Overview

[1] The applicant, Abdulahi Ali, is charged with robbery, wear disguise, and fail to comply with recognisance arising out of his alleged participation in a robbery by four masked suspects of a jewellery store in the Malvern Town Centre in Toronto on March 8, 2024.

[2] Mr. Ali brings this application pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”) alleging that his s. 8 rights were breached when police obtained CCTV video surveillance (the “Video”) taken on March 8, 2024, by a camera inside an elevator of 330 Dixon Road, (“330 Dixon”) in the city of Toronto, where he resided. Two still photographs (“Photographs”) from the Video are in the Information To Obtain (“ITO”) used to obtain the search warrant to search his residence at unit 2407 of 330 Dixon, issued on April 2, 2024 (the “Warrant”). The significance of the Photographs is that the Crown alleges they show Mr. Ali wearing certain clothing when he went into the elevator at a time before the robbery, and later on the same day at a time after the robbery, any that the clothing matches the clothing that one of the suspects was seen changing into following the robbery. The search of Mr. Ali’s unit pursuant to the Warrant found clothing that the Crown alleges matches what can be seen in the Photographs.

[3] Pursuant to the order of Justice Goldstein dated July 6, 2026, I was appointed the case management judge pursuant to s. 551.1 of the Criminal Code, to hear the application.

Issues

[4] At the outset of the hearing Ms. Freeman acknowledged an error in her Notice of Application that refers to paragraph 19 of the ITO as referencing Mr. Ali. In fact, that paragraph refers to another suspect, Abdulahi Abdi. On that basis Ms. Freeman confirmed that the only impugned paragraph of the ITO is paragraph 34a that includes the Photographs.

[5] During the discussion with counsel at the outset of the hearing, the Crown fairly conceded that if I rule that Mr. Ali’s s. 8 Charter rights were breached as he asserts, and that the Photographs and paragraph 34a must be excised from the ITO, that without paragraph 34a of the ITO there are no reasonable and probable grounds to believe set out in the ITO that a search of the Mr. Ali's residence would afford any evidence. In that event she conceded that the search of his residence and the seizure of evidence from his residence would have been done without a valid warrant, and that search would have violated s. 8 as well. During that discussion Ms. Freeman made it clear that she not only seeks excision of paragraph 34a of the ITO, but that she also seeks a ruling that the Video evidence from inside the elevator is inadmissible at trial because it was obtained without a warrant and in breach of Mr. Ali’s s. 8 Charter rights. In addition, in those circumstances Ms. Freeman seeks a ruling that all items seized from Mr. Ali’s residence are also inadmissible at trial.

[6] Ms. McPhedran advised that she had not appreciated that this was the defence position. She asked that if I ruled that there was a s. 8 Charter breach when Detective Constable (“DC”) Craig Kelly obtained the Video without a warrant, that she be given permission to call DC Kelly, as the affiant of the ITO, to give evidence about his interaction with Gagandeep Singh, the on duty security guard, who gave him access to the Video, in support of an application to amplify the ITO on the issue of consent. She also asked that if I ruled, even after any amplification of the ITO, that there was a breach of Mr. Ali’s s. 8 Charter rights, that DC Kelly be permitted to provide some evidence relevant to a s. 24(2) Charter analysis. Ms. Freeman responded that she did not know that the Crown intended to call DC Kelly but submitted that if that was intended, he should be called before argument.

[7] Mr. Ali did not file an affidavit or testify on the application. Since only one day was set aside for the hearing of this application, the procedure agreed upon by counsel was that I hear the evidence of DC Kelly before argument, so that I could consider all the issues that could arise from this application as follows:

(a) Did the seizure by DC Kelly of the Video without a warrant breach Mr. Ali’s rights pursuant to s. 8 of the Charter?

(b) Did the ITO, with Paragraph 34a, contain enough information for the issuing Justice to reasonably believe that Mr. Ali was one of the four robbery suspects[1]?

(c) If necessary, can the Crown use some of the evidence of DC Kelly, on the issue of consent from Gagandeep Singh, the on-duty security guard, to amplify the ITO?

