Court File and Parties

COURT FILE NO.: CR-23-90000185 DATE: 2024-02-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HIS MAJESTY THE KING AND: JEFF BOAHENG and SADIA ANN HENRY

BEFORE: VERMETTE J.

COUNSEL: Christie Black, for the Crown Rameez Sewani, for Jeff Boaheng Martina Di Sabatino, for Sadia Ann Henry

HEARD: January 8-12, 2024

Reasons for Judgment on application pursuant to sections 8 and 24(2) of the canadian Charter of rights and freedoms

[1] The Applicants, Jeff Boaheng and Sadia Ann Henry, are charged with multiple counts, including trafficking in cocaine, possession of cocaine and fentanyl for the purpose of trafficking, possession of proceeds of crime, and possession of a loaded prohibited firearm.

[2] They each brought an application under section 8 of the Canadian Charter of Rights and Freedoms (“Charter”) for: (a) a finding that a search that took place in a condominium unit pursuant to a search warrant on July 23, 2021 violated section 8 of the Charter, and (b) an order excluding all evidence collected through the search warrant pursuant to section 24(2) of the Charter.

[3] The Applicants’ main complaint relates to warrantless entries by police officers into a condominium building for the purpose of conducting surveillance on the Applicants. The fruits of this surveillance, which the Applicants allege was unconstitutional, were then relied upon in the Information to Obtain that led to the search warrant in issue.

[4] On January 12, 2021, I granted the Applications with reasons to follow. The following are my reasons.

I. BACKGROUND

[5] The evidence before me on these Applications included:

a. The viva voce evidence of two of the police officers involved in the investigation, Detective Constable (“DC”) Eugene Lee and DC Richard Rhone.

b. Preliminary inquiry transcript of the evidence given by the same two officers.

c. Statement of Agreed Facts regarding the evidence of DC Robyn Court and Mr. Adam Davies, regional senior manager of the corporation that manages the condominium building in issue in this case.

d. Agreement with respect to the evidence of DC Manny Kharbar and DC Gregor Reid.

e. Various exhibits, including the parties’ application records which contained, among other things, the search warrant, the Information to Obtain of DC Matt Chase (“ITO”), and notes of the investigating officers.

[6] The following is a summary of the relevant facts based on the evidence before me.

A. Beginning of the investigation and first two purchases of cocaine

[7] Members of the Toronto Drug Squad (“TDS”) received information from a confidential source in relation to a man trafficking controlled substances throughout Toronto and the Greater Toronto Area. The confidential source provided a phone number and a description of the man known by the alias “Corey”. The information provided by the confidential source was the triggering event that started the investigation.

[8] On June 12, 2021, an undercover officer contacted “Corey”. The two engaged in a drug-related conversation and “Corey” agreed to sell the undercover officer $360.00 worth of powder cocaine. “Corey” and the undercover officer agreed to meet in the parking lot of the Fairview Mall. The undercover officer attended the Fairview Mall. Once there, he made numerous attempts to contact “Corey”, but was unsuccessful in doing so. As a result of not being able to further contact “Corey” on this date, surveillance was discontinued.

[9] On July 5, 2021, the undercover officer and “Corey” engaged in another drug-related conversation. “Corey” agreed to sell the undercover officer $300.00 worth of powder cocaine. The two agreed to meet at the Sherway Gardens mall. Once at the Sherway Gardens mall, the undercover officer contacted “Corey” and advised him of his location within the mall’s parking lot. “Corey” subsequently arrived operating a black Toyota Corolla car (“Corolla”). The undercover officer exited his vehicle and approached the Corolla. “Corey” was the sole occupant of the Corolla. “Corey” sold the undercover officer $220.00 worth of powder cocaine. The undercover officer and “Corey” also discussed future drug transactions in the near future.

[10] Upon the completion of the transaction between the undercover officer and “Corey”, members of the TDS conducted mobile surveillance of “Corey” operating the Corolla. During the course of the surveillance, the Corolla was misplaced and surveillance was discontinued after the Corolla could not be located.

[11] On July 6, 2021, the undercover officer contacted “Corey” and the two engaged in a drug-related conversation. “Corey” agreed to sell the undercover officer $240.00 worth of powder cocaine. The undercover officer and “Corey” agreed to meet at the Sherway Gardens mall again to conduct the transaction. Once at the agreed-upon location, the undercover officer contacted “Corey” and advised that he was there waiting. “Corey” arrived at the location operating the Corolla. In the Corolla was also an unknown female in the front passenger seat (later identified as “Chelsea”). The undercover officer approached “Corey” at the front driver’s side window. “Corey” proceeded to sell the undercover officer a quantity of powder cocaine.

[12] Upon the completion of the drug transaction between “Corey” and the undercover officer, members of the TDS conducted surveillance of “Corey” operating the Corolla. During the course of the surveillance, the Corolla was misplaced and surveillance was discontinued.

[13] Also on July 6, 2021 members of the TDS conducted investigative checks regarding the Corolla. They found out that the Corolla was registered to an Ontario numbered company. They also found out that there were numerous parking tickets for the Corolla in and around the area of 15 and 17 Zorra Street, Etobicoke.

[14] Given the importance of this location to the issues in these Applications, I pause here to summarize the evidence provided about the condominium building located at 15 and 17 Zorra Street in Etobicoke. I note that Zorra Street runs south off The Queensway and is the first street east of Kipling Avenue.

B. Evidence regarding the Building

[15] Park Towers is a condominium building located at the address of 15 and 17 Zorra Street (“Building”). It is one building with two connected high-rise towers: 15 Zorra Street, which is the western tower, and 17 Zorra Street, which is the eastern tower. Each tower has 24 residential floors. There are 520 suites in total in the Building: 228 suites at 15 Zorra Street, and 292 suites at 17 Zorra Street. There is one shared lobby for the Building and one shared multilevel underground parking garage. Visitors to the Building can park on P1 where there are 78 visitor parking spots.

[16] The ground floor, as well as floors 2, 3 and 4 connect the two towers. Residents and visitors can pass freely between the two towers on the ground, third and fourth floors. Each tower has a set of three elevators. Upon entering the lobby, access to the elevators in 15 Zorra Street is to the left, and access to the elevators in 17 Zorra Street is to the right.

[17] Floors 5-23 at 17 Zorra Street are in the shape of an “H”, with the elevators being in the intersecting hallway between the two longer halls. Suites are located along both sides of the longer hallways. Two stairwells are also located in the longer hallways.

[18] Entry to the Building is gained through the lobby or through access doors in the parking garage. Access to the Building is intended to be: (a) by fob in the lobby and parking garage levels; (b) by being buzzed in by security; or (c) by using the directory board and being buzzed in by a resident.

[19] The Building has one or two security guard(s) on duty at all times. Security is located in the lobby approximately 15 feet from the main door. The security guard(s) can provide access to residents and visitors. Security accepts packages at the desk from couriers for resident pick-up, and allows food delivery personnel access to the Building to deliver directly to suite doors with authorization from the resident. Delivery personnel need to be buzzed in by the resident directly or security will phone the resident to authorize the access to the Building.

[20] The Park Towers’ Resident Guidebook states the following in the section entitled “VISITOR/GUEST BUILDING ACCESS”:

Security is not permitted to provide access into the building to anyone without remote/FOB access which includes guests and delivery persons. Your guests MUST call you to obtain building access (via directory board). Or, security can call the phone number on file for you to confirm access of your visitor. If your telephone line is busy, your guests will not be able to gain access into the building.

[21] Fob access is not dependent on a particular tower. Someone in possession of a fob would have access to all floors in both towers along with the common areas, including the parking garage, pool and gym. A fob is not required to use the elevators, nor is it required to gain access to anywhere in the Building (other than amenity areas) once entry has been made through either the lobby or on any of the levels of the parking garage.

[22] Security cameras are located in the parking garage, lobby, gym, pool, every elevator, the hallways on every floor in both towers and at the stairwell exits. The elevator, stairwell and hallway cameras were installed in 2020. The cameras in the hallways offer views of the length of the hallway, as well as the stairwell doors on each floor. There are two cameras installed per floor from floors 5-24. There are no security cameras placed in the intersecting hallway where the elevators are located. There are also security cameras outside the Building covering the main entrances, loading dock area and the garage ramp. All the cameras record and the live feed can be viewed from the security desk or remotely with the proper login credentials. Video footage can be played back with proper login credentials, including by a security supervisor or by management.

