R v Sidhu, 2024 ABKB 56

Court of King’s Bench of Alberta Citation: R v Sidhu, 2024 ABKB 56 Date: 20240130 Docket: 220337596Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Inderdeep Singh Sidhu Accused _______________________________________________________ Reasons for Decision of the Honourable Justice N. Whitling _______________________________________________________ I.

Introduction [ 1 ] These reasons address an application by the accused, Inderdeep Singh Sidhu, for an Order excluding certain electronic video files or “CCTV” video recordings from evidence in this trial pursuant to ss. 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms . The Crown’s theory of its case is that those video-recordings depict the accused briefly possessing a loaded handgun while standing in a “VIP Room” in an Edmonton nightclub. Of the eight counts for which the accused now stands charged, seven of them relate to possession of that handgun.

The accused submits that the police breached his s. 8 rights by obtaining the CCTV recordings

without a warrant and breached his s. 9 rights by arresting the accused without reasonable and probable grounds to believe that he had committed an offence. II. Facts [ 2 ] The following factual findings are made for the purposes of this Charter voir dire only and not for the purposes of the trial proper. [ 3 ] On April 9, 2022, a group of 10 to 12 friends which included Ms. Gladys Chin, Ms. Lady-Chris Castrillo and a woman named Cathy whose last name is not in evidence, got together for Cathy’s 30th birthday party at an Edmonton restaurant.

After dinner, they adjourned to the “Meiningful Mix Lounge” or the “Mix” nightclub just south Whyte Avenue. Some but not all of the people who had attended the dinner also attended at the nightclub. Ms. Chin and Ms. Castrillo, who both testified, knew each other well but knew only about half of the other people in their group. [ 4 ] At the time, the Mix was located on the second floor of a building on 81 st Avenue in Edmonton on the north side of the block between Gateway Boulevard and Calgary Trail.

To enter the establishment through its main entrance, patrons were required to enter a door at street level and to immediately climb a narrow set of stairs. Attached to a wall at the top of those stairs was a paper sign or notice which advised those who entered that the premises were monitored by video cameras. [ 5 ] While at the Mix, the group which included Ms. Chin, Ms. Castrillo, and Cathy occupied a Karaoke Room or “VIP Room” that the nightclub staff referred to as “VIP Room 1”. The VIP room contained two sofas running along two walls, a coffee table, some stools, and a karaoke machine.

The room was located just off the main dancefloor and lounge part of the establishment which included a counter bar, and some tables and booths. The VIP Room had a narrow door that could be closed from the inside, but on this occasion, it was left open, and people moved freely in and out of the room. [ 6 ] The VIP room also contained a CCTV camera that had been installed by the Mix’s owners. That camera was visible and was not hidden behind any dome or other covering. The camera created a video recording of almost the entire VIP room and the activities within it.

The resulting video is of relatively high quality in terms of its definition, but is in black and white due to low lighting. It appears that the cameras may have had a sort of “night vision” functionality which allowed events to be seen in low lighting. The resulting video recordings were stored on certain computer equipment located behind a panel in the neighbouring VIP Room 2. [ 7 ] The evidence is somewhat unclear as to the contractual terms which governed the group’s occupation of the VIP room. It is most likely from the evidence of Mr.

Danny Fung who was a manager on duty that night, that someone had reserved the room in advance and paid some manner of hourly fee for its use. Ms. Chin and Ms. Castrillo guessed that the room had been reserved by Cathy as the organizer. Neither the person who reserved the room nor the person who took the reservation were called as witnesses. On a balance of probabilities, it is most likely that it was Cathy who reserved the room for the purposes of her own birthday party, and that she paid some hourly fee for its use. There is no evidence that the accused reserved the VIP room himself. [ 8 ] Mr.

Fung testified as to the terms and conditions which generally applied to the Mix’s two VIP rooms. He said that those rooms could be reserved in advance, that servers would bring drinks into the room, and that the occupants had the right to invite or exclude people from the room during the currency of their occupation. He agreed on cross-examination that, at least at one point in time, the advertised rate for reserving a VIP room at the Mix was $30 per hour. [ 9 ] Most of the remaining salient facts respecting this application are reflected in the video recordings themselves.

For the purposes of this application only, the defence acknowledges that the person in the video who the Crown alleges to be the accused is in fact the accused. [ 10 ] The accused arrived at the Mix at approximately 11:47 p.m. on that April 9, 2022. On the public sidewalk in front of the main entrance he is seen on Channel One of the video recordings to be hugging a woman agreed by the parties to be Cathy. From this evidence, it may be inferred that the accused was invited by Cathy to join her birthday party in the VIP room. The accused is seen to be entering the VIP room at 11:58 p.m.