(d) If there was a breach of Mr. Ali’s s. 8 Charter rights, should the Video and the items seized from Mr. Ali’s residence without a valid warrant be excluded from the evidence at trial pursuant to s. 24(2) of the Charter?

Evidence of DC Kelly

[8] DC Kelly has been with the Toronto Police Service since 2012. At the time in question, he was with the hold-up squad. He was the case manager of this investigation and the affiant of the ITO in support of the Warrant. The ITO sets out information he sourced about Mr. Ali, including that his address was unit 2407 of 330 Dixon.

[9] DC Kelly testified that he is very familiar with the building complex at 320-330-340 Dixon Road in Toronto. He has attended there many, many times for different reasons as a police officer. The three buildings share a common driveway entrance from Chetta Place. If entering by car, there is an access point with a gatehouse. Residents with a key fob turn right to access the underground parking garage. Visitors turn to the left and speak to a security guard on duty in the gatehouse. If one is on foot, you do not need to stop at the gatehouse. You can enter 330 Dixon through a door that leads into a vestibule and then a key fob is needed to enter the building, or someone needs to buzz you in, using the intercom.

[10] DC Kelly described 330 Dixon as a condominium. It has more than 24 floors. He believes that it is totally residential save that in the past the lobby had a hairdresser and convenience store. He is not sure if those businesses are still there.

[11] DC Kelly described the security system at 330 Dixon at the time in issue. The front lobby of 330 Dixon acts as the hub for all security. Security officers do not have a designated office where they sit in the lobby of any of the buildings but at 330 Dixon there is a security office that is kept locked with multiple Digital Video Recorders (“DVRs”) and monitors that monitor cameras located at the gatehouse, in the lobby, in the elevators, in the underground parking lot and on some of the floors. There are on-duty security guards 24 hours per day that patrol the three buildings. DC Kelly testified that there are large cameras outside the building and then smaller ones inside the building at various locations. The cameras are four to six inches in diameter with a white base and glass dome, typical of the cameras one sees in buildings. DC Kelly has not seen any signage in 330 Dixon that advises that the persons inside are being recorded but there are numerous cameras in the building and they are out in the open and so someone in the building would have to assume they were being recorded. That evidence was not challenged.

[12] On March 28, 2024, DC Kelly testified that he attended at 330 Dixon in a plainclothes capacity in an unmarked police car. He identified himself as the gatehouse by showing his police badge and warrant card which shows his name and picture and the fact that he is a Toronto police officer. He was allowed into the complex and then entered 330 Dixon and met with Gagandeep Singh, the on-duty security guard. He identified Mr. Singh as a security officer because of the security uniform he was wearing. When he met with Mr. Singh, DC Kelly identified himself verbally but did not remember if he showed him his police badge.

[13] DC Kelly told Mr. Singh that he was there to review CCTV footage from March 8, 2024, and that he wanted to download some of that footage. He did not have a warrant to obtain this information nor was he asked for one. There was no discussion of a warrant. DC Kelly said he did not demand that he see the CCTV video but asked if he could and there was no request from Mr. Singh for a production order.

[14] DC Kelly was taken by Mr. Singh into the security office and was directed to the relevant DVR. He was then allowed to navigate himself to find the date and time he was looking for. DC Kelly testified that Mr. Singh was present throughout the time that he viewed the video. The first thing that DC Kelly did was to confirm the accuracy of the times shown on the CCTV video. The radio call for the robbery came in at 12:55 pm on March 8, 2024, so he was looking for CCTV surveillance before and after the robbery to see if the suspect he was interested in could be seen leaving 330 Dixon before the robbery and then returning after the robbery.

[15] At 330 Dixon the 24^th floor used to have a camera, but it did not have a camera at this time. DC Kelly testified that the Photographs he produced in the ITO are from the camera inside the elevator. They are still images taken from the Video he downloaded. The first image shows the suspect he believes is Mr. Ali entering the elevator on the 24^th floor to go down before the time of the robbery. The second image shows the same person in the elevator at a time following the robbery. DC Kelly testified that he tried to get an image where no other persons were in the frame as the suspect was travelling with others.