[23] There is a protocol in place if an inquiry is made regarding police access to the Building or for resident information. The determination of whether the police request will be granted is made on a case-by-case basis. Consent to conduct surveillance in the common areas of the Building can be obtained from the condominium board after completing a “Common Area Surveillance Consent Form”. Police would typically be afforded the opportunity to review CCTV footage or monitor the cameras in real time if consent to surveillance is granted. However, in circumstances where safety is not a consideration, a production order is generally required to obtain resident information or copy of video footage.

[24] The unit in issue in this case, unit 1205, is on the 12th floor at 17 Zorra Street (“Unit 1205”). It is located to the left when coming out of the elevators. The door of Unit 1205 can be seen from the elevators.

C. First entry in the Building

[25] As a result of the information obtained regarding numerous parking tickets for the Corolla in and around the area of the Building, a decision was made to conduct surveillance in the area of 15 and 17 Zorra Street. On July 14, 2021, a briefing was held from 4:50 to 5:00 p.m. Members of the TDS were to conduct surveillance in the area of 15 and 17 Zorra Street. The main objective was to locate “Corey” and the Corolla and to make observations of “Corey”. DC Rhone was the “road boss” or team leader on that day. At that time, DC Rhone had been in the TDS for approximately seven years. The road boss is typically, but not always, the most experienced officer on the team. The road boss is tasked with making operational decisions while on the road and liaising between all the detective constables on the road and the detective. If a drug transaction is being conducted, the road boss’ main responsibility is to ensure the safety of the undercover officer.

[26] After arriving in the area of the Building, at 5:44 p.m., DC Lee observed the Corolla stopped just outside of the front doors of the Building. Based on the information he had received, DC Lee believed that the person in the driver’s seat was “Corey”. “Corey” was speaking on the phone. A couple of minutes later, a woman entered into the vehicle on the front passenger’s side. The Corolla then left and went into the Building’s underground parking garage. DC Lee drove into the underground parking garage shortly thereafter. The parking garage door was open when he entered the parking and he does not remember whether he followed someone else who was going in at the time.

[27] At 5:59 p.m., DC Lee located the Corolla, which was parked in a visitor parking spot. The woman who had entered the vehicle in front of the Building was still sitting in the passenger’s seat, but “Corey” was no longer in the car. A few minutes later, DC Lee saw “Corey” and another woman come out of the underground vestibule for 17 Zorra Street and walk towards the car. “Corey” got into the driver’s seat and the second woman got into the rear passenger’s side of the vehicle. The Corolla then left and exited the underground parking garage.

[28] Members of the TDS conducted surveillance on the Corolla after it left the Building’s underground parking garage. They followed the Corolla in Mississauga. After a stop at a Burger King, the Corolla went to a community centre where it stopped again. At approximately 6:36 p.m., DC Rhone observed what he believed to be a hand-to-hand drug transaction in the parking lot of the community centre between “Corey” in the Corolla and a man on a mountain bike. The Corolla subsequently returned to the area of the Building.

[29] At 6:45 p.m., members of the surveillance team received information that the Corolla had entered a Sobeys parking lot located next to the Building and parked. DC Court and DC Lee parked their respective vehicles and walked towards the front doors of the Building.

[30] A few minutes later, at approximately 6:49 p.m., “Corey” and the two women entered into the lobby doors. There were a lot of residents coming in and out of the Building at that time and DC Court and DC Lee were able to enter into the Building by following people going in. DC Lee and DC Court followed “Corey” and the two women to the elevators of 17 Zorra Street. DC Court and DC Lee rode the elevator with “Corey” and the two women up to the 12th floor. They pretended to be a couple vising residents of the Building. Another couple went into the elevator with them. When the elevator doors opened at the 12th floor, “Corey”, the two women and DC Court went out of the elevator. DC Lee pretended that he had forgotten something. He told DC Court that he would be right back and went back downstairs. Once downstairs, he exited the Building.

[31] After getting off the elevator on the 12th floor, DC Court remained near the entrance to the elevators. She saw “Corey” and the two women walk into Unit 1205, which was directly in front of where DC Court was standing. They did not use a key as the door was unlocked.

[32] Less than two minutes later, at 6:51 p.m., Corey and the two women[^1] exited Unit 1205 and attended at the entrance of the elevators where DC Court was standing. DC Court pushed the down button and “Corey” pushed the up button. The first elevator that arrived was going up. “Corey” and the two women went into the elevator and went up to the 20th floor. The same elevator returned to the 12th floor with no one in it. DC Court took the elevator down to the lobby and exited the Building.

[33] Surveillance was discontinued at 7 p.m. There was a debriefing from 8:40 to 8:50 p.m.

D. Second entry in the Building and third purchase of cocaine

[34] Later on July 14, 2021, the undercover officer and “Corey” engaged in a drug-related conversation. Corey agreed to sell the undercover officer $240.00 worth of powder cocaine. During the conversation. Corey advised the undercover officer that he was on house arrest and would direct the undercover officer to an area where they could engage in the transaction.

[35] A briefing was held from 10:15 to 10:20 p.m. During the briefing, DC Kharbar was detailed by DC Rhone to attend the 20th floor of 17 Zorra Street and make observations for either “Corey” or persons of interest.

[36] Members of the TDS were to set up in the area of the Building to conduct surveillance. They were there at 10:45 p.m. At 10:59 p.m., the undercover officer called “Corey” and was advised that “Corey” would send a woman to meet him. The undercover officer was directed to go to 1185 The Queensway. 1185 The Queensway is a condominium building just north of the Building that shares a common roadway with the Building.

[37] At some point after the crew was set in the area of the Building, DC Kharbar entered the Building and went to the 20th floor of 17 Zorra Street. His evidence is that he likely followed someone in to get inside the Building.

[38] Shortly before 11:30 p.m., DC Rhone also entered into the Building. He was following other people who were going into the Building and a woman held the door for him. He then walked to the elevators for 17 Zorra Street and ultimately went to the 12th floor. He did not go in the hallway where Unit 1205 is, i.e., the hallway to the left of the elevators. Instead, he went to the hallway on the right. He stood in an area where he could make observations of Unit 1205.

[39] Once at 1185 The Queensway, the undercover officer contacted “Corey” to let him know that he was there. A short time later, at 11:40 p.m., DC Rhone observed a woman come out of Unit 1205 and then get into the elevator. A woman with the same description came out of the Building, met with the undercover officer at approximately 11:43 p.m. and completed a drug transaction. The woman identified herself to the undercover officer as “Chelsea”. “Chelsea” was then seen entering into the Building’s lobby. At 11:47 p.m., DC Rhone saw the same woman he had seen exiting Unit 1205 come out of the elevator and enter Unit 1205 using a key. DC Rhone exited the Building shortly thereafter. DC Kharbar had already exited the Building. He had not made any relevant observations on the 20th floor.

[40] Surveillance was discontinued at 11:52 p.m. There was a debriefing meeting between 12:05 and 12:17 a.m. During the meeting, the undercover officer advised that “Chelsea” was the woman in the car with “Corey” when they met at the Sherway Gardens mall on July 6, 2021.

E. Search warrant, fourth purchase of cocaine and arrest

[41] On July 23, 2021, at approximately 3 p.m., the police obtained a search warrant for Unit 1205. DC Chase was the affiant. In the ITO, he relied on the observations made by members of the TDS inside the Building in support of his belief that “Corey” and “Chelsea” resided in Unit 1205 and stored illicit substances and proceeds of crime in the unit. The ITO states that the address of both “Corey” and “Chelsea” is 1205-17 Zorra Street.

[42] In the early evening of July 23, 2021, the undercover officer arranged to purchase $240.00 of powder cocaine from “Corey”. They agreed to meet at a Milestones restaurant on The Queensway. At 7:44 p.m., “Corey” and “Chelsea” arrived at the agreed-upon location in the Corolla. “Corey” went into the undercover officer’s vehicle in the front passenger seat to complete the drug transaction while “Chelsea” stayed in the Corolla. Upon completion of the transaction, both “Corey” and “Chelsea” were arrested. At that time, “Corey” was identified as Mr. Boaheng and “Chelsea” was identified as Ms. Henry. A search incidental to arrest revealed that there was cocaine and Canadian currency in Mr. Boaheng’s satchel. A fob for the Building and the keys for Unit 1205 were found in the Corolla.

[43] The police executed the search warrant on Unit 1205 that same evening, using the fob and keys that they seized from the Corolla to make entry. Inside the unit, they found, among other things, cocaine, fentanyl, a prohibited firearm, ammunition, digital scales and cash. In addition, they found a number of documents/letters that were addressed to Mr. Boaheng at 1205-17 Zorra Street. A Release Order and at least another document with Ms. Henry’s name were also found in the unit. However, there was a Scarborough address on the Release Order and no address on the other document.

