R. v. Kawall, 2022 ONCJ 475

ONTARIO COURT OF JUSTICE Citation: R. v. Kawall , 2022 ONCJ 475 DATE: 2022 10 20 COURT FILE No.: Toronto, College Park 20-73004493 BETWEEN: HIS MAJESTY THE KING — AND — KEENAN KAWALL Ruling on Charter Application

Section 8 Before Justice B. Jones Heard on September 28 and 29, 2022 Reasons for Judgment released on October 20, 2022 D. Hogan............................................................................................... counsel for the Crown R. Moriah……………………………………………………………….counsel for K. Kawall Jones J.: Introduction [ 1 ]

Section 8 of the Charter guarantees every Canadian the right against unreasonable search and seizure by the state. It functions as “a shield against unjustified state intrusions on personal privacy”: see R. v. Kang-Brown , 2008 SCC 18 at para. 8 . [ 2 ] Privacy is necessary for the realization of other fundamental rights that are protected by the Charter. Privacy is “vital to an individual’s dignity, autonomy, and personal growth”, and it is “a basic prerequisite to the free and open participation of individuals in democratic life”: see R. v. Jones , 2017 SCC 60 at para. 38 . [ 3 ] The protections provided by

section 8 are not unlimited however. It does not establish a “free-standing, automatic right to privacy”, but rather a right “to protection from unreasonable search and seizure”: see R. v. Dosanjh , 2022 ONCA 689 at para. 133 . This application demonstrates some of the difficulties in determining where the protections of

section 8 begin. [ 4 ] On September 27, 2020, Ahmad Massoud was assaulted outside the East York Town Centre (EYTC) by two male suspects. The assault was recorded on surveillance video. Mr. Kawall is charged with various offences relating to these events, including attempted murder and robbery.

[ 5 ] On September 29, 2020, DC Janjanin reviewed the video footage alongside a community resource officer, PC Espino. PC Espino recognized one of the suspects by name as he had several previous interactions with him. That person was Aafaq Siddiqui, the co- accused in this case. He also believed he recognized the second suspect as he encountered him previously on September 5, 2020. On that date, he remembered he saw this person associating with Mr. Siddiqui around the EYTC. At the time, PC Espino did not know this person’s name. PC Espino approached this person but he would not speak to him.

Instead, PC Espino took two photographs of the person for future investigative purposes. When he met with DC Janjanin, he believed the person in the photographs was the second suspect seen in the surveillance video. [ 6 ] DC Janjanin submitted one of these photographs to a facial recognition analyst with the Toronto Police Service. Using facial recognition software, the analyst compared the photograph to a database of previously acquired police arrest mugshots. The analyst identified Mr. Kawall by name as a potential candidate who could be the person in the photograph taken by PC Espino.

DC Janjanin then reviewed Mr. Kawall’s mugshot and compared it to the surveillance video footage and the photographs obtained by PC Espino. As a result, he formed reasonable grounds to believe Mr. Kawall was one of the suspects who committed the offences against Mr. Massoud. He subsequently applied for and obtained a search warrant for Mr. Kawall’s residence based, in part, on the results from the facial recognition analysis. [ 7 ] The photographs obtained by PC Espino on September 5, 2020, therefore proved essential to the issuance of a search warrant for Mr. Kawall’s residence.

On October 5, 2020, the search warrant was executed, and physical evidence that forms part of the Crown’s case was seized. [ 8 ] Mr. Moriah brought a mid-trial application to exclude from evidence the photographs obtained by PC Espino. He argues his client’s rights under

section 8 of the Charter were violated, and the photographs should be ruled inadmissible pursuant to section 24(2). [ 9 ] He further seeks to exclude from evidence the physical items obtained during the search of his client’s residence. While the police officers were executing a validly issued search warrant, Mr. Moriah argues that if I agree his client’s Charter rights were violated, the photograph obtained by PC Espino should therefore be excised from the Information To Obtain (ITO) the warrant.