[16] The significance of the Photographs is that the Crown alleges they show Mr. Ali wearing a winter coat, going into the elevator on the 24^th floor at a time before the robbery, and later on the same day inside the elevator at a time after the robbery, wearing what appears to be the same coat and other clothing police allege matches the clothing that one of the suspects was seen changing into following the robbery. The search of Mr. Ali’s unit pursuant to the Warrant found clothing that the Crown alleges matches what can be seen in the Photographs.

[17] DC Kelly testified that he believed that Mr. Singh could give him valid consent because he was the security guard on duty and had access to the cameras and the CCTV surveillance video. He did not see any documentation to confirm that Mr. Singh had authority to show him CCTV video, but DC Kelly testified that he inferred from the fact that Mr. Singh gave him access to the CCTV video that he was authorized to do so. He had been to this building on multiple occasions before and had never been asked for a warrant and so he has never felt the need to ask the security officer for their authorization to show him the CCTV video. DC Kelly testified that he did not make any threats or give any inducements to Mr. Singh in order to view the CCTV video, nor did he make any promises.

[18] DC Kelly understood that the security guard was an employee of the company contracted by the condominium corporation to provide security for the building. In other words, security was not being provided by the owner of the property. He admitted that he did not know what the rules were from the condominium corporation in that regard. DC Kelly did not ask Mr. Singh specific questions as to the basis upon which Mr. Singh gave him access to the CCTV video nor did he ask him if he knew what the rules were from the condominium corporation in order to give this kind of permission. There was no discussion about what authorization Mr. Singh had to permit him to review the CCTV video.

[19] DC Kelly was cross-examined about his understanding of the law with respect to what portions of a multi-residence building someone can have a reasonable expectation to privacy. He understood that there was no expectation of privacy in the common areas but that it would be different if a camera captured inside a unit.

Analysis

Did the seizure by DC Kelly of the Video without a warrant breach Mr. Ali’s rights pursuant to s. 8 of the Charter?

(a) Relevant Legal Principles

[20] There was no dispute between counsel as to the law that I must apply to resolve the issues on this application. Ms. Freeman’s submissions focused on the question of whether there was a valid consent for DC Kelly to review the video evidence and seize the Video. Ms. McPhedran focused on the issue of whether Mr. Ali has established on a balance of probabilities that he had a reasonable expectation of privacy in the Video and that the seizure of the Video by DC Kelly without a warrant violated his s. 8 Charter rights.

[21] Section 8 of the Charter guarantees "the right to be secure against unreasonable search or seizure". This right is limited to circumstances in which there is a reasonable expectation of privacy in the subject matter of the search, which the applicant must establish on a balance of probabilities: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 159. The Supreme Court of Canada stated in R. v. Spencer, 2024 SCC 43, [2014] 2 S.C.R. 212, that the various factors in this contextual analysis can be grouped into four lines of inquiry:

(a) What is the subject matter of the search?

(b) Does the accused have a direct interest in that subject matter?

(d) Would an expectation of privacy be objectively reasonable in the circumstances of the case?

[22] In R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, 2020 S.C.C.A. No. 38, at para. 68, the court noted that this analysis was expanded in the context of the reasonable expectation of privacy in common areas of a multi-unit dwelling in R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, where the court laid out the following factors that are 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;

(d) Ownership of the property.

[23] The court went on to state at para. 83 that the level of expectation of privacy inside a condominium building will vary and 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”.

[24] Counsel referred to several additional decisions regarding the expectation of privacy in multi-unit buildings including a condominium building, including R. v. Saciragic, [2017] O.J. No. 483, 2017 ONCA 91, leave to appeal refused, [2017] S.C.C.A. No. 106, and R. v. Nguyen, [2023] O.J. No. 2280, 2023 ONCA 367. A case from this court, R. v. Samir, [2024] O.J. No. 581, 2024 ONSC 844 was also referred to and in that case, Justice Schreck helpfully summarized some of the applicable principles of law that I have relied upon.