[44] At the time of his arrest, Mr. Boaheng was on parole. One of his parole conditions was to reside at 1205-17 Zorra Street. Mr. Boaheng also had to obey a curfew to be in his residence between 9 p.m. and 5 a.m.

II. DISCUSSION

[45] I first discuss whether the warrantless entries in the Building infringed section 8 of the Charter. I then turn to the analysis under section 24(2).

A. Section 8 analysis

1. General applicable principles

[46] Section 8 of the Charter is a personal right that protects people, not places. To assert a section 8 claim, an accused must first establish that they have a reasonable expectation of privacy over the subject matter of the search. Once the subject matter of the search is properly identified, the court looks to: (i) whether the accused has a direct interest in that subject matter; (ii) whether the accused has a subjective expectation of privacy in that subject matter; and, if so, (iii) whether the accused’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances. If the accused cannot demonstrate a reasonable expectation of privacy, then there is no search and seizure within the meaning of section 8. See R. v. Dosanjh, 2022 ONCA 689 at paras. 113-114 (“Dosanjh”).

[47] A court identifying the subject matter of a search must not do so narrowly in terms of the physical acts involved or the physical space invaded, but, rather, by reference to the nature of the privacy interests potentially compromised by the state action: see R. v. Marakah, 2017 SCC 59 at para. 15. Defining the subject matter of the search requires a functional approach, one that necessitates an inquiry into not only the information sought, but also the nature of the information that it reveals. The real question for determination is “what the police were really after”. See Dosanjh at para. 115.

[48] In an application under section 8 of the Charter, applicants are entitled to rely on the Crown’s theory and ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against them in lieu of tendering evidence probative of those same facts in the voir dire. Where the facts alleged by the Crown, if taken to be true, would establish certain elements of the applicant’s section 8 claim, they need not tender additional evidence probative of those facts in order to make out those same elements. Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. See R. v. Jones, 2017 SCC 60 at paras. 8-9, 15-19, 32 (“Jones”).

[49] Further, in the absence of the claimant’s testimony or admission at the voir dire, a subjective expectation of privacy can be presumed or inferred in the circumstances: see Jones at para. 21.

[50] A number of factors may assist in determining whether it was reasonable to expect privacy in different circumstances, including the following: (a) the place where the search occurred; (b) whether the subject matter was in public view; (c) whether the subject matter had been abandoned; (d) whether the information was already in the hands of third parties and, if so, whether it was subject to an obligation of confidentiality; (e) whether the police technique was intrusive in relation to the privacy interest; (f) whether the use of the evidence-gathering technique was itself objectively unreasonable; and (g) whether the information exposed any intimate details of the applicant’s lifestyle, or information of a biographic nature. See R. v. Patrick, 2009 17 at para. 27 and R. v. Tessling, 2004 SCC 67 at para. 32 (“Tessling”).

[51] The issue of the expectation of privacy of residents in common areas of a condominium or apartment building has been considered by the Court of Appeal for Ontario in a number of cases. Given that the parties rely heavily on these cases and that the specific facts of these cases are important to the Court of Appeal’s analysis, I review the relevant cases in some detail below.

2. Appellate decisions dealing with common areas of apartment and condominium buildings

[52] The relevant decisions are (a) R. v. White, 2015 ONCA 508 (“White”); (b) R. v. Saciragic, 2017 ONCA 91 (“Saciragic”); application for leave to appeal to the Supreme Court of Canada dismissed: 2017 44308 (S.C.C.); (c) R. v. Yu, 2019 ONCA 942 (“Yu”); application for leave to appeal to the Supreme Court of Canada dismissed: 2020 41795 (S.C.C.); and (d) R. v. Nguyen, 2023 ONCA 367 (“Nguyen”).

a. White

[53] In White, Mr. White owned and occupied a condominium unit in a small, ten-unit building. The police suspected that he was involved with dealing drugs and that another person being investigated (“Mr. P”) was using the condominium as a stash house.

[54] A detective made three surreptitious entries into common areas of the condominium building. Each time, the detective entered the building without the knowledge of any of the residents and without any prior consent. When the entries occurred, the police already knew the unit number of the accused’s residence. The following summarizes what the detective did during the three entries:

a. First entry: The detective entered the condominium building to determine the layout of the building, points of entry and exit, and obtain information as to other people that might be of interest. He gained entry by following a postal worker into the building through a door that was always locked. Once inside, the detective took the stairs to the lower level where he entered an unlocked storage room and viewed the contents of Mr. White’s storage locker (the lockers were cage-like and their contents were visible). The detective then went upstairs where he observed the accused’s unit. He was in the building for approximately 20 minutes.

b. Second entry: The purpose of this entry was to determine whether Mr. P was coming or going from the unit and bringing or retrieving packages. The detective entered the building through a stairwell door which would not close properly and was not closed as a result. Once inside the building, the detective hid in a stairwell and from this location observed Mr. P leaving Mr. White’s unit carrying a box.

c. Third entry: The detective used the same stairwell door he had used the last time to gain entry to the condominium building in another attempt to find evidence linking Mr. P to the unit. The detective stationed himself in the stairwell and observed Mr. P entering the unit. The detective overheard a conversation inside the unit and believed that it concerned a drug deal. He also heard what he thought was the sound of packing tape being removed from a roll. The detective observed Mr. P leaving the unit with a box in his possession and depositing the box into a minivan.

[55] A search warrant was subsequently obtained for the condominium unit. Mr. White applied successfully to exclude the evidence found during the execution of the search warrant. The Court of Appeal dismissed the appeal from the trial judge’s decision. It found that Mr. White had a reasonable expectation of privacy in the common areas of his building.

[56] The Court of Appeal expressed the view that a resident may have possession or control of the common areas of a building to a greater or lesser extent, and noted that the size of the building and ownership of the property could be relevant considerations in determining reasonable expectations of privacy: see White at para. 45. The Court of Appeal stated the following (at paras. 47-48, 51):

[47] Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.

[48] In any event, the fact that a relatively large number of people may have access to a building’s common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated.

[51] There is nothing “perverse” about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.

[57] In subsequent cases (see Yu at para. 68 and Nguyen at para. 23), the Court of Appeal listed the following factors as having been identified in White as relevant to the level of expectation of privacy in common areas of multi-unit buildings:

a. degree of possession or control exercised over the common area by the claimant;

b. size of the building: the larger the building, the lower the degree of reasonable expectation of privacy in common areas;

c. security system or locked doors that function to exclude the public and regulate access; and

d. ownership of the property.

[58] The Court of Appeal in White also upheld the trial judge’s decision to exclude the evidence under section 24(2) of the Charter.

b. Saciragic

[59] Mr. Saciragic was a target of a drug investigation. He was observed driving from his residence to the underground garage of an apartment complex. When he drove away from the garage approximately 25 minutes later, the police followed him. Mr. Saciragic was seen pulling up to a waiting car in a parking lot and hand a box to the driver of the car. Both Mr. Saciragic and the driver of the other car were arrested. Police discovered that the box contained one kilogram of cocaine.

[60] The police’s theory was that Mr. Saciragic operated a stash house at the apartment complex that he visited immediately prior to the meeting in the parking lot. As a result, a detective constable attended at the apartment complex and met with the property manager in his office. The detective constable asked the property manager to identify the key fobs that had been used to access the secure parking garage during the time frame in which Mr. Saciragic had entered. He also provided the property manager with a description of Mr. Saciragic.

[61] The property manager advised the detective constable that the privacy policy of the complex did not permit him to show the surveillance video to police without a warrant. However, he provided the detective constable with the information that two key fobs had been used during the time period specified, one registered to unit 304 and the other to unit 1107. He also advised (whether from his own review of the surveillance video or from someone else’s) that a person matching Mr. Saciragic’s description had exited the elevator on the 11th floor during the relevant time frame, and shortly thereafter returned to take the elevator down to the parking garage. From this information, the police concluded that Mr. Saciragic’s stash house was likely unit 1107.