Without the inclusion of the photograph, the authorizing justice could not have issued the warrant. [ 10 ] The Crown opposes the application. Mr. Hogan argues that Mr. Kawall’s Charter rights were not violated by PC Espino and the application should be summarily dismissed. It is simply without merit. Mr. Hogan concedes however that if I were to disagree and exclude any reference to the photograph from the ITO, there would not have been a sufficient basis for the issuance of the warrant. [ 11 ] On the trial proper, the issue of identification remains of central importance. The defence does not concede that Mr.

Kawall is the person in the photographs taken by PC Espino or the surveillance video that captures the offences themselves. Mr. Kawall did not testify on the Charter voir dire. Nevertheless, the Crown alleges the person in the photographs is Mr. Kawall, and therefore he has standing to bring this application: see Jones at para. 9 . [ 12 ] The parties agreed that all evidence previously called on the trial proper could be considered as part of this application. Review of the Evidence – Events of September 5, 2020 [ 13 ] PC Espino is a member of the Community Response Unit (CRU) with 53 Division.

He has been assigned to the Thorncliffe Park neighbourhood since 2016. This area includes the EYTC. [ 14 ] PC Espino was well-acquainted with Mr. Siddiqui, the co-accused in this matter. He had regular and consistent interactions with him in and around the EYTC since 2017. He investigated him multiple times on suspicion of criminal behaviour or for provincial offences such as violations of the Trespass to Property Act . [ 15 ] On September 5, 2020, PC Espino was on patrol near the EYTC and observed a group of male persons in a parkette, including Mr. Siddiqui. One of those male persons stood out.

PC Espino remembered that he saw this person with Mr. Siddiqui two weeks previously. Due to his concerns about Mr. Siddiqui being regularly involved in unlawful activities, he wanted to know the identity of this newfound associate. [ 16 ] PC Espino testified that it was just before lunch time when he approached the men while in his patrol car. Everyone scattered except this unknown male person. His attention was drawn to him accordingly. [ 17 ] The person had an LCBO bag. PC Espino testified he had a general concern based on his prior investigations that Mr.

Siddiqui and his cohorts would drink in public or loiter. He initially stated he approached this person for a possible investigation under the Liquor Licence Act or Trespass to Property Act .

However, during cross-examination he accepted he had no reason to suspect that this person was engaged in any unlawful activity. [1] Indeed, while he was concerned about people drinking in public in this location generally, he never saw the person with any alcohol whatsoever. [2] He also accepted he did not even know how long the person had been there before he saw him, and thus did not have a basis to suspect him of loitering either. [3] [ 18 ] PC Espino exited his car to approach this person in a “friendly manner.” The person grabbed his LCBO bag and said, “I’m just leaving.” It was clear to PC Espino this person did not want to speak to him or identify himself.

PC Espino nevertheless took digital photographs of the person on his work cellphone. He did not inform this person he was going to take pictures of him, nor did he seek his consent to do so. [4] He admitted in cross-examination this person was not obligated to provide him with any personal identifying information. He took the photographs because he wanted identifying information from him regardless of his unwillingness to engage with him verbally. [5] [ 19 ] Mr.

Moriah questioned PC Espino about Ontario Regulation 58/16 , entitled “Collection of Identifying Information in Certain Circumstances.” PC Espino understood this regulation was developed in response to widespread problems associated with the practice of “carding” by the police. [6] PC Espino agreed that the regulation governs how he may lawfully interact with members of the community in his capacity as a Community Resource Officer. [7] However, he admitted he did not follow the requirements of the regulation during

his interactions with the man later identified as Mr. Kawall. He also conceded he had not adhered to them over the past five years of hiscommunity policing duties in general.[8] [20] This regulation was passed due to the government’s concern about the practice of “carding”, including the disproportionate effectthis had on racialized and Indigenous people in the province. It is commonly referred to as the “street check” regulation. It prohibits thearbitrary collection of identifying information by police officers.

