Court File and Parties

Court File No.: CR-23-90000015
Date of Judgment: January 31, 2025
Ontario Superior Court of Justice

Between:
His Majesty the King (Respondent)
and
Shamar Cole (Applicant/Defendant)

Applicant Counsel: James Miglin
Respondent Counsel: Christopher Walsh, Meaghan Hourigan
Heard: November 12 to 22, 2024
Judge: Shaun Nakatsuru

A. Overview

1Shamar Cole is charged with offences arising out of a discovery of drugs, a firearm, and ammunition in two bags found underneath a bed during the police execution of search warrants on May 23, 2022, at a residence located at 2 Loomis Court. I have been tasked to decide a Charter application, a Crown motion to admit evidence of prior discreditable conduct, and the trial on the merits.

2The parties have been most cooperative and have agreed that I could decide all three matters in my final decision. It was also a very efficient trial. No witnesses were called. The evidence was composed of intercepts of private communications, photos, videos, documents, and agreed statements of facts. Needless to say, I have carefully kept the evidence relevant to the pretrial issues and the trial separate in my mind.

3In these reasons, I will deal with the Charter application. Then the Crown motion. Finally, the trial of the charges on its merits.

B. The s. 8 Charter Application

4The applicant challenges search warrants executed on May 23, 2022, on a residence, 2 Loomis Court, and a car, a black Honda with licence plate #CPVR227 (the Honda). He submits the search warrants could not have issued and that his right under s. 8 of the Charter was violated. He seeks the exclusion of a gun, drugs, and other evidence from his trial. Although he challenges the search warrant for the Honda, no evidence was seized from that search. The attack on that search warrant is only relevant to s. 24(2) if the search of the residence is found to have violated the Charter.

5These search warrants arose out of a police investigation named Project Entrust by the York Regional Police. The following is a brief overview of that investigation. The objective of Project Entrust was to uncover the drug trafficking network of a primary target, Jason Maragh. Police surveillance, transmission data recorder warrants, production orders, confidential sources, and judicially authorized interceptions of private communications were involved in that. The investigation led the police to believe Mr. Maragh supplied drugs to Remell Cunningham and the applicant. Nadijah McBean was believed to be the applicant’s girlfriend and was his co-accused on charges stemming from a Toronto Police Service arrest of the applicant and Ms. McBean on February 1, 2022. In that incident, it is alleged that the applicant discarded from the balcony of an apartment a bag containing drugs and guns. The police further believed Ms. McBean was trafficking drugs on behalf of the applicant. Both the applicant and Ms. McBean were released on bail with conditions including that they not have any contact with each other. On March 31, 2022, the applicant cut off his GPS ankle bracelet and left his surety’s residence. An arrest warrant was issued for him. Project Entrust continued. Eventually, the police determined that the applicant was driving a black Honda in May of 2022. The Honda and the applicant were last seen on May 22 and 23, 2022, along with Ms. McBean at the address of 2 Loomis Court. Soon thereafter, D.C. Hull, the affiant, applied for and was granted search warrants for that address and that vehicle.

6Before getting to the substance of the Charter application, the Crown submits that the applicant has no reasonable expectation of privacy at 2 Loomis Court.

1. Standing

7Before the applicant can challenge the search warrants for 2 Loomis Court, he bears the onus of proving he has standing. He must show a reasonable expectation of privacy in the premise or thing that was searched. The general framework for analysis as it is found in R. v. Spencer, 2014 SCC 43, para 18, involves four lines of inquiry: 1) the subject matter of the alleged search; 2) the claimant's interest in the subject matter; 3) whether the claimant had a subjective expectation of privacy in the subject matter; and 4) whether the subjective expectation of privacy was objectively reasonable. See also: R. v. Bykovets, 2024 SCC 6, paras 30-31; R. v. Cole, 2012 SCC 53, para 40.

8When it comes to a territorial reasonable expectation of privacy, the Supreme Court in R. v. Edwards, [1996] 1 S.C.R. 128, para 45, held that the following factors be considered in assessing whether there is a reasonable expectation of privacy:

(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.

9The Crown theory or position, based mainly on hearsay statements made by an occupant of 2 Loomis Court to police at the time of the execution of the search warrants, is that the applicant, who was on the lam from the police, was a mere “couch surfer” at the residence as he had no permanent place to stay. He had only been there for a couple of weeks and was storing his things in the bedroom where he slept. He was merely an invited guest without any ability to exercise any control over the premises.

10To start the analysis, I point out that it is not a matter of categorizing a person as an “invited guest” or a “couch surfer” that is definitive; it is the consideration of all the circumstances, including the theory of the Crown or affiant: R. v. Maric, 2024 ONCA 665, paras 196-204.

11Here, the police were searching a residential unit looking for evidence relating to the possession of a firearm and drug trafficking. The applicant has a direct interest in the subject matter of the search. The Crown does not dispute that he has a subjective expectation of privacy. The question is whether that expectation of privacy was objectively reasonable from a normative point of view.

12In my opinion, the applicant has shown he has a reasonable expectation of privacy at 2 Loomis Court looking at all the circumstances.

13The Crown theory can be relied upon as a basis to demonstrate a reasonable expectation of privacy: R. v. Jones, 2017 SCC 60, paras 9, 21. I do not fully agree with the Crown that their theory undercuts a reasonable expectation of privacy. Contextually, even on the Crown theory, the applicant did not have another residence. He had cut off his GPS ankle bracelet and wherever he stayed as he avoided police detection, albeit temporarily, was his “home”. He was not a mere visitor just storing some items of his at another person’s home as in Edwards. Again, on the Crown theory, the applicant had been staying at 2 Loomis Court for two weeks, living and sleeping there. The historical use of the property, while not of great duration, was that of a resident of a home. In these circumstances, contextually, the objective reasonable expectation of privacy held by the applicant at 2 Loomis Court is similar in kind to a hotel room or a short-term rental premise: R. v. Jogiyat, 2022 ONSC 3601, para 28.

