R v Louie, 2023 ABKB 352

Court of King’s Bench of Alberta Citation: R v Louie, 2023 ABKB 352 Date: 20230612 Docket: 210813770Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Jesse Louie Accused _______________________________________________________ Decision of the Honourable Justice B.H. Aloneissi _______________________________________________________ Introduction [ 1 ] Mr. Louie faces serious drug charges along with a gun charge arising from evidence that was seized during a police search of his home. Mr.

Louie has filed a Charter application to exclude this evidence for various breaches of his rights under s 8 of the Charter . Specifically, he argues that there have been three breaches: 1. The police seized CCTV video from the residential complex where Mr. Louie lives without a warrant;

2. The Information to Obtain the search warrant for Mr. Louie’s residence was insufficient; and 3. It was unreasonable to monitor, record, and disclose Mr. Louie using the toilet in the RCMP holding cell after his arrest . [ 2 ] Mr. Louie’s Charter application was heard in two parts. On October 2 and 3, 2022, I heard evidence and argument with respect to the first two breaches of s 8. Subsequently, on November 2, 2022, I gave an oral decision, in which I found breaches in both cases. For context, that decision is appended to this decision as Appendix 1 .

To summarize the previous findings, I found the ITO was insufficient to justify the search warrant for Mr. Louie’s residence. It was unreasonable for police to rely on a search warrant that falls unacceptably short of minimum constitutional standards to enter a private dwelling. The search warrant was based upon 2 confidential informants of largely unknow reliability, who provided mere conclusionary information of little or no probative value. As such, the police conducted a warrantless search of Mr. Louie’s residence and, doing so, breached his s 8 rights. Further, I found Mr.

Louie had a reasonable expectation of privacy in the CCTV footage of the entry to the residential complex where he lived, given all of the circumstances of that search and seizure. As a result, the police seizure of the video footage without a warrant constituted a further breach of his s 8 rights. [ 3 ] Subsequently on March 8 and 9, 2023, I heard evidence and argument with respect the third alleged breach of s 8, which deals with the video recording of Mr. Louie while he was using the toilet at the St.

Albert RCMP holding cell after he was arrested. [ 4 ] Finally, I also heard argument on whether the cumulative effect of the breaches ought to result in the exclusion of evidence seized from Mr. Louie’s residence pursuant to s 24(2) of the Charter . [ 5 ] For the reasons that follow, I find Mr. Louie had a reasonable expectation of privacy in the RCMP footage of him using the toilet in the holding cell and, as a result, his s 8 rights were breached. [ 6 ] The contest between who should raise the availability and the option of using a privacy screen is no contest at all.

The state, which is in charge of its jail cells and procedures at the detachments, including knowledge of the existence of privacy screens and their availability, is in a superior position to a detainee whose movements are restricted and who is suffering a deprivation of liberty at the hands of the state, and who has no knowledge of procedures or mechanisms which might be available.

The proper balance is to put the onus on the state to properly inform the detainee of the availability of the privacy screen. [ 7 ] Further, while this breach on its own may not have resulted in the exclusion of evidence, taken together with the cumulative effect of the other breaches, I find that admitting the evidence the police obtained at Mr. Louie’s residence would bring the administration of justice into disrepute, and I therefore order it to be excluded from Mr. Louie’s trial. I will first provide my analysis of the 3 rd Charter breach before retuning to the 24(2) analysis.

Evidence on the Video Recording of Mr. Louie at the St Albert RCMP Detachment [ 8 ] In

summary, the evidence I heard indicates:

i) On June 17, 2021, Mr. Louie was arrested and transported to the St. Albert RCMP detachment where he was placed in a cell. There, he was recorded using the toilet on 11 occasions over a 12-hour period. ii) The RCMP has implemented measures, since August 2019, to deal with privacy screens for detainees using the toilet. iii) The St. Albert RCMP detachment supplements those measures through its Operational Manual, specifically with a

chapter on Privacy Filters/Cell Block Video dated February 2020. iv) Additionally, the 2 members of the St. Albert RCMP detachment who testified were aware of their obligation to provide a privacy screen, but they testified that their obligation would be triggered by a detainee’s request for one.

v) In their experience, there has never been a request for a privacy screen. vi) One of the witnesses agreed that a reasonable

interpretation of the policy would require them to communicate the availability of the privacy screen to detainees and to ensure that they understood. vii) In

summary, the practice at the detachment, and in this case in particular, fails to ensure that detainees are aware of the availability of a privacy screen. viii) The monitors with the video of the cell were prominently displayed in the detachment. ix) Finally, the CCTV videos in this case, including the recordings of 3 other detainees–one male and 2 female–were disclosed in contravention of the St. Albert RCMP detachment’s own Operation Manual. Analysis

Section 8: Video Recording of Mr. Louie at the St. Albert RCMP cells [ 9 ] Mr. Louie alleges his s 8 right was breached when he was repeatedly videotaped using the toilet in the RCMP holding cell

when he was arrested. He argues he had a reasonable expectation of privacy that his use of the toilet would not be continuously recorded,and that expectation was objectively reasonable. [10] In response, the Crown concedes Mr. Louie had a reasonable expectation of privacy but argues it is significantly reducedgiven he was in an RCMP holding cell. In this case, the Crown argues the RCMP met the required balancing of this right by the signageposted at the detachment, and that the onus was on Mr. Louie to assert the need for, and avail himself of, a privacy screen. Further, theCrown argues that since Mr.

Louie was given a blanket, he could have converted it for use as a privacy screen to cover himself while heused the toilet. [11]

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure”. To makeout a breach of s 8, a claimant must first show a state act constituted a search or seizure, because it invaded a reasonable expectation ofprivacy in the subject matter of the search: R v Jones, 2017 SCC 60 at para 11. Then, the claimant must show the search or seizure wasunreasonable: ibid. [12] In R v Wong, (SCC), [1990] 3 SCR 36, the Supreme Court of Canada held that a video recording canconstitute a search where a person has a reasonable expectation of privacy.

Subsequently, in R v Tessling, 2004 SCC 67 at 447-48, theCourt set out four lines of inquiry for determining if a reasonable expectation of privacy exists: 1. What was the subject matter of the alleged search? 2. Did the claimant have a direct interest in the subject matter? 3. Did the claimant have a subjective expectation of privacy in the subject matter? and 4. If so, was the expectation objectively reasonable? Subject Matter of the Alleged Search [13] In this case, the subject matter of the search is the video recording of Mr. Louie while he was in the RCMP holding cell afterhe was arrested.

Specifically, the subject matter concerns the recording of Mr. Louie when he used the toilet on 11 occasions betweenapproximately 10 a.m. and 10 p.m. on June 17, 2021. On ten of those occasions the camera captures Mr. Louie urinating. During thoseoccasions, his back is to the camera, so the more private parts of his body are not exposed. On one occasion, the camera captures Mr.Louie defecating. During this recording, the camera captures his bare buttocks. Direct Interest in the Subject Matter [14] There is no question Mr. Louie has a direct interest in video images taken of him while using the toilet.

Subjective Expectation of Privacy [15] The Crown concedes Mr. Louie had an expectation of privacy in these circumstances. In my view, this is clearly supported onthe evidence. Mr. Louie testified he was humiliated at having his every movement in the jail cell recorded, particularly during his use ofthe toilet. He was also humiliated at having those same movements again being observed and analyzed by a room full of strangersduring the court proceedings.