[25] Turning to the four questions to consider:

(a) The Subject Matter of the Search

[26] In R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 241 at para. 38, the court stated:

In determining the subject matter of the search, we apply a functional and holistic approach, one that derives from the actual circumstances of the case. Undoubtedly, this approach requires that we look beyond the actual information provided and ask whether, with that information in hand, something further is revealed about the individual to whom the information relates [citations omitted]. This requires consideration of not only the raw data that the state came to possess, but also the nature of the information that could be inferentially derived from that raw data [citations omitted].

[27] In this case, the police were in the midst of a robbery investigation and were looking to identify four suspects. They had video evidence from a business at 40 Ronson Drive (“Ronson Video”) that showed the four suspects after the robbery getting changed into different clothing from what they wore during the robbery. DC Kelly explains in the ITO that he was familiar with Mr. Ali, from an arrest he was involved in, in June 2021, and he explained in the ITO why he believed him to be one of the unknown males from the robbery. He ran checks on Mr. Ali and determined that his address was 330 Dixon, unit 2407. With this information DC Kelly attended at 330 Dixon to review CCTV video from the day of the robbery.

[28] DC Kelly does not state in the ITO, nor was he asked when he testified, what information he was looking for but given his evidence about what he obtained and the content of the Photographs, and the significance of this evidence to his investigation, it is clear that he was not seeking information about Mr. Ali’s movements within the building in order to connect him to a particular unit in the building, because he already had an address for him. Furthermore, DC Kelly was not seeking to see if Mr. Ali interacted with anyone in the building. Nor was he looking for intimate or biographical information about Mr. Ali. DC Kelly simply wanted a visual recording of what Mr. Ali was wearing on March 8, 2024, if he went outside the building at a time before the robbery and what he was wearing when he returned at a time after the robbery. From the Video, DC Kelly was able to determine that the clothing Mr. Ali wore when he was dressed to go outside 330 Dixon at a time shortly before the time of the robbery and the clothing he was wearing at a time shortly after the robbery matches the clothing that one of the suspects from the robbery was seen changing into after the robbery in the Ronson Video. From this evidence the Crown seeks to prove that Mr. Ali was one of the four masked persons who robbed the jewellery store.

[29] It is significant that DC Kelly could have obtained this evidence if there was video evidence from outside 330 Dixon showing Mr. Ali leaving the building and coming back at times before and after the robbery. DC Kelly was not asked if he searched for that video evidence from the cameras he described that were outside the building.

(b) Direct Interest

[30] I accept that Mr. Ali has a direct interest in the subject matter of the search.

(c) Subjective Expectation of Privacy

[31] The threshold to establish a subjective expectation of privacy is low and can often be inferred from the circumstances: El-Azrak, at para. 60. Mr. Ali did not provide an affidavit or give evidence supporting his claim to an expectation of privacy in the Video. However, that is not a prerequisite to, nor determinative of, the existence of a reasonable expectation of privacy": R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525 at para. 82.

(d) Was the Expectation of Privacy Objectively Reasonable?

[32] The final question is whether any expectation of privacy Mr. Ali has in the Video is objectively reasonable. In my view it was not for several reasons.

[33] The uncontested evidence of DC Kelly was that it would have been apparent to occupants of the building that there were security cameras throughout the building, including the elevators and outside the building. Although Mr. Ali did not have to testify, without his evidence to the contrary, I find that Mr. Ali must have known that his presence in an elevator in the building and his comings and goings in and out of the building using an elevator were being recorded on video that was available to be viewed by the building's security officers. As Justice Schreck observed in Samir, at para. 28: “[i]t would also have been apparent to a reasonable person that the police might be given access to the video. The video cameras were there for security, and it would be reasonable to expect that the police may become involved in security issues”.