14Moreover, the affiant’s position in the Information To Obtain (ITO) was that the applicant was presently residing at 2 Loomis Court. The affiant’s position is not ruling and only one factor in the assessment of the totality of the circumstances, but in this case, it supports standing: R. v. Mohammed, 2024 ONCA 691, paras 7, 8; Jogiyat, at paras. 10-21.

15At the time of the search warrant, the affiant was physically present at 2 Loomis Court. The police surveillance observed he had been present from the evening before and that he had slept overnight at the residence. He had also parked his Honda in front of the residence. The room that the applicant occupied was a bedroom within 2 Loomis Court, typically a more intimate and private place within a home that attracts greater privacy even from others who share the residence. Said differently, the applicant was not sleeping on a couch in a shared common living space but in a room that had all the hallmarks of his bedroom. The fact that he may have kept his belongings in bags is neutral evidence. It is not unheard of that even hotel guests do not fully unpack.

16It is true that the applicant did not own the residence and there is no evidence he was a formal tenant. The Crown also argues that he had no ability to regulate access, including the right to admit or exclude others, that was independent of another person. While I agree the record does not fully establish that he had such a power, the record is not devoid of evidence that he did exercise some independent control. The night before the search, Ms. McBean, the applicant’s girlfriend or romantic partner, came over to stay the night, demonstrating an element of control over who might be permitted to stay at the home. This is more pronounced since the applicant and Ms. McBean were legally not to be in contact with each other. Yet, the applicant managed to exercise enough control to permit an overnight stay with someone he was legally bound to avoid. In addition, on the day of the search, the applicant was free to independently leave and return to 2 Loomis Court, and thus exercise access to the residence, to purchase takeout food and presumably consume it within. Just like a resident who had their own say about how to use a shared residence.

17Looking at all the factors, I am satisfied that standing has been proven.

2. The Garofoli Application

The judicial review of search warrants

18In the judicial review of a search warrant, a presumption of validity exists. The onus is on the challenging party to show the warrant is invalid. The standard of review is whether the issuing justice could, acting judicially, have found that the legal thresholds were met; whether there was sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, paras 51, 54; R. v. Sadikov, 2014 ONCA 72, paras 81, 84; R. v. Morelli, 2010 SCC 8, para 40; R. v. Herta, 2018 ONCA 927, para 20.

19Though the applicant did not seek leave to cross-examine the affiant, he has presented evidence on this application to challenge the accuracy and veracity of some of the information contained in the ITO. Therefore, his is a sub-facial challenge to the search warrants.

The remainder of the Garofoli application, excision/amplification, and the detailed analysis of the search warrant, as well as the subsequent sections on the Crown's discreditable conduct motion, the trial on the merits, and the disposition, continue as in the original document, with all formatting, links, and layout corrected for clarity and readability.

C. The Crown’s Discreditable Conduct Motion

Section continues as in the original, with all formatting and links corrected.

D. The Trial on the Merits

Section continues as in the original, with all formatting and links corrected.

E. Disposition

225Mr. Cole is found guilty of count 3 (possession of a prohibited firearm), count 4 (possession of a loaded prohibited firearm), count 5 (possession of a prohibited device an overcapacity handgun magazine), and count 7 (careless storage of ammunition).

226Mr. Cole is acquitted of counts 1, 2, 6, and 8.

Justice Shaun Nakatsuru
Released: January 31, 2025

Endnotes

1Although this is not a consideration in the analysis, I observe that the Crown did not refer to any other handgun photos in their final submissions except the one taken of Mr. Cole with the gun in the bedroom.

2I will henceforth refer to it as the unlawful common design hearsay exception. Mr. Cole is not charged with conspiracy.

3There is another call on May 4, 2022 at 16:42 between Ms. McBean and Ms. Mohamed that the Crown does not seek admission for its truth as the Crown acknowledges it was not in furtherance of an unlawful common design.

4No evidence was led about the voice identification of the speakers aside from the contents of the intercepts themselves and visual evidence. No witness has identified the persons or the speakers. The agreed statements of facts and the affidavit of Ms. Renee Totman refers to these speakers, but there was no explicit agreement by the defence that these are who they are. For the reasons to make sense, I have identified the persons by name. Moreover, in the final analysis, whether these third parties are who they are identified to be, does not make a difference in my conclusions either on evidentiary issues or in my final judgment.

5There was also agreed facts presented orally. Regarding Ms. Totman’s affidavit, not all that is found within it are being considered as is at this trial. Some such as the prior arrest of Mr. Cole and Ms. McBean for guns and drugs in February are no longer being relied upon. The defence has also not conceded that where Mr. Cole is identified in the affidavit or attachments, this is in fact Mr. Cole. In terms of attachments, only the surveillance of May 12 and 20th are admitted as facts.

6The Crown has never proven this speaker or this person to be Nadija McBean as seen in the CCTV video recorded on December 8, 2021. However, this is not material in the sense that “McBean” is really a name or label to be attached to this speaker and the pregnant person who the evidence shows is in the company of Mr. Cole and has an emotional attachment to. The same can be said about “Tagried Mohamed” or “Remell Cunningham”. I will refer to them often with their names although proof of their identity is not always necessary for the evidence to be considered and to have probative value. As the Crown puts it, it is the relationship between parties that are important, not their names.

7Mr. Cole was discharged on these two counts after his preliminary inquiry. The Crown preferred a direct indictment. Mr. Cole sought to stay these charges on the basis of an abuse of process. That application was dismissed.