In contrast to his normal upbeat demeanour in court, when the video of the holding cell was played, Mr.Louie sat dejected with his torso folded over the lower half of his body with his head down near his knees. Objective Expectation of Privacy [16] The Crown conceded that Mr. Louie’s expectation of privacy was reasonable. However, the question of whether a reasonableexpectation of privacy exists in a given circumstance is a question of law, so I will still consider this issue: R v Chow, 2022 ONCA 555 atpara 25; R v Telfer, 2021 MBCA 38 at para 23; R v Pipping, 2020 BCCA 104 at para 32.

As will be seen, this is the central issue in thiscase. [17] Practically, since the Crown conceded the issue, the Crown did not provide any argument about whether Mr. Louie’sexpectation of privacy was reasonable.

However, the Crown’s arguments about whether the alleged search was reasonable address thequestion at issue, so I will consider them here. [18] With that in mind, the Crown argues the RCMP’s approach to video surveillance in the holding cells was reasonable.According to the Crown’s argument, it is sufficient to inform an individual of the presence of cameras and to adopt measures to ensureprivacy, if and when requested by detainees. Here, it was sufficient that there were signs indicating the presence of video surveillance ofthe cells, and Mr. Louie was actually aware of the video surveillance.

With respect to the available privacy measures, the Crown pointsto the RCMP policy, which allows different options for ensuring privacy, including a privacy screen, an electronic filter of the video, anda blanket that can be used as a privacy screen. The Crown argues that while Mr. Louie was initially provided a blanket for warmth, hecould have converted it for use as a privacy screen. To support this position, the Crown points to the one time that Mr.

Louie did drapethe blanket over his shoulders when using the toilet. [19] The Defence argues there is an obligation on the police to actually inform a person about the existence of the cameras, as wellas the option of the privacy screen. In this case, the officer dealing with Mr. Louie did neither. Defence points to the fact Mr. Louie wasgiven the blanket because he was cold and not for it to be used as a privacy screen. Defence argues further that the authorities had noreason to think Mr.

Louie posed a risk when he was in the cells: he was cooperative, there was no indication that he possessed a weapon,and there were no other health or safety issues at play. Further, Defence argues the screens showing the video surveillance are visible toanyone in the department, and this is unreasonable. Finally, the police were cavalier in handling this private video, as well as the private

videos of 3 other detainees, by disclosing and disseminating them without any request by any party, contrary to their own policy. [20] In Hunter v Southam Inc, (SCC), [1984] 2 SCR 145, the Supreme Court explained that to determine if anexpectation of privacy is reasonable, “an assessment must be made as to whether in a particular situation the public's interest in being leftalone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals,notably those of law enforcement”: at 159-60.

In R v Stillman, (SCC), [1997] 1 SCR 607 at 647, the Supreme Courtheld that there is a significantly reduced expectation of privacy where a person is in police custody. However, that does not render theexpectation of privacy completely illusory. Striking the Appropriate Balance [21] The Court must balance Mr. Louie’s expectation of privacy with the police need to ensure safety in the holding cells.

Therehas been judicial guidance on the question of whether there is a reasonable expectation of privacy when using the toilet in a police cell.The leading case is R v Mok, 2014 ONSC 64, in which the Ontario Superior Court held that the central question is how to strike areasonable balance between the privacy right of the individual and the need to ensure safety and the preservation of evidence in policecells: at paras 59-60. In that case, the Court concluded that the need to record what happens at the police station does not necessitaterecording a person while using the toilet: ibid at para 77.

Instead, there are ways to allow a person to have privacy that still allow thepolice to monitor what is happening in the cell, such as a modesty screen. [22] Mok has become established law in Ontario, and it has been since applied in any number of trial level decisions in thatprovince. It has also been adopted by the Saskatchewan Court of King’s Bench in at least one reported decision: see R v Paterson, 2019SKQB 305, rev’d 2021 SKCA 13 on other grounds. [23] In Alberta, there is no appellate authority on this issue, and only one reported decision from this Court: R v Marty, 2021ABQB 279.

In that case, Fraser J held a person’s expectation of privacy is reduced when they are in police custody; however, the exactbalance between the individual’s privacy interests and the interests of the police depends on the circumstances (at para 21). In the result,Fraser J upheld the trial judge’s finding that it was unreasonable to display the detainee’s use of the toilet on a monitor that could beobserved by multiple people: ibid at para 22.

It was also unreasonable to record the detainee so others could view the video at a laterdate: ibid. [24] Although a person’s expectation of privacy is diminished in a holding cell, it is unreasonable to expect the person to takecomplete responsibility for ensuring their own privacy. In this sense, I agree with the Court in Mok that the bare minimum requires thepolice to inform a person they are being monitored and to offer some sort of screening device. Once a person has that information, theyare free to choose to use the screening device or not: see R v Van Bree, 2022 ONSC 4948.

This strikes a balance between the privacyinterest of the individual and the police need to monitor cells to ensure safety and the preservation of evidence. [25] The Mok decision is specifically referenced by the RCMP K Division in a 2019 Communiqué to all detachments in Albertaentitled Privacy for Detainees in Cellblocks. The case is again specifically referenced in the St. Albert Detachment’s Operating Manualin the

Chapter Privacy Filters/Cell Block Video. While the policies purport to comply with the Mok guidelines, the practice in the St.Albert detachment does not. [26] In this case, the Crown’s primary argument is that Mr. Louie was aware of the video surveillance and that he was thereforeable to take steps to cover himself. In other words, once Mr.

Louie was aware of the cameras, it was up to him to ensure his own privacy.In Mok, the Court considered this argument and held that knowing about the camera is not enough to protect a person’s privacy interestunless the person also has an option to not be videotaped: ibid at paras 72-73. I agree. A detainee must be aware they have the choice tolimit videotaping while using the toilet. The evidence here is that Mr. Louie was given the blanket, because he was cold.

It is reasonableto conclude from viewing the video that the one time he draped the blanket over his shoulders while using the washroom, the blanketwas being used to provide him warmth not privacy. Both the K Division Communiqué and the St. Albert Detachment’s OperatingManual contemplate the privacy filter as a “hospital quality drape sheet” not a blanket. There is no evidence Mr.

Louie knew he coulduse the blanket as a privacy screen, and it is not reasonable to put the responsibility on him to determine whether he is allowed thatprivacy. [27] This same approach was taken in R v Rowan, 2019 ONSC 7099 at paras 24-25, where the Ontario Superior Court expandedon Mok and considered the need for police to inform a person being held that a privacy screen is available. Detainees retain some measure of privacy while in police custody: R. v.

Mok, 2014 ONSC 64, paras. 53-83, aff'd 2015 ONCA 608.Therefore, the police have an obligation to inform a detainee that her cell is under surveillance and must provide her with a means toprotect her privacy (in this case, the privacy sheet). It is reasonable for this obligation to have an informational component and animplementational component. Under the informational component, the police must inform the detainee of the surveillance and the meansavailable to protect their privacy in a manner that ensures that the detainee understands the information provided.

The implementationcomponent requires the police to provide the detainee with a reasonable opportunity to access the privacy protection, should they chooseto do so. A contextual approach should be adopted in assessing whether the police have discharged this obligation. What is "reasonable" isdependent on the circumstances.