For the next hour or so, the accused is seen on the Channel 6 video recording of the VIP room to be socializing with the other persons present. He is seen to be drinking, dancing, smoking, and at times playfighting with his friends. He spends most of that hour in the VIP room, although he does leave that room on several occasions. [ 11 ] During the hour between midnight and 1:00 am, many people are seen to be flowing in and out of the VIP room through the open door. At some points, the room became quite crowded. For much of that hour, the crowd in the room consisted of perhaps 20 people.

At these times, there was very little free space in the room. The people who came and went from the VIP room were not the same 20 people. There may have been as many as 40 people who were present in the VIP room for some portion of that hour. [ 12 ] While the accused was in the VIP room, he did not attempt to conceal the fact that he was in possession of a handgun. On the contrary, he appeared to be showing off the fact that he was armed. Throughout much of the hour between midnight and 1:00 a.m., the handgun can be seen to be protruding from the back pocket of his pants.

At approximately 12:33 a.m., he is seen to be using both his hands to rack the slide of the handgun and to then hold the handgun down at his side in his right hand. At this point, there are perhaps 16 or 18 other people in the VIP room, any one of whom could have noticed the presence of the handgun if they had looked over in the accused’s direction. At 12:37 a.m., one of the other people present is seen to reach across the coffee table and playfully grab the handle of the handgun from where it was protruding from the accused’s back pocket, causing the accused to turn around and make some remarks.

The accused is also seen to hide the handgun behind the two sofas at different times, and then to retrieve it from behind those sofas. [ 13 ] Shortly after 1:00 a.m., members of the Edmonton Police Service entered the nightclub by the main entrance to conduct a walkthrough. These officers included Cst. Clark and Cst. McDonald of the Gang Suppression Team. Meanwhile, three other EPS officers, Sgt. Ferry, Cst. Baker and Cst. MacKay stood near the outside stairway to the back door of the establishment. Cst. Clark

testified that as he was crossing the dance floor and approaching the doorway to the VIP Room, he saw the accused, who he knew from perhaps a dozen previous contacts, holding a handgun in his hand at his side and drinking from a cup. Upon entering the VIP room, Cst. Clark was nudged or bodychecked aside by a large male person, which maneuver enabled the accused to slip out of the room through its only door just as other police officers entered. Cst. Clark then quickly crossed the room and recovered the handgun from where it was sitting on one of the sofas. Seconds after entering the VIP room, Cst.

Clark radioed to the other officers present that “Caddy” being the accused’s nickname, was arrestable for a firearm. [ 14 ] The video shows that at 1:02 a.m., the accused was standing near the door of the VIP room with the handgun at his side in his left hand. He is then seen to place the handgun in his back pocket for a few seconds, and to then to toss it over the coffee table towards the top of the sofa, in an apparent hope that it would fall behind the sofa and be concealed. Instead, the handgun is seen to hit the top of the sofa and land the middle of the sofa seat where it was recovered by Cst.

Clark moments later. [ 15 ] While Cst. Clark, Cst. MacDonald and two other officers were working to control the scene of the VIP room, the accused left the Mix through the front entrance at 1:02 a.m. and turned north through a gap between two buildings which led him to the back alleyway and parking lot behind the Mix. There, he was noticed by Sgt. Ferry, Cst. Baker and Cst. MacKay. The accused was familiar to Sgt. Ferry. Acting on Cst. Clark’s advice that the accused was arrestable, Sgt. Ferry directed Cst. Baker and Cst.

MacKay to arrest the accused, which they did after catching up to him in a parkade a short distance away. [ 16 ] The accused was held in custody until a police paddy wagon arrived, and he was then taken to the nearby Old Strathcona Police Station. He was left waiting in custody for perhaps 20 or 30 minutes before arriving at the station where he was permitted to call a lawyer. [ 17 ] Back at the Mix, Cst. Clark had discussions with Mr. Fung about the acquisition of the CCTV video recordings in the nightclub. Although the details of those discussions are less than clear, their net result was that Cst. Clark, Mr.

Fung and another employee of the Mix went into VIP Room 2 and copied video files from the computer equipment in that room onto a portable hard drive owned by the EPS. Video from VIP Room 2 shows that Cst. Clark did have some involvement in the copying process. Additional CCTV video files on a USB drive were subsequently delivered by Mr. Fung on behalf of the nightclub’s ownership to Cst. Clark. In total, Cst. Clark obtained four video files of approximately 90 minutes each from each of the 8 cameras or channels at the nightclub.

The time span covered by these video recordings was 10:00 p.m. on April 9, 2022, until 4:00 a.m. on April 10, 2022. [ 18 ] I take most of the facts just summarized to be agreed upon, or at least not strongly disputed by the Crown and defence for the purposes of this voir dire . There is at least one fact that is the subject of some dispute. The defence suggested to Cst.

