R. v. Wawrykiewycz, 2018 ONCJ 199

ONTARIO COURT OF JUSTICE CITATION: R. v. Wawrykiewycz , 2018 ONCJ 199 DATE: 2018 03 21 COURT FILE No.: Newmarket 17 01202 and 1701203 BETWEEN: HER MAJESTY THE QUEEN — AND — Matthew Wawrykiewycz Before Justice Marcella Henschel Heard on January 9 and 10, 2018 Reasons for Judgment released on March 21, 2018 Carol Shirtliff-Hinds............................................................................ counsel for the Crown Gregory Lafontaine........................ counsel for the accused Matthew Wawrykiewycz HENSCHEL J.: A.

Overview [ 1 ] The applicant, Matthew Wawrykiewycz is charged with three counts of possession of cocaine for the purpose of trafficking, and one count of possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act .

He is also charged with a number of Criminal Code offences including, one count of careless storage of ammunition contrary to s. 86(3) , possession of property obtained by crime contrary to s. 354(1) , and two counts of failing to comply with a recognizance contrary to s. 145(3) . [ 2 ] In November 2016, the York Regional Police (YRP) initiated an investigation of the applicant while he was on bail for numerous counts of possession for the purpose of trafficking, weapons trafficking, and a number of other charges in Toronto.

They conducted surveillance and saw the applicant attending a storage facility unit in Mississauga on a number of occasions between November 2016 and February 2017. [ 3 ] On February 8, 2017 DC McGregor, the informant, swore a single information to obtain (ITO) in support of an application to search the applicant’s residence on Walton Drive in Aurora, the storage facility unit in Mississauga, and a Lexus vehicle used by the applicant. On February 9, 2017, the warrants were issued.

Upon execution of the warrants the police seized 736 grams of cocaine, 194 grams of mixed cocaine and methamphetamine, 60 grams of methamphetamine, cutting agents, a cocaine press, 107 rounds of ammunition, and other drug paraphernalia from the storage unit; $100,000 in Canadian currency from the applicant’s bedroom in the Aurora residence; and 2.86 grams of cocaine, and a cutting agent from the Lexus. [ 4 ] In advance of trial the applicant filed an application alleging that his rights under s. 8 and 9 of the Charter were infringed.

He alleges that none of the warrants ought to have been issued because the ITO did not disclose sufficient grounds, was materially misleading, premised on negligent or incompetent police investigation, and based on bald conclusory statements. The applicant submits that the execution of the warrants violated his s. 8 rights, and that any evidence obtained should be excluded under s. 24(2) of the Charter . The applicant further submits that the detention and arrest which occurred as a result of the execution of the warrants violated s.9 of the Charter .

The applicant did not seek to cross-examine DC McGregor in support of the s. 8 application.

[ 5 ] The trial of this matter is scheduled to resume on March 28, 2018. On January 9, 2018, I heard submissions on the Charter applications. On January 10, 2018 I held that, based on the ITO as amplified on the review, the issuing justice could have issued the warrants. As a result, I concluded that there was no violation of s. 8 or 9 of the Charter . I also concluded that if my findings in respect of s.8 and 9 were in error that the evidence would nonetheless be admissible under s. 24(2) of the Charter. I reserved my reasons for judgment. These are my reasons. B.

Summary of the Facts [ 6 ] On February 8, 2017, DC Brandon McGregor swore an ITO in support of warrants to search the applicant’s residence on Walton Drive, Aurora; storage unit #2160 located at Access Storage in Mississauga; and a 2002 Lexus ES 300 motor vehicle, registered to his father. On February 9, 2017, Justice of the Peace Johnson issued all three warrants. [ 7 ] In the ITO DC McGregor explained that the York Regional Police initiated an investigation after receiving information from a confidential source that a suspicious young male was attending the Walton Drive residence.

As a result, background inquiries were done and the police learned that two males were associated to the Walton Drive address, the applicant, and his father Peter Wawrykiewycz. From the background inquiries, the police learned that the applicant was charged by the Toronto Police in 2014 with a series of CDSA, Weapons, and Conspiracy related offences that were alleged to have occurred between December 2013 and February 2014. They also learned that the applicant was released on a recognizance of bail with a number of conditions, including a condition to reside with his surety at the Walton Drive address in Aurora.

DC McGregor explained that the police initiated the investigation to determine whether the accused was complying with the terms of his recognizance and to determine whether he was still actively involved in trafficking narcotics. [ 8 ] DC MacGregor swore that he had reasonable grounds to believe that the applicant had committed the offence of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act and that evidence of the offence would be found at the storage unit, the Walton Drive residence, and in the Lexus.

He relied upon a number of evidentiary components to support these beliefs including: i.) evidence of the Applicant’s outstanding charges; ii.) evidence of the Applicant’s use of the Access Storage unit between November 2016 and February, 2017; iii.) a conversation between the applicant and a third party overheard by a surveillance officer in a WalMart on January 27, 2017, believed to be drug related. iv.) observations of a drug transaction on January 28, 2017 in an IKEA parking lot, and; v.) the results of Ionscan tests done on swabs obtained from the driver’s door handle of the Lexus vehicle before and after the January 28, 2017 IKEA transaction which tested positive for the presence of cocaine.

Evidence of the Outstanding Charges [ 9 ] In the ITO DC McGregor advised that another officer learned from background checks that the applicant was on bail for two counts of conspiracy to commit an indictable offence, two counts of failing to comply with a recognizance; two counts of possession of a prohibited weapon, nine counts of possession of a

schedule 1 substance for the purposes of trafficking, two counts of possession of a

schedule 2 substance for the purpose of trafficking, four counts of possession of proceeds obtained by crime, possession of property obtained by crime under $5000, and weapons trafficking. Bail Variation [ 10 ] DC McGregor swore that there were two separate recognizances in place for the applicant and set out the conditions which he described as being “current after two variances were granted”.

Included in the conditions referenced by DC McGregor were the following: • Reside with your surety (Marjorie D Kitchen) and be amenable to the routine and discipline of that household. • Remain in your residence between the hours of midnight and 6:00 am unless you are in the direct and continuous presence of your surety or your father, Peter Wawrykiewycz. [ 11 ] DC McGregor attached a copy of the applicant’s recognizance dated March 4, 2014 along with a variation of the recognizance dated May 15, 2015, and a subsequent unsigned and undated variation (with a November 2016 return date) as Appendix E. [ 12 ] DC McGregor advised that on November 9, 2016 Detective Brown attended the Walton Drive address and spoke with Peter Wawrykiewycz who stated that he had not seen the applicant in two days and “he suggested that there was a bail variance that allowed him to be away from the residence for a period of four days.” DC McGregor indicated that as a result “a surveillance detail was initiated” to determine if the applicant was residing at the residence and if he was abiding by his conditions, and that efforts were made to confirm whether there had been a further variation of his bail. [ 13 ] The application record filed with the motion materials included an affidavit from defence counsel’s legal assistant which attached bail variation documents dated August 4, 2016 varying the curfew condition.

The amended recognizance required that the applicant “obey a curfew to be in his place of residence between the hours of 12 am - 6 am, unless you are provided with written permission for work purposes by your surety indicating your whereabouts and time frame for your absence from your residence. A copy of the written permission will be retained by your surety”. Facts and Status of Toronto Charges

[ 14 ] In respect of the status of the Toronto charges DC McGregor included the following paragraph: On January 24, 2017, the Honorable Justice R.F. Goldstein, wrote a decision with regard to Mr. Wawrykiewycz’s

section 8 Charter application. In his decision he dismissed the Charter application and accepted an agreed statement of facts about the issues in the case. Based on the ruling and a conversation with the crown, it is anticipated that there will be a finding of guilt registered on Wawrykiewycz’s next court date of the 14 th of February, 2017. DC McGregor attached the reasons for judgment of Justice Goldstein as an appendix to the ITO. [ 15 ] A review of Justice Goldstein’s reasons reveal that the applicant’s Toronto charges stemmed from two investigations.