For example, to discharge the police obligation under the informational component, the simplerecitation of a privacy statement to a person whose ability to comprehend may be compromised by the consumption of alcohol or drugwill not be enough, and actual presentation of the privacy device to the detainee (without a compulsion to use it) would be a prudentcause of action. [28] In this case, there was a single sign that indicated a privacy screen was available to Mr. Louie. Once Mr. Louie was broughtinto the detachment, he was almost immediately turned around away from the sign so that it was directly behind him.

He remained inthis position at the direction of the officer while he was assessed before he was led away to his cell. While there may have been anothersign on the outside of the cell door, the opportunity to read this sign was about the same: virtually non-existent. Curiously, there is no

such sign on the inside of the cell, where detainees would have an opportunity to read and consider their options. [29] In

summary, the signage advising of the availability of the privacy screen was completely inadequate. Given the location ofthe sign, it is extremely unlikely that anyone would read it when entering the holding cell. The crown quite reasonably conceded thatthere was no opportunity for Mr. Louie to read the sign. Furthermore, in his testimony, Cst. Van Horlick admitted that he did not drawMr. Louie’s attention to the sign or tell Mr. Louie about the availability of a privacy screen, and Mr.

Louie gave evidence that he was notaware that one was available. [30] In the circumstances, I cannot see any valid state reason for failing to ensure Mr. Louie knew that a privacy screen wasavailable or, at the very least, that the blanket could be used as a privacy screen. The law requires me to consider the balance betweenMr. Louie’s interest in privacy and the police need to monitor holding cells to ensure safety and preserve evidence.

Quite simply, I do notsee any reason why the need to monitor the holding cells would bar the police from informing a person who is being held about theavailability of a privacy screen. The screens are available, they are part of existing RCMP policy, and yet detainees are not told aboutthem. [31] There may be circumstances where it is not reasonable to provide a person with a privacy screen, because of specific concernsfor safety or preserving evidence. These circumstances are also addressed in the RCMP policy guidelines. However, none of thosecircumstances apply in this case. The evidence from Mr.

Louie’s own jailers shows that Mr. Louie was cooperative, he followed all theirdirections and there was no reason to think he posed a threat to his own safety or the safety of anyone else. He also did not have anyongoing medical issues that needed to be monitored, and there was no reason to suspect that he secreted any weapons or drugs. In thecircumstances, it was unreasonable not to offer Mr. Louie some sort of privacy screen when he used the toilet or, at the very least, toexplain that he could use the blanket as a privacy screen. [32] The Crown placed significant emphasis on the fact that the St.

Albert detachment was following the RCMP policy on videorecording. However, this flies in the face of the evidence of Cst. Van Horlick, who acknowledged that his

interpretation of the policyplaced a positive obligation upon him to inform Mr. Louie of the privacy screen. Moreover, even if the Crown was correct, the existenceof policies that govern behaviour in a certain location may inform a reasonable expectation of privacy, but they are not necessarilydeterminative of the issue: R v Jarvis, 2019 SCC 10 at para 83. Instead, the weight given to a policy will vary with the context: ibid.

Inthis case, the RCMP policy on how to provide information about the availability of a privacy screen cannot override the requirement thata person actually know the privacy screen is available. To hold otherwise would be to prefer form over substance. [33] In addition, I find that it was unreasonable for the video to be displayed on monitoring screens in an open area and visible toanyone in the detachment. The Crown argued that the only people able to see the screens would be guards, members of the RCMP, andmedical professionals and that this would be necessary to ensure safety in the cells.

However, as Defence points out, anyone else who hasbeen arrested would be able to view the screens. Moreover, not everyone in the detachment is actively involved in monitoring the cellsfor safety reasons. Given the privacy interest at stake, there is no need for anyone who is not involved in monitoring the cells to be ableto see the screens. To this end, I note

section 4.1.4.3 of the RCMP policy on Closed Circuit Video Equipment, which states that “theCCVE video monitoring screens must be located where only employees responsible for prisoner safety monitoring can observe thescreen”. It is unreasonable for the screens to be visible to everyone in the detachment. [34] As a last point, the Crown argues that if there is a breach of s 8, it should only be for the time Mr. Louie was recordeddefecating when a part of his body was exposed. However, this assumes there is only a privacy interest in nudity as opposed to a moregeneral privacy interest when using the toilet.

To the contrary, the case law has recognized a privacy interest in being recorded whileusing the toilet, which is generally a private body function: Mok at para 59; see also Paterson at para 25. I note that, in R v Singh, 2016ONSC 1144, Mr. Singh was recorded urinating, but no part of his body was exposed, and the Court nevertheless held that there is areasonable expectation of privacy in a basic bodily function like using the toilet: at para 27. I agree. There is a privacy interest in beingrecorded while using the toilet, regardless of whether a person’s body is exposed. [35] As a result, I find Mr.

Louie’s expectation of privacy was reasonable in the circumstances. Conclusion [36] A warrantless search is presumptively unreasonable, and the Crown bears the burden of rebutting the presumption: Hunter vSoutham Inc at 161. A search or seizure is reasonable if: (1) it is authorized by law, (2) the law itself is reasonable, and (3) the mannerin which the search or seizure was carried out is reasonable (R v Collins, (SCC), [1987] 1 SCR 265 at 278). In this case,the Crown argues the search was authorized by law but did not cite any specific authority for that proposition. I am also not aware of anysuch authority.

As such, in the circumstances of this case, Mr. Louie’s s 8 rights were breached when he was videotaped using the toiletin the holding cell after he was arrested without being informed of the existence of a privacy screen and without being given a choice ofwhether to use it. [37] This is not overly burdensome. The police already are required to assess a detainee prior to placing them in a cell. It wouldtake seconds to inform them of a privacy screen during this process. Section 24(2): Exclusion of Evidence [38] In light of the three breaches of his s 8 rights, Mr.

Louie asks the Court to exclude the evidence that was obtained from hisresidence pursuant to s 24(2) of the Charter. [39] Under s 24(2), if “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedomsguaranteed by [the] Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of itin the proceedings would bring the administration of justice into disrepute”.

On its face, this requires a finding (1) that the evidence wasobtained in a manner that breached the Charter and (2) that admission of the evidence would bring the administration of justice into

disrepute. [ 40 ] For evidence be “obtained in a manner”, there must be a connection between the Charter breach being considered and the way the evidence was obtained. That connection between the breach and the evidence can be temporal, causal, or contextual: R v Tim , 2022 SCC 12 at para 78 ; R v Pino , 2016 ONCA 389 at para 72 . In this case, the Crown concedes the evidence found at Mr. Louie’s residence was obtained in a manner that was causally connected to the warrantless search of the residence, and contextually connected to the CCTV footage.

There is a more tenuous connection to the cell block video recording. I agree, the cell block recordings of Mr. Louie are more tenuously connected to the discovery of the evidence, however there is a contextual connection in his arrest and detention for the charges that arose from that evidence. On the whole, the evidence in question was “obtained in a manner” as required by s 24(2). [ 41 ] Next, for the Court to decide if the admission of evidence would bring the administration of justice into disrepute, it is necessary to consider three factors: 1. The seriousness of the Charter -infringing state conduct; 2.

The impact of the breach on the Charter -protected interests of the accused; and 3.

Society’s interest in the adjudication on the merits ( R v McColman , 2023 SCC 8 at para 54 , citing R v Grant , 2009 SCC 32 ). [ 42 ] Under the first factor in the analysis, the Court must ask “whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”: McColman at para 57 , citing Grant at para 72 .