[62] The Court of Appeal held that the trial judge had made no error in concluding that Mr. Saciragic had no reasonable expectation of privacy in the fob data, the fact that he attended at the 11th floor, or the ultimate information that the police were able to conclude from this data, i.e., Mr. Saciragic’s use of unit 1107. After noting that it was necessary to consider the nature of the information obtained by the police and how they obtained it in order to determine whether section 8 was engaged, the Court of Appeal stated the following (at paras. 30-33):

[30] With respect to the nature of the information, the police were told: i) two key fobs were used during the specified time frame to enter the parking garage, associated with units 304 and 1107; and ii) from a review of video surveillance, someone matching the appellant’s description on one occasion attended the 11th floor of the apartment complex from the elevator, exited, and then later re-entered the elevator. Here, no intimate details of the appellant’s life were revealed by the provision of the information that, on a single occasion, the appellant exited and re-entered the elevator at the 11th floor. This information did not yield any information about the nature of the appellant’s activities in unit 1107, or even whether he used unit 1107 as a residence. Similarly, no intimate or biographical details were revealed by the fact that the fob he used when police observed him enter the parking garage was assigned to unit 1107.

[31] Of course, in assessing whether an individual has a reasonable expectation of privacy, it is necessary to look not only at the immediate information sought by the police (the address corresponding to the fob, the attendance on the 11th floor), but the further information that it ultimately reveals: Spencer, at para 31. In this instance, the ultimate information sought by the police is the particular unit the appellant accessed: the appellant’s municipal address.

[32] Did the appellant have a reasonable expectation of privacy in his municipal address? The appellant did not advance any authority in support of the proposition that, categorically, there is a reasonable expectation of privacy in one’s municipal address. A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access.

[33] Neither, on the record before the court, were there particular circumstances that would indicate a reasonable expectation of privacy in the appellant’s connection to unit 1107. The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police.

[63] Thus, the Court of Appeal concluded that Mr. Saciragic had no reasonable expectation of privacy in the fob data, the fact that he attended at the 11th floor, or the ultimate information that the police were able to conclude from this data, i.e., his use of unit 1107.

c. Yu

[64] This case dealt with a number of issues, including whether warrantless entries made by the police into the common areas of certain condominium buildings were constitutional. The Court of Appeal applied the factors identified in White and concluded that the factors led to different conclusions depending on the type of common areas accessed by the police – parking garages and hallways. The Court found that the appellants did not have a reasonable expectation of privacy in the parking garages, but that they did have such an expectation of privacy in their hallways, albeit a diminished one: see Yu at para. 69.

[65] The Court of Appeal stated the following at paragraphs 76-77 with respect to the subject matter of the search in that case:

[76] The question to be answered when determining the subject matter of the search is “what the police were really after”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 15. In my view, the subject matter of the search here was information about the appellants’ residency and their comings and goings. I agree with the respondent that what the police were really after in the preliminary hallway entries was basic information such as the fact of residency in the building and the unit number of a suspect. This is information that would be available to the police and in public view if, for example, the police followed someone home to a detached house. A person’s physical address is not personal information that attracts Charter protection: R. v. Saciragic, 2017 ONCA 91. The police also wanted to determine the direction that the suspects’ units faced, so they could conduct surveillance inside or outside the building without detection.

[77] After these basic facts had been established, the police were interested in obtaining information about the appellants’ comings and goings – whether they were at home (when the police checked to see if their cars were parked in the garage), who they visited and who visited them, what they were carrying, and how long they stayed during these visits. Although any individual observation made from the physical surveillance might be characterized as “mundane”, the surveillance observations together and over time produced more invasive information about what happened in and around the appellants’ homes.

[66] The Court of Appeal held that the garage entries did not engage section 8 of the Charter because the appellants had no reasonable expectation of privacy regarding observations made from a space accessible to the general public: see Yu at para. 80.

[67] The Court reached a different conclusion with respect to hallways. It stated that once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. However, the level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance. See Yu at paras. 82-83.

[68] The Court elaborated further on this point at paragraphs 84-86:

[84] Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person’s residence, such as the end of a particular hallway of a particular floor of the building. Even in those less-frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.

[85] A resident or occupant’s reasonable expectations surrounding camera surveillance in a condominium building depend on whether the cameras are visible, and whether the resident has been informed by the condominium management as to the location of any security cameras installed in the building. If there is no visible camera, and if the resident has been told that there are no security cameras, then residents are entitled to expect their movements are not subject to camera surveillance.

[86] The only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed. As soon as they open their door, or exit their unit, it is reasonable to expect that they may be observed, with that level of expectation increasing the closer they get to the main areas of the building or to any security cameras.

[69] The Court of Appeal concluded that, on balance, the factors identified in White established a low but reasonable expectation of privacy in the hallways. The Court noted the following:

a. The buildings had strict security features designed to exclude outsiders, and the condominium rules barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the building’s security systems would operate to exclude the police from entering the common areas of the building multiple times without permission.

b. Security cameras were installed in the lobby, the ramp to the parking garage, at the elevator lobby and in the elevators, but not in the hallways outside units. The appellants had some limited reasonable expectation of privacy in those areas.

c. The appellants’ reasonable expectation of privacy in these areas was low. The condominium buildings were large – each had over 300 units. Further, the appellants would have reasonably expected that the board or property management could consent to police entry.

d. Nguyen

[70] The police believed that Mr. Nguyen was part of a fentanyl drug network. While the police were following Mr. Nguyen one day, they saw him park his car in the area of two condominium buildings which shared a low-rise structure housing a concierge and security desk. The police saw Mr. Nguyen exit his vehicle, but they lost sight of him as he was walking in the area near the two condominium buildings.

[71] A few days later, a detective constable attended the front desk for the two condominium buildings. He spoke to the security supervisor and advised him that he was trying to identify if someone had attended at their buildings. He requested to see the video for the public entrances for both buildings. The security supervisor permitted him to do so. From reviewing the video, the detective constable learned that Mr. Nguyen used a fob to gain access to the front lobby of one of the buildings at 11:38 p.m. on the day that he was being followed. Mr. Nguyen walked in the front door and pointed an object at the fob system and the door automatically opened.

[72] The vestibule that Mr. Nguyen entered was entirely glass-walled and had three readily visible security cameras. All three cameras were installed by the condominium corporation.

[73] The primary issue in this case was whether Mr. Nguyen had a reasonable expectation of privacy in the video recording of him in the condominium building’s publicly accessible and glass-walled vestibule. The Court of Appeal found that he did not.

[74] The Court of Appeal stated that White and Yu did not stand for the principle that residents of a condominium building have a reasonable expectation of privacy in all common areas. It found that the reviewing judge had erred by failing to consider the factors identified in these cases and to engage in the contextual decision that they require in order to determine whether there is an objectively reasonable expectation of privacy: see Nguyen at para. 18.

[75] The Court of Appeal noted that the nature of the information sought and ultimately revealed in this case was that Mr. Nguyen had entered the condominium building and used a key fob to do so. It further noted that the video was recorded in the ordinary course, not at the behest of the police, and that the detective constable had only requested to see the video for the public entrance and he did not seize the video.

[76] After referring to Saciragic, the Court found as follows (at paras. 34-35):

[34] Here, similarly, no intimate or biographical details of Mr. Nguyen’s life were sought by police or revealed when they viewed the video. Police did not even obtain information about what unit Mr. Nguyen was attending at. The video revealed nothing about what Mr. Nguyen did once he was through the fob‑accessed door.

[35] The information obtained was less revealing than the information obtained in Saciragic. If the information obtained in Saciragic was analogous to one’s municipal address, the information obtained in this case was analogous to what neighbourhood one lived in. Applying Saciragic, I conclude that the subject matter of the search, properly defined, was narrow and did not significantly engage Mr. Nguyen’s informational privacy interests.

[77] The Court of Appeal was prepared to accept that Mr. Nguyen had a direct interest and a subjective expectation of privacy in the video of his image and movements. However, it concluded that Mr. Nguyen’s subjective expectation of privacy was not reasonable (see para. 38):

[38] The live issue remaining is whether, considering and applying the factors identified in White and Yu, and considering the subject matter of the search, Mr. Nguyen’s subjective expectation of privacy in the video of his movements in the vestibule was objectively reasonable. I conclude that it was not, for the following reasons:

• Mr. Nguyen had no control over the glass-walled vestibule. It is accessible to the general public.

• [The condominium building] is a large, high-rise condominium building. Given the size of the building, presumably many people enter the vestibule.

• No security features bar non-owners or non-occupants from entering the condominium’s vestibule.

• The cameras which recorded the video that the police viewed were installed by the condominium corporation and were situated, in plain view, in the publicly-accessible vestibule. The circumstances are analogous to the observations police made from the visitor’s section of the garage in Yu. As in Yu, the observations in this case (the video) were made from a space accessible to the general public.

• Mr. Nguyen did not own unit 2806. In fact, he did not even reside at [the condominium building].

