COURT OF APPEAL FOR ONTARIO
CITATION: R. v. White, 2015 ONCA 508
DATE: 20150707
DOCKET: C56966
Simmons, Brown and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Merith White
Respondent
Emilie Taman and Jim Marshall, for the appellant
Andrew Burgess, for the respondent
Heard: April 9, 2015
On appeal from the acquittals entered by Justice P. Lalonde of the Superior Court of Justice on April 5, 2013.
Huscroft J.A.:
[1] The respondent owned and occupied a condominium unit in a small, 10-unit building. The following question is raised by this appeal: to what extent did the respondent have a reasonable expectation of privacy in the common areas – stairways, hallways, and storage rooms – of that building?
[2] The police suspected that the respondent was involved with dealing drugs and made three surreptitious entries into common areas of his building. Once inside, a detective walked through the hallways, entered the storage area and viewed the contents of the respondent’s storage locker. The detective also hid in the stairwell, where he observed the respondent’s unit and listened to what was going on inside the unit. Using the information gathered from these entries, the police obtained a warrant and subsequently arrested the respondent on drug trafficking charges and possession of property obtained by crime.
[3] At trial, the judge held that the evidence the detective gathered in the course of the three entries was obtained in breach of the respondent’s rights under s. 8 of the Canadian Charter of Rights and Freedoms and excluded it pursuant to s. 24(2). The trial judge acquitted the respondent of possession for the purpose of trafficking and possession of property obtained by crime, but convicted him of another charge. The Crown appeals against the acquittals, arguing that the respondent had no reasonable expectation of privacy in the common areas of his multi-unit building. For the reasons that follow, I disagree and would dismiss the appeal.
BACKGROUND
[4] The respondent came to the attention of the police in the context of an investigation of Yianni Papadolias, whom they believed to be involved in drug trafficking. The police obtained a warrant to allow GPS tracking of Papadolias’s car. Through this warrant, the police learned that Papadolias visited 711 Churchill Avenue, a condominium where the respondent owned a unit in which he resided, 75 times over a period of approximately four months (September 29, 2010 – January 17, 2011). The police suspected that the respondent was a drug dealer for Papadolias and that Papadolias was using the condominium as a stash house.
[5] Detective Hill entered the condominium at 711 Churchill Avenue on three occasions prior to obtaining a search warrant. Each of his visits is outlined below.
First Visit – December 10, 2010
[6] Detective Hill entered the respondent’s condominium to determine the layout of the building, points of entry and exit, and obtain information as to other people that might be of interest. The police were already aware that the respondent lived in unit 302 of the building.
[7] Detective Hill entered the building without the knowledge of any of the residents and without any prior consent. He gained entry by following a postal worker into the building through a door that was always locked.
[8] Once inside, he took the stairs to the lower level, where he entered an unlocked storage room. There he observed storage lockers with numbers corresponding to unit numbers in the building. The lockers were cage-like and their contents were visible. Detective Hill observed the contents of locker 302, which corresponded to the number associated with the respondent’s unit. Specifically, he saw a charcoal or carbon filter, blower fan, and garden hose, among other things, all of which he considered could be used in a grow-op. He did not touch anything in the locker room, take photographs or video, or install any devices.
[9] Detective Hill then went upstairs where he observed unit 302. He was in the building for approximately 20 minutes.
Second Visit – January 20, 2011
[10] The purpose of this entry was to determine whether Papadalios was coming or going from unit 302 and bringing or retrieving packages. Detective Hill entered the building through the north stairwell door, which he said was always locked. However, the door would not close properly and was not locked as a result. Again, he entered the building without the knowledge of any of the residents and without any prior consent.
[11] Once inside the building, Detective Hill hid in a stairwell and from this location observed Papadalios leaving the respondent’s unit carrying a box. Papadalios was later observed transferring the box to a third person outside the building.
Third Visit – January 21, 2011
[12] Detective Hill used the same north stairwell door he had used on January 20 to gain entry to the condominium building in another attempt to find evidence linking Papadalios to unit 302. The door was still not closed properly and for the third time he entered the building without the knowledge of any of the residents and without any prior consent.
[13] Detective Hill stationed himself in the stairwell and observed Papadalios entering unit 302. Detective Hill 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. Detective Hill observed Papadalios leaving the unit with a box in his possession and depositing the box into a minivan. The minivan was pulled over by the police and the box was found to contain 2,679.4 grams of marijuana and 166.6 grams of cocaine.