The Court should consider the degree of culpability of the state conduct, including any surrounding circumstances that either attenuate or exacerbate the seriousness of that conduct: McColman at para 58 . [ 43 ] Under the second factor, the Court must deal with the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little avail to the citizen: ibid at para 66.

In doing so, the Court must consider how much the interest protected by the right was infringed: ibid , citing Grant at para 76 . [ 44 ] Finally, under the third factor, the Court must ask whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or its exclusion: McColman at para 69 . This requires the Court to consider both the negative impact of the admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: ibid , citing Grant at para 79 .

The Court should consider the reliability of the evidence, the importance of the evidence to the Crown’s case, as well as the seriousness of the alleged offence—although, that is a consideration that can cut both ways: McColman at para 70 , citing Grant at paras 81, 83-84 . [ 45 ] Ultimately, the Court must balance these three factors. However, it is a qualitative and not a mathematical balancing: McColman at para 54 , citing Grant at para 140 .

The analysis is objective, and, moreover, it is about systemic and institutional concerns relating to the administration of justice, rather than punishing specific police misconduct or compensating the accused: McColman at para 54, citing Grant at para 70 . The burden of proof is on the party seeking to exclude the evidence: McColman at para 53 , citing R v Grant at para 68 . [ 46 ] In the following sections, I will consider how each of the three lines of inquiry applies to the breaches of Mr.

Louie’s s 8 rights to show how admission of the evidence found at his home would bring the administration of justice into disrepute. Seriousness of the State Conduct [ 47 ] The Defence argues that the breaches are all serious. Although there is no evidence that the misleading ITO was intentional, it was nevertheless negligent, and this type of police conduct has the effect of misleading an authorizing justice about the strength of the grounds for the warrant, which is serious.

Similarly, the Defence argues that the seizure of the CCTV video footage without a warrant was serious and that an experienced officer should have known a warrant would be required. Finally, Defence argues that the video recording in the cell block was serious, because it would have been easy to tell Mr. Louie about the availability of the privacy screen, and the officer did not appear to be familiar with the RCMP’s policies. Together, the Defence argues that the three breaches show a pattern of disregard for Mr. Louie’s Charter rights. [ 48 ] The Crown argues none of the state misconduct was serious.

The mistakes in the ITO do not show any sign of ill intent or malice, and, when the police searched Mr. Louie’s home, they did so thinking they had a valid warrant. The warrantless seizure of the CCTV footage was also not serious, because it was a developing area of the law, and, at the time, it was not clear that a warrant was necessary for footage of the entryway of a residential complex. Finally, there was no sign of ill intent in recording Mr. Louie in the cell block. The RCMP had policies in place, and those policies were followed, which shows a good faith effort to respect Mr.

Louie’s Charter rights. [ 49 ] Starting with the misleading ITO and the resulting warrant, I acknowledge that there is no evidence the search of Mr. Louie’s home was conducted in an unreasonable manner. However, I agree with the Defence that the misleading ITO was very serious state misconduct. Although there was no sign of bad faith, Cst. Fox was at the very least significantly careless. She was sloppy in the language she used, she presented her opinion about the dropped baggy as objective fact, and she relied on two tips with relatively little evidentiary value.

I agree with the holding of Moreau J, as she then was, in R v Uppal , 2017 ABQB 373 at para 69 : it is serious misconduct to leave a misleading impression with an authorizing justice about the strength of the grounds for a warrant (see also R v Morelli , 2010 SCC 8 at paras 100-103 ; R v Gilmour , 2017 ABQB 735 at paras 75-76 ). [ 50 ] The ITO here was drafted in a manner that was misleading on several points, most particularly presenting as fact that the

police observed drugs falling from the accused’ s person when that was merely an opinion. Moreover, this opinion itself was obtained from the review of a video seized by the police without warrant, which I will address next. [ 51 ] With respect to the CCTV footage, I accept that the law was not fully settled on whether Cst. Fox required a warrant to obtain the footage. At the same time, the law was clear that a warrant could be required to obtain the CCTV footage depending on the precise factual circumstances.

In R v Truong , 2021 ABQB 34 at para 60 , Devlin J helpfully summarized the state of the law at the time: There is, for instance, a growing consensus that residents of multi-unit buildings often have a low but extant expectation of privacy in restricted-access common areas: Yu at paras 81–94; White at para 48; Sandhu , at paras 37–48. The existence and extent of this privacy expectation will vary with, and fall to be determined by, the specific factual circumstances in each case.

As Antonio, J succinctly described in Sandhu at para 32: ...this explains why the precedents on hallway cameras have led to varied results on standing: each presents a unique combination of circumstances that influence the privacy analysis.

The precedents are helpful in understanding what features have held significance to different courts at different times. [ 52 ] In the specific context of taking CCTV footage from a multi-resident complex, Devlin J explained: Between these poles, there remains an unresolved question as to whether police may request and take possession of a building’s own, non-covert CCTV footage of hallway spaces through the consent of condominium boards or building management.

Trial courts in British Colombia have recently held that such consent does not obviate the residents’ privacy interests: Kim at para 41, Latimer at para 190. The decision of the British Colombia Court of Appeal in Wilson upheld the opposite conclusion. ( Truong at para 63 ) [ 53 ] At the time, the case law was similarly unclear on whether a warrant was required to obtain CCTV footage of shared parking facilities at a multi-resident complex: see R v Yu , 2019 ONCA 942 ; R v Latimer , 2020 BCSC 488 ; R v Kim , 2020 BCSC 1075 . [ 54 ] Given the state of the law, Cst.

Fox should have been aware that a warrant might be required for the CCTV footage. However, on her evidence, she never turned her mind to this issue, despite the fact that she is an experienced officer who was in the process of gathering evidence in support of an ITO for the purposes of obtaining a warrant. Instead, she pursued the footage in order to conduct a full sweep of the details of Mr. Louie’s comings and goings and all the information she could obtain about him, including core biographical information about his identity. It was her intent to capture as much of Mr.

Louis’s intimate details as she could, including his facial features, who he interacted with, and his comings and goings. What was seized, without judicial oversight and reasonable limitations was broad and sweeping: 2 full days of video recordings capturing every individual who entered into the complex. [ 55 ] Following argument, Crown Counsel submitted the case of R v Nguyen , 2023 ONCA 367 for consideration. That case (at paragraph 18) confirms, like all the other cases in this area, that a contextual approach is required in determining whether there is a Charter breach.

The information sought and revealed in that case was minimal - police simply wanted to know which suite inside the complex the suspect entered, and his privacy interest was minimal, as he did not even live at the complex. [ 56 ] In contrast, Mr. Louie had heightened privacy interest as he was entering his home and the information sought here, which according to the officer, was everything about him—his identity, his facial features, who he consorted with - went directly to his biographical core. Moreover, the video was not merely viewed, as in Nguyen , but seized, and the seizure itself was overbroad.

Finally, the error in that case had a “cascading effect” on the analysis, leading to the exclusion of evidence. Here, the warrantless seizure of the video was yet another factor in an already insufficient warrant. [ 57 ] In these circumstances, Cst. Fox ought to have been aware that a warrant could be required, but she never turned her mind to the issue. In the words of Antonio J (as she then was) in R v Sandhu , 2018 ABQB 112 at para 56 : “[a]t best, this is tantamount to negligence or wilful blindness”. [ 58 ] Finally, I find that the state conduct in recording Mr. Louie in the RCMP cell block was serious.

