Court File and Parties

Court File No.: CR-23-10000745-0000 Date: 2024-07-11 Ontario Superior Court of Justice

Between: His Majesty The King And: Aaron Stewart

Counsel: G. Lennox and J. Casey, for the Crown J. Schiller, for Mr. Stewart

Before: S.A.Q. Akhtar J.

Reasons for Judgment

Factual Background and Overview

Background Facts

[1] On 18 May 2021, police obtained a judicial authorisation to search the premises located at 270 Church Street in Belleville. The target of the search was the applicant, Aaron Stewart.

[2] At the time the authorisation was signed, police were aware that the residence located at 270 Church Street was an Airbnb rental. This information had been gleaned from a prior judicial authorisation permitting the interception of Mr. Stewart's private communications.

[3] When the police made their application, the affiant did not know of any separate unit at that street address or any other persons residing there apart from Mr. Stewart and his girlfriend. The authorisation specified the address to be searched as the dwelling house located at 270 Church Street, Belleville, Ontario, including any unattached structures on the property.

[4] On 17 May 2021, Detective Sergeant (DS) Matthew Coughlin of the Belleville Police Service was asked by the Ontario Provincial Police to assist in the execution of the warrant and set up surveillance teams. At 3:28 p.m., police observed the applicant exit 270 Church Street through the front door of the property.

[5] DS Coughlin attended 270 Church Street to conduct surveillance leaving at around 10:00 p.m. on 17 May 2021.

[6] At 5:20 a.m., on 18 May 2021, DS Coughlin returned to 270 Church Street to continue surveillance duties. He observed a female leaving the residence and directed members of his team to follow her. She was seen entering Belleville General Hospital and DS Coughlin concluded she worked there.

[7] DS Coughlin received a copy of the signed authorisation and attended the rear of the house to speak with the owner, whom he knew from prior dealings. The owner operated a hair salon at the rear of the property. He had not told any of the officers involved in securing the warrant that there might be more than one unit inside the property or that the owner also lived there.

[8] The purpose of his visit was to determine how many units existed in the residence as the prior exit of the woman who went to the hospital suggested that there was more than one.

[9] After speaking to the owner, he discovered that there were two Airbnb units located inside the dwelling house. One of the units, referred to as Unit B, was rented by a woman who worked at the hospital. The other unit, referred to as Unit A, was rented by a black male with a white girlfriend.

[10] At 7:20 a.m., DS Coughlin contacted Sergeant Martin Charbonneau of the Belleville Police Service Tactical Unit and advised him that the warrant should be executed on Unit A and not Unit B.

[11] At 8:31 a.m., the Tactical Unit entered 270 Church Street and made their way into Unit A to conduct a search of the premises. When they did so, they found Mr. Stewart and a female occupant, Szilva Balog, in the bedroom. Both were arrested.

[12] The police continued their search of the premises and found a number of items, including approximately 90 grams of cocaine, 17.5 grams of crystal methamphetamine, 23 grams of fentanyl and over $5,000 in Canadian currency. They also found a digital scale and a white plastic bag with pieces ripped off. There were a number of mobile phones inside the premises each with different numbers.

[13] The police did not enter Unit B.

The Application

[14] The applicant challenges the warrant on one ground: it was facially deficient by failing to specify the unit to be searched. He argues that the police surveilled the address well before the warrant was signed and must have known that the address contained multiple units. Moreover, DS Coughlin was familiar with the owner of the house knowing that she lived there and operated a business at the rear of the premises. Accordingly, the police were under an obligation to define the unit they were searching when seeking the warrant.

[15] The Crown, on the other hand, submits that the warrant was properly authorised: the applicant was named as the intended target; at the time of seeking the warrant the affiant did not know that it contained multiple units; and the warrant, as drafted, permitted the police to search the entirety of 270 Church Street. The Crown submits that the police properly executed the warrant by searching only the applicant’s unit once they found out about a second unit.

Legal Principles

[16] There is no dispute that a warrant must contain an adequate description of the place to be searched. In R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, aff’g 2010 ONCA 588, 78 C.R. (6th) 299, Charron J. wrote:

It is important to stress, as Juriansz J.A. rightly acknowledged [in the Court of Appeal], that Mr. Campbell’s expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit. In drafting ITOs proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.