The reasons indicate that on December 29 and 30, 2013 the applicant was at a hotel room in Toronto. Police were called due to complaints about noise, the large number of occupants, and the smell of marihuana. The police arrived, and, after knocking on the door and informing the occupants that they were being evicted, they entered the hotel room with a room key at the request of hotel staff in order to remove the occupants. They located Mr. Wawrykiewycz and a female occupant and a large quantity of cocaine, crack cocaine, and money in plain view. They arrested Mr.

Wawrykiewycz and the female occupant, seized two cellphones incident to arrest, and subsequently obtained a warrant to search the room and Mr. Wawrykiewycz’s vehicle. Crack cocaine was seized from the vehicle. [ 16 ] The reasons indicate that a second Toronto investigation occurred after Mr. Wawrykiewycz was released on bail following his December 2013 arrest. In February 2014, he was investigated for firearms trafficking. Toronto police obtained warrants to search the cell phones seized incident to arrest in December 2013 and located photographs that led them to believe that Mr.

Wawrykiewycz and a woman were trafficking cocaine from a residence. A warrant was obtained to search a Toronto apartment and a second Toronto residence where the applicant was required to live.

The police found a large quantity of powdered cocaine, crack cocaine, heroin, and marihuana at the apartment and a smaller but significant amount of illegal drugs and cutting agents at his residence. [ 17 ] Justice Goldstein concluded that the initial entry into the hotel room on December 29, 2013 violated s. 8 of the Charter because the entry was not authorized under the Trespass to Property Act because the police entered the hotel room to evict the occupants before they had a chance to comply with a request to leave.

The hotel search was relied upon in support of the grounds for the subsequent warrants and, as a result, Justice Goldstein held that the February 2014 warranted searches of the apartment and the applicant’s Toronto residence also violated s.8 of the Charter . After conducting a s. 24(2) analysis, Justice Goldstein admitted all of the evidence, finding that the admission of the evidence would not bring the administration of justice into disrepute. [ 18 ] The February 2017 ITO did not allege that the applicant had a criminal record or any other history of drug related offences.

Evidence of Use of Access Storage [ 19 ] DC McGregor advised in the ITO that Access Storage is located in the south end of Mississauga, over 60 km from the applicant’s residence at Walton Drive, Aurora. He advised that the YRP conducted surveillance on the applicant on fifteen occasions between November 2016 and January 2017. On five occasions the applicant was seen attending Access Storage and then attending other addresses for a short period of time. The applicant attended at the storage unit on November 16, 17, 24, and December 3, 2016 and January 28, 2017.

On each occasion he drove the Lexus to the storage unit. DC McGregor advised that officers did not see the applicant carrying any property in or out of the storage unit. On November 24, 2016 while at Access Storage the applicant used a kiosk to pay for the rental of Unit #2160. [ 20 ] DC McGregor indicated that he and another officer spoke with the site manager of Access Storage, Rochelle Buchanan, and she advised the officers that: • the applicant did not have a unit rented in his name at the facility.

Unit #2160 was rented under the name Kyle Paliwoda. • Unit #2160 was rented as of July 22, 2016 and the rental agreement was completed on line as an express rental.

The payment history for unit #2160 showed that a payment was made on December 12, 2016 at an automated kiosk on site and the surveillance footage showed the applicant entering the kiosk and making payment for unit #2160. • The applicant was observed on surveillance going into a door that leads to a stairwell used to access the second and third floors of the facility, and Unit #2160 is located on the 2 nd floor of the facility. • The applicant was using a PIN code to gain access through the gates to the storage facility that related to a different unit than #2160. [ 21 ] DC McGregor advised that on February 3, 2017, the police installed a covert camera on the second floor near unit #2160 with the consent of Access Storage to identify who entered the unit.

He advised that the camera footage established that the applicant attended the unit on February 3, 4, 5, and 6, 2017 and detailed the applicant’s activities as follows: • On February 3, 2017 the applicant attended unit #2160 twice. The first time he was there for nine minutes and entered and exited empty-handed. The second time he was seen entering the unit carrying a shopping bag, and left empty handed. • On February 4 th the applicant went to the unit twice. The first time he stayed for ten minutes between 4:06 p.m. and 4:16 p.m. He entered and left empty handed.

He returned two hours later at 6:06 p.m. and stayed for five minutes again entering and leaving empty- handed. • On February 5, 2017 the applicant attended the unit at 3:00 p.m., checked the door to see if it was locked and then left. He returned at 8:19 p.m. empty handed, and stayed for four minutes, leaving at 8:23 p.m. • On February 6, 2017 he attended the unit at 4:00 p.m. and left at 4:17 p.m., both times empty handed.

[ 22 ] DC McGregor advised that on each occasion the applicant was alone, used a key to access the unit, and wore a bulky winter coat. When he left he secured the door with a padlock. During the period that the cameras were installed no one else was seen attending the unit. [ 23 ] DC McGregor swore that he believed that the applicant was using unit #2160 at Access Storage for the purpose of storing evidence related to the offence of possession for the purpose of trafficking.

He swore that he believed that the applicant could easily be secreting items into or out of the storage unit in the bulky winter coat he was seen wearing each time he entered and exited the unit. Alleged Drug Conversation at Walmart [ 24 ] DC McGregor advised that on January 27, 2017 the applicant went to a high rise apartment complex in Toronto. After spending four minutes at the apartment complex the applicant went to a Walmart. While inside the WalMart the applicant was observed speaking on his cell phone and meeting with Jacob Edwards.

A detective followed the applicant into the Walmart and overheard some of the conversation between the applicant and Edwards. [ 25 ] DC McGregor advised that the detective “believed that they were involved in a conversation about drug trafficking. He based his opinion on the fact that he overheard the use of the words “passcode”, “stepped-on”, “cheap”, and “crack””.

DC McGregor explained that he believed it was reasonable to infer that it was a conversation about crack cocaine because the term “stepped-on” refers to using cutting agents to increase the quantity of product from the original amount which leads to an increase in the amount that can be sold, the term “cheap” goes hand-in hand with the sale of any item, and “crack” refers to crack cocaine. He indicated that without the full context of the conversation he did not know what meaning “passcode” may have.

After leaving the Walmart the applicant and Edwards went to Edwards’ apartment complex, the same building the applicant had attended before travelling to the Walmart. IKEA Drug Transaction and Swab Evidence [ 26 ] In the ITO DC McGregor advised that on January 28, 2017, the day after the Walmart observations, the applicant went to a restaurant in Toronto and then drove his Lexus to an IKEA where investigators believed a drug transaction occurred with an unknown male.

While the applicant was in the restaurant, and the Lexus was parked in a public place, Detective Ban, obtained a swab of the exterior driver’s side door handle of the Lexus. Detective Ban then cleaned the swabbed surface, and an additional swab was taken as a control swab. [ 27 ] DC McGregor advised that after the swabs were obtained surveillance officers saw the applicant drive the Lexus to the underground parking lot at an IKEA at 1475 The Queensway, in Toronto. At 8:03 p.m. the applicant parked in the underground parking lot.

Eight minutes later, at 8:11 p.m., an unknown male approached and entered the passenger side of the Lexus. The male was in the Lexus for less than 30 seconds. The male exited the Lexus empty-handed and entered another vehicle parked next to the Lexus. He immediately returned to the Lexus holding a white grocery bag in his left hand. The investigators could see something at the bottom of the bag. Less than 30 seconds later, the man exited the passenger seat still holding the white bag, which now appeared smaller in size.