The Crown argues that the RCMP made a good faith effort to respect Mr. Louie’s privacy interests, because the RCMP had a policy in place regarding video surveillance in the holding cells, and that policy was followed. The Crown argues further that the law in Alberta about video surveillance is not settled. [ 59 ] In my view, the evidence does not support a good faith effort by the RCMP to respect detainees’ privacy rights. At the time Mr. Louie was placed in the RCMP holding cell, the RCMP had a policy in place to address concerns around privacy in the holding cells when using the toilet.

However, the evidence shows that adherence to this policy was cavalier. For example, Cpl. St. Hiliare stated that he was aware of the "same sex issue" - i.e., the policy that guards who monitor toilet use should be the same gender as the inmates using the toilet - but he noted that most guards were male, so the policy was only adhered to “whenever possible". [ 60 ] As a further example of this cavalier attitude towards privacy, the recordings in question were disclosed to Crown and Defence without any request being made, in breach of a fundamental component of the RCMP policy.

Moreover, the RCMP not only disseminated state recordings of Mr. Louie’s private acts, but also the private acts of 3 other detainees, one male and two females. The Agreed Statement of Facts admitted by counsel indicated that the disclosed videos captured nudity with respect to both females—one whose breasts were exposed and was seen to urinate twice and the other who urinated once and had her entire body exposed while doing so. [ 61 ] There was also evidence of a cavalier attitude specifically directed towards the use of privacy screens to protect inmates’ privacy while using the toilet. Cst.

Van Horlick testified that in five years he had never been asked for a privacy screen, and he had never seen the privacy screen used. This is telling. It is not for detainees to guess what measures the police have in place to limit the invasion of their privacy. It is for the police to make them aware of such measures so that detainees can make a choice to use them. Cst. Van Horlick acknowledged that, according to the policy, he has an obligation to communicate with detainees to ensure their understanding of the

availability of the privacy screen. That was not done here. [ 62 ] In addition, the monitoring screens for the videos into the cells are placed in an area where they can be seen by anyone at the detachment, which is contrary to the direction in the RCMP policy. There were signs in the detachment about the presence of cameras. However, there was only a single sign about the availability of a privacy screen, and it was in a location that made it nearly impossible that an individual in a holding cell would become aware of it. In my view, this evidence shows a systemic problem at the St.

Albert detachment and a consistently careless attitude towards the privacy rights of detainees, including Mr. Louie. [ 63 ] Taken together, the conduct of the state was serious and weighs in favour of exclusion of the evidence obtained at Mr. Louie’s residence. Impact on Charter -Protected Interests [ 64 ] The Defence argues the video recording of Mr. Louie in the cell block had a serious impact on his privacy, because it was an affront to his personal dignity. Further, the impact of the search warrant was high, because of the high expectation of privacy in a person’s home. Finally, Defence argues that Mr.

Louie had a similarly high privacy interest in the areas around his home that were captured by the CCTV footage. [ 65 ] The Crown agrees that the privacy interest in a person’s home is high, which makes the warrantless search of Mr. Louie’s residence a significant infringement of his s 8 rights. However, the Crown argues Mr. Louie had a limited expectation of privacy in both the cell block and in the entry to his residence, so the other two breaches did not significantly impact his Charter rights. The Crown emphasized that the entry to Mr.

Louie’s residential complex was somewhat restricted, although it was open to many people, so it was not completely private. Likewise, the parking lot of the building was open to the public, so Mr. Louie only had a very minor expectation of privacy. In terms of the cell block, the Crown reiterates that Mr. Louie was only partially nude one time, so there was a minimal impact on his privacy interests. [ 66 ] I agree with both sides that Mr. Louie’s privacy interest in his home was very significant: see R v Stairs , 2022 SCC 11 at para 119 .

As such, the warrantless search of his residence had a significant impact on his Charter -protected interests. [ 67 ] With respect to the CCTV footage, I agree with the Crown that Mr. Louie had a reduced expectation of privacy in the parking lot and the entryway to his residential complex. However, Cst. Fox’s intent to capture as much of Mr. Louie’s intimate details as she could, including his facial features, who he interacted with, and his comings and goings, makes the seizure more serious.

The seizure was also overly broad: 2 days of video recordings that captured every individual who entered the complex, making the impact on Charter - protected privacy interests more serious. [ 68 ] Finally, with respect to the recording of Mr. Louie using the toilet in the cell block, I find that the impact on Mr. Louie’s Charter -protected interests was significant. I accept the Crown’s argument that on 10 of the 11 times Mr. Louie used the toilet, no part of his body was exposed, which is generally a lesser invasion of privacy. However, at the same time, Mr.

Louie’s buttocks were exposed on the occasion when he used the toilet to defecate. Furthermore, it needs to be underscored that Mr. Louie was recorded using the toilet eleven times over the course of approximately 12 hours, and based on his testimony, he was completely humiliated by the experience. The sheer number of times he was recorded and the corresponding impact on his dignity represents a significant invasion into his privacy. [ 69 ] While alone, the monitoring, recording, and dissemination of the video recordings of Mr.

Louie’s private use of the toilet may not result in exclusion of evidence found at his home, it is an added factor to consider along with the other breaches. In R v Quilop , 2017 ABCA 70 at para 43 , the Alberta Court of Appeal emphasized that the Court should consider the seriousness of the infringement of a Charter -protected interest from the perspective of not just the accused’s interest, but the interest of all citizens. Taken in this light, the impact of the s 8 breaches on Mr. Louie’s Charter -protected interests weighs in favour of exclusion of the evidence.

Society’s Interest in Adjudication on the Merits [ 70 ] Both parties were more or less in agreement on society’s interest in the adjudication on the merits. The evidence in question is real evidence, so it is very reliable. Moreover, it is the central evidence in this case, and doing away with it would completely gut the Crown’s case against Mr. Louie. That said, the Crown argues that the offences are serious and that this weighs heavily in favour of adjudication on the merits.

On the other hand, the Defence argues that the seriousness of the offence should not be allowed to overwhelm the analysis under s 24(2). [ 71 ] Here, a variety of drugs found at the home, totalling about 1 kg: 124 g of cocaine; 298 g of methamphetamine; 276 g of fentanyl; 16 g of a mixture of fentanyl, carfentanil and methamphetamine; and 300 ml of GHB. These are serious drugs, made more serious by the presence of a loaded sawed-off shotgun. [ 72 ] I agree with both sides that the evidence consists of a significant amount of drugs and guns, which is a dangerous mix.

There are salutary effects when these items are removed from the street, and the reduction of any potential harm and better protection of society is for the benefit of us all. The evidence is reliable, and without it, the Crown’s case would fall apart. This factor weighs in favour of admitting the evidence. Conclusion [ 73 ] Society has a significant interest in the prosecution of crimes involving drugs and firearms. However, at the same time, society must also be protected from the unbridled exercise of power by the police. Respect for the administration of justice is enhanced when police work is done properly.

In this case, the police consistently ignored Mr. Louie’s s 8 rights, and there is a pattern of misconduct. In my view, the misleading ITO is particularly concerning: sloppy, careless, and mischaracterized evidence was put forth in an ex parte application, when full and frank evidence is absolutely necessary for judicial officers to carry out their constitutionally

bestowed gatekeeping role. This unwarranted invasion of Mr. Louie's privacy continued after he was taken into custody and placed in the St. Albert holding cells, where sufficient privacy measures were available but not implemented. [ 74 ] In all, the breaches show a continued carelessness towards Mr. Louie’s privacy interests. Although society has an interest in the adjudication on the merits, the police cannot be allowed to casually violate Charter rights while carrying out their investigations.