[17] See also: R. v. Le, 2011 MBCA 83, 270 Man. R. (2d) 82, at para. 77; R. v. Saint, 2017 ONCA 491, 353 C.C.C. (3d) 467, at para. 7.

[18] The applicant relies on R. v. Ting, 2016 ONCA 57, 26 C.R. (7th) 1, as the basis for its argument that warrant was facially invalid. There, the police obtained a warrant to search a property divided into two residential units - one in the front and the other in the rear of the property - and one commercial unit. The police had grounds to search the rear unit and obtained a search warrant specifying that part of the property. The search warrant was lawfully executed at the rear unit by one search team, but it was also mistakenly executed on the front unit by a second search team. This second team “immediately” realised their mistake, upon entering the front unit: at para. 79. However rather than stopping their search of the front unit, the police continued to search it for a further hour and forty minutes. They found a quantity of drugs, money, and cell phones. It was only at this point that they suspended their search and sought a second warrant. This warrant, however, authorised a search of the plaza’s municipal address without specifying any particular unit and without setting out grounds that would justify a search of the entire premises. More drugs were found in this second search of the front unit. Both searches were held to violate s. 8 and the evidence was excluded, both at trial and on appeal.

[19] The Court of Appeal for Ontario held that the warrant to be invalid because it did not adequately describe the place to be searched. At para. 51, Miller J.A. observed:

Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case. With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling.

[20] The court further held that the second warrant - obtained after the police had suspended their search - also failed to adequately describe the front unit because it provided a description that could have applied to any of the three residential units in the building. At para. 59, Miller J.A. held that:

It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched. [Citations omitted.]

[21] The complexity of the issue was addressed by my colleague Code J. in R. v. Goorahoo and Menjivar, 2020 ONSC 6088. There, the police had a facially valid warrant when they entered the property to be searched. However, after entry they discovered a separate second residential unit unknown at the time of applying for the warrant. Code J. distinguished Ting and held that there was no facial invalidity because when the police were applying for and executing the warrant, they reasonably believed that it was a single dwelling in which the target resided.

[22] After reviewing the case law, Code J. found that when police execute an initially valid warrant and subsequently find separate units or rooms used by other residents, these units can be searched if “there is reason to believe that the target has access to these other rooms or units or there is reason to believe that these other residents and their units are associated with the target’s criminal activities”: at para. 65.

Was There a Section 8 Breach?

[23] Here, there was no challenge to the fact that the police had reasonable and probable grounds to believe that a search of the applicant’s residence would afford evidence of a criminal offence. The sole issue, as noted, is the alleged deficiency in the description of the applicant’s address.

[24] For the following reasons, I find no s. 8 breach occurred in this case.

[25] First, this is not a case like Ting where the police entered a unit that was not described in the warrant. Here, the warrant specified the dwelling house at 270 Church Street which permitted the police to enter that property.

[26] This case is almost identical to R. v. Iraheta, 2020 ONCA 766, 476 C.R.R. (2d) 197, where police executed a search at a property and discovered there were two separate units. A family resided in the front unit and the accused in the rear. After realising the situation, the police retreated from the front unit and searched only the rear where they discovered firearms and controlled substances.

[27] The application judge rejected the defence argument that the police should have stopped their search and obtained a second warrant. In her view, the police searched the address named in the warrant and where the target of the investigation allegedly resided. The accused was convicted and appealed. The Court of Appeal for Ontario dismissed the appeal upholding the application judge’s ruling.

[28] The court distinguished Ting explaining why it did not apply: (1) in Ting the police continued their search of Ms. Ting’s apartment even after they realised that it was not the target of their search; (2) the police remained inside Ms. Ting’s premises even after they had suspended their search and sought a warrant; and (3) when applying for the second warrant the police did not particularise Ms. Ting’s apartment unit: at paras. 14-15.

[29] The court in Iraheta added, at paras. 15-17:

In the particular circumstances of this case, it was not necessary for the police to stop their search in order to obtain another search warrant. The search warrant adequately described the location to be searched: it correctly stated that the search was for the dwelling unit located at 1 Cobbler Crescent, which is where the appellant lived. There is no dispute that at the time of the search, the appellant resided with his co-accused girlfriend and her two young children in the rear unit of 1 Cobbler Crescent. That another family lived in the front unit of the same address, a fact unknown to the police when they applied for the warrant, does not, by itself, render the warrant’s description inadequate.