The applicant left the underground lot shortly thereafter and drove directly to the Access Storage unit. The applicant exited Access Storage with his hands in his jacket pockets. He got back in the Lexus and drove directly to an address in Toronto on Edinburgh Court. After the applicant drove to the Edinburgh Court address, Det. Ban obtained a third evidence swab from the driver’s side door handle. [ 28 ] DC McGregor advised that after the three swabs were obtained they were taken to the CBSA where an Intelligence officer analyzed them with an IONSCAN 500DT. Cocaine was detected on each swab.

In a footnote to the ITO, DC McGregor advised that the IONSCAN 500DT is used by the CBSA to scan for the presence of drugs, stating that he is aware that “it is a useful tool in detecting when a person has come into contact with drugs.” DC McGregor indicated that, other than Detective Ban, the applicant was the only person observed touching the driver’s side door handle of the vehicle. [ 29 ] DC McGregor stated that based on the evidence gathered using the swabs that he believed that the applicant had been in recent contact with cocaine and that he transferred the trace evidence from his hands to the door handle of the Lexus.

DC McGregor noted that on January 28, 2017, the applicant originally came from his house, was in his vehicle, and attended the storage facility, all locations which he proposed to search. DC McGregor swore that he believed that a drug transaction had occurred on January 28, 2017 in the Ikea parking lot. [ 30 ] DC McGregor also advised that the applicant had previously met with the man he met in the IKEA parking lot on January 28, 2017 on December 3, 2016. The previous meeting also took place in the same IKEA parking lot. On December 3, 2016 the officers could not see what occurred between the two men.

The ITO disclosed that December 3, 2016 was a date that the applicant also attended Access Storage. [ 31 ] DC McGregor addressed the control sample testing positive for cocaine in the ITO as follows: Detective Ban #1345 advised that sample #2 (the control sample) could have tested positive for cocaine, even though it had been cleaned just prior, for any number of reasons including but not limited to: • The saturation of cocaine is so high that residue still remained; • The texture of the door handle is a surface that is not conducive to cleaning; • The door handle was not adequately cleaned prior to the swab being taken.

Prior Tracking Warrant [ 32 ] In the ITO DC McGregor disclosed that on December 12, 2016 he was granted a tracking warrant for the applicant’s Lexus and a tracking device was installed on January 6, 2017 and removed on January 18, 2017. DC McGregor advised that he decided to remove the tracking device following “a critical review of the original affidavit in support of the application” and stated as follows:

I realized that my original affidavit contained information that supported my theory versus facts that informed my suspicion. The differences were subtle but on review I decided that it was best to remove the tracking device and start over. My original affidavit included some bias that would likely detract from the suspicions outlined within.

I am aware that the threshold for a tracking device on a vehicle is that of suspicion, and I still believe that the threshold was met; however the bias far outweighed the facts presented. [ 33 ] DC McGregor attached his affidavit in support of the tracking warrant as an appendix to the ITO. He advised that after the tracking device was removed any information that was obtained was sealed and secured in the property room and that any grounds he was relying upon in the February 8, 2017 ITO were known to or learned by the police independent of the installation of the tracking device. C.

Position of the Parties Applicant’s Position [ 34 ] The applicant submits that there were insufficient grounds to obtain the warrants, and that the ITO was materially misleading, premised on negligent or incompetent police investigation, and based on bald conclusory statements. The applicant submits that none of the warrants ought to have issued and that their execution infringed the applicant’s rights under s. 8 of the Charter . He submits that any evidence obtained as a result ought to be excluded under s. 24(2).

In support of this position the applicant also submits that: • The police improperly initiated an investigation based on confidential source information that did not indicate any criminal activity, and that DC McGregor’s indication in the ITO that the police began the investigation as a bail compliance investigation with “an eye to” the potential that the applicant might be involved in ongoing trafficking of drugs and weapons was a “bald, conclusory” statement. • Detective Cook and DC McGregor through “negligence, oversight, or incompetence” and “unacceptably inadequate investigation” failed to identify the amended bail of August 4, 2016 which permitted the accused to be away from his residence during the 12 a.m. to 6 a.m. curfew with written permission for work purposes from his surety.

The police failed to investigate whether the applicant had written permission from his surety to be away from the home on the dates that the alleged failure to comply took place. • In respect of the storage unit, the fact that the applicant attended at the unit fell short of reasonable grounds to believe that the offence of possession for the purpose of trafficking had been committed and that evidence would be found in the storage unit, especially given that he attended and left the unit empty handed.

The surveillance evidence is of little value because during the three months of surveillance there were no observations of drug activities until January 27, 2017. • The evidence of the conversation that the police heard at Walmart on January 27, 2017 does not assist in establishing reasonable grounds because there were insufficient details about the conversation. • The applicant challenges the assertion that the IKEA meeting with the unknown individual was a drug transaction because neither the applicant nor the unknown male were detained and searched for evidence supporting the belief. • The taking of the three swabs from the Lexus constituted a warrantless search in violation of s. 8 of the Charter and a trespass on the vehicle.

The results of the analysis of the three swabs should be excised.

If the swab information is not excised due to a breach of s. 8, it should not be given any weight because the assertion that the applicant was the “only person that was observed touching the driver’s side door handle of the vehicle” was inaccurate because police were not conducting surveillance on the vehicle at all times; the positive result obtained on the control sample suggested the tests were not reliable; and there was insufficient information about the reliability of the test to allow the issuing justice to independently assess the reliability of the test.

The informant’s failure to indicate that the positive reading on the control sample could be due to a false positive result was material non-disclosure. • There was no basis within the ITO upon which the issuing justice could conclude that there were reasonable grounds to believe that a search of the applicant’s residence would afford evidence. • In the course of submissions the applicant took the position that the outstanding charges could not be relied upon to establish reasonable grounds because the charges had not yet been proven. [ 35 ] Finally, the applicant submitted that the tracking warrant issued on December 12, 2016 ought not to have been issued because it was based on erroneous beliefs with respect to the bail conditions and bias rather than facts.

He submits that the improper issuance of the tracking warrant is relevant to the assessment under s. 24(2). Respondent’s Position [ 36 ] In response, the Crown submits that the warrants are presumptively valid and that there were sufficient grounds for each of the warrants to be issued.

The Crown also submits that: • the applicant has standing to challenge the warrants executed at Walton Drive, Aurora and on the Lexus but he has failed to establish standing in respect of unit #2160 at Access Storage. • The failure of the informant to locate and include the most up to date recognizance of bail was not a material error because the terms of the bail were not relied upon in support of the grounds for the issuance of the warrants. The error was not deliberate or negligent.

The police made efforts to corroborate the information from the applicant’s father and a typographical error on the amended bail, which referenced only a September 29, 2013 offence date instead of the December 29, 2013 and February 18, 2014 offence dates, may have contributed to why the York Regional Police did not locate the variation. • In respect of the swab evidence, the crown relies on R. v.

Tessling [1] in support of the position that there was no reasonable expectation of privacy in respect of the swabs collected from the exterior door handles of the Lexus which was parked in a public place, and as a result there was no violation of s. 8 of the Charter . The investigative technique did not gather intimate personal details or core

bio​graphical information about the applicant. • The issuance of the prior tracking warrant is not relevant because DC McGregor did not rely upon the information obtained from the tracking warrant and made full, fair, and frank disclosure of the reasons that he chose to remove the device. D. Standing [ 37 ] The Crown conceded that the applicant had standing to challenge the warrants executed at the applicant’s residence in Aurora, and on the Lexus vehicle used by him, but submitted that the applicant had not established standing to challenge the warrant for the storage unit.