The regulation came into effect on January 1, 2017. [21] The regulation applies when a police officer requests identifying information in certain circumstances.

These include requests forinformation for the purpose of creating a database of information without an officer necessarily suspecting an offence has beencommitted.[9] In the Report of the Independent Street Checks Review, Justice Tulloch of the Ontario Court of Appeal explained that theregulation “tries to ensure that requests for identifying information are not made arbitrarily or for an improper reason” and “aims toensure that any response to the request for information is provided voluntarily.”[10] Charter of Rights and Freedoms –

Section 8 [22] Privacy is a fundamental constitutional value in Canada. In Alberta (Information and Privacy Commissioner) v. United Food andCommercial Workers, Local 401, 2013 SCC 62, the Supreme Court of Canada held at para. 19 that “[t]he ability of individuals to controltheir personal information is intimately connected to their individual autonomy, dignity and privacy. These are fundamental values thatlie at the heart of a democracy.” [23] In R. v. Yu, 2019 ONCA 942at para. 63, the Court of Appeal endorsed the following approach to conducting a

section 8 analysis: For s. 8 of the Charter to be engaged, the accused person must possess a reasonable expectation of privacy: R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 45. Once it is determined that the accused has a reasonable expectation of privacy, awarrantless search that intrudes on that expectation will be presumptively unreasonable. The onus is on the Crown to show that thesearch was authorized by law: R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 30.

The authorizing law must bereasonable, and the search must have been conducted in a reasonable manner: Caslake, at para. 10. [24] Whether one has a reasonable expectation of privacy in the subject matter of an alleged search requires consideration not merelyof the facts presented on the application but the values the court is called upon to consider. In R. v.

Spencer, 2014 SCC 43, the SupremeCourt held that “while the analysis is sensitive to the factual context, it is inevitably “laden with value judgements which are made fromthe independent perspective of the reasonable and informed person who is concerned about the long-term consequences of governmentaction for the protection of privacy”: see para. 18. [25] In R. v.

Ward, 2012 ONCA 660, the Ontario Court of Appeal held that when a courts accepts that a person has a reasonableexpectation of privacy, it is “in reality declaring that the impugned state conduct has reached the point at which the values underlyingcontemporary Canadian society dictate that the state must respect the personal privacy of individuals unless it is able to constitutionallyjustify any interference with that personal privacy”: see para. 82. A normative standard is therefore to be applied to a

section 8 analysis,meaning that whether the state conduct was reasonable must be assessed in light of the norms of conduct in our society. [26] Canadian citizens do not forfeit their privacy rights simply by going about their daily lives in public spaces. In R. v. Jarvis, 2019SCC 10, the Supreme Court held that merely being in a public location does not “automatically negate all expectations of privacy withrespect to observation or recording”: see para. 41.

Whether or not an observation or recording would generally constitute an invasion ofprivacy will depend on multiple factors. [27] In Spencer, supra, the Supreme Court of Canada provided four main factors for a court to consider when assessing whether areasonable expectation of privacy can be found to exist at para. 18: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances Position of the Parties [28] Mr.

Moriah submits that PC Espino’s decision to photograph Mr. Kawall without his consent was done in contravention of theprovisions of O. Reg. 58/16 and in these circumstances constitute a violation of his rights under

section 8 of the Charter. He intentionallytried to avoid complying with the obligations placed on him under the regulation. He knew he could not obtain the identifyinginformation he sought through verbal communication and took Mr. Kawall’s photograph regardless. PC Espino kept that photograph forfuture police investigations. The reason the officer took the photograph matters when assessing his client’s

section 8 rights. [29] Mr. Moriah acknowledges the existing case law relied upon by the Crown which holds that generally speaking a citizen does nothave a reasonable expectation of privacy in their image when walking in a public area. He distinguishes those cases in two fundamentalways. [30] First, PC Espino was bound by O. Reg. 58/16. The regulation creates expectations of privacy. It was created in response to thepractice of “carding” which resulted in disproportionate policing of racialized groups. The regulation was meant to help protect orenhance Canadians’ Charter rights including their right to privacy.