• As discussed above, the information obtained about Mr. Nguyen was strictly limited and did not substantially compromise his informational privacy interests.

[78] Thus, the Court of Appeal concluded that the review of the video did not engage section 8 of the Charter.

3. Positions of the parties

[79] The Applicants argue that the subject matter of the search was not merely their address. They submit that the police were interested in the Applicants’ lifestyle and something more intimate and revealing, i.e., the police wanted to confirm that the Applicants were actively dealing drugs out of Unit 1205. The Applicants note that in Saciragic and Nguyen, the police only sought the accused’s unit number or attendance at a particular building, but did not conduct surveillance of the actual unit or the activities of the occupants. The Applicants point out that, in this case, surveillance on the unit was coordinated with a pre-arranged drug deal, and DC Rhone trespassed into the Building and positioned himself on the 12th floor hallway specifically to catch the Applicants in the act of trafficking drugs out of Unit 1205.

[80] The Applicants state that the manner in which the police obtained the information was unlawful and deceptive, and that the police trespassed into the Building even though there were no exigent circumstances and nothing prevented them from seeking consent or judicial authorization.

[81] The Applicants submit that they had a reasonable expectation of privacy in the subject matter of the search. They point out that the Building had a security system designed to regulate access and exclude trespassers, and state that they could reasonably expect that their unit would not be subjected to unauthorized covert surveillance.

[82] The Crown’s position is that the Applicants cannot demonstrate a reasonable expectation of privacy. With respect to the subject matter of the search, the Crown submits that the information sought and what it revealed was the Applicants’ address or whether there was an address associated with the Applicants in the Building. The Crown states that on the first entry, officers determined that Unit 1205 was an address of interest, but they also had an indication that the Applicants’ address could be on the 20th floor as the Applicants attended the 20th floor a few minutes after entering Unit 1205. During the second entry, an officer was stationed on each of the 12th and 20th floors to determine which floor, if either of them, the Applicants resided on, and in which unit. The Crown notes that after DC Rhone’s observations of “Chelsea” exiting from and returning to Unit 1205 after conducting a drug transaction and using a key to gain entry, no further surveillance was conducted because the residency of the Applicants was all that the police were really after. The police already had evidence of criminality.

[83] The Crown submits that there is no reasonable expectation of privacy in a residential address and that a person’s home address is not personal information that attracts Charter protection. The Crown states that a physical address does not reveal intimate details of one’s lifestyle choices and is often publicly available information. The Crown points out that Mr. Boaheng had already disclosed his residential address to third parties, including state actors, and, consequently, he did not have a subjective expectation of privacy in it.

[84] The Crown argues that the observations made in this case were not intrusive, they were brief and they were conducted on one day within six hours, and only in the common areas of a very large building. The Crown submits that the size of the Building alone resulted in a significantly diminished expectation of privacy in all common areas, especially given the lack of security measures preventing movement within the Building for residents and visitors alike, even across the two towers. The Crown also notes that the Applicants did not have an ownership interest in the unit, and there were non-covert security cameras installed by building management throughout the Building, including in all of the areas in which the police made observations.

4. Analysis

a. Subject matter of the search

[85] The first step is to identify the subject matter of the search. In my view, the subject matter of the search was not the same for the two different entries in the Building.

[86] The first entry in the building by DC Lee and DC Court was not planned in advance.[^2] When surveillance started on July 14, 2021, the main objective was to try to locate the Corolla and “Corey”. The TDS did not know whether they would be successful in doing so and how the surveillance would unfold. The only thing that they knew was that there was a possible connection between “Corey” and the Building because of a number of parking tickets in and around the area of 15 and 17 Zorra Street.

[87] I find that the subject matter of the search and “what the police were really after” during the first entry is accurately described in the following evidence given by DC Lee at the preliminary inquiry:

Q. Okay. And so basically it was a [sic] unstated understanding between the two of you [DC Court and DC Lee] that somebody was going to be getting off on the floor, right?

A. Yes.

Q. And the purpose of that was to try and determine where the target was going to be going, which particular unit he would be going to?

A. Yeah. It would be to ascertain a specific apartment or unit, and to further our investigation in regards to gathering evidence or clues into if that was actually his place of residence and/or if that was just his girlfriend’s place, and/or if they were just visiting other people. There could be a variety of different reasons, I mean, why an individual was going to a specific unit, right? So it’s our job to kind of ascertain that.

Q. Sure, but step 1 is you’ve got to find out which unit the person is connected to, right?

A. Yes.

[88] Thus, the subject matter of the search during the first entry was to determine the Applicants’ address or what unit they were associated with in the Building. The information obtained during the first entry did not reveal anything else. See Saciragic at paras. 30-31. Among other things, the information obtained did not reveal anything about the activities inside the residence. In fact, the police were not even able to ascertain whether Unit 1205 was the Applicants’ address as “Corey” and the two women entered into the unit without using a key and were inside for a very short period of time before exiting and going to the 20th floor.

[89] The fact that the police could use information about the Applicants’ residence to draw inferences by combining that information with other investigative facts – for instance, “Corey” and “Chelsea” engaged in drug trafficking with the undercover officer and drug traffickers often conceal their illicit substances in their residence – does not change or broaden the subject matter of the search. As recently stated by the Court of Appeal in R. v. El-Azrak, 2023 ONCA 440 at para. 49 (“El-Azrak”), the subject matter of the search must be considered solely from the perspective of what the “raw data” reveals and what, if any, inferences can be made directly from that information.[^3] As stated above, aside from possibly connecting the Applicants to a unit in the Building, no inference can be made directly from DC Court’s observations during the first entry about any activity in Unit 1205. See El-Azrak at paras. 36-38, 41, 48-52. See also R. v. Tessling, 2004 SCC 67 at para. 36.

[90] Turning to the second entry in the Building, I am of the view that the subject matter of the search during that entry was different. The TDS were still trying to ascertain the Applicants’ address. However, because the surveillance of Unit 1205 was planned to take place at the same time as a pre-arranged drug transaction with an undercover officer, the nature of the information that the surveillance revealed was more than simply the Applicants’ address. Among other things, it revealed information about activities that were taking place inside Unit 1205, i.e., possession of drugs and drug-dealing. These inferences could be made directly from the observations made by DC Rhone in the hallway. This is demonstrated by DC Rhone’s evidence that, after making his observations on the 12th floor on July 14, 2021, he concluded that Unit 1205 stored illegal drugs, whether or not it was the address for “Corey”. Therefore, I agree with the Applicants that the subject matter of the second entry was to confirm that the Applicants were dealing drugs out of Unit 1205.

[91] The fact that “what the police were really after” was not only the address but information about what was inside the unit is further confirmed by DC Rhone’s evidence at the preliminary inquiry:

Q. All right. And why did you go into the building?

A. I went into the building to ascertain exactly which unit – hopefully – hopefully ascertain which unit the female runner was going to be coming out from, because I believed that that unit is the unit stored – is used to store Schedule I substances and proceeds of crime. So I knew that we were going to be ascertaining a CDSA search warrant, and I wanted to make sure that we had the correct unit that I believe that was going to use to store illegal substances, under the Schedule I of the Controlled Drugs and Substances Act. So that’s why I went into the building.

b. Whether the Applicants have a direct interest in the subject matter of the search

[92] Based on the ITO and the charges against the Applicants, the Crown’s theory is that both Applicants resided in Unit 1205 at the relevant time. Therefore, the Applicants had a direct interest in their address and whether they were dealing drugs out of Unit 1205. See Jones at para. 32.

c. Whether the Applicants have a subjective expectation of privacy in the subject matter of the search

[93] I infer from the Crown’s theory and the circumstances of this case that the Applicants had a subjective expectation of privacy in whether they were dealing drugs out of Unit 1205 and, more generally, what they were doing inside their residence. See El-Azrak at para. 60.

[94] I am also prepared to presume that the Applicants had a subjective expectation of privacy in their address. Even though third parties, including state actors, were aware of their address, I note that the Applicants did not reveal their real names or address to the undercover officer and, for the purpose of the third drug transaction, “Corey” asked the undercover officer to go to 1185 The Queensway instead of 15 or 17 Zorra Street.

d. Whether the Applicants’ subjective expectation of privacy is objectively reasonable in the totality of the circumstances

[95] With respect to the subject matter of the search during the first entry in the Building, i.e., the Applicants’ address, it is unnecessary to engage in a detailed analysis of the relevant factors in light of appellate authorities. The Court of Appeal has repeatedly held that there is no reasonable expectation of privacy in one’s physical address and that a person’s physical address is not personal information that attracts Charter protection: see, e.g., Saciragic at paras. 31-34; Yu at para. 76; and El-Azrak at paras. 85-86. There are no special circumstances in this case that would distinguish this case from other cases. In particular, I note that Mr. Boaheng’s address appears on his Parole Order, his insurance slip for the Corolla, documents from Service Ontario regarding his health card and driver’s licence, and correspondence from Toronto agencies.