The Crown concedes that there can be a reasonable expectation of privacy in a storage unit, but submits that the Applicant, by failing to admit in the voir dire ownership or control of the storage unit, did not establish that he had a direct interest in the storage unit or a subjective expectation of privacy. [ 38 ] There are two stages to consideration of whether an applicant has established a breach of s. 8. First, the claimant must show that a state act constituted a search or seizure because it invaded the applicant’s reasonable expectation of privacy in relation to the subject matter of the search.

Secondly, the claimant must show that the search or seizure was unreasonable. [2] A challenge to standing arises at the first stage. [ 39 ] A claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed. Like all Charter rights, s. 8 is a personal right and protects persons, not places. As a result, s. 8 of the Charter protects an individual’s “reasonable expectation of privacy” from unreasonable state intrusion.

State conduct that infringes on an individual’s reasonable expectation of privacy will constitute a “search” for the purpose of s. 8. [3] If, at the first stage the applicant fails to establish a reasonable expectation of privacy, the s. 8 challenge must fail. [ 40 ] In considering a reasonable expectation of privacy claim the court must first determine the subject matter of the claim, whether it relates to territorial privacy, personal privacy, informational privacy, or a combination of the three.

The court must then consider if the applicant had a direct interest in the subject matter of the search, whether they had a subjective expectation of privacy, and if so, if it was objectively reasonable. [4] [ 41 ] The factors relevant to the determination of whether a reasonable expectation of privacy exists and the weight to be assigned to any particular factor will depend in large measure on the subject matter of the privacy claim.

For example, if the privacy claim is informational, the potential capacity of the information to reveal core biographical data relating to the claimant will be crucial in assessing the privacy claim. However, if the subject matter of the privacy claim is a place, control over that place will play a central role in assessing the validity of a reasonable expectation of privacy claim. If the privacy claim has both a territorial and informational component, then all of the relevant factors will be considered. [5] [ 42 ] The storage unit involves a claim of territorial privacy.

In Edwards [6] the Supreme Court of Canada concluded that a determination of whether there is a reasonable expectation of privacy must be based upon a consideration of the “totality of the circumstances” and identified a non-exhaustive list of factors to be taken into account including the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [ 43 ] Taking the “totality of the circumstances” into account in my view the appellant has demonstrated that he had a reasonable expectation of privacy in relation to the storage unit.

The evidence before the court on the application, as derived from the ITO, established that although the storage unit was not in the applicant’s name, he was the only person observed accessing or utilizing the storage unit between November 2016 and February 2017 including the period between February 3 and 8, 2017 while the unit was under constant covert video surveillance. Further, the applicant had the key for the unit and paid the rent for the unit.

Absent any direct admission by the applicant, the evidence supports a conclusion that historically the applicant used and had control over the unit, and had the ability to control access to the unit. Control and access factors have been particularly salient to the determination of a reasonable expectation of privacy in territorial privacy cases. [7] [ 44 ] Furthermore, recently in Jones , the Supreme Court clarified that an applicant is entitled to rely upon the Crown’s theory of the case to establish a direct interest and subjective expectation of privacy in the subject matter.

An accused mounting a s. 8 Charter claim may ask the court to assume as true any fact that the Crown has alleged or will allege in the prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire . [8] The Crown’s theory is that the applicant rented the storage unit, exercised control over the access to the unit, and owned the contents. That theory is supported by the information provided by DC McGregor in the ITO.

On the totality of the circumstances, therefore, I am satisfied that the applicant has established standing to challenge the validity of the warrant to search unit #2160 of Access Storage. E. Applicable Legal Principles – Garofoli Review [ 45 ] The warrants issued by the Justice of the Peace are presumed to be valid. The test and procedure to be followed on a Garofoli

review of a warrant or authorization was set out in R. v. Pires ; and R. v. Lising as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge, as amplified on the review, the reviewing judge concludes that the authorizing Judge could have granted the authorization then he or she should not interfere.

In this process the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [9] [ 46 ] The test a reviewing judge is to apply is whether, after excising any offending portions of the ITO, there remains a sufficient basis on the record before the issuing justice, as amplified on the review, upon which the issuing justice could have issued of the warrant. [10] [ 47 ] The conditions precedent for issuance of Criminal Code search warrant are established in s. 487 of the Criminal Code .

Pursuant to s. 487 a justice, who is satisfied, by information on oath in Form 1, that there are reasonable grounds to believe that there is in a building, receptacle or place …. b.) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence…against this Act or any other Act of Parliament . may at any time issue a warrant authorizing a peace officer…to search the building, receptacle or place… [11] [ 48 ] Concisely stated, the conditions precedent that the informant must establish on the basis of the information to obtain are that there are reasonable grounds to believe that an offence has been committed, and that a search of the proposed building, receptacle, or place will afford evidence of the offence. [ 49 ] The applicant challenges the “facial validity” of the ITO in support of the warrants, alleging that on the face of the information disclosed in the ITO the issuing justice could not have issued the warrants because the information was not sufficient to establish the statutory prerequisites.

The record examined on a facial review is the ITO as it was at the time it was sworn, not an amplified or enlarged record. [12] [ 50 ] The Applicant also advances a sub-facial challenge, asserting that the evidence of the Ionscan testing of the swabs were obtained in breach of the Charter and must be excised and that the inaccurate judicial interim release information should be amplified to reflect the amended bail conditions.

Following excision and amplification, the applicant submits that the remainder of the grounds contained in the ITO are insufficient to support the issuance of the warrants. [ 51 ] With respect to a sub-facial challenge, the court must consider the record before the issuing justice subject to appropriate excision or amplification.

Excision is a remedy granted to an accused person when an accused can show that evidence relied on to justify a search was obtained in breach of the Charter , or was otherwise false, inaccurate, or misleading at the time it was included in the ITO, and that the informant knew or ought to have known it was erroneous. [13] [ 52 ] Amplification is the opposite of excision, the accused, or in limited circumstances the Crown, provides additional information to expand on the information in the ITO which was presented to the issuing justice.

While the accused may lead evidence to challenge the ITO, the Crown’s ability to amplify the record is restricted to evidence that corrects minor good faith errors of the police in preparing the ITO. Amplification evidence cannot be led by the Crown to correct deliberate attempts to mislead the authorizing judge.

Evidence relied on to amplify the record must be evidence that was known or ought to have been known by the informant at the time the ITO was sworn, not information obtained later. [14] [ 53 ] Where there is a sub-facial challenge, the reviewing judge must consider whether, following any required excision, on the amplified record, there remains sufficient reliable evidence that might reasonably be believed on the basis of which the issuing justice could, not would, have issued the warrant. [15] [ 54 ] In considering whether the ITO, following any required excision and amplification, is capable of establishing the statutory preconditions for the warrants to issue, the reviewing justice must conduct “a contextual analysis of the record, not a piecemeal dissection of the individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences”. [16] Both the authorizing and reviewing judge are entitled to draw reasonable inferences from the contents of the ITO, and as noted by Justice Watt in Nero , it is of no moment that an item of information when viewed in isolation may support more than one inference or an exculpatory inference. [ 55 ] It must also be kept in mind that what the ITO must establish is a reasonably grounded belief that the offence of possession for the purpose of trafficking had been committed and that the search of the storage facility unit, Lexus, and applicant’s home would afford evidence of the offence.

The informant must establish reasonable grounds to believe that these statutory preconditions have been. The informant is not required to establish the statutory preconditions beyond a reasonable doubt, or even to establish a prima facie case. Reasonable grounds exists at the point that “credibly based probability replaces suspicion”. [17] F.