It is a crucial factor to consider when assessing whether or not theofficer’s conduct violated Mr. Kawall’s

section 8 rights in these circumstances. Mr. Kawall was not the target of a lawful investigation oreven under general surveillance due to his possible involvement in any criminal activity. He was a regular Canadian simply going abouthis business in public.

[31] Second, what occurred on September 5, 2020 should not be viewed in isolation. It is not simply the taking of the photograph thatmatters. Rather, it is the retention of that photograph for future police investigations including through the use of facial recognitiontechnology that strikes at the core of his client’s

section 8 protections. He submits the courts must be flexible and adapt when assessingclaims involving a reasonable expectation of privacy. Technological advances, left unchecked by the courts, could permit thedevelopment of potentially highly invasive law enforcement techniques that would inevitably significantly diminish Canadians’

section 8rights. [32] Mr. Moriah also asks me to consider that in the circumstances of this case, to sanction what occurred between PC Espino and hisclient on September 5, 2020 would risk undermining the equality rights of Mr. Kawall and possibly entire groups of racializedCanadians. Thorncliffe Park has a large and diverse immigrant population which is particularly vulnerable to arbitrary policeinvestigative practices. [33] Mr. Hogan submits that Mr. Kawall was travelling through a public place when PC Espino noticed him.

He had no reasonableexpectation of privacy and it was entirely lawful for PC Espino to take his photograph. He did not need Mr. Kawall’s consent. Hepresented many prior court decisions to this effect, some of which I will review later in this decision. [34] He also disputes that the regulation in question even applies. It is only engaged where an officer “attempts to collect” identifyinginformation about an individual “by asking the individual, in a face to face encounter, to identify himself”. PC Espino never asked such aquestion. His subsequent decision to photograph Mr.

Kawall therefore is simply not governed by this regulation. As a result, it shouldnot play any role in my decision. Analysis [35] Mr. Kawall was walking in a public parkette when he was approached by PC Espino, a uniformed police officer. He did notconsent to his photograph being taken and nor was he asked to provide that consent. The photograph was taken for the purpose ofobtaining information for future police investigations. It captured his face and upper torso. He lost control over his personal image.

It isbeyond dispute that a permanent recording by the state of an individual involves a far more serious infringement of one’s privacy than amere casual observation. [36] The Crown places great emphasis on the fact that this photograph was taken in broad daylight in a public location. I agree thatthe Supreme Court has been clear that a state agent’s unaided observation of a person in a public setting does not normally engage areasonable expectation of privacy: see R. v. Wise, (SCC). While this is an important factor to consider, I do not find it tobe determinative of the application.

It is one thing to be seen by another private citizen in public while we go about our daily lives. It isentirely a different thing to be recorded by an agent of the state. The Supreme Court has recognized that

section 8 of the Charter protectsanonymity in public places as a feature of privacy: see Spencer, supra at paras. 7-12. As stated by Hasan, N. et al, Search and Seizure(Emond Publishing: Toronto, Canada, 2021) at p. 51: The fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of theirprivacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes them in public.

Thus, inorder to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy. [37] In Alberta. v. 401, the Supreme Court held that by simply appearing in public “an individual does not automatically forfeit his orher interest in retaining control over the personal information which is thereby exposed”: see para. 27.

This is all the more importantgiven “developments in technology that make it possible for personal information to be recorded with ease, distributed to an almostinfinite audience, and stored indefinitely”. [38] I therefore reject the Crown’s argument that Mr. Kawall cannot succeed on the application because he was in a public space atthe time the photograph was taken. A deeper contextual analysis is still required. [39] With respect to the applicability of the regulation, Mr.

Hogan is correct that the regulation defines an attempt to collectidentifying information as requiring the officer to ask the person to identify himself. However, it also includes an officer asking theindividual “to provide information for the purpose of identifying the individual”. In my view, taking a photograph of a person constitutesa means by which an officer can obtain information “for the purpose of identifying an individual”. I agree that PC Espino did not literallyask Mr.