[96] However, I find that the Applicants had a reasonable expectation of privacy, albeit a low one, in the subject matter of the search during the second entry in the Building, i.e., whether they were dealing drugs out of Unit 1205. As stated in Nguyen (at para. 18), it cannot be concluded that residents of a condominium building have a reasonable expectation of privacy in all common areas. Therefore, it is important to consider the relevant factors (including the factors identified in White) and to engage in a contextual analysis. I discuss the relevant factors below:

a. Degree of possession or control exercised over the common area by the Applicants and security system or locked doors that function to exclude the public and regulate access. Like in White and Yu, although the Applicants did not have control over access to the Building, it was reasonable for them to expect that the Building’s security system would operate to exclude strangers, including the police, from entering the common areas of the Building without permission: see White at para. 47 and Yu at para. 87. This is the case even though the security system in the Building was not as strict as the security system in the building in Yu (i.e., a visitor did no need to be accompanied by an owner or occupant in order to be able to access the Building).

b. Ownership. There is no evidence before me that the Applicants or any of them owned or even leased Unit 1205.

c. Size of the Building. The Building was a very large one, with 520 units in total (228 units at 15 Zorra Street and 292 units at 17 Zorra Street). The size of each tower of the Building was similar to the buildings in issue in Yu (over 300 units). As demonstrated by the decision of the Court of Appeal in Yu, the fact that a building is large does not necessarily eliminate an expectation of privacy in certain areas of the building.

d. Place where the search occurred. The surveillance occurred in a hallway. While I do not have evidence regarding the specific number of units on the 12th floor of 17 Zorra Street, given the total number of units (292) and the number of residential floors (24), there would likely not be more than 15 units per floor. This suggests limited foot traffic in the hallways on a specific floor, even if one takes into account visitors, delivery people, etc. Thus, hallways would be less-frequented areas compared to other common areas: see Yu at paras. 82-84. I note, however, that Unit 1205 was visible from the elevators on the 12th floor. Therefore, the expectation of privacy with respect to Unit 1205 is lower than with respect to a unit located at the end of a hallway. The presence of cameras in the hallways also reduces the expectation of privacy, and so does the possibility that the condominium board or management could consent to police entry.[^4] See Yu at paras. 85, 90, 94.

e. Whether the subject matter was in public view. As stated above, the surveillance occurred in a building with security features intended to exclude non-occupants, and in a hallway where one would reasonably expect that the number of people who might enter the area would be limited. This relates to the location from which the observations were made. However, the subject matter of the search itself – whether the Applicants were dealing drugs out of Unit 1205 – was not in public view. It relates to activities within Unit 1205 where a condominium resident would have a high expectation of privacy: see Yu at para. 86.

f. Whether the police technique was intrusive in relation to the privacy interest and whether the use of evidence-gathering was itself objectively unreasonable. DC Rhone entered the Building without authorization or consent and by circumventing the Building’s security system. He concealed his presence from the Applicants (and “Chelsea” in particular) by “hiding” in the hallway opposite Unit 1205.

g. Whether the information exposed any intimate details of the Applicants’ lifestyle or information of a biographic nature. The information that the Applicants were dealing drugs out of Unit 1205 exposed details of the Applicants’ lifestyle.

[97] While the Court of Appeal in Yu found that the appellants had a reasonable – but low – expectation of privacy in the hallways of the building in question, I note that the expectation of privacy in the hallways of the Building in this case would be lower than in Yu given the presence of security cameras in the hallways, the fact that a visitor did not need to be accompanied by an owner or occupant in order to be able to access the Building, and the fact that Unit 1205 was visible from the elevators. However, in light of all the factors above and the totality of the circumstances, I find that these differences do not eliminate the Applicants’ reasonable expectation of privacy in the subject matter of the search here. This is especially the case given the police technique adopted in this case – which was more intrusive than in Saciragic and Nguyen – and the fact that the information obtained through the search exposed details of the Applicants’ lifestyle and activities within Unit 1205.

[98] Thus, I find that the Applicants have demonstrated a reasonable expectation of privacy in the subject matter of the search conducted by DC Rhone on the 12th floor of the Building on July 14, 2021, and a violation of section 8 of the Charter.

B. Excision of the ITO

[99] Given that the information obtained during the surveillance conducted by DC Rhone was obtained in contravention of section 8 of the Charter, the observations made by DC Rhone must be excised from the ITO. See R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 at 251.

[100] As a result, paragraph 64 of the ITO must be excised as follows:

On July 14th, 2021 “Corey” and the undercover officer engaged in a drug related conversation. “Corey” agreed to sell the undercover officer $240.00 worth of powder cocaine. The undercover officer was directed the [sic] the address of 1185 The Queensway, Etobicoke. 1185 The Queensway is the building just to the north of 15 and 17 Zorra Street. Once at 1185 The Queensway the undercover officer contacted “Corey”. “Corey” advised that he would be sending a female down to conduct the drug related transaction as he was on house arrest and did not want to leave his residence. Members a short time later observed the female known as “Chelsea” exit the address of 1205-17 Zorra Street. “Chelsea” was observed taking the elevator down to the main lobby where she exited the doors [of 15 and 17 Zorra Street] and approached the undercover officer. “Chelsea” sold the undercover officer the $240.00 worth of powder cocaine. Upon the completion of the drug related transaction members observed “Chelsea” re-enter the address of 17 Zorra Street and take the elevator back to the 12th floor. Once on the 12th floor “Chelsea” was observed entering the residence of 1205-17 Zorra Street using a key.

[101] While there is evidence linking the Applicants to the Building (15 and 17 Zorra Street), it is my view that, based on the excised ITO, the authorizing judge could not have granted a search warrant for Unit 1205 specifically. The observations made by DC Court are insufficient to constitute reasonable and probable grounds to search Unit 1205.

[102] Paragraph 60 of the ITO refers to DC Court’s observations. It states:

Members observed “Corey” and the two (2) unknown females exit the motor vehicle and walk into the main lobby doors of 15 and 17 Zorra Street. The two (2) buildings share a common lobby with elevators being designated for the two (2) different buildings. Members observed “Corey” and the unknown females board the elevator for 17 Zorra Street. Members surveyed “Corey” and the unknown females to the 12th floor of 17 Zorra Street where they exited the elevator. Members further surveyed “Corey” and the females on the 12th floor where members observed all three (3) enter the door to unit 1205-17 Zorra Street. Members observed a knock at the door and then all three (3) parties entering with no greeting at the door by anyone. A short time later “Corey” and one (1) of the unknown females were observed exiting the address of 1205-17 Zorra Street where they took the elevator to the 20th floor. Members observed the elevator a few moments later descend from the 20th floor back to the 12th floor. Although no direct observations were made members are of the belief that “Corey” and the unknown female took the elevator back to the 12th floor.

[103] I note the following with respect to this paragraph of the ITO:

a. “Corey” and the two women were not seen with a key to Unit 1205. They knocked at the door before entering into the unit.

b. They were inside the unit only for a short time.

c. There are no observations that “Corey” or the women left anything in the unit or took anything from the unit before exiting.

d. “Corey” and one of the women went to the 20th floor and were not seen again by DC Court.

e. The belief set out in the last sentence of the paragraph above (i.e., that “Corey” and the unknown female took the elevator back to the 12th floor) is not based on anything and was likely informed by the observations made later by DC Rhone, which were excised.

[104] Without DC Rhone’s observations, there was not sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that evidence of an offence would be found in Unit 1205. Among other things, the observations made by DC Court cannot establish a credibly-based probability that the Applicants resided in Unit 1205 and/or stored anything there as opposed to a different unit on the 20th floor. This view is supported by the evidence of DC Lee and DC Rhone, including the excerpt from the evidence of DC Lee reproduced in paragraph 87 above.

[105] In light of the foregoing, I conclude that the search warrant for Unit 1205 could not have been issued without the improperly obtained facts excised from the ITO. Consequently, Unit 1205 was searched in violation of section 8 of the Charter.