Analysis and Conclusions – Excision and Amplification Judicial Interim Release Conditions and Confidential Source Information [ 56 ] Inaccuracies in an ITO on their own are not a sufficient basis upon which to ground a finding of bad faith, much less to provide a basis on which to set aside a warrant. [18] The defence has established that the recognizance of bail referenced by DC McGregor, and included as an appendix, was not the recognizance in effect during the YRP investigation or at the time the ITO was sworn.

However, I am not satisfied that the applicant has established bad faith, or that the error was material to the decision of the issuing justice to issue the warrants. In my view the error was not a deliberate attempt to mislead the issuing justice.

[ 57 ] There were multiple outstanding charges in Toronto, and more than one variation to the original recognizance after the charges were laid. The August 4, 2016 variation refers to only some of the outstanding Toronto charges, and mistakenly refers to an offence date of September 29, 2013 instead of December 29, 2013 or February 18, 2014. This is likely a typographical error, and this error may explain why the August 4, 2016 bail variation was not identified by the investigators and DC McGregor.

The applicant placed emphasis on the fact that the amended bail was quickly and easily obtained by defence counsel’s assistant. However, counsel for the applicant was also counsel on the Toronto charges and as a result had direct knowledge of the existence of the variation. [ 58 ] In any event, had the issuing justice been aware of the August 4, 2016 bail variation it would not have impacted her determination as to whether the warrants should issue. The terms of the amended bail had little, if any evidentiary value, to the determination of whether the statutory preconditions for issuance had been met.

The warrants were not sought to gather evidence of an alleged failure to comply with a recognizance, they were sought in relation to the offence of possession for the purpose of trafficking. [ 59 ] DC McGregor provided the information about the terms of the Toronto bail and Detective Brown’s conversation with the applicant’s father on November 9, 2016, as background information to explain why the investigation started and why surveillance was initiated by the YRP.

DC McGregor did not have to satisfy the issuing justice that there were reasonable grounds to believe that the applicant had failed to comply with his recognizance. Even if DC McGregor’s belief that the applicant was failing to comply with the terms of his recognizance had some marginal relevance to the determination of the statutory preconditions, this is an appropriate case for amplification of the record to reflect the terms of release in place during the period of the YRP investigation. [ 60 ] Following amplification there remains a basis for the belief that “Wawrykiewycz may have committed a bail violation”.

The applicant was required to reside with his surety at the Walton Drive residence, Aurora and was subject to a curfew between 12 a.m. – 6 a.m. except with written permission for work purposes by his surety (Marjorie Kitchen) indicating his whereabouts and the time frame for his absence from the residence. The applicant’s father told the investigators he had not seen the applicant for two days and suggested, incorrectly, that the bail variation allowed the applicant to be away from the residence for four days.

His father did not tell the police that the applicant was away from the residence for purposes of employment or that he had the written permission of his surety, his mother. [ 61 ] The applicant also submitted that the YRP improperly initiated an investigation based on the confidential source information. As with the information about the terms of the applicant’s release, DC McGregor simply provided the information received from the confidential source, and the police response to that information, as background information to explain how the investigation started.

He was careful to state that the confidential source “did not indicate any knowledge of criminal activity” and when read in context it is clear that the confidential source information was not relied upon to support the statutory preconditions for issuance of the warrants. DC McGregor was not required to establish that the police had reasonable grounds to believe that an offence had been committed in order to initiate an investigation and he did nothing improper by referencing the receipt of the confidential source information to explain how the investigation started.

Relevance of the Outstanding Toronto Charges [ 62 ] The applicant submitted that the outstanding Toronto charges are irrelevant because they are “unproven”. In my view, if the details of the facts underlying the outstanding Toronto charges are considered with the information gathered during the YRP investigation, there was a very strong basis upon which the issuing justice could have issued the warrants. [ 63 ] I do not agree that “unproven” facts or charges are always irrelevant. In most cases, much or all of the information relied upon in an ITO has not been “proven” in court.

Information that may be relied upon in an information to obtain is not subject to the same strict evidentiary rules in play at a trial. Evidence of bad character or prior criminal misconduct by an accused is excluded at trial on a criminal charge not because it has no probative value, but on policy grounds because the prejudicial effect of the evidence outweighs its probative value.

This does not mean that evidence of past criminal conduct, including outstanding charges, becomes meaningless to investigators conducting a criminal investigation, and, if sufficiently reliable, it can be relied upon in an information to obtain.

In a drug offence investigation reliable evidence of past involvement in drug trafficking activities can be very relevant to the reasonableness of an investigators belief that an individual is committing other drug related offences. [ 64 ] The value of information about outstanding charges will be dependent on the nature and reliability of the information and the relationship to the offences under investigation. The fact of outstanding charges standing alone merely establishes that a police officer concluded that there were reasonable grounds to believe that an offence had been committed and laid an information.

In this case, DC McGregor’s knowledge was not limited to the fact of the existence of outstanding charges. DC McGregor was aware of and provided the issuing justice with Justice Goldstein’s reasons for judgment on the Charter motion. The judgment provided detailed reliable information about the facts underlying the outstanding charges which provided a strong basis to believe that the accused was in possession of a large quantity of cocaine, crack cocaine, and currency on December 29, 2013.

It also provided reliable evidence that on February 18, 2014, while on release for the December 2013 allegations, the applicant was in possession of a large quantity of cocaine, heroin, marihuana, and cutting agents.

DC McGregor’s knowledge of the Toronto allegations clearly provided an important context for his beliefs about the likely activities of the applicant at the storage unit between November 2016 and February 2017, at Walmart on January 27, 2017, and at IKEA on January 28, 2017. [ 65 ] Despite the obvious relevance of the details underlying the Toronto charges, that information could not be relied upon by the issuing justice to support the sufficiency of the grounds, not because they were “unproven” facts, but because the evidence was obtained in violation of s. 8 of the Charter.

The automatic excision rule, established in R. v. Grant [19] , requires that upon a review of the sufficiency of an affidavit (or information-to-obtain), any unconstitutionally obtained evidence must be excised from the grounds in support of the authorization or warrant.

The rule applies uniformly, irrespective of the nature of the breach and whether it is serious or more technical in nature, occurring in the context of good faith actions by the police. [ 66 ] The uniform application of the automatic excision rule has been questioned for a number of reasons including that it is inconsistent with the type of contextual analysis required by s. 24(2) of the Charter prior to the exclusion of evidence; due to its tendency to amplify breaches, a single breach may carry forward and significantly impact numerous subsequent warrants or authorizations and

investigations; and due to questions about the soundness of the reasoning in the cases underpinning the rule. [20] The recent determination of the Supreme Court of Canada in Paterson that an accused’s statement may be admitted without proof of voluntariness in the context of a Charter voir dire “because of the limited purpose for which the evidence may be used” may add further reason to question the soundness of the automatic excision rule. [ 67 ] In this case, the automatic excision rule applies even though the evidence was ultimately ruled admissible under s. 24(2) by Justice Goldstein, and, according to paragraph 43 of the ITO, was anticipated on February 14, 2017 to result in convictions.

This leads to the seemingly illogical situation that an issuing or reviewing justice cannot rely upon evidence in support of the grounds for a search warrant that a trial court could rely upon to convict. In addition it raises the question of whether, once the convictions are entered, the facts supporting the convictions could be relied upon in the future to support the grounds for a warrant or authorization. [ 68 ] A similar situation was considered by Justice MacDonnell in R. v. Lam [21] . The case involved a challenge to general warrants obtained by the Asian Organized Crime Task Force (AOCTF).