As the application judge found, there was no indication from the outside that the house was divided into multiple units: 1 Cobbler Crescent is a small, one-storey detached house; there were no separate unit numbers; there was one mailbox, one doorbell, and one utility meter. Surveillance would not have assisted the police in discerning that there were two units. As there was no indication from the outside of the dwelling house that it contained two units, various comings and goings would not have alerted the police to the existence of two units.

The police had clear boundaries to search the appellant’s unit and did not have to look past the warrant: Ting, at para. 59. They searched the precise location of the target specified in the search warrant, namely, the dwelling unit located at 1 Cobbler Crescent, which is where the appellant resided. They conducted the search in a reasonable manner. They only searched the rear unit. Upon entering the front unit occupied by the other tenant, the police realized their mistake and left the front unit.

[30] The same considerations apply here. The warrant described the place to be searched: a dwelling at 270 Church Street where the applicant lived with his girlfriend. As in Iraheta, the fact that there was another dwelling - unknown to those involved in the application for the warrant - did not make the description invalid.

[31] When applying for the warrant, the affiant was entitled to assume that 270 Church Street was a single dwelling unit. Although DS Coughlin may have known that the owner operated a business on the site, he was not involved in the warrant application and, as he testified, he never told the officers who were involved in the warrant application.

[32] Unlike Ting or Iraheta, the police never entered Unit B. After taking steps to confirm that the male matching the applicant’s description lived in Unit A, they confined their search to that unit. Accordingly, the search was conducted in a reasonable manner, one that was even more restricted than in Iraheta.

[33] I agree with the comments made by Code J. in Goorahoo and Menjivar that the police can search the units or areas their target is known to have accessed. This was what the police did here, taking active steps to ensure that only the applicant’s unit was entered.

[34] For these reasons, I find that the warrant was facially valid and properly executed. There was no breach of the applicant’s s. 8 rights.

Section 24(2)

[35] If I am wrong and the applicant’s s. 8 rights were violated I would still find the evidence discovered at 270 Church Street to be admissible under s. 24(2) of the Charter.

[36] The test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, directs the analysis of three prongs:

• The seriousness of the Charter infringing state conduct;
• The impact of the breach on the accused’s Charter protected interests; and
• Society’s adjudication on the merits of the trial.

[37] These factors must be considered as a whole rather than be parsed into individual categories: R. v. Tim, 2022 SCC 12, 49 Alta. L.R. (7th) 219, at para. 98.

[38] The assessment of state conduct must identify the conduct on a “scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; R. v. McColman, 2023 SCC 8, 167 O.R. (3d) 559, at para. 58. The whole range of police conduct must be assessed including factors that aggravate or attenuate the conduct in question: Grant, at para. 75.

[39] Here, if there was a breach in acting on a facially invalid warrant, the breach was serious because of the high expectation of privacy in one’s home: R. v. Stairs, 2022 SCC 11, 79 C.R. (7th) 1, at paras. 49-50. However, there were attenuating factors, as I have already described. When it became clear that there might be additional residential dwellings in the house - after the woman who went to the hospital was seen to leave 270 Church Street - the police took additional steps to clarify which residence belonged to the applicant. They did not enter any other residence using the warrant. I would find that the breach was on the middle end of the seriousness spectrum and only moderately favours exclusion.

[40] The second Grant prong which focusses on the impact of the breach on the accused falls on the very lowest end of the spectrum. There was no challenge to the actual basis for the issuance of the warrant. In other words, the police entered the property using a warrant based on reasonable and probable grounds that the unit would afford evidence of an offence.

[41] As stated in R. v. Pampena, 2022 ONCA 668, at para. 34, the fact that the police had reasonable and probable grounds and that they sought and obtained a warrant that would have authorised them to conduct the search is a proper consideration that reduces the impact of the breach on the applicant. This factor only very weakly favours exclusion.

[42] With respect to the third Grant factor, the evidence is relevant and reliable. It is also essential evidence for the Crown in proving its case and the offence itself is serious: McColman, at para. 70. R. v. Zacharias, 2023 SCC 30, 63 Alta. L.R. (7th) 171, at para. 58.

[43] Balancing all three factors, I find that the admission of the evidence would not bring the administration of justice into disrepute. Accordingly, the evidence is admissible.

S.A.Q. Akhtar J. Released: July 11, 2024