Kawall anything before taking the photograph, but his decision to take that photograph was done, on his own testimony, in lieuof his ability to ask those questions because Mr. Kawall chose to walk away from him. He would have otherwise asked identifyingquestions. [40] If I were to accept the Crown’s argument, it would mean that an officer could intentionally circumvent this threshold requirementof the regulation with ease and its protections would be rendered meaningless. That would be unacceptable.

The regulation is meant toprotect an individual’s right to anonymity when faced with arbitrary police questioning or other similar information gathering techniques.Anonymity, it bears repeating, has been recognized as a core feature of the protections afforded by

section 8 of the Charter as well. InSpencer, the Supreme Court held at para. 43 that “[a]nonymity permits individuals to act in public places but to preserve freedom fromidentification and surveillance”. I conclude that following a purposive

interpretation of the regulation, it applies here. [41] In Jarvis, the Supreme Court held that the existence of by-laws, regulations, policies or other formal rules that govern behaviourin specific locations or by certain individuals may inform one’s reasonable expectation of privacy: see para. 83; see also R. v. Gomboc,2010 SCC 55, at paras. 31-33. This particular regulation sets defined parameters on how citizens shall be treated by the police, and howtheir personal information may, or may not, be lawfully collected.

It bears emphasizing that it was created in response to the recognizedfundamental injustice that certain vulnerable groups in Ontario were being disproportionately investigated and stopped by the police.That gives it enhanced significance to this application. It strikes at the core of the balance in a democratic society between protectingindividual liberties, equality rights, and legitimate law enforcement techniques. [42] During cross-examination it became abundantly clear PC Espino had no appreciation of this regulation whatsoever. Mr.

Moriahasked him repeatedly about whether or not he understood its provisions and if he ever complied with them. His answers demonstrated

that he did not understand his obligations under the regulation and certainly did not comply with them during his interactions with Mr.Kawall. At times he seemed to suggest the regulation did not apply to him based on a misguided

interpretation of its provisions and hiscommunity policing authority.[11] [43] PC Espino’s basis for his investigation was due to his concern about ongoing public drinking, drug-dealing, and violent offencesin the parkette where Mr. Kawall was located.[12] It was a generalized suspicion about unlawful activity. The regulation thus applies:see O. Reg. 58/16, section 1(1)(b). Furthermore, as previously stated, his decision to take photographs of Mr. Kawall was an attempt tocollect identifying information from him.[13] [44] PC Espino had no basis to reasonably suspect that Mr.

Kawall was engaged in any unlawful activity. The photographs were thuscollected in an arbitrary manner in violation of the regulation. He conceded Mr. Kawall had committed no offences by merely beingpresent in the parkette and holding an LCBO bag.[14] He was not drinking in public and he was not intoxicated. PC Espino simplythought he might be involved in future illegal activity due to his temporary association with Mr. Siddiqui. [45] However, even if PC Espino violated certain provisions of the regulation as submitted by Mr. Moriah, that does not determinethe outcome of this application. Mr.

Hogan submitted that fundamentally no core biographical information was obtained by PC Espinowhen he took Mr. Kawall’s photograph. This is not a case where the police obtained any information that might be used to “revealintimate details of the lifestyle and personal choices of the individual”: see R. v. Plant, (SCC), [1993] 3 S.C.R. 281 at p.293; R. v. Cole, 2012 SCC 53 at para. 45. Much of the existing case law supports this position. [46] Mr.

Moriah argues in response that the photograph could also be processed by facial recognition software at any point in thefuture which could in turn reveal information about where Mr. Kawall was recorded on other dates, and what activities he was engagedin on those dates. This is a relatively new technological development, but its implications are not a theoretical concern as this casedemonstrates. [47] Nevertheless, individuals still forego a significant degree of constitutional protection when they intentionally and knowinglyexpose themselves in a public space. Where Mr.