In the affidavit in support of the general warrants the affiant relied upon evidence obtained by the Peel Regional Police during a separate Peel investigation. The Peel charges were outstanding at the time the AOCTF general warrants were issued.

After the warrants were issued, the trial judge of the Peel charges concluded that the evidence gathered by the Peel Regional Police had been obtained in violation of s. 8 of the Charter , and excluded the evidence under s. 24(2). [ 69 ] Justice MacDonnell rejected the Crown position that the facts from the Peel investigation should not be excised from the grounds for the AOCTF warrants on the basis that the exclusion of the evidence in the Peel case had already addressed the unconstitutional police conduct. [22] Justice MacDonnell observed that criticism of the automatic excision rule may be unfounded and explained as follows: The better answer, however, may be that the criticism is based on a misconception.

Excision has nothing to do with the admissibility of evidence. Unlike 24(2), it is not a remedy for a breach of the Charter . Its purpose is not to determine whether evidence obtained pursuant to a search warrant or other judicial authorization should be admitted or excluded at trial. Rather, it is a mechanism for determining the significance of prior unconstitutional conduct in the chain of events that led to the evidence that is sought to be excluded.

It enables a court to determine whether the evidence would have been obtained in any event of the breach, which in turn will assist in determining whether the evidence was ‘obtained in a manner’ that infringed the accused’s rights and the extent of the impact of the breach on the accused’s Charter -protected interests. [23] [ 70 ] In this case the impact of the automatic excision rule is perhaps more troubling than in Lam because the Toronto evidence was admitted, not excluded.

Nonetheless, it may be that the factors that make excision seemingly problematic are better addressed at the s. 24(2) stage as a part of a determination of whether the admission of the evidence would bring the administration of justice into disrepute. [ 71 ] In any event, as Justice MacDonnell concluded in Lam , and Justice Code concluded in Jaser , any modification of the automatic excision rule must come from the Supreme Court of Canada and as a result, the factual details of the Toronto investigations obtained in violation of s. 8 cannot be relied upon in assessing whether there was a basis upon which the issuing justice could have issued the warrants. [24] The fact that this evidence was admitted to prove guilt by another court will however be an important factor in the s. 24(2) assessment. [ 72 ] Although the facts underlying the Toronto charges, when considered in conjunction with the YRP investigative information, “informed” DC McGregor’s beliefs [25] , he did not emphasize the facts of the Toronto charges in articulating his grounds within the ITO, and fully and fairly disclosed the conclusions of Justice Goldstein by appending the reasons for judgment.

The issuing justice would have been fully aware of Justice Goldstein’s conclusion that there had been s.8 violations when she issued the warrants. [ 73 ] Following excision of the factual details, what remains in respect of the outstanding charges is the fact that the applicant was alleged to have committed multiple charges of possession for the purpose of trafficking and other related offences with offence dates of December 29, 2013 and February 18, 2014, and that it was anticipated that “there will be a finding of guilty registered on Wawrykiewycz’s next court date of February 14, 2017”.

Although the excision of the underlying facts significantly limits the weight that can be placed on the outstanding charges, in my view the fact of the outstanding charges and the expected outcome of those charges, has some value, albeit very limited, and can be considered as a part of the information as a whole in assessing whether the justice could have issued the warrants. In my view, even if no weight were placed on the outstanding charges, there remained sufficient reliable evidence that provided a basis upon which the issuing justice could have issued the warrants.

Must the Results of the Ionscan testing of the Lexus Swabs be Excised? [ 74 ] The applicant submits that the taking of the swabs from the driver’s door handle of the Lexus constituted a warrantless search in violation of s. 8 and that the results of the Ionscan testing of the swabs must be excised from the ITO.

In response, the Crown submits that this investigative technique is comparable to the use of FLIR by the police as in Tessling , and that a consideration of the totality of the circumstances should lead to a finding that the gathering and testing of the swab did not interfere with a reasonable expectation of privacy and there was no violation of s. 8. [ 75 ] As noted above, at the first stage of consideration of a s. 8 claim the applicant must establish that the police conduct interfered with a reasonable expectation of privacy.

This requires a consideration of the “totality of the circumstances” utilizing the four lines of inquiry that guide the “totality of the circumstances” test: i.) an examination of the subject matter of the alleged search; ii.) a determination of whether the claimant had a direct interest in the subject matter; iii.) an assessment of whether the claimant had a subjective expectation of privacy, and; iv.) an assessment of whether the expectation of privacy was objectively reasonable. [26] [ 76 ] The subject matter of the alleged search is the information about the presence of cocaine obtained from swabs taken from the exterior door handle of the motor vehicle parked in a public place.

Like in Tessling , the privacy interests engaged are both informational and territorial. As a result, in addition to the Edwards factors, factors relevant to an assessment of informational privacy must also be considered. [ 77 ]

Section 8 protects information that is of a “personal and confidential” nature. It protects a “biographical core of personal

information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”. This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual”.

The more personal and confidential the information the more willing reasonable and informed Canadians will be to recognize a constitutionally protected privacy interest. [27] The Supreme Court of Canada has identified a number of factors that inform whether information will fall within or beyond the scope of s. 8 protection including i.) the nature of the information; ii.) the nature of the relationship between the party releasing or holding the information and the party asserting confidentiality; iii.) the place where the information was obtained; and iv) the manner in which the information is obtained. [28] [ 78 ] I am satisfied that the ITO provides a reliable basis to conclude that the applicant was a regular user of the Lexus and had a direct interest in the Lexus and in any swabs taken from the Lexus. [ 79 ] The applicant did not testify so there is no direct evidence that he had a subjective expectation of privacy in the swabs collected from the Lexus.

In some cases a subjective expectation of privacy can be inferred because of the nature of the place searched or information obtained. For example, a subjective expectation can generally be inferred with respect to activities within the home or in respect of the contents of an individual’s backpack or purse. However, this is not a case where the existence of a subjective expectation of privacy is self-evident and I am not satisfied that it can be inferred.

That said, it must be remembered that subjective expectation of privacy is but one factor to be considered and it is not a factor that should be used to further reduce the privacy of a paranoid community. [29] Is there an Objectively Reasonable Expectation of Privacy? [ 80 ] There has been little consideration of whether there is a reasonable expectation of privacy in relation to swabs taken from the exterior of a motor vehicle parked in a public place.

In fact, the only case identified by the parties in which a court considered whether the warrantless swabbing of the exterior of a motor vehicle interfered with a reasonable expectation of privacy is R. v.

Wong . [30] In respect of searches of motor vehicles generally the Supreme Court has held that motor vehicles, while not Charter free zones, are places in which individuals have a reduced expectation of privacy. [31] Clearly, the expectation of privacy associated with the interior of a motor vehicle will be significantly higher than the expectation of privacy in the exterior of a motor vehicle. [ 81 ] As to the historical use of the Lexus, the applicant was a regular user of the vehicle, but was not the owner. The vehicle was registered to his father.

As noted earlier, the ability to control or deny access is a particularly salient factor in a territorial privacy claim. At the time of the search the applicant was not present but had the ability to control access to the vehicle. [ 82 ] The nature of the information gathered by the police through collection of the swab and Ionscan testing was focused and limited. The test indicated only whether or not cocaine was present on the swab taken from the exterior door handle of the car.

This is information that by inference can convey information about the personal lifestyle and private decisions of a user of the motor vehicle, specifically it may by inference indicate that the user of a vehicle has handled cocaine. However, the nature of the information collected is drastically different than the type of information that engages significant privacy interests, for example it can be contrasted with the information typically obtained via the search of a cell phone, or computer, which affords highly personal, extensive, and wide ranging information.

