents mirror the common law rules for ordinary documents: Paciocco, at p. 192.
[248]. The threshold to be met in authenticating digital evidence under s. 31.1 of the CEA, as at common law, is low: R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 67. To meet this low threshold, the party tendering the evidence must adduce some “evidence capable of supporting a finding that the electronic document is what it purports to be” (emphasis in the original): C.B., at para. 67; Paciocco, at p. 196. To satisfy this modest threshold, the proponent of the evidence may rely on direct and/or circumstantial evidence: C.B., at para. 68; R. v. Bulldog, 2015 ABCA 251, 22 Alta. L. R. (6th) 27, at paras. 35, 37. As long as there is some direct or circumstantial evidence that the evidence is what it purports to be, the evidence will be authenticated and admissible.
[249]. This is so even in the face of questions about whether the evidence is what it purports to be. Questions about the reliability or genuineness of evidence are to be determined at the end of the trial by the trier of fact as a question of weight: C.B., at para. 72; Paciocco, at p. 197. This is because “the law prefers to see disputes about authenticity resolved at the end of a case, not at the admissibility stage”: Paciocco, at p. 197.
[250]. In this case, the applicant argues that the videos tendered by the Crown have not been authenticated. The applicant submits that these BWC camera videos are not originals, that the date and time on which the original video recordings were made has not been established, and that the security concierge who retrieved the original recordings did not testify to establish the original recordings’ date and time or that the copies accurately reflected the originals. With respect, I do not accept this submission.
[251]. Any concerns about whether the BWC video copies of the surveillance videos accurately depict events on June 15, 2021, shortly before the 911 call, do not undermine the authentication of these copies. Such concerns, if they exist, are questions of weight to be determined at the end of the trial. The Crown has tendered at least some evidence capable of establishing that these videos are what they purport to be. That is all that is required for authentication.
[252]. The evidence is that PC Harding attended at 75 and 85 Queens Wharf Road and spoke to security concierges on June 15, 2021, the same day the events the videos purport to depict were recorded. She knew she was looking for surveillance videos from earlier that day. Mr. Gorjiya also knew that the videos sought by police were from earlier the same day, the day he had called 911. I have already found that Mr. Gorjiya spoke to the security concierges who provided the surveillance videos to PC Harding and conveyed why PC Harding was there and what she was looking for. The security concierges who assisted PC Harding knew that the police were looking for videos from earlier the same day. This is some circumstantial evidence that the BWC copies of the videos are what they purport to be: videos of events that occurred in the Queens Wharf buildings on June 15, 2021.
[253]. The BWC recordings of the original surveillance videos all bear date and time stamps of their creation. These show that PC Harding made her BWC copies on June 15, 2021, starting at 6:06pm. The date and time stamps of the original surveillance videos are visible on the BWC copies of them. All of them show that the original videos were recorded on June 15, 2021 between 11:46am and 11:56am. Again, this is some evidence that the copies of the videos are what they purport to be: videos of events that occurred on June 15, 2021, around noon.
[254]. Mr. Gorjiya testified that he was not aware of any problems or issues with the surveillance camera system in the buildings. But that there was a time difference of approximately 5 to 10 minutes between the time stamps recorded by the various cameras and real time, and between the various cameras.
[255]. Mr. Gorjiya reviewed PC Harding’s BWC videos and identified that they were videos of the common areas of 85 Queens Wharf Road. He also identified the woman depicted in the fifth floor hall video as the woman who had asked him to call 911, the complainant; and the man in the videos as the tenant of unit 526, the applicant. On my review of PC Harding’s BWC copies of the videos, both the applicant and the complainant were wearing the same clothing and shoes as they were wearing in the BWC camera videos of PCs Millar, Ridsdale, and Majid, which were recorded the same day. PC Harding reviewed and identified her BWC video copies of the original surveillance videos. She testified that they were accurate recordings of the original surveillance videos she saw when she attended at the Queens Wharf Road buildings. This is evidence capable of supporting a conclusion that the BWC copies of the videos depict what they purport to depict: that these are videos of the movements of the applicant and the complainant in the common areas of the Queens Wharf Road buildings on June 15, 2021.
[256]. The Alberta Court of Appeal’s decision in Bulldog is instructive. In that case, the court considered whether a videotape depicting an alleged fight in a prison yard had been authenticated at trial. The original surveillance video was destroyed. A copy was tendered in evidence at trial. It was not clear where, how, or by whom, the copy of the original video of the fight was made. A correctional officer and a police officer testified that they had viewed the original surveillance video. They reviewed the copy of the video that was tendered at trial, and both testified that the copy depicted the same events they had seen on the original video. The Alberta Court of Appeal held that despite the uncertain provenance of the copy of the video tendered at trial, the requirements of authentication had been made out: Bulldog, at para. 41. The court held that there was nothing in the evidence that gave rise to a concern that the video recording was altered in a material way. It was reasonable for the trial judge to conclude that the copy of the video was authentic: Bulldog, at para. 41.
[257]. This case is similar to Bulldog in material respects. PC Harding viewed the original surveillance videos on June 15, 2021. She reviewed and identified her BWC copies of the original videos at trial, and testified that they accurately reflected the original videos she had seen. This is evidence, like in Bulldog, that supports a finding that the BWC videos are accurate copies of the originals. There was no evidence here that gave rise to a concern that the copies were altered in any material way, or that they deviated from the originals.
[258]. On all the evidence, the Crown has amply satisfied its low burden of establishing that the proffered evidence is what it purports to be. The direct and circumstantial evidence supports findings that the BWC videos are true copies of the original surveillance videos capturing the movements of the applicant and the complainant in 85 Queens Wharf on June 15, 2021, shortly before the 911 call.
[259]. The precise time at which the original videos were recorded has not been proven, but it does not need to be for the BWC copies to be authenticated. I come to this conclusion for two reasons. The first is that the exact and precise timing of the events the videos depict does not affect a conclusion that the videos depict what they purport to depict. The precise timing of the events shown in the videos is not at issue in this case. Nothing turns on whether the complainant left unit 526, followed by the applicant, five or ten minutes earlier or later than the time stamps show. The Crown relies on the videos for the purpose of their value in supporting the grounds for issuance of the warrant, and for their evidentiary value in linking