Clark during cross- examination that in fact he did not observe the accused in possession of the handgun just before entering VIP Room 1, and that he only made that determination later when reviewing some of the video recordings in VIP Room 2. [ 19 ] I do not accept that

interpretation of the evidence. The audio recording of the police radio channel, which is not in evidence, but which was read to me by counsel and agreed upon, records Cst. Clark saying “Hurry there’s a gun in here. Caddy is arrestable for the firearm but he’s not in the room right now”, or words to that effect. Caddy is the nickname of the accused which was known to the officers involved. Although Cst. Clark did not specifically state on the radio that he saw the accused in possession of the firearm, that is the clear implication of his words.

It is also apparent from the police’s urgent manner of entry into the VIP room and Cst. Clark’s immediate focus upon the area of the handgun with his flashlight that he had observed the handgun before entering. I therefore find on a balance of probabilities for the purposes of this voir dire that Cst. Clark did observe the accused holding the handgun in his hand near the doorway to VIP Room 1 shortly before entering the room. III.

Section 9 [ 20 ] With those facts in mind, I turn to the accused’s challenge pursuant to s. 9 . [ 21 ] The accused submits that his arrest constituted a violation of s. 9 of the Charter since Sgt. Ferry did not have reasonable and probable grounds to direct Cst. Baker and Cst. McKay to arrest him in the parkade near the alleyway behind the Mix. [ 22 ] I find that these arguments were refuted by the evidence called on this voir dire , and by my previous finding that Cst. Clark observed the accused holding the handgun in the VIP room. The accused was well known to Cst.

Clark who had dealt with him perhaps a dozen previous times. Having observed that the accused had left the room, Cst. Clark advised the other officers on scene, including Sgt. Ferry, that “Caddy” was arrestable for the firearm. The accused was also known to Sgt. Ferry who identified the accused when he appeared behind the nightclub. These circumstances gave rise to reasonable and probable grounds for Sgt. Ferry to believe that the accused had committed an indictable offence. The accused’s arrest was therefore lawful in that it was authorized by s. 495(1) of the Criminal Code .

Since the arrest was lawful, it was not arbitrary for the purposes of s. 9 of the Charter . [ 23 ] For these reasons, the accused’s s. 9 challenge is denied. IV.

Section 8 A. The General Test for Reasonable Expectation of Privacy [ 24 ] In order for the accused’s rights under s. 8 of the Charter to be engaged by the police’s collection of the CCTV recordings, he must establish that he had a reasonable expectation of privacy in that material. The general test applicable to this inquiry is reflected in R v Spencer , 2014 SCC 43 : 18 The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped

under four main headings for analytical convenience: (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: Tessling , at para. 32; R. v. Patrick , 2009 SCC 17 , [2009] 1 S.C.R. 579, at para. 27 ; R. v. Cole , 2012 SCC 53 , [2012] 3 S.C.R. 34, at para. 40 . However, this is not a purely factual inquiry.

The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling , at para. 42. Thus, while the analysis is sensitive to the factual context, it is inevitably "laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy": Patrick , at para. 14 ; see also R. v. Gomboc , 2010 SCC 55 , [2010] 3 S.C.R. 211, at para. 34 , [ 25 ] I will now proceed to apply these four criteria. B.

The Subject Matter of the Search [ 26 ] The subject matter of a search must be defined functionally, not in terms of physical acts, physical space, or modalities of transmission. The question to be answered is “what the police were really after”: R v Marakah , 2017 SCC 59 at para. 15 . [ 27 ] The police in this matter were “after” video recordings of the accused’s outwardly visible activities during his attendance at a nightclub for a social gathering on one occasion.

One police officer had seen the accused in possession of a handgun, and the police sought video recordings of that event and its surrounding circumstances to confirm what had already been observed. [ 28 ] Although the amount of video specifically requested from Mr. Fung by Cst. Clark is not entirely clear, Mr. Fung eventually provided 6 hours of video from each of 8 cameras.

It may therefore be inferred that this is essentially what the police requested. [ 29 ] Although the police’s focus was upon the accused’s possession of a handgun, the recordings also depicted such activity as the accused dancing, smoking, drinking, talking, and generally socializing with other attendees. The only exposed parts of the accused’s body captured on the recordings were his arms and hands below his sleeves, and his head and facial features.

Aside from the camera in VIP Room 1, the other cameras on the premises captured the accused moving in and around the other parts of the nightclub during the approximately 1 hour and 15 minutes that he was on the premises. [ 30 ] Some of the accused’s activities on the video recordings might fairly be described as intimate contacts with others. Upon his arrival at approximately 11:47 p.m., the accused is seen on the public sidewalk in front of the nightclub to be hugging a female acquaintance, Cathy. At approximately 12:26 a.m., the accused is seen to be touching Cathy on her buttocks in the VIP room.