The nature of the information is also far more limited than that obtained from the production of detailed banking or cell phone records. [ 83 ] While the exterior door handle of a vehicle is in public view, without the use of the Ionscan technology, the presence or absence of cocaine cannot be “seen” by the public.

However, the technique provides information about substances on the exterior of the car only and does not allow the police to “see” inside the vehicle. [ 84 ] A consideration of the nature of the relationship , the place where the information was obtained, and the manner in which the information was gathered suggest a very limited privacy interest. The police did not obtain the information from a source that had a duty of confidentiality to the applicant. At the time the samples were taken the car was parked on a public street, and the manner in which the samples were taken was non-intrusive.

The police did not move or disturb the vehicle in any way. The acts did not interfere with the applicant’s enjoyment or use of the vehicle and caused no damage. The taking of the samples did not intrude into private places, caused no embarrassment to the applicant, and did not impact his “dignity, integrity, or autonomy”.

Although the applicant has alleged that the police contact with the car was a “trespass”, the conduct does not appear to constitute an offence under the Trespass to Property Act , the Criminal Code , or even an actionable tort. [32] [ 85 ] Plant clearly establishes that not all information an individual may wish to keep confidential necessarily enjoys s. 8 protection. [33] For example, if the police had obtained the swab from a disposable coffee cup left by the applicant in a Tim Horton’s, and thereafter tested the swabs for DNA, there could be no argument that the conduct interfered with a reasonable expectation of privacy.

This is so even though DNA testing garners far more personal information than that which can be acquired from an Ionscan test. [34] However, central to the coffee cup example is the concept of abandonment, and in this case neither the car nor the information obtained from the car can be considered abandoned in any voluntary sense.

There is an important distinction, at least theoretically, between swabbing a parked car, and swabbing an abandoned coffee cup, although on a practical level the distinction in terms of impact upon the individual is questionable. [ 86 ] In this case, in my view, critical to the ultimate conclusion of whether there is a reasonable expectation of privacy is a normative assessment of the investigative technique.

A reasonable expectation of privacy analysis is “inevitably laden with value judgments which are made from the independent perspective of the reasonable and informed person concerned about the long term consequences of government action for the protection of privacy”. [35] Reasonable and informed members of the community would be concerned by state agents randomly swabbing the door handles of privately owned motor vehicles to test for the presence of illegal drugs even if they are parked in public places. [ 87 ] In Tessling the Supreme Court of Canada concluded that there was no reasonable expectation of privacy in respect of FLIR imaging of thermal energy radiating from properties owned by the accused.

Significant to the Courts conclusion was the fact that everything shown in the FLIR photograph existed on the external surfaces of the building, and in that sense the FLIR imaging recorded

only information exposed to the public. Further although the information about the distribution of heat was not visible to the naked eye,the FLIR heat profile did not expose any intimate details of the accused’s lifestyle or part of his core biographical data. It only showedthat some of the activities in the house generated heat. [88] In A.M.[36] and Kang-Brown[37], the Supreme Court of Canada found that the use of sniffer dogs in a school and at a busterminal interfered with a reasonable expectation of privacy.

The Supreme Court distinguished Tessling, finding that the subject matter ofthe sniff was not public air space but the concealed contents of a backpack, a repository of much that is personal. [89] In R. v. Wong[38] the British Columbia Supreme Court concluded that warrantless swabbing of the accused’s vehicle doorhandle and trunk latch, and subsequent analysis for presence of illegal drugs was an unreasonable search and seizure in violation of s. 8,and excised the results of the analysis from an ITO.

The court in considering the totality of circumstances was of the view that while thetort of trespass could apply to a car, the physical intrusion was very minor. The court inferred a subjective expectation of privacy; andconcluded that it was objectively reasonable for the accused to have expectations of privacy in information that might be obtained fromthe swabbing of his vehicle.

The court held that where that information is not visible to the naked eye, and cannot be obtained withouttouching the vehicle, the physical trespass militates in favour of requiring either consent or prior judicial authorization for theinvestigative technique. The court added this conclusion was reinforced because DNA might also be obtained on the swab and that thiswould thereby create the potential to expose biographical information of a potentially intimate and personal nature.[39] [90] In my view, the possibility that the swab might obtain DNA is irrelevant.

What must be considered is the impact on privacy ofthe investigative technique used, not techniques that might have been used. As in Tessling, the reasonableness line has to be determinedby looking at the information generated by the technology used, not by theoretical uses or technologies.[40] [91] However, I agree with the finding in Wong that the use of the investigative technique constituted a search.

In my view, theinvestigative technique utilized in this case has greater similarities to the dog sniff cases, than to the use of FLIR technology in Tessling.While the investigative technique did not intrude on a place with a heightened privacy interest as in Tessling, unlike Tessling theinvestigative technique involved actual physical contact, however minimal, by the police with the vehicle, a factor that makes thetechnique more invasive. The door handle of a car, while in public view, is not a public place.

Secondly, the nature of the informationgathered, the presence of cocaine, is of a more personal nature than the presence or absence of heat emanating from a home. Aconsideration of the totality of the circumstances leads to the conclusion that the applicant had a reasonable expectation of privacy withrespect to the swabs taken from the exterior of the Lexus that was objectively reasonable. While I have found that a reasonableexpectation of privacy has been established it is a significantly reduced expectation of privacy and one that is over the line by only thenarrowest of margins.

Was the Search, the Taking of the Swabs, Authorized by Law [92] Although I have found that the investigative technique constituted a search, I have concluded that the search was “authorized bylaw” based on the ancillary powers doctrine as expressed in R. v. Waterfield[41]. [93] Once a claimant has established that there was a search, the claimant must, at the second stage of the s. 8 analysis, show thatthe search or seizure was unreasonable.

A “search” will be reasonable if the search was authorized by law, if the law itself is reasonable,and if the manner in which the search was carried out was reasonable.[42] Warrantless searches are presumptively unreasonable.

In most cases, the states interest in detecting and preventing crime begins toprevail over the individual’s interest in being left alone only at the point where credibly based probability replaces suspicion.[43] [94] However, in some instances where there is a reduced expectation of privacy and a significant law enforcement objective a lesserthreshold may suffice in respect of limited investigative techniques. This point was made, in A.M. in which the Supreme Courtconcluded warrantless sniffer dog searches were permissible provided the police act upon reasonable suspicion.

Justice Binnie speakingfor the majority of the court stated as follows: The Hunter v. Southam requirement of prior judicial authorization is the gold standard because an important purpose of s. 8 is to preventunreasonable searches and not in the usual case just to give an after-the-fact remedy.

However, prior judicial authorization is not auniversal condition precedent to any and all police actions characterized as searches given that the touchstone of s. 8 is reasonableness.Account must be taken in s. 8 matters of all the relevant circumstances including (as stated) the minimal intrusion, contraband-specificnature and high accuracy rate of a fly-by sniff. The warrantless search is, of course presumptively unreasonable, and must satisfy theexceptional requirements set out in R. v.

Collins (SCC), [1987] 1 S.C.R. 265, at p. 278.[44] [emphasis added]. [95] Subsequently, in Chehil[45], the Supreme Court, confirmed that in some instances less intrusive investigative techniques maynot require prior judicial authorization and can be justified on the basis of reasonable suspicion. Justice Karakastanis explained asfollows: Both the impact on privacy interests and the importance of the law enforcement objective play a role in determining the level ofjustification required for the state to intrude upon the privacy interests in question.

In Hunter, this court also recognized that thisbalancing of interests can justify searches on a lower standard where privacy interests are reduced, or where state objectives of publicimportance are predominant.