In R v Harrison , 2009 SCC 34 , a companion case to Grant , the Supreme Court excluded 35 kg of cocaine due to serious misconduct by the police. Moreover, the case law is clear that where the first two lines of inquiry favour exclusion, the third will rarely tip the scale in favour of admissibility: R v Lafrance , 2022 SCC 32 at para 90 ; R v Badu , 2022 ABCA 267 at para 83 . Balancing all three lines of inquiry, I find that the evidence located at Mr. Louie’s home should be excluded. Heard on the 8 th and 9 th days of March, 2023. Dated at the City of Edmonton, Alberta this 12 th day of June, 2023.

B.H Aloneissi J.C.K.B.A. Appearances: Walter Raponi Raponi Rideout for the Applicant Jill Wheat Public Prosecution Service of Canada for the Crown Appendix 1 R v Louie Oral Decision - Delivered November 2, 2022 [1] This matter came before the court by way of a pre-trial application by Mr. Louie alleging breaches of his

section 8 Charter rights. Facts [2] On June 16, 2021, Cst. Fox swore an affidavit in support of an ex parte application to enter the home of Mr. Louie (the

‘Information to Obtain’ (“ITO”)). [3] The ITO contained the following salient pieces of information: 1. In 2021, an “anonymous “ tip was received from a confidential informant (“CI”) of unknown reliability indicating that Louie was in possession of drugs and firearms. On February 11, 2022 the Crown disclosed to the Defence that the use of the word “anonymous”, in the ITO was inaccurate. The CI was in fact known to police. Regardless, this dated conclusionary information has a near zero value in the analysis about whether Cst. Fox had reasonable and probable grounds to obtain the warrant to search the home of Mr.

Louie. 2. Next on May 25, 2021, Cst. Fox conducted police base data searches. From those searches, she learnt: a. Louie has a criminal record with six drug-related convictions; b. Of the six drug-related convictions, two were for trafficking controlled substances contrary to s. 5(1) of the Controlled Drugs and Substances Act (the “ CDSA ”) and one was for possessing a controlled substance for the purposes of trafficking contrary to s. 5(2) of the CDSA ; c. “Hung Lowe” is one of the aliases listed on Louie’s CPIC profile; d. Louie was on Statutory Release and had an active parole file.

His address for parole purposes was #450, 500 Rivercrest Crescent Sturgeon Point Villas in St. Albert, Alberta; and e. The Alberta Law Enforcement Response Team (“ALERT”) began a drug investigation into Louie on January 18, 2021. This investigation is separate from Cst. Fox’s RCMP investigation and she was not able to access any further details. 3. On May 26, 2023, Cst. Fox: i. spoke to an employee of the Villas housing complex; the property in question was leased to Terry Collins. ii. also spoke to his Parole Officer and learnt that:

a) Louie lives at the address with Collins; and

b) Police were at Mr. Louie’s home May 25. No drugs found on that occasion (that is of some significance in those 3 weeks prior to the search warrant application, police had a dry run as it were and found that no drugs were on the premises). iii. Cst. Fox also searched another police data base and learnt details of Louie’s 2018 arrest for drugs and firearms possession. iv. Finally, during surveillance that same day – Louie was observed to exit a cab in the company of 2 females and enter the Villas complex. 4. Cst. Fox seized CCTV footage for May 25 and 26 and searched it for more evidence. [4] When Cst.

Fox viewed the May 25 footage, she observed that it captured Louie entering and exiting Lobby at 2:05pm, and from another angle, Louie getting into taxi. Then at 3:04pm returning and entering the Villas residence (at least 27 other people were captured and depicted in the 144 min of video taken from 4 different locations). [5] When Cst. Fox viewed May 26 footage consisting of 4 x 30 min videos from the same 4 viewpoints; she noted one of videos captured Louie walking around the back of a taxi where he drops a small plastic baggie containing a white colored substance on the ground.

He then picks it up and goes into his residence with 2 unknown females. [6] This observation, if lawfully obtained, is really the crux of the case. I will return to it once the chronology of the steps taken by Cst. Fox in obtaining the search warrant is complete. 1. Returning to that chronology: June 1, Cst. Fox searched the open social media platform FB and located a profile of – Louie using the name Hung Lo and she noted that he was wearing clothing that matched what he is wearing on surveillance cameras. 2. On June 1, 2021, Cst.

Fox received a tip from a second source, who provided true and reliable information in the past on one previous occasion. This second source had provided information that was used to draft an ITO and it had been proven to be true. This CI stated: Hung runs dope and girls Hung has guns Hung is an Asian guy 30-35 Hung lives in St Albert The reliability is certainly better than the first tip, but still limited by one previous tip. Again, the salient portions are conclusionary statements without any temporal connection. This has some, but limited weight.

Beyond being one more link to identifying the accused, the bald statements, without any particulars are of limited, if any evidentiary value.

3. On June 15, covert surveillance revealed that Louie was seen getting into a taxi shortly after 7:30 pm and travel to a road near the Dutch Canadian Centre. Louie exited the taxi and got into a Toyota motor vehicle which was parked nearby. It drove a short distance before returning to the original place it had picked up Louie. Cst. Fox swore under oath that she believed this to be a drug transaction but didn’t provide any justification for her conclusion. [7] It is on that basis of that information, Cst. Fox obtained a search warrant to enter the home of Mr.

Louie. [8] The Defence challenges the issuance of the search warrant and bears the onus of showing that the search warrant ought not to have been granted. Analysis of the ITO 1. First Tip [9] Cst. Fox inaccurately describes the first source as anonymous.

The Crown has argued that this was a drafting error, but this description occurs on 3 separate occasions in the ITO despite the fact that source was known to police. [10] That is not clarified until February 11, 2022 - almost 8 months from the swearing of the ITO. [11] Whether or not the CI was known to police, the tip provided a mere conclusionary statement from a source of unknown reliability that Mr.

Louie was in possession of drugs and weapons. [12] I note the observation, received sometime in 2021, employed the past tense and there was no indication of what drug he purportedly possessed and whether the possession of the drug was legal or not. [13] Paragraph 26(

a) Cst. Fox deposes that the information received from this CI was that Mr. Louie was “trafficking ” drugs when the information received was actually that Mr. Louie was only in possession . [14] By the agreement of counsel, the word “anonymous” was excised from the ITO, and the word “possession” was substituted for “trafficking”. [15] Even with the amplifications, the first tip has a near zero value given its conclusionary nature, unspecified in time. 2. Second Tip [16] The second tip doesn’t move the needle much further: On June 1 st 2021, Cst.

Fox was provided with confidential source information that: a. “Hung” was selling drugs and has guns. b. “Hung” is an Asian male aged 30-35 c. “Hung” lives in St. Albert d. The information was obtained in May 2021. e. The confidential source was used once before in judicial authorization and was proven to be accurate. f.

The confidential source has a criminal record. [17] Applying the Debot factors to the second tip here it appears credible but the CI’s track record is limited to one previous occurrence; the CI’s criminal record is unspecified; while that is fairly normal, what is troubling is that crimes of dishonesty are not excluded as they often are and so the reviewing Justice is entitled to assume the worst about the record. The tip is corroborated in some respects, (but the corroboration relates to the identification of Mr. Louie).