The Search Warrant
[14] Detective Norman Redmond prepared the Information to Obtain a Search Warrant (ITO) for three locations, including the respondent’s residence at 711 Churchill Avenue, unit 302. Although the ITO mentioned that Detective Hill had made observations from within the condominium, the provincial court judge who issued the warrant was not informed that Detective Hill had entered the locked building without permission. Detective Redmond testified that it was not necessary to inform the judge of the surreptitious entries because Detective Hill had not done anything wrong in entering the condominium.
The Execution of the Warrant
[15] Following execution of the warrant the police found 1,708 grams of cocaine, 6,860 grams of marijuana, and 5.1 grams of crack cocaine in the respondent’s condominium unit. The respondent was arrested and found to be in possession of 0.4 grams of cocaine and $400 in Canadian currency.
[16] The respondent was charged with possession of cocaine and marijuana for the purpose of trafficking, possession of cocaine, and possession of property obtained by crime.
The Evidence at the Voir Dire
[17] At trial, the respondent brought an application alleging a breach of his rights pursuant to s. 8 of the Charter arising from the three surreptitious entries and the subsequent search of his condominium unit. A voir dire was conducted into the admissibility of the evidence obtained pursuant to the search warrant.
[18] The Crown called three witnesses at the voir dire.
[19] Zoë Gillespie, a member of the board of directors of the respondent’s condominium, testified that the north stairwell door is supposed to be locked but the locks do not latch properly in the winter. She understood there had been only one entry by the police, and stated that if the police had requested permission to enter the building it would have been granted. She added that Detective Redmond met with the board of directors of the condominium following execution of the search warrant and that 70% of the residents of the condominium had voted to sign an authorization under the Trespass to Property Act, R.S.O. 1990, c. T.21, allowing police to enter the building in the future. She noted that the building has inadequate insulation and as a result, she can hear voices from the hallway and other apartments when she is in her own unit.
[20] Detective Hill outlined the circumstances of his entries into the condominium. He said that in his experience it is very common to enter locked apartment or condominium buildings for the purpose of investigating or conducting surveillance activities. In cross-examination, he acknowledged that he would not enter the property of a single-unit dwelling – even so much as step foot onto the lawn of the property – but reiterated his understanding that he was entitled to enter a multi-unit property in furtherance of an investigation. He drew a distinction between observing by installing a camera, which in his view would require judicial authorization, and observing by standing in the common area of a multi-unit dwelling, which in his view was permitted. Detective Hill acknowledged that during his entries on January 20 and 21, his focus was on unit 302. Detective Hill did not agree with the suggestion that an ordinary person entering the condominium for purposes of surveying it as he had done would be trespassing, and reiterated that his entry into the building was permissible because he was in the midst of an investigation.
[21] Detective Redmond testified that he did not believe permission was required to enter the common areas of the building and that it would have compromised the investigation to have sought permission. In cross-examination, he stated that there was no trespass because the police were lawfully conducting surveillance of a person suspected of drug trafficking. He acknowledged that a warrant would be required to install a camera in the building but said that a police officer could observe a unit in the condominium because he was not physically altering the building. In his view, police officers can enter the condominium by any means so long as they do not break anything in doing so. Detective Redmond confirmed Zoë Gillespie’s testimony that he had returned to the building subsequent to the respondent’s arrest to meet with the condominium board and seek their authorization under the Trespass to Property Act to enter the building in the future (which was obtained subsequently). In his view, the authorization was unnecessary; it simply cleared up any lingering ambiguity.
THE TRIAL JUDGE’S DECISION
[22] The trial judge issued detailed reasons outlining his decision on the Charter application. These reasons were later followed by a brief oral ruling in which he acquitted the respondent of possession for the purpose of trafficking and possession of property obtained by crime, and convicted the respondent of possession of cocaine. I discuss each decision below.
Charter Application Decision
[23] The trial judge conducted a thorough review of the jurisprudence and concluded that the respondent had a reasonable expectation of privacy in the condominium and its common areas as a result of his ownership interest and residency. He further concluded that the respondent’s rights under s. 8 of the Charter were violated by the warrantless searches conducted by the police. He found that the police had neither statutory authority to conduct the searches nor a constitutionally unrestricted right to trespass upon private property to conduct the searches.
[24] The trial judge went on to consider whether the evidence should be excluded under s. 24(2) of the Charter. He found that Detective Hill’s unconstitutional searches of the common areas of the building formed the foundation for the search warrant pursuant to which the respondent’s unit was searched and that the temporal link was unbroken by any intervening event. Accordingly, the trial judge held that the threshold inquiry of s. 24(2) – which asks whether the evidence was obtained in a manner that infringed the Charter – was met.
[25] The trial judge applied the three criteria outlined by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, and concluded as follows:
i. the breach was serious because the police were willfully blind or ignorant as to the requirements of the Trespass to Property Act. There was also some bad faith on their part, which was confirmed by their refusal to answer questions in cross-examination. The evidence obtained from the illegal entries had to be excised from the affidavit that was used to obtain the search warrant and, once that occurred, there were no grounds for issuance of the warrant. As a result, the search of the respondent’s unit was warrantless;
ii. there was a serious impact on the respondent’s Charter rights; and
iii. admission of the evidence would bring the administration of justice into disrepute.
[26] On this basis, the trial judge excluded the evidence.
Ruling as to Guilt
[27] Having excluded the evidence obtained at the respondent’s condominium unit, the trial judge acquitted the respondent of possession of cocaine and marijuana for the purpose of trafficking. He also acquitted the respondent of possession of property obtained by crime.
[28] However, counsel for the respondent conceded the admissibility of “other evidence that came from other aspects of the investigation” apart from the search executed at the respondent’s residence. This evidence included a certificate of analysis confirming that the 0.4 grams of white powder found on the respondent at the time of his arrest was in fact cocaine. Counsel for the respondent also made “all the admissions necessary” to ground a conviction for possession of cocaine. Based on these admissions and this evidence, the trial judge convicted the respondent of possession of cocaine. The trial judge sentenced the respondent to time served and a $500 fine. The respondent has not appealed his conviction or sentence.
ISSUES ON APPEAL
1. Did the trial judge err in finding that the respondent had a reasonable expectation of privacy in the common areas of his condominium building and err in finding an infringement of s. 8 of the Charter?
2. Did the trial judge err by excluding the evidence of drugs pursuant to s. 24(2) of the Charter?
[29] The appellant argues that the trial judge erred in failing to conduct the thorough analysis as set out in R. v. Edwards, [1996] 1 S.C.R. 128, which, it submits, is fatal to his decision, and that he fixated on the respondent’s ownership of his condominium in distinguishing cases that have established that there is no reasonable expectation of privacy in the common areas of multi-unit buildings. The appellant further submits the police understood their common law duties and did not trespass on the respondent’s property.
[30] The respondent argues this was a situation that required a warrant, but the police chose not to get one initially and conducted surveillance while trespassing on the respondent’s property. The respondent submits the trial judge made no errors in applying the Edwards test and that the case law establishes that the respondent had a reasonable expectation of privacy in the common areas of the condominium.
ANALYSIS
(1) Did the trial judge err in finding that the respondent had a reasonable expectation of privacy in the common areas of his condominium building and err in finding an infringement of s. 8 of the Charter?
[31] The right to be secure from unreasonable search or seizure protects reasonable expectations of privacy, and the reasonableness of an expectation is determined having regard to all of the relevant circumstances in a particular case. Justice Cory enumerated several relevant considerations in Edwards, at para. 45:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
[32] Justice Cory emphasized that these considerations are a guide to the question. There is no requirement that each of the Edwards factors be considered in a mechanical fashion in order to render a valid decision.
[33] In addition to its submissions on Edwards, the appellant relies chiefly on two decisions of this court. The first is R. v. Laurin (1997), 98 O.A.C. 50. In that case, responding to an anonymous complaint, the police trespassed on private property by peering into the window of the basement apartment occupied by the appellant (with their faces two inches from the window). They entered the apartment building through unlocked doors for the purpose of knocking on the resident’s door, and once inside the building smelled marijuana in the hallway outside the appellant’s apartment. This court concluded that the police infringed the appellant’s reasonable expectation of privacy by peering into the window but not by smelling marijuana in the hallway, reasoning that the police were entitled to be in the hallway along with visitors, repair people, and the landlord. The court stated, at para. 39: “[The police’s] presence was not dependent on the invitation of the appellant, express or implied. I refer to the fact that the outer doors of the building were not locked or otherwise secured”.
[34] The second case is R. v. Thomsen, [2005] O.J. No. 6303 (S.C.J.), aff’d 2007 ONCA 878, which the appellant submits is fatal to the respondent’s Charter claim. In Thomsen, the police were called by the property manager, who advised of a possible marijuana grow-op in a particular apartment. They entered the building through a locked door that had a buzzer-entry system by following a tenant. Once inside the building, the police smelled marijuana in the hall outside the applicant’s apartment and heard a fan or droning sound coming from the apartment.
[35] Applying the Edwards factors, Garton J. found that the applicant was not present at the time; he had no right of possession or control or ownership of the hallway; there was no history of use of the hallway that would have excluded others such as the police; the applicant had no right to regulate access to the hallway; there was no evidence that he had a subjective expectation of privacy in the hallway; and there was no objective reasonable expectation of privacy. In these circumstances, Garton J. concluded that the applicant had no reasonable expectation of privacy in the apartment hallway. An appeal from her decision was dismissed in a two-line endorsement in which this court agreed with the reasons of the trial judge.
[36] In my view, Laurin and Thomsen are distinguishable from the present case. I deal with each case in turn.
[37] In Laurin, the police were investigating in response to a complaint. The apartment building was not locked or otherwise secured. Moreover, the building in question was an apartment building rather than a condominium and the accused had no ownership interest in the common areas of the building. In any event, the court did not conclude there was never a reasonable expectation of privacy in an apartment hallway. On the contrary, the trial judge found that the police conduct at issue could not be considered intrusive and that the police “did not take unusual advantage of their presence in the hallway”: para. 44. It was simply a case in which there was no reasonable expectation of privacy concerning smells emanating from an apartment into the common hallway of the building.
[38] The court acknowledged the competing considerations involved, at para. 46:
[T]he policy considerations relating to the reasonable expectation of privacy of an apartment dweller with respect to different kinds of police surveillance in the common hallways may be varied. On the one hand, it may be thought that tenants would not wish police officers to have the same scope as neighbours and visitors with respect to making ordinary decisions in the hallways. On the other hand, it may be quite in the interests of the tenants that they have this scope if they are legitimately engaged in investigating a complaint, to enter and make observations in the hallway which are not intrusive.
[39] Thomsen also concerned an investigation pursuant to a complaint, in this case from the building’s property manager. The trial judge found that the police had permission to enter the building and be in the hallways by virtue of the complaint and that the smell of marijuana was noticeable from the elevator doors in any event.
[40] In summary, both Laurin and Thomsen involved single entries into the common hallways of apartment buildings in order to walk to a resident’s door in the course of investigating complaints. The police conduct involved in these cases was much less intrusive than in this case. And in neither Laurin nor Thomsen did the resident own the unit. These were the circumstances in which it was concluded that the residents in Laurin and Thomsen had no reasonable expectation of privacy in the common hallways of their buildings.
[41] In my view, these cases are not authority for the appellant’s categorical proposition that “residents of multi-unit dwellings do not have a reasonable expectation of privacy in the shared common areas of those buildings, and that police may conduct non-intrusive surveillance from these locations.” A more nuanced, contextual approach is required.
[42] The unreasonableness of granting the police virtually unfettered access to multi-unit dwellings is illustrated in the testimony of Detective Redmond, elicited in cross-examination:
Q. And from your point of view, there’s – there’s nothing preventing him [Detective Hill] from entering into the building for the common areas of the building. There’s nothing wrong with that. Right?
A. No, there wasn’t.
Q. Okay. Is there any limit on how he enters into those common parts of the building?
A. Well, I wouldn’t – I wouldn’t be happy, if he broke the front door, kicked it in and entered. To me, that would be unreasonable.
Q. Okay. And that would be because he’d be damaging property. Right?
A. Correct. He’s. . .
Q. What if you could climb into a window or something like that?
A. Climb into a…?
Q. Let’s say there’s a window that opens and it’s in the common areas and he can open it from the outside and climb in. Is that okay?
A. I mean, if he’s not breaking anything then, why not?
Q. Okay. So the test for whether he’s committing an unlawful act or not is whether he’s breaking something when he enters the place, in your mind?