C. Section 24(2) analysis

1. General applicable principles

[106] When faced with an application for exclusion under section 24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) society’s interest in the adjudication of the case on its merits. The court’s role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing mandated by section 24(2) is qualitative in nature and no overarching rule governs how the balance is to be struck. See R. v. Grant, 2009 SCC 32 at paras. 71, 86, 140 (“Grant”). In all cases, the court must assess the long-term repute of the administration of justice: R. v. Côté, 2011 SCC 46 at para. 48 (“Côté”).

[107] Under the first factor – the seriousness of the Charter-infringing state conduct, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant at para. 72.

[108] The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct, but ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. See Grant at paras. 74, 75 and R. v. Paterson, 2017 SCC 15 at para. 43 (“Paterson”).

[109] The second factor – the impact of the breach on the Charter-protected interests of the accused – calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. See Grant at para. 76. A reduced expectation of privacy does not mean that an unjustified search is permissible. The impact of even a minimally intrusive search must be weighed against the absence of any reasonable basis for justification. See R. v. Harflett, 2016 ONCA 248 at paras. 47-48 (“Harflett”).

[110] The third factor – society’s interest in the adjudication of the case on its merits – asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The reliability of the evidence and the importance of the evidence to the prosecution’s case are factors to be considered in this line of inquiry. While the seriousness of the alleged offence may also be a valid consideration, it has the potential to cut both ways. See Grant at paras. 79, 81, 83, 84.

[111] The Court of Appeal has stated that, in practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. See R. v. McGuffie, 2016 ONCA 365 at para. 63 (“McGuffie”).

[112] Discoverability is a relevant consideration in the section 24(2) analysis. “Discoverability” refers to situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them. While discoverability may play a useful role in the section 24(2) analysis, it is not determinative. See Côté at paras. 66, 70. In Côté, the Supreme Court of Canada described as follows (at paras. 71-73) how discoverability may be relevant to the first two branches of the analysis under section 24(2):

[71] I turn to the first branch of the Grant test which is concerned with the seriousness of the Charter-infringing state conduct. If the police officers could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened. As in Buhay, a casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct. On the other hand, the facts that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct.

[72] We come now to the effect of discoverability on the second branch of the Grant test – the impact on the Charter-protected interests of the accused. Section 8 of the Charter protects an individual’s reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual’s reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused’s privacy and dignity interests protected by the Charter.

[73] This is not to say, however, that in such circumstances there is no infringement of an accused’s privacy interests. A reasonable expectation of privacy protected under s. 8 of the Charter includes not only that proper grounds exist but also the requirement of prior judicial authorization. Thus the absence of a warrant when one was legally required constitutes an infringement of an accused’s privacy. The intrusiveness of such an unauthorized search will be assessed according to the level of privacy that could have reasonably been expected in the given set of circumstances. The greater the expectation of privacy, the more intrusive the unauthorized search will have been. The seriousness of the impact on the accused’s Charter-protected interests will not always mirror the seriousness of the breach, i.e. the Charter-infringing state conduct. For instance, where the police acted in good faith in obtaining a warrant that was found on review not to disclose reasonable and probable grounds to believe that a crime had been committed and that there was evidence to be found at the place of the search, the seriousness of the Charter-infringing state conduct is reduced but the impact of the search on the accused’s Charter-protected interests is greater because the search could not have occurred legally.

2. Positions of the parties

[113] The Applicants’ position is that the long-term administration of justice would be brought into disrepute if the evidence were to be admitted at trial.

[114] With respect to the seriousness of the Charter-infringing conduct, the Applicants argue that the seriousness of the breach is exacerbated by the fact that multiple police officers, including senior members of a team that specializes in undercover operations, trespassed into a secure residential building at a time when the law was well-settled that there was a reasonable expectation of privacy in apartment hallways, even in large buildings. The Applicants submit that the police demonstrated a total disregard of the Applicants’ Charter rights, and prioritized collecting evidence that they wanted over obtaining consent or judicial authorization, even though there was no urgency or exigent circumstances. The Applicants also argue that DC Rhone attempted to mislead the Court.

[115] With respect to the impact on the Applicants’ Charter-protected interests, the Applicants submit that while the expectation of privacy in the common areas of an apartment building may be attenuated, this does not mean that it is meaningless or that police misconduct can be excused on that account. The Applicants note that the purpose of the hallway surveillance was to collect evidence for a search warrant. Given that the unconstitutional surveillance directly led to the issuance of the search warrant for a residence and is causally connected to the search of a residence – which attracts the highest expectation of privacy, this factor strongly favours exclusion. The Applicants argue that there is no evidentiary foundation for a discoverability argument and that, in any event, discoverability could not “save the day” in the face of the egregious violations in this case.

[116] With respect to society’s interest in adjudication on the merits, the Applicants acknowledge that the evidence collected through the search warrant was reliable, but they note that the exclusion of the evidence will not gut the Crown’s case as the charges relating to the sale of cocaine to the undercover officer will be unaffected. They submit that where the first two factors favour exclusion, the third factor will rarely, if ever, tip the balance in favour of admissibility. Therefore, the Applicants state that the evidence must be excluded.

[117] The Crown’s position is that the section 24(2) analysis favours admission, not exclusion, of the evidence.

[118] The Crown submits that the seriousness of the state misconduct in this case is at the lowest end of the scale. The Crown states that in limiting their observations to the common areas to determine the Applicants’ address, the police believed that they were acting lawfully. The Crown argues that because the issue of the continuum of privacy in common areas is contextual and based on many factors, this creates ambiguity and a grey area. The Crown points out that many of the relevant factors would not be known by the police before entering a building (e.g., ownership of a unit, presence of security cameras, etc.). The Crown notes that in executing the search warrant, the officers believed that they were acting in accordance with a presumptively valid judicial authorization.

[119] The Crown acknowledges that, in the usual course, the impact on the Applicants of a search of their residence would be towards the higher end of the spectrum given the privacy interest that the Applicants would have had in that location. However, the Crown notes that discoverability of the evidence is relevant under this factor and serves to reduce the impact of the search on the Applicants. The Crown states that after the arrest of the Applicants, their address was known and, at that point, the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found in Unit 1205. Based on the discoverability of the evidence, the Crown argues that the impact of the breach is significantly reduced, places the impact on the Applicants towards the lower end of the spectrum, and favours inclusion of the evidence.

[120] The Crown submits that society’s interest in adjudication on the merits is very high. The Crown states that the evidence found in Unit 1205 is reliable and essential to the Crown’s case, and that the bulk of the charges against the Applicants would not be adjudicated if the evidence is excluded. The Crown notes that the charges that the Applicants face are serious, and points to the significant negative impact that drug trafficking has on society. The Crown argues that the number of fentanyl overdoses in Toronto over the past several years has been staggering, and that it is well documented that gun crimes are also on the rise and are one of the most significant societal concerns in Toronto.

[121] According to the Crown, on a proper balancing of the relevant factors, the evidence should be admitted. Excluding the evidence would affect the repute of the administration of justice far more adversely than would admitting the evidence.

3. Analysis

a. Seriousness of the Charter-infringing conduct

[122] In my view, the police in this case showed reckless disregard for the Applicants’ Charter rights.

[123] I agree with the Crown that the test that applies to determine whether there is a reasonable expectation of privacy in the common areas of a condominium building does not necessarily lead to a clear conclusion and requires the consideration of a number contextual factors, some of which may not be known to the police (e.g., ownership, presence of security cameras inside, etc.). However, this does not mean that the police can simply ignore the issue and enter a building without turning their mind to, and adequately consider in the circumstances, whether there is a reasonable expectation of privacy.

[124] The following is a summary of the relevant evidence given by members of the TDS regarding the authority to enter the Building:

a. DC Rhone testified that in larger project cases, the police would seek the consent of property management to enter the building, view video footage, obtain fobs, etc. In this case, he realized that this was not going to be a long-term investigation, that it was a “street level” investigation, and he thought that the police were justified in entering common areas of the Building for public safety reasons, i.e., to get quantities of illegal drugs off the streets as quickly as possible. He said that he turned his mind to the issue of getting consent in this case, but he realized that they had an opportunity at that particular time to gather evidence and they seized that opportunity. DC Rhone acknowledged that there was nothing preventing the police from getting consent.