Again, it is largely conclusionary on salient points; it is not particularly compelling. [18] The Crown has argued that our Court of Appeal in R v Caissey , 2007 ABCA 380 held that corroboration of just some aspect of the tip is sufficient and that it is not essential for police to corroborate actual criminal activity. [19] Caissey must be read in its context – The CI was actually inside the apt for which a search warrant was being sought (which is a rarity) and was inside those premises within 72 hours of the issuance of the search warrant. While inside, the CI observed a large quantity of marijuana.

The CI also knew the roommate’s name and could describe the interior of the apartment . The affiant police officer in Caissey deposed that all of the information was confirmed, which of course could not true. It would be impossible for police themselves to confirm the presence of drugs in the residence. In that case the Affiant misspoke, and the police could not be held to such an unreasonable standard that would require them to confirm the actual presence of drugs.

It is because the CI information contained firsthand observations with such a specific degree of detail which was contemporaneously connected that it was so compelling in the Caissey case. [20] It is different here, where the CI, with a possible criminal record for dishonesty provided a conclusory statement, which may well have emerged from layers of hearsay.

Guns [21] While both tips mention guns, Cst. Fox never indicates that she has reasonable and probable grounds that guns would be located. The search warrant explicitly was a search for drugs . In paragraph 5 and paragraph 27, she deposes that she has reasonable and probable grounds that the items sought (and lists 5 of them - none of which are guns) will afford evidence of possession and trafficking of a controlled substance.

Parenthetically, I add that of course that doesn’t mean the police need to avert their eyes if they come across guns in plain view; clearly illegal items can be seized regardless of whether or not there was specific authorization to seize those items. [22] The third concern with respect to the search warrant is Cst. Fox’s description under oath in her Affidavit of “bag drop” captured by the CCTV on May 26 th . [23] The first mention of it occurs under the heading “Investigational

Summary” One wouldn’t expect full details here, only an overview. Indeed, the

summary consists of one paragraph: In 2021, an anonymous tip was received that Jessie Louie was in possession of drugs and firearms. At this time, Cst. Fox learned Louie was on Parole and residing in St. Albert, Alberta at Apt. 450 – 500 Rivercrest Crescent. Louie has multiple drug convictions and several firearms prohibitions. Louie is on conditions not to consume, purchase, or possess drugs. Surveillance was conducted and video surveillance was obtained of building 11 the door that gains access to Louie’s apartment. The video surveillance was reviewed by Cst.

Fox on June 1 st , 2021 and noted on May 26 th , 2021 at 3:04pm Louie drops a baggie of what appears to be a 1/8 ounce of cocaine on the ground picks it up and places it back in his pocket. On June 1 st 2023, Cst. Fox was provided with confidential source information that “Hung” which is an alias of Louie’s was settling drugs and has guns. Surveillance was conducted and shown Louie conducting what is appeared to be a drug transaction. [24] Later under the heading “Details of the Investigation” at paragraph 22 (

h) she deposes: h. Louie is trying to get his keys out of his right pocket with his left hand and as he gets the keys out of his pocket approximately a 1/8 ounce baggie commonly known as an 8 ball of cocaine falls out of his pocket onto the ground. Louie picks up the cocaine with his left hand and puts it back inside of his pocket. [25] Finally, under the heading “Search Warrant Justification” at paragraph 26 (

e) she deposes: e. Cst. Fox observed on video surveillance Louie dropping and picking up approximately a 1/8 ounce baggie of cocaine. [26] When this is juxtaposed with 26 (f), it leaves a distinct impression that Cst. Fox conclusively saw cocaine: f. Police observed what is believed to be a drug transaction after Louie departed his apartment complex. [27] To summarize, Cst. Fox deposes twice in the more detailed portion of her affidavit , that it was a 1/8-ounce baggie of cocaine that she saw drop from pocket of the accused and that he picked up the cocaine [28] Using the language she did, Cst.

Fox did not make it clear that this was only her belief . In fact, to make matters worse, she did not put her belief in brackets as she said she would when she was only stating her belief (as promised in paragraph 11 of her affidavit). [29] As this item was never recovered, it could not be examined nor tested. [30] I agree that it might be what Cst. Fox says it is, but to conclusively say it is – is a troubling overreach – and that observation is the most cogent evidence here. [31] The Crown has argued that the issuing justice could have reasonably placed some weight on Cst.

Fox’s belief given her 13- year experience as a police officer who has conducted drug investigations. While I agree that weight is limited to the officer’s subjective belief which no doubt exists.

However, the entire rationale for prior judicial authorization is to ensure that there is an objective oversight of facts and importantly because of the ex parte nature of the proceedings, that what is fact and what is opinion is made absolutely clear to issuing justice. [32] In any event, Defence has raised the issue of whether the seizure of the CCTV was constitutionally permissible or whether it is contrary to s. 8 Charter . CCTV Seizure [33] I now turn to the CCTV seizure - going chronologically, I will then return to the remaining incident on June 15 th . [34] For there to be a breach of s.8, Mr.

Louie must demonstrate that he had a reasonable expectation of privacy. [35] There is no settled or binding rule of law establishing a reasonable expectation of privacy in all indoor common areas of multi-dwelling buildings. As Antonio J. (as she then was) commented in R v Sandhu : There is no catalogue of techniques that engage a reasonable expectation of privacy: Tessling at para 19 . Each case requires a principled application of the privacy factors. The same applies to covert cameras in condominium hallways: R v White, 2015 ONCA 508 at paras 44-48 .

This explains why the precedents on hallway cameras have led to varied results on standing: each presents a unique combination of circumstances that influence the privacy analysis. The precedents are helpful in understanding what features have held significance to different courts at different times.

[36] Given the paucity of authorities, Justice Antonio grounded her analysis in first principles, as I will as well. [37] More recently, Devlin J. summarized the state of the law in R v Truong , 2021 ABQB 34 and noted that courts have had no objection to police entering multi-dwelling buildings with the consent of boards or management for investigative purposes. On the other hand, Charter breaches have arisen where police entered such buildings and installed covert cameras without judicial authorization.

The specific question at issue in this case is unsettled: 37 Between these poles, there remains an unresolved question as to whether police may request and take possession of a building’s own, non-covert CCTV footage of hallway spaces through the consent of condominium boards or building management. Trial courts in British Colombia have recently held that such consent does not obviate the residents’ privacy interests: Kim at para 41, Latimer at para 190. The decision of the British Colombia Court of Appeal in Wilson upheld the opposite conclusion.

There is no binding authority on point[…]. [38] Given that the law requires a fact-specific analysis, this Court must apply the principled framework established by the SCC in Tessling regarding the assessment of a reasonable expectation of privacy. Existence of a reasonable expectation of privacy is determined on the totality of the circumstances, considering four broad headings: a. What was the subject matter of the alleged search or seizure? b. Did the claimant have a direct interest in the subject matter? c. Did the claimant have a subjective expectation of privacy in the subject matter? d.

If so, was the claimant’s subjective expectation of privacy objectively reasonable? a. What was the subject matter of the search or seizure? [39] While the subject matter of the seizure may be seen benignly as a recording of areas frequented by the public simply observing the comings and goings, it has another highly invasive aspect as well. Cst. Fox testified she seized the CCTV because she wanted “to gather everything she could”. That included Mr.