He is also seen to be hugging and playfully wrestling around with some of his male friends. [ 31 ] The police did not seek or obtain any audio recordings of any conversations involving the accused. C. The Accused’s Interest in the Subject Matter [ 32 ] There is no dispute in the present case that the accused had a direct interest in his own person and his own personal activities, which were captured in the CCTV recordings.

To this extent, the accused did have a direct interest in the subject matter of the search. [ 33 ] It bears emphasis, however, that the accused had no direct contractual or proprietary interest in the space that he was occupying during the timeframe that the CCTV recordings were created. He was a patron at a nightclub which was open to members of the general public. He was also an invitee to VIP Room 1, which had been reserved by his friend Cathy.

Since the evidence does not establish or otherwise suggest that the accused had reserved or paid for the VIP room himself, he had no direct personal authority to exclude other persons from that room, or to otherwise control the activities within it. D. The Accused’s Subjective Expectation of Privacy [ 34 ] The subjective expectation of privacy “requirement” or “factor” has never been “a high hurdle” ( R v Patrick , 2009 SCC 17 at para. 37 ).

A subjective expectation of privacy can be presumed or inferred in the circumstances in the absence of the claimant’s testimony or admission at the voir dire , and therefore requires a “modest evidentiary foundation” ( R v Jones , 2017 SCC 60 at paras. 20- 21 ). [ 35 ] Despite the low bar applicable to the issue of subjective expectation of privacy, I am unable to presume or infer the presence of any such subjective expectation in the present case. The CCTV recordings of the VIP room depict the accused in a public establishment surrounded by many other people, at least some of whom, like Ms. Chin and Ms.

Castrillo, were virtual strangers to him. With respect to those moments in the VIP room when the accused is seen to be in possession of the handgun, he is at times openly holding it in one or both of his hands, and at other times keeping it in the back pocket of his pants with the grip hanging out, apparently communicating to those present that he was armed and dangerous. At these times, there were as many as 20 people in his immediate vicinity.

There was an uncovered video camera in the room, and the door to the room was open to the rest of the nightclub which was occupied by a large crowd of people any one of whom could see into the VIP room depending upon the angle.

In short, the accused’s own person and his activities were on full public display, and it is difficult to infer that he expected his activities to remain private. [ 36 ] In conclusion, there is no evidentiary basis from which it may be presumed or inferred that the accused had a subjective expectation of privacy with respect to his personal activities in the nightclub as captured on the CCTV video recordings. Those activities were on full display to the general public, and the accused intended his activities to be seen, including by people that he did not know. E.

Whether any Expectation of Privacy was Objectively Reasonable [ 37 ] Since the concept of a reasonable expectation of privacy is normative and not purely subjective, it is necessary to assess

whether any such subjective expectation of privacy is objectively reasonable. [ 38 ] The starting point for the analysis of this issue in the present case is the general rule stated at paragraph 40 of R v Tessling , 2004 SCC 67 , that “ a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a

section of the public, or abandons in a public place”. In R v Jarvis , 2019 SCC 10 at paragraphs 37-41 it was explained that there may be exceptions to this general rule when it comes to the creation of video recordings of people in semi-public places, and the Court referred to such illustrative examples as recording someone disrobing in a communal change room at a public pool, or using a drone camera to capture unsuspecting sunbathers.

In these circumstances, there would exist a reasonable expectation of privacy despite the semi-public nature of the activity. [ 39 ] Upon consideration of the totality of the circumstances, I find that the accused did not have an objectively reasonable expectation of privacy in the contents of the electronic video files obtained by the police. The circumstances of importance to this determination are as follows. [ 40 ] The accused had no ownership, possession or control over the nightclub or its VIP room, and he had no authority to exclude anyone from those places.

He was an invitee to a semi-private party in the VIP room, and he had the same right to attend that room as the other 40-or-so other people who moved in and out of the room that night. [ 41 ] The accused also had no ownership, possession, or control of the electronic video files which were created and owned by the private ownership of the Mix nightclub. [ 42 ] The person who had reserved the room, Cathy, had left the door open and people moved freely in and out of the room without any apparent restriction.

Cathy could, theoretically, have excluded people from that room with the assistance of the Mix’s security personnel, but that authority was not exercised on this particular occasion. [ 43 ] The accused was not physically impacted by the gathering of the CCTV video by the police. That is, the gathering of the video files did not require any physical search of the accused’s person or his property. The accused’s subsequent arrest and search incident to arrest were based upon Cst.

Clark’s own observations of the accused rather than upon the contents of the video recordings. [ 44 ] The activities of the accused that were captured on the video recordings were fully visible to everyone in the VIP room and anyone looking into the VIP room, at least some of whom were not acquainted with the accused.

The members of the public to whom the accused’s activities were fully visible included the police themselves who would often conduct routine walkthroughs of the Mix and neighbouring establishments. [ 45 ] The accused’s activities on the video recordings included dancing, drinking, smoking, