R. v. Goddard, 2023 BCSC 383

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Goddard, 2023 BCSC 383 Date: 20230216 Docket: 181822-2 Registry: Victoria Regina v. John Donald Goddard Before: The Honourable Mr. Justice Baird Oral Ruling on v oir dire #1 Counsel for the Crown: A. Van Tine Counsel for the Accused: J. Dosanjh Place and Date of Hearing: Victoria, B.C. February 15, 2023 Place and Date of Judgment: Victoria, B.C. February 16, 2023 INTRODUCTION [ 1 ] The accused, John Donald Goddard, is charged with possession of fentanyl and methamphetamine for the purpose of trafficking. The date of the alleged offence is March 31, 2021.

His trial started yesterday morning with a voir dire to determine whether seizure by the Victoria Police Department of security camera footage from a low-income community housing property without first obtaining a warrant constitutes a breach of his right guaranteed by s. 8 of the Charter to be free from unreasonable search and seizure. BACKGROUND [ 2 ] The only witness who gave evidence on the voir dire was Cst. Danielle Little. She is a member of the Victoria Police “beat unit”, which occupies itself, she said, with street crime and general disorder in the downtown core.

The accused lives in Unit 222, 3020 Blanshard Street, formerly a Comfort Inn, but now a property owned by the Province of British Columbia and occupied as public housing for citizens who would otherwise be homeless. The building is operated by Our Place Society, a well-known and long- established charitable society which operates a number of shelters in the Greater Victoria area. [ 3 ] Cst. Little told me that the “beat unit” came to suspect that the accused, Mr. Goddard, was trafficking drugs from his unit within this building. Cst.

Little's investigative research yielded the information that the accused had lived in Unit 222 for a year or so. She told me that she has long known the accused to be an habitué of Victoria's street scene, and in addition to his reputation amongst the police, confidential source information was received about his recent illegal activities that fueled the fires of suspicion. Cst. Little went to school on police databases such as PRIME, and spoke to her colleagues to gather further information about Mr. Goddard. [ 4 ] The long and short of it is that a surveillance operation was organised and launched.

I have not yet heard the details of this operation, but I gather that it, combined with the security camera footage that is the subject of this voir dire , led to Mr. Goddard's arrest on or about March 31, 2021, and in turn to the prosecution of the charges before the court. [ 5 ] The video footage was captured by a security camera which surveys the corridor outside the accused's unit. It runs for a period of approximately one hour and 15 minutes. The video is not time-stamped, but it is admitted that it was captured on March 30, 2021.

It shows a steady stream of people walking down the corridor, many of whom go directly to the accused's door and either wait for short periods before departing when no one answers, or are welcomed inside, usually for periods of well under a minute, before leaving again. On a couple of occasions, the accused is seen leaving his unit and later returning. On another occasion, someone delivers take-out food to his unit.

In all, I counted roughly 17 visitors to the accused's door during the security camera footage. [ 6 ] This is part of the evidence that the Crown proposes to adduce, namely, a steady succession of short-duration meets, towards building a case that the accused was a street-level drug dealer. Against this background, the issue on the voir dire is whether the accused had a reasonable expectation of privacy, first of all, in the area of the corridor directly outside the door of his unit, and secondly, in the information yielded by the footage about how he lives, with whom he associates, and so on.

The onus is on the accused to establish a reasonable expectation of privacy, both subjective and objective, on a balance of probabilities: R. v. Jones , 2017 SCC 60 .

[ 7 ] The upshot of Mr. Goddard's submission, ably presented by Mr. Dosanjh acting on his behalf, is that, in all the circumstances, his expectation of privacy in the video-recorded area and the “information” about his activities revealed thereby was "minimal", but not "extinguished". The Crown urges me to take it further and to conclude that, even if the accused had a “minimal” subjective expectation of privacy, from an objective standpoint it was not reasonable. [ 8 ] As this court observed in R. v.

Ali , 2021 BCSC 74 , every case involving this issue falls to be determined on its own facts, even if certain common general principles apply. In R. v. Latimer , 2020 BCSC 488 , a case much relied on by Mr. Dosanjh, for example, and particularly at para. 101, this court held that all residents of a multi-unit complex, regardless of size, retain an expectation of privacy in their suites and common areas not freely accessible to the public.

My colleague Ker J. said that while security cameras are a feature of modern-day multi-unit residential accommodation, these are intended to enhance the security and safety of those living there, and do not extinguish this expectation of privacy, the right to be left alone by the state, such that the information they record is there for the taking by state agents upon simple request.

The Court said at para. 159: Indeed, given the seeming mandatory nature of these devices in multi-unit residential settings, passive acquiescence or resignation by the occupants or their guests to the inevitable and ubiquitous private surveillance ought not to mean that they have entirely relinquished their expectation of privacy in the images and information contained therein, especially where the state is concerned. [ 9 ] The Court concluded, essentially, that privacy rights cannot be waived by a third party simply because the police ask for information.

The accused in this case argues that this is precisely what happened. The police were investigating him for drug dealing, and they wanted to see if the security camera footage from outside his unit door would provide evidence to corroborate the evidence gathered during the surveillance operation.

They simply asked the Our Place staff to hand it over rather than seeking and obtaining a warrant from a justice trained to evaluate the adequacy of their grounds for doing so. [ 10 ] I was made aware of no contractual provisions specific to a tenancy in this facility warning residents that, because of general site security concerns, or the vulnerability of its residents, management reserved the right to share security camera footage with the police on demand. I have no evidence about whether there were signs posted here and there to a similar effect.

I do not know if the camera that took the footage is visible from the corridor or concealed. It may be that most of the people seen in the video were residents of the complex and not visitors. This is not a case, like R. v. Bourdeau , 2019 BCSC 1181 , where the accused was not a resident tenant in the building. [ 11 ] Then again, as I have said, and I would emphasise, every case is different, and the reasonableness of any expectation of privacy must be evaluated on the specific facts presented. The onus on this voir dire rests with the accused.

Whether he harboured any subjectively reasonable expectation of privacy in the circumstances is not in evidence directly from him. He did not testify on the voir dire . I have only his argument through counsel presupposing that such an expectation must have existed, and in all of the circumstances, I have decided that such a thing is not to be lightly inferred. [ 12 ] According to Cst. Little, the homeless shelter in question was well known to police as a locus of criminal activity – violence, drugs, public disturbances, and the like. She told me that police call-outs to the place are frequent.

The building is staffed by Our Place employees and security guards 24/7. Common sense and experience tell me, as well, that other emergency personnel – the ambulance service and the fire department – are likely on site often enough, not to mention a steady train of outreach workers, social workers, Community Corrections officers, addiction counsellors, harm reduction counsellors, contractors, repairmen, food delivery people, and so on. Cst.

Little added that people are constantly “milling about” outside the place and in the lobby whenever she goes there. [ 13 ] I would note, as well, that the reasonably brief video footage shown to me, only an hour and a quarter in length, indicates that people circulate freely and frequently in the second-floor corridor. It is apparently a three-storey building, and if the second floor is similar to the others, there looks to be accommodation overall for a significant number of people. Cst.

Little told me that there is a second building on the property, operated by the Cool-Aid Society, that consists of five floors of residential accommodation. Like any well- informed local resident, I am aware of the fact that such shelters are publicly funded, and that a mainstay of the mission of both Our Place and Cool-Aid Societies is to offer safe, drug and substance-free accommodation and support to impoverished, vulnerable and otherwise homeless citizens, many of whom suffer from chronic addiction and mental health problems. [ 14 ] There is a clear and obvious public interest dimension to all of this.

It is well-known that the City of Victoria is in the midst of a homelessness crisis. Especially during this time of pandemic, the Provincial Government has acted to secure emergency shelter for people who would otherwise live on the street. The public has every right to expect that such publicly funded shelters do not become hornet’s nests of criminal activity, and that vigilance will be exercised to prevent this.

I have decided, in all of these circumstances, that if the accused entertained any subjective expectation of privacy in the corridor outside of his unit, or in the information that the footage yielded about his lifestyle, it was not a realistic or a reasonable expectation. [ 15 ] For the same reasons, and with particular emphasis on the character of the building, the volume of people apparently using it, resorting to it, and circulating within it, I find that there was a lack of exclusivity in the common area captured on the footage, such that there could be no objectively reasonable expectation of privacy, either.

As the Court of Appeal observed in R. v. Webster , 2015 BCCA 286 , at para. 76 , the question is how exclusive was the use of the corridor or common area outside the accused's unit. The answer in this case would seem clearly to be “not at all”. This, by the way, is a distinguishing feature from the views expressed in decidedly different circumstances by this Court in Latimer and in R. v.

Kim , 2020 BCSC 1064 . [ 16 ] As for the so-called “informational privacy” – that is, information about the accused's lifestyle, habits, associates, and so on, that are revealed by viewing this security camera footage, I find myself repeating the question which Judge Howard asked herself in R. v. Wilson and Nguyen ,

(2016) Vancouver Registry No. 217835 (B.C.P.C.), namely, what was the purpose of the security cameras? In that case, Judge Howard said: Based on the evidence before me, the only purpose of the video system … was to provide security for the complex. Legitimate security concerns would include preventing unauthorized entry into the building and detecting and deterring theft and damage and other crimes that might be occurring within the complex. The video footage might also provide information leading to the identification and

apprehension of persons involved in criminal activity within the complex. For the security system to be at all effective, disclosure of the video images relating to a specific alleged criminal event to the police would be a perfectly natural and rational occurrence. In my view, reasonable and informed occupants of [the building] would expect that the video images of this kind would be shared with the police. Any expectation to the contrary would be unreasonable. [ 17 ] I note that an appeal of this decision was taken to the British Columbia Court of Appeal and was dismissed: see 2017 BCCA 327 .

Leave to appeal to the Supreme Court of Canada was denied on April 12, 2018. [ 18 ] The police may gather evidence in the pursuit of an investigation without resort to prior judicial approval by way of a warrant or a production order unless their efforts impact an individual's reasonable expectation of privacy. At that point, the investigative efforts may constitute a search: R. v. Law , 2017 BCSC 1241 at para. 72 .

Here, as I have decided that the accused had no such expectation from either the subjective or objective viewpoint, s. 8 of the Charter is not engaged, and his rights thereunder cannot be said to have been infringed or denied. The accused's argument in favour of a declaration to the opposite effect is hereby dismissed. “Baird J.”