Louie’s physical features, clothing, identify who he was with and what he was doing. [40] The focus of the police in R v Sandhu , 2018 ABQB 112 in using a hallway camera was to monitor people coming and going from certain apartments. This was found by JA to be invasive going to the subject’s biographical core. Similarly, I find that the subject matter of the recording here goes to the biographical core of who Mr. Louie is as a person. b. Did the claimant have a direct interest in the subject matter? [41] The video was used to capture intimate details of Mr.

Louie’s persona – facial features, and also his habits and who he consorts with. Again, while these are innocuously and momentarily observed in public, there is no automatic consent or default to consent to allow recording, much less use of that recorded personal information for criminal investigative purposes just because someone steps out of the home. [42] I find that Mr. Louie has a direct I in the subject matter of the recording even though he does not have exclusive control over the area recorded, his privacy rights are not extinguished because there is a public aspect to it. c.

Did claimant have a subjective expectation of privacy? [43] There is no evidence that Louie subjectively expected that his entry, exit and activities within the lobby would go unseen or unmonitored. He had no control over who had access to the area and it was regularly accessed by other people (more than 25 individuals used it within 2 hours and 24 minutes on May 25, 2021). The video cameras were not hidden and the Villas’ staff captured the video for security purposes. Louie would have expected to be recorded by a third party who owed him no obligation of confidentiality.

There was nothing untoward about the police’s request for the videos. [44] The threshold is low. [45] As noted by J. Antonio in Sandhu , the Court may draw a reasonable inference regarding an individual’s expectation of privacy. [46] Most complexes of this type shield their tenants’ privacy by not including their names on the building’s directory, but only numbers, and numbers might not even be the suite numbers. It is a reasonable inference here that there was no identifying information about building’s tenants because Cst. Fox had to inquire of the parole officer as to the particular suite of Mr.

L (alternatively it was taken from a police data base). [47] Certainly, tenants give up some privacy to their landlord for a limited purpose, but not under the assumption that the landlord will use it or allow the state to use it for penal purposes. [48] Indeed the Ontario Court of Appeal in R v White , 2015 ONCA 508 , held that although the accused 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 without permission or invitation and investigating at their leisure. [49] I conclude that the Villas complex employs CCTV as a shield to safeguard their property, not as a sword to defeats its tenants’ privacy.

Their use of cameras does not give police carte blanche to seize and then harvest the CCTV by combing through it without prior

judicial authorization. d. Was the claimant’s subjective expectation of privacy objectively reasonable? [50] Even if he held such an expectation, it would not be objectively reasonable. The informational content of these videos onlyreflects arrivals and departures between the lobby and the outdoor parking lot. The videos inside the lobby provide no more informationthan could have been obtained from the publicly accessible areas outside the Villas. Louie is recorded for no more than 5 seconds intotal.

It would have been impossible to capture intimate information of Louie’s lifestyle or information of a biographical nature. There isnothing private in a person coming and going from their home. [51] People do have the right to be left alone. [52] Homes aren’t bunkers. [53] People must go out into the world in order to survive – groceries, medical attention or exercise rights (voting) and whenpeople do go out into the world, it should be able to be in confidence that they are not being monitored and that their every move isrecorded.

People must be able to connect to the world without the fear of surveillance. [54] As Justice LaForrest said in R v Wong, (SCC), [1990] 3 SCR 36, (that case involved police recording); asopposed to the police use of a recording comments are apt: ...there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of thestate, in the absence of prior authorization, will permanently record those activities on videotape… To fail to recognize this distinction isto blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales bycomparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities.

It isthus an important factor in considering whether there has been a breach of a reasonable expectation of privacy in given circumstances. [55] The Crown has argued that this case is similar to R v Yu, 2019 ONCA 942. The case before me is much different than the Yucase where the Ontario Court of Appeal held that police could enter the visitor’s area of a garage to determine whether the target’svehicle was parked there or not.

There is a certainly less privacy in surveilling a mode of transportation to determine the likely presenceof a target at a location as compared to seizing a recording of the actual target which is the case here. [56] I find that this case is more like White, where police walked through the hallways, listened at the accused's door, observed thecomings and goings at the accused's unit, and viewed the accused's storage locker in the common storage area.

The results of theseobservations were included in the information used to obtain a search warrant for the accused's unit and were excised as having violatedthe accused’s rights. [57] Returning to the facts before me, Mr. Louie has a reasonable expectation of privacy in his home and the common areas of hisresidency that he shares with others who reside in the complex, who would reasonably have a similar expectation of privacy. [58] Cst.

Fox’s justification that the CCTV cameras simply captured public areas belies the intent behind the seizure which wasnot one of passive public observation but of possible penal intrusion into the private life of Mr. L. Conclusion on CCTV Seizure [59] In conclusion, the CCTV evidence, seized and then searched without prior judicial authorization is to be excised from the ITOpursuant to R v Love, 2022 ABCA 269 commencing at paragraph 47. [60] I now turn to the evidence regarding the June 15th incident at the Dutch Canadian Centre (DCC). 1. The DCC evidence is outlined in paragraph 25. Cst.

Fox deposed that those details are drawn from Cst. Densmore’s notes of theincident, but when cross examined by Defence counsel , she agreed that the following did not appear in those notes: a. The characterization of the transaction occurring within “ moments” when 5 min elapsed which is a long time for a drug transactionthat typically lasts seconds (this time, her belief that this observation resembled a drug transaction was enclosed in parentheses to indicateit was merely her belief); b. That Mr. Louie was carrying a black satchel (which could be used to secrete drugs); c. Whether Mr.

Louie got into the vehicle; and d. That the area was a quiet area. Despite all these observations, when the cab was stopped and checked by police, nothing was found. 2. The belief that the activity near the Dutch Canadian Centre on June 15th was a drug transaction is again an overreach. I wouldagree the activity is suspicious but objectively, it doesn’t rise to level of reasonable belief. [61] Zooming back out to a high-level review of the evidence, just 3 weeks prior to seeking the search warrant, police were awareno drugs were found at the same residence the police now swore that evidence would be located.

More cogent evidence was needed inthe face of this dry run that yielded nothing: this red flag ought to have caused police to pause and rethink or ensure a more thoroughsurveillance of the target occurred. Here, there were just 2 scant observations made after May 25, one on May 26 (the “baggie drop”) andthe one I have just discussed on June 15.

[62] While it is necessary to assess individual pieces of evidence that make up the ITO, I must look at the totality of all the circumstances. When they are added together, the suspicions amount to just that - suspicions. [63] If I am wrong in excising the CCTV evidence, I find that, even with it, there are insufficient grounds for the search warrant to issue.

Conclusion [64] In conclusion, the issuing Justice of the Peace relied upon mischaracterized, misleading evidence and in the case of the CCTV observations, constitutionally impermissible evidence. [65] The information contained in the ITO with the consented to amplifications and the excision was insufficient for the issuance of the search warrant. [66] In so finding, I recognize that a review of a search warrant is not the same as granting or refusing the issuance in the first place. I cannot substitute my decision for that of the Justice of the Peace.

The standard of review is whether reasonable and probable grounds established on oath exist to believe that an offence has been committed and that there is evidence to be found at the place of the search. [67] In the totality of the circumstances, the issuance of the search warrant was not reasonable. Accordingly, it is quashed.