Kawall was located was the subject of multiple other video cameras which were alsorecording him. Evidence about those cameras and footage obtained from them on the date of the offence was introduced on the trialproper. [48] Mr. Hogan also noted that in R. v. Shortreed, , the Ontario Court of Appeal held that the police do not requireconsent to photograph a person in public whether or not they have arrested that person.

The Court specifically held that the police “arenot obliged to obtain the consent of a suspect before taking his photograph in a public place, provided no physical compulsion isinvolved” and that such conduct does not constitute a violation of Charter rights: see p. 304. This case has been approvingly cited byvarious courts in the intervening years, including most recently by the Superior Court: see R. v. Aubrey, 2022 ONSC 635 at para. 56.However, given the existence of O. Reg. 58/16, I do not find it can summarily dispose of Mr. Kawall’s application as the Crownsuggests. [49] Mr.

Hogan presented me with other case law in support of his position. In R. v. Hoang, 2021 ONSC 6054, the police installed acamera on a public pole outside the accused’s residence. They surreptitiously recorded the immediate area outside of his home for ninedays. The recording captured anyone who may have attended at the address and anything occurring in the home within the view of thecamera. The Court found that “if” the applicant had an expectation of privacy in the area outside his home, “it [was] highly diminished”and concluded there was no violation of his rights under

section 8 of the Charter: see paras. 61-6. [50] Similarly, in Aubrey, supra, the police conducted physical surveillance of the accused’s real property without a warrant and alsorecorded him on video. The Court held the police may conduct surveillance of an individual (as long as they do not trespass on privateproperty) without violating the Charter. It also concluded that the even though the police used photographs and video to “memorializetheir personal surveillance”, any video recorded “secondary” to physical surveillance did not breach

section 8 of the Charter: see para.64. [51] In R. v. Ngo, 2022 ONSC 3700, the police used a video surveillance camera mounted on a billboard to record the rear entrance ofa commercial building over a period of three weeks. The police suspected the address in question was being used for methamphetamineproduction. The accused’s movements in and out of this building were recorded. Justice Molloy held that “there can be no expectation ofprivacy with respect to conduct of a person that can be viewed from an outdoor public place”: see para. 27.

Her Honour further held thatit is not unconstitutional for the police to take photographs or video of a person under general surveillance. The mere fact the policeemployed a surveillance camera is not sufficient to constitute a breach of a suspect’s

section 8 Charter rights: see para 60. The Courtadded that images of a suspect going in and out of a building “reveal nothing about lifestyle, personal choices, or anything approaching a“biographical core of personal information””: see para. 51. [52] In R. v. Kang, 2020 BCSC 1616, the Court similarly held that video surveillance “did not reveal any core biographical data”: seepara. 67. [53] This was a rather fleeting interaction between PC Espino and Mr. Kawall. He was not detained. He chose to walk away and PCEspino did not attempt to stop him.

For the purpose of future investigations regarding potential unlawful activity, PC Espino took photographs of Mr. Kawall as he left.[15] PC Espino had no evidence that Mr. Kawall was engaged in unlawful activity but he was notmotivated out of any sort of improper motive. He was genuinely concerned that Mr. Kawall was associated with Mr. Siddiqui whom hehad ample reason to believe was consistently engaged in unlawful activities harmful to the safety of the community.

The photograph wasnot accessed by him again until he was called upon to assist DC Janjanin with the investigation into the offences before the court. [54] In Dosanjh, the Ontario Court of Appeal held that when assessing whether or not the applicant had an objectively reasonableexpectation of privacy, a court must always evaluate the “totality of the circumstances”. Factors to be considered include “the place

searched, control over the subject matter of the search, the ability to regulate access to it, and whether the information was already in the hands of third parties”: see para. 122 . Mr. Kawall’s photograph was taken in a public parkette, he had no ability to limit others’ access to his appearance, and independent surveillance cameras were already recording his every movement. [ 55 ] Even assuming that police control over a digital photograph of one’s personal image could engage the applicant’s “biographical core of personal information”, the Court of Appeal in Dosanjh also held that “[n]ot all biographical core information is made equal”: see para. 123 . Part of the