At the hearing of the Applications, DC Rhone gave evidence that he had not given at the preliminary inquiry regarding the objectives of the second round of surveillance on July 14, 2021. He stated that he went to the 12th floor of 17 Zorra Street and DC Kharbar went to the 20th floor for officer safety reasons, in the event the undercover officer was redirected to the Building. He maintained the evidence that he had given at the preliminary inquiry as to the other considerations to conduct surveillance, i.e., obtaining an exact address for “Corey” and making observations to support a search warrant. DC Rhone’s view is that the police can conduct surveillance in the common areas of an apartment building for reasons related to officer safety or public safety. DC Rhone stated that, in this case, he prioritized proceeding with the investigation instead of getting consent or judicial authorization because of public safety concerns.

b. DC Lee’s evidence was that he did not turn his mind to contacting building management before entering the Building. He said that this kind of step is typically taken in longer investigations. DC Lee stated that the option to stop the surveillance and contact building management was not practical, he did not know yet whether consent was required and he prioritized the decision to go in. DC Lee believed that he had legal grounds to enter the Building’s common areas. He also believed that public safety required that the unit be identified. His understanding of the law was that expectations of privacy in common areas of buildings were scenario-specific and varied depending on the circumstances. His view is that he did not need consent or a judicial authorization in this particular case. DC Lee said that he had read the cases White and Yu, but he was not sure whether he had read Yu prior to this investigation. His understanding of what the Court of Appeal held in Yu with respect to surveillance in hallways is incorrect.

c. DC Court’s evidence was that she did not turn her mind to the question of legal authority to enter the Building. In response to written questions, she stated that “[t]he opportunity to enter the building with a person who had opened the door presented itself and we took advantage of that opportunity in furtherance of the investigation without giving any thought to the issue of the legal authority to enter.”

d. DC Kharbar’s evidence was that he was not aware of any discussion among any of the officers on July 14, 2021 about getting consent or judicial authorization to enter the Building.

[125] This evidence is concerning for a number of reasons:

a. Even though a number of officers were involved in the surveillance, including senior officers (more than 15 years of experience), the issue of whether the police could enter into the Building without a warrant or consent was not discussed among the officers, even after the first entry on July 14, 2021. Some of the officers did not turn their mind to the issue at all, and some appear to have considered only a few relevant factors (e.g., size of the Building and foot traffic). This is despite the fact that the decision of the Court of Appeal in Yu was released approximately one year and a half prior to the investigation in this case.

b. The distinction drawn by DC Rhone and DC Lee between long and short investigations for seeking consent from building management is not a principled one and ignores the fact that individuals who are targets in short investigations do not have lesser Charter rights than targets in larger projects.

c. There were no exigent circumstances in this case. Exigent circumstances denote urgency, not merely convenience, propitiousness or economy: see Paterson at para. 33.

d. The public safety reason advanced by some of the officers – i.e., getting illegal drugs off the streets as quickly as possible – is not a valid reason for the police not to consider the Applicants’ reasonable expectation of privacy because such a reason would apply to every drug case. Again, there was no urgency in this case.

e. There was no officer safety issue in this case. The undercover officer was never asked to go into the Building to complete a drug transaction. The remote possibility that the undercover officer might be asked to enter the Building – which is not based on any evidence or any indication by “Corey” – does not justify an entry in the Building in the circumstances of this case.

f. The police consciously decided to prioritize the investigation over obtaining consent or judicial authorization, to the detriment of the Applicants’ Charter rights and in the absence of any urgency. While they had an “opportunity” to enter into the Building, they did not have to take it. They could have taken different steps to obtain information regarding the Applicants’ address.

[126] In light of the foregoing, I find that the police showed ignorance of Charter standards and reckless – if not deliberate – disregard of Charter rights. This is serious conduct on the part of the police. This factor favours the exclusion of the evidence.

[127] The Applicants urged me to find that DC Rhone was dishonest and attempted to mislead the Court. I decline to so find. While, as stated above, I do not accept that officer safety was a valid reason in this case to disregard the Applicants’ reasonable expectation of privacy, I accept that this was a factor considered by DC Rhone on July 14, 2021. This is consistent with the role of “road boss”. I also refuse to make any adverse findings against DC Rhone based on what was or was not discussed at the briefing meetings on July 14, 2021. The briefing meetings were very short, based on briefing sheets that contained very little detail, and involved officers who were used to work together and to do surveillance of suspected drug traffickers. Based on the evidence before me, and in the absence of detailed police notes regarding what was discussed, I do not accept that any of the officers had a clear recollection of the briefing meetings and what was said to whom when, especially since the briefing meeting that was held at 10:15 p.m. on July 14, 2021 took place before the details of the drug transaction were known (location, time, use of a female “runner”, etc.).

b. Impact of the breach on the Charter-protected interests of the Applicants

[128] The fact that the Applicants’ reasonable expectation of privacy in the Building’s hallway was low does not mean that an unjustified search was permissible: see White at para. 65. As stated above, the impact of even a minimally intrusive search must be weighed against the absence of any reasonable basis for justification: see Harflett at paras. 47-48.

[129] The main goal of the surveillance on the 12th floor was to obtain the information necessary for a search warrant. Thus, the breach of the Applicants’ section 8 rights is directly and causally connected to the issuance of the search warrant and the search of Unit 1205, the Applicants’ residence. Given this, the impact of the section 8 infringement on the Applicants’ Charter-protected interest was considerable as it involved intrusion into their residence, a place in which they were entitled to repose the highest expectation of privacy: see Paterson at paras. 50, 53.

[130] I agree with the Crown that the evidence obtained as a result of the execution of the search warrant was discoverable, i.e., that it could have been obtained by lawful means had the police chosen to adopt them. For example, the police could have chosen to arrest “Corey” and “Chelsea” after a drug transaction with the undercover officer – as they did on July 23, 2021 – and they would then have been able to find out their exact address and obtain a search warrant for Unit 1205 after the arrest. The police could also have taken steps to obtain consent and information from building management.

[131] It has been noted in the case law that discoverability is a double-edged sword. While it may signal that the breach of the accused’s right was less serious, it also renders the state conduct more egregious as the evidence was discoverable without breach of the accused’s Charter rights: see Côté at paras. 70-74 and R. v. Tsekouras, 2017 ONCA 290 at para. 112. In the circumstances of this case, I am of the view that any attenuating effect of discoverability on the impact on the Applicants’ Charter-protected interests is neutralized or substantially reduced by the aggravating impact it has on the seriousness of the state conduct.

[132] In light of the foregoing, I conclude that the impact on the Applicants’ Charter-protected interests was significant given that it resulted in the search of their residence. This factor also favours the exclusion of the evidence.

c. Society’s interest in the adjudication of the case on its merits

[133] I agree with the Crown that society’s interest in adjudication on the merits is high. The evidence found in Unit 1205 is reliable. As a result of the evidence that was found, the Applicants are facing serious charges, and the nature of these charges raises very significant societal concerns.

[134] However, I note that while the Crown would be unable to proceed with some of the charges if the evidence found in Unit 1205 were to be excluded, the Crown would still be able to proceed on the charges that are based on the interactions between the Applicants and the undercover officer.

[135] Overall, this factor favours the admission of the evidence.

d. Conclusion under section 24(2) of the Charter

[136] Balancing all the factors, I conclude that the admission of the evidence found in Unit 1205 would bring the administration of justice into disrepute. The state conduct was serious and reckless, and showed a total lack of consideration of Charter standards in the absence of any valid reason. The impact of the breach on the Applicants was significant given that it involved the search of their residence. While the third factor favours the admission of the evidence, this is insufficient to tip the balance in favour of admissibility: see McGuffie at para. 63.

III. CONCLUSION

[137] The Applications are granted.

Vermette J.

Date: February 5, 2024

[^1]: I note that the ITO sworn by DC Chase and the central notes for July 14, 2021 state that only one of the women exited Unit 1205 with “Corey” and boarded the elevator with him to the 20th floor. However, DC Court’s notes and her evidence on this Application is that both women exited Unit 1205 with “Corey”. Since DC Court is the only person who made the relevant observations, I prefer her version of the events. However, this discrepancy ultimately does not have any impact on my decision.

[^2]: I do not accept DC Court’s evidence that the issue of surveillance was discussed during the briefing that preceded the first entry. It is clear from her evidence that she does not have a good recollection of the meeting, she did not have access to the briefing package and she had no notes on this point. I prefer the evidence of the other officers on this issue. Among other things, their evidence was tested under cross-examination and is more consistent with what the police knew at the relevant time.

[^3]: While DC Lee stated at some point during the hearing that the goal of the surveillance was to identify the unit affiliated with “Corey” to stash drugs and conduct drug activities, this was the goal of the investigation and the inference that the police were hoping to draw based on other investigative facts. As stated above, no inferences can be made directly from the information obtained by DC Court about the activities inside Unit 1205.

[^4]: I note, however, that there is no evidence before me as to whether the cameras were visible in the hallways and whether the Applicants knew about the presence of cameras.