A. Yeah. Whether he’s, you know, damaging the property or – anything like that. Correct.
[43] If the police are entitled to climb through windows to gain entry to multi-unit residential buildings and, once inside, enter common areas such as storage rooms, hide in stairwells, and conduct surveillance operations for as long as they want on those who live there – all without a warrant – on the basis that those who live in these buildings have no reasonable expectation of privacy in the common areas, then the concept of a reasonable expectation of privacy means little.
[44] It is clear that lower courts have rendered decisions rejecting reasonable expectation of privacy claims in several cases involving the common areas of multi-unit buildings: see e.g. R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.); R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), rev’d on other grounds 2007 ONCA 793, 231 O.A.C. 19; R. v. Nguyen, 2008 ABQB 721, 462 A.R. 240, aff’d 2010 ABCA 146, 477 A.R. 395; and R. v. Verrett, 2013 ABQB 658, 574 A.R. 212. But the lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.
[45] A resident may have possession or control of the common areas of a building to a greater or lesser extent. The size of a building may be a relevant consideration in determining reasonable expectations of privacy, as even in the context of a locked building protected by a security system it is reasonable to assume that the number of people that may be present in the common areas of the building will vary in accordance with the size of the building and its population. Ownership of the property may be of greater or lesser significance for the same reason. A resident of a large building with 200 units may have a lesser expectation of privacy than a resident of a small building with 2 apartments.
[46] In this case, the respondent owned a unit in a relatively small building that Detective Redmond testified had only 10 units over four floors. The building was small enough that Detective Hill had to hide, otherwise his presence as a stranger in the building might have been noteworthy. It was small enough that, from the stairwell, Detective Hill could overhear conversations taking place in the respondent’s unit and identify specific sounds connected to activities going on in the apartment (such as the unrolling of packing tape). And, save for the malfunctioning north stairwell door, the building was always locked to non-residents.
[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.
[49] The appellant submits what it describes as a strong policy justification for finding that there was no reasonable expectation of privacy. Noting that an ever-increasing number of Canadians live in multi-unit buildings, the appellant contends that it would be perverse to make the common areas of their homes “a zone of protection for criminal activity which diminishes their safety and quality of life”.
[50] I think this overstates things considerably. The reasonable expectation of privacy does not establish a zone for the protection of criminal activity in the common areas of multi-unit buildings, but neither does it permit the police to enter common areas of those buildings at any time and for any reason. The reasonable expectation of privacy is a concept which protects those interests that courts think ought to be protected having regard to the interests at stake in particular circumstances: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 42. Some limits on police activity are necessary if privacy is to be protected.
[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.
[52] In my view, the trial judge’s conclusion that the respondent had a reasonable expectation of privacy in the common areas of his condominium building is correct. It follows that Detective Hill conducted a search when he entered the respondent’s building surreptitiously on December 10, 2010, January 20, 2011 and January 21, 2011.
[53] Before proceeding to the trial judge’s s. 24(2) analysis, I analyze whether the trial judge erred in finding that the three searches conducted by Detective Hill violated the respondent’s right to be secure against unreasonable search and seizure under s. 8 of the Charter.
[54] To be constitutionally compliant, a search must be authorized by law; the law authorizing the search must be reasonable; and the search must be carried out in a reasonable manner: R. v. Stillman, [1997] 1 S.C.R. 607, at p. 634.
[55] The three searches by Detective Hill were conducted without a warrant and so are prima facie unreasonable: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 30. It is not argued that this is a case of exigent circumstances. Nor is this a case in which the police were responding to a complaint.
[56] The appellant asserts, but did not establish, that the searches were authorized by law because the police had an implied invitation to enter common areas of the building to conduct non-intrusive investigative steps. Although it is clear that the police, along with members of the public, have an implied licence to enter a property and knock on the door, this is for purposes of communicating with the resident. In this case, the police did not use their implied licence to knock on the respondent’s door. On the contrary, the police did everything possible to conceal their presence in the building.
[57] In my view, the trial judge’s conclusion that the evidence obtained by the police during the three visits to the condominium prior to obtaining a search warrant was obtained by trespassing on private property is correct. The evidence of Zoë Gillespie, that consent to enter the building would have been granted had the police asked, cannot be relied on to provide retrospective license to the police to enter the building surreptitiously. Indeed, the action of the police in obtaining after-the-fact authorization from the condominium residents to allow the police to enter the building in the future suggests that they were aware of Trespass to Property Act concerns.