Thus the court has found reasonable suspicion to be a sufficient threshold in certain investigative contexts,and Parliament has employed this standard when authorizing certain searches in legislation.[46] [96] In Chehil, the court, confirmed that use of a properly deployed sniffer dog was authorized by law and reasonable on the lowerthreshold of reasonable suspicion, and without prior judicial authorization because the search is minimally intrusive, narrowly targeted,and can be highly accurate.

The court confirmed that “the reasonable suspicion threshold respects the balance struck under s. 8 bypermitting law enforcement to employ legitimate but limited investigative techniques”, and that the “balance is maintained by subsequentjudicial oversight that prevents indiscriminate and discriminatory breaches of privacy interests by ensuring that the police have an

objective and reasonable basis for interfering with an individual’s reasonable expectation of privacy”. [47] [ 97 ] In my view the nature of the privacy intrusion of collection of the swabs is analogous to the interference with privacy occasioned by the sniffer dog search of luggage in Chehil , and the perimeter search of the vehicle in Mackenzie , in which the use of sniffer dogs on the basis of reasonable suspicion was found to pass Charter muster.

Relevant to this conclusion are the following factors: • Like the dog sniff cases, the taking and testing of swabs from the door handle of the Lexus was minimally intrusive, narrowly targeted, and contraband specific. • The impact on privacy was lower than in the dog sniff cases because while deployment of a sniffer dog has the capacity to reveal the contents of the inside of a piece of luggage, or knapsack, the use of the Ionscan provided no information about the interior of the vehicle. • There was no potential for embarrassment or even delay to the applicant due to the surreptitious nature of the taking of the sample. • The police purpose, to investigate possession of cocaine for the purpose of trafficking was an important state purpose. • The investigative technique provides an important tool to investigators, providing a useful and non-intrusive means of covertly testing for the presence of illegal drugs without risking disclosure of the investigation. [ 98 ] The use of the investigative technique where there is reasonable suspicion represents a proper balancing of individual privacy interests with the states countervailing interest in law enforcement.

As noted above, if the police were to randomly swab motor vehicles to check for illegal drugs, a reasonable informed person would conclude that the interference with privacy is unreasonable. However, in my view where the police have reasonable grounds to suspect that an individual is involved in a drug related offence and that obtaining and analyzing swabs from the exterior of a motor vehicle, located in a public place will afford evidence important to the investigation, a reasonable and informed person would be satisfied that it is a reasonable intrusion into privacy and a justifiable use of police power.

In my view, such a search is “authorized by law”, in accordance with the ancillary power doctrine. The conduct falls within the general scope of the duty of the police to investigate crime, imposed by statute and recognised at common law; and the investigative technique does not involve an unjustifiable use of powers associated with the duty. [ 99 ] I am satisfied that when the police took the swab from the Lexus, they had a reasonable suspicion that the accused was involved in a drug related offence and that the taking of the swab would afford evidence.

A reasonable suspicion is based on the totality of the circumstances.

It is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence, it engages a reasonable possibility, rather than probability of crime. [48] [ 100 ] I am satisfied that the constellation of facts known to the investigators at the time the swabs were taken including the fact of the outstanding charges; the applicant’s multiple attendances and conduct at the storage unit; and the conversation between the applicant and a third party at the Walmart on January 27, 2017, when viewed in totality established a reasonable possibility of drug related criminal behaviour by the applicant.

Further, there was a direct nexus between the conduct suspected and the investigative technique employed. [49] In my view, the York Regional Police were authorized by law to collect and test the swabs from the exterior of the Lexus on January 28, 2017.

Should the Results of Ionscan Testing Be Excised or Given no Weight Due to Reliability Concerns [ 101 ] The Applicant also submits the Ionscan test results should not be given any weight because there was no evidence of the reliability of the test, the “control” sample tested positive for cocaine, and DC McGregor’s statement that the applicant was the only person observed touching the door handle of the car had no value because the Lexus was not under constant surveillance.

The Crown submits that the unchallenged evidence in the ITO established that the Ionscan testing was reliable and DC McGregor provided an explanation for the positive result on the control sample. [ 102 ] An issuing justice is entitled to rely upon information from a police officer that is based on his training and experience. DC McGregor advised in the ITO that he had past experience in investigating drug offences, and outlined his specific training in drug investigation.

He also advised that Detective Ban, the officer who took the swabs, was trained in the collection of swabs and use of the Smith Ionscan 500DT and had recently taken a “refresher” course.

He swore that the Ionscan 500DT is used by the CBSA to scan for the presence of drugs and that he was aware that it is a “useful tool in detecting when a person has come into contact with drugs.” No evidence was adduced that contradicts PC McGregor’s sworn information about the usefulness of the Ionscan 500DT to detect cocaine. [50] [ 103 ] I agree that some additional evidence about the reliability of the investigative technique would have been helpful, particularly in light of the positive result obtained on the control sample. I also agree with Mr.

Lafontaine’s submission that even in the absence of any cross-examination or further evidence the reviewing court could consider that a possible explanation for the positive control sample result may have been that there was a false positive. The reviewing court is entitled to draw reasonable inferences based on the information in the ITO, but so can the issuing justice.

If a reviewing court can draw such an inference on the face of the information in the ITO, the inference would have been equally apparent and available to the issuing justice. [ 104 ] DC McGregor disclosed the positive result on the control sample in the ITO and provided the explanations that were given to him by Det. Ban for the positive result. Implicit in his discussion was that the reliability of the positive result on the control sample should be considered in assessing the weight that could be attributed to the test results.

In light of his disclosure of the facts, I am not satisfied that the failure of DC McGregor to explicitly reference the potential of a false positive must lead to a finding of bad faith or material non-disclosure. This is not a situation where the applicant has identified additional facts that, had the issuing justice been aware of, would have caused the justice to be concerned about issuing the warrant, or that would have placed the information in a different light. On the basis of the record, there is no foundation for the assertion of bad faith or an intention to mislead by DC McGregor.

[ 105 ] I do not agree that the information about the IONSCAN test should be excised or given no weight because of insufficient evidence of reliability or concerns about reliability. The distinction between an application for a search warrant and a trial must be kept in mind. The innocence of an accused is not at stake in an application for a search warrant and the reliability of the evidence is not subject to the same scrutiny required at a trial. [51] The limited purpose of an ITO is to establish reasonably held beliefs that may justify state intrusion into privacy.

In addition, while an ITO must provide sufficient reliable evidence that might reasonably be believed to satisfy the statutory perquisites, it must be remembered that the precision and legal drafting of lawyers at trial is not required, and while the informant must make full and frank disclosure of material facts, an affidavit must also be clear and concise. [52] In all of the circumstances, I am not satisfied that a more detailed explanation of the IONSCAN 500DT test was required before the issuing justice could consider the results of the test as a part of the evidence as a whole. [ 106 ] The applicant also submitted that the IONSCAN 500DT test results should not be relied upon because DC McGregor stated that the applicant was “the only person that was observed touching the car”, and that this claim could not be made because the police were not surveilling the vehicle at all times.

There is little merit to this argument. The fact that the Lexus was not under constant surveillance was abundantly clear on the face of the information in the ITO. DC McGregor clearly explained that the applicant was subject to surveillance on fifteen occasions throughout the investigation, which commenced in November 2016 and continued until February 8, 2017. The ITO makes clear that the evening of January 28, 2017 was one of the dates the applicant was subject to surveillance.

It is also clear that when DC McGregor stated “other than Detective Ban (who took the samples) the only person that was observed touching the driver’s side door handle of the vehicle was Wawrykiewycz”, he was referring to January 28, 2017. When the information in the ITO is taken as a whole the issuing Justice could not have failed to appreciate that the vehicle was not under constant surveillance and that it was possible that someone other than the applicant may at some point ha

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