[34] As I have said, Ms. Freeman focused on whether DC Kelly obtained a valid consent from Mr. Singh to view the video evidence. In Yu, at para. 75, after considering the question of third part consent, the court proceeded on the basis that the “possibility of consent affects the appellants’ reasonable expectation of privacy, while any actual consent provides legal authorization for the search”. Ms. Freeman argued that Mr. Singh, who allowed DC Kelly to view and download the Video. did not have authority to do so and DC Kelly made no inquiries to satisfy himself that he did. As I have set out, based on his prior experience with viewing video surveillance from the buildings in this complex and his experience on this occasion, DC Kelly believed that he did, given that he was viewing video of common areas. Since DC Kelly did not make any inquiries of Mr. Singh, I do not know what the basis for Mr. Singh providing this access was. I therefore do not have sufficient evidence, even with the evidence called for the purpose of amplification, to conclude on a balance of probabilities that DC Kelly had a valid consent from Mr. Singh. If the Crown had established that then the search would have been authorized by law. It would not have been a warrantless search.

[35] The issue is not whether Mr. Singh had authority to give DC Kelly access to the Video but rather whether a reasonable person in Mr. Ali’s shoes would expect that someone with authority would allow police to have access to the video surveillance: Yu at paras. 70-75, Samir, at para. 29,

[36] I have considered the additional guidance provided by the court in Yu, at paras. 84-86. I appreciate that 330 Dixon was not accessible to the public. Visitors needed to use an intercom to reach a tenant to enter the building. The condominium buildings in question were large with many units. As a result, large numbers of residents, their friends, family, guests, condo staff and tradespeople, etc., had access to the common areas. As a result, the residents could not "regulate access" to these common areas. Furthermore, there is no evidence of exceptional security measures to limit access to the floors of the building once a visitor is permitted to enter the building. Mr. Ali had no control over who could be in the elevators. As a high rise building any number of people could be expected to be in the elevator with Mr. Ali at any time.

[37] My conclusion in this regard is strengthened by the subject matter of the search. The observations of Mr. Ali were unobtrusive and mundane. The same observations could have been made by cameras outside the building or by anyone outside the building at the relevant times. Certainly, as the court observed in Saciragic, at para. 33, there is no evidence to suggest that Mr. Ali could have a reasonable expectation that his comings and goings would not be observed by others while he was using an elevator in the condominium building or that he would not be recorded on video while using the elevator, or that these observations and video would not be divulged to the police. The subject matter of the search, properly defined, was narrow and did not engage Mr. Ali's informational privacy interests. None of the observations touched on a "biographical core of personal information" or "intimate details of personal life".

[38] Although as it happened, the first image shows Mr. Ali entering the elevator on the 24^th floor, which DC Kelly knew was the floor on which he resided, that was not the reason DC Kelly found this image to be relevant. The Video does not contain any video evidence taken on that floor. The Video is less revealing than the information obtained in Saciragic. Even if DC Kelly was looking for video evidence to determine what Mr. Ali’s unit number was within 330 Dixon, the conclusions set out in Saciragic, at paras. 32-33, would be applicable. Mr. Ali had no reasonable expectation of privacy in his municipal address as his address does not, of itself, reveal intimate details and, ordinarily, it is publicly available information to which many people have access.

[39] I have reviewed the cases relied upon by Ms. Freeman to determine if they impact on this conclusion as I appreciate, that for example in White, the court upheld a ruling by the trial judge who found that the defendant had a reasonable expectation of privacy in common areas of the condominium. The court held, at para. 41, that there is no categorical rule for common areas in multi-unit buildings and that a nuanced, contextual approach is required. However, that case is clearly distinguishable from the case at bar. In White, a police officer, entered the common areas of a locked building without permission and without a warrant and surreptitiously walked through the hallways, listened at the accused's door, observed the comings and goings at the accused's unit, and viewed the accused's storage locker in the common storage area. DC Kelly was not seeking information about who Mr. Ali spoke to or what he did in his home as was the case in White. Also distinguishing in White was the fact that unlike 330 Dixon, the building was small-ten units over four flours and so a stranger's presence would be noteworthy and that "[a]lthough the [defendant] 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 several times without permission or invitation and investigating at their leisure": at paras. 47.

Conclusion

[40] For these reasons I conclude that Mr. Ali had no reasonable expectation of privacy with respect to the Video from inside the elevator. As a result, s. 8 of the Charter is not engaged and there is no basis to excise paragraph 34a and the Photographs from the ITO. As for the remaining issues, the warrant was issued pursuant to s. 487(1) of the Criminal Code and is a presumptively valid court order: R. v. Pires; R. v. Lising, 2005 SCC 66 [2005] 3 S.C.R. 343, at para. 30. With the inclusion of paragraph 34a in the ITO, Mr. Ali has not satisfied me that the issuing justice could not have issued the warrant. On the issue of the Video, the issuing Justice could have considered the same law that I have considered and come to the same conclusion without the amplification evidence. In my view the ITO disclosed reasonable and probable grounds to believe that Mr. Ali was one of the four suspects who robbed the jewellery store and that there would be evidence to identify his a one of the four suspects in his residence. The warrant to search his residence was valid.

Section 24(2) Analysis

[41] In light of my conclusion, a s. 24(2) Charter analysis is not needed. I will however do so briefly. Even if I found that Mr. Ali’s s. 8 Charter rights were breached, in my view a s. 24(2) analysis would not lead to the exclusion of the Video as evidence at trial. Considering the factors in R. v. Grant, 2009 SCC 32, even though I do not have enough evidence to find that Mr. Singh had legal authority to grant DC Kelly access to the video surveillance, I accept DC Kelly’s evidence that he believed that he did. Mr. Singh clearly believed that he did as well. I do not find that DC Kelly was acting in bad faith. For these reasons I find that the breach is at the minor end of the scale. The impact on Mr. Ali of any breach was negligible as what he was wearing when he was leaving and returning to the building could have been observed by anyone.

[42] If I had found a s. 8 breach because of the warrantless seizure of the Video, the Crown concedes that after excising that information from the ITO, the warrant to search Mr. Ali’s residence could not have been granted. That would mean that police did not have a valid warrant to search his residence. Clearly Mr. Ali’s had a very high expectation of privacy in his residence. The police however acted pursuant to what they believed was a valid warrant.

[43] In considering society’s interest in adjudication on the merits, the Video and the items seized from Mr. Ali’s residence is real evidence and important to the Crown’s case. Although the Crown could succeed with the Video alone, without the clothing Mr. Ali is alleged to have been wearing in the elevator the strength of the Crown’s case is diminished. The third Grant factor strongly favours the admission of both the Video and the items seized from Mr. Ali’s residence. Although the amount alleged to have been stolen is not large, a brazen daylight robbery of a jewellery store is a very serious offence. This is particularly so, as DC Kelly deposed in the ITO, in light of the recent rash of jewellery store robberies across the GTA that has forced store owners to keep the doors to their store closed and locked.

[44] Coming to the balancing in my view the long-term repute of the justice systemin would not be brought into disrepute by the admission at trial of the Video and the items seized from Mr. Ali’s residence.

Spies J.

Released: August 12, 2026

CITATION: R. v. Ali, 2026 ONSC 4593

COURT FILE NO.: CR-25-30000606

DATE: 20260812

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ABDULAHI ALI

RULING on s. 8 and s. 24(2) CHARTER APPLICATION

Spies, J.

Released: August 12, 2026

1This was a secondary issue raised by Ms. Freeman in her written materials, but she did not pursue it in oral argument.

R. v. Ali, 2026 ONSC 4593

Case Summary

Overview

Issues

Evidence of DC Kelly

Analysis

Did the seizure by DC Kelly of the Video without a warrant breach Mr. Ali’s rights pursuant to s. 8 of the Charter?

(a) Relevant Legal Principles

(a) The Subject Matter of the Search

(b) Direct Interest

(c) Subjective Expectation of Privacy

(d) Was the Expectation of Privacy Objectively Reasonable?

Conclusion

Section 24(2) Analysis

R. v. Ali, 2026 ONSC 4593

Case Summary

Overview

Issues

Evidence of DC Kelly

Analysis

Did the seizure by DC Kelly of the Video without a warrant breach Mr. Ali’s rights pursuant to s. 8 of the Charter?

(a) Relevant Legal Principles

(a) The Subject Matter of the Search

(b) Direct Interest

(c) Subjective Expectation of Privacy

(d) Was the Expectation of Privacy Objectively Reasonable?

Conclusion

Section 24(2) Analysis