section 8 analysis considers the degree to which the applicant’s biographical core of personal information was engaged by the state conduct. I find that it was only marginally engaged in this case if it was at all. [ 56 ] If a person’s expectation of privacy in the area immediately outside his or her own home is diminished ( see Hoang , supra ), Mr. Kawall had little to no expectation of privacy in this public space: see Ngo at para. 27 . But for the violations of O. Reg. 58/16 , PC Espino’s decision to take these photographs of Mr.

Kawall would likely not attract any Charter scrutiny at all: see Shortreed , supra . Notwithstanding the very important protections that this regulation is meant to establish, Mr. Kawall’s

section 8 Charter rights were not engaged in these particular circumstances. [ 57 ] Without question, Mr. Moriah is correct that the taking of the photographs of Mr. Kawall cannot be viewed as an isolated event. They were taken for inclusion on PC Espino’s police phone and to be used for future investigative purposes. I appreciate that they were ultimately submitted in this case to a facial recognition analyst. However, they were not taken initially for that purpose.

I cannot deem PC Espino’s decision to take the photographs as unconstitutional simply because they were later used for a novel technological law enforcement technique. Rather, I must consider the nature of the technology used at the time of the police conduct in question: see R. v. Tessling , 2004 SCC 67 at para. 55 . Residual Discretion [ 58 ] I have also considered Mr. Moriah’s submission that I may exercise a residual discretion to exclude the photograph from evidence based on my authority to do so. The Supreme Court in R. v.

Schneider , 2022 SCC 34 , stated that this residual discretion may be exercised by judges after balancing probative value against prejudicial effect. Evidence can also be excluded where “there was a significant unfairness associated with obtaining it, such that it would render the accused’s trial unfair”: see paras. 58-59 . [ 59 ] Mr. Moriah points to R. v. T.I. , 2021 ONSC 3158 as one such example where a court found the manner in which the police obtained the evidence was so unfair that the court excluded it under its residual discretion.

In that case, Justice Akhtar of the Superior Court found that an officer who took a photograph of a young person in open court was in violation of the Courts of Justice Act . The Court held that in the interests of trial fairness, he would exclude the photograph from evidence at the young person’s murder trial.

The Court based its decision on the fact that the police failed to comply with a provincial statute prohibiting the taking of images without judicial permission and should not be permitted to use evidence taken in clear violation of the law: see paras. 23-24 . [ 60 ] By contrast, PC Espino’s actions did not directly contravene a penal provision of a statute.

Section 136 of the Courts of Justice Act , which was the provision applicable in T.I. , makes it an offence, punishable by a term of imprisonment of up to 6 months, for anyone who takes a photograph at a court hearing without prior judicial authorization: see Courts of Justice Act , R.S.O. 1990, c. C.43, subsections 136(1) and (4) . That is a vital distinction from the provisions of O. Reg. 58/16 that apply here.

The fact that the accused was a young person in T.I. is a critical distinction as well, as young persons are entitled to “ enhanced procedural protections to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected ”: Youth Criminal Justice Act section 3(1)(b)(iii). [ 61 ] Despite my concerns about how PC Espino approached and photographed Mr. Kawall in light of the provisions of O. Reg. 58/16 , I do not find that this is a case where Mr. Kawall’s right to a fair trial would be compromised by the admission of the evidence.

I decline to exercise my discretion in this manner. Conclusion [ 62 ] On the basis of the position taken by the parties with respect to what impact this decision would have on issuance of the search warrant, there is no need for any further Garofoli review. Mr. Moriah accepted that if the photograph was not unlawfully obtained, he could not succeed in challenging the issuance of the search warrant. [ 63 ] The application is dismissed. Released: October 20, 2022 Signed: Justice Brock Jones