[58] Even assuming that the police entered the building pursuant to an implied licence, the appellant would have to establish that the searches were conducted reasonably. In my view, it would also fail at this step. Detective Hill did not simply walk through the hallways of the building. He took advantage of defects in a security system in order to enter the building and conduct surveillance. He hid near the respondent’s unit in an attempt to eavesdrop or witness something. The building was so small and the insulation was so poor that he was able to overhear conversations and activities in the respondent’s unit from the stairwell.
[59] In my opinion, Detective Hill’s searches violated the respondent’s rights under s. 8 of the Charter.
(2) Did the trial judge err in excluding the evidence pursuant to s. 24(2) of the Charter?
[60] Detective Redmond acknowledged there was no basis for the judge to issue a search warrant to search the respondent’s unit in the absence of the evidence obtained by Detective Hill pursuant to the three searches. Given that the evidence was obtained in a manner that infringed the respondent’s Charter rights, the threshold question in s. 24(2) is met.
[61] At the second stage of the s. 24(2) analysis, Grant requires the court to consider three things. First, the seriousness of the Charter infringement; second, the impact of the breach on the respondent’s Charter rights; and third, society’s interest in having the case adjudicated on the merits. Ultimately, the question is whether, in all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 85.
Seriousness of the Breach
[62] The trial judge found that Detectives Hill and Redmond were “willfully blind” to their obligations under the Trespass to Property Act. He found that they refused to answer questions in cross-examination and described their investigatory conduct as “egregious” and in “bad faith”. I note that this conclusion appears to be at odds with remarks the judge made during sentencing for the other offence. In passing sentence for possession of 0.4 grams of cocaine, the trial judge said:
I would like to say just one thing to the police officers. I do not want the police officer[s] to feel bad because of my decision. Even as a judge, I make mistakes. I know the local newspapers said that I said the police got it all wrong, well, that was not my intention in sentencing. I have high respect for the police officers’ work in this case. They tripped up, so, they tripped up. No big deal. And next time, they will do better.
[63] Nevertheless, the Supreme Court has made it clear that considerable deference is owed to the decisions of trial judges concerning the application of s. 24(2): R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. It is not open to this court to substitute its views of police conduct, barring clear and determinative error. I do not find any such error, so I accept the trial judge’s findings of police misconduct.
[64] In my view, the police misconduct in this case is exacerbated by Detective Redmond’s failure to inform the judge who issued the warrant about the circumstances in which Detective Hill obtained the evidence in the ITO. If the police were confident that they had acted in accordance with the law, one would have expected to see details of their investigation in the ITO. There were not one, not two, but three surreptitious entries into the respondent’s condominium in order to obtain evidence to support the issuance of a warrant. The judge should have been informed of these details. The failure to do so is serious. As the trial judge noted, there was no apparent urgency to this matter. And, as I have noted, the decision to seek permission to enter the common areas of the building after-the-fact suggests that the police were not as confident in their authority as the appellant argues.
Impact of the Breach
[65] The trial judge found that there was a serious impact on the respondent’s Charter rights, but did not elaborate. In my view, the breach in this case seriously undermines the interests protected by s. 8 of the Charter. I accept that the reasonable expectation of privacy may be attenuated in the context of multi-unit buildings, where common areas including hallways, stairwells, and storage rooms are shared by the residents, but as I have said, the reasonable expectation of privacy does not disappear. Those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single-family homes, albeit that the nature and extent of the expectations of privacy that they might reasonably hold may differ.
[66] In this case, the police overheard conversations and activities taking place within a unit by hiding in a nearby stairwell. The home is entitled to the greatest degree of protection from unreasonable search, and in my view, the police conduct in this case had a serious impact on the respondent’s privacy rights.
Society’s Interest in Having the Case Adjudicated on its Merits
[67] The trial judge considered both the impact of admitting the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. He concluded that the long-term impact of admitting evidence obtained in the search of a dwelling house with an improperly obtained warrant would bring the administration of justice into disrepute.
[68] The trial judge’s s. 24(2) analysis is brief, but it is entitled to deference from this court. I see no basis to interfere with his conclusion.
DISPOSITION
[69] For these reasons, I would dismiss the appeal.
Released: July 7, 2015 “GH”
“Grant Huscroft J.A.”
“I agree Janet Simmons J.A.”
“I agree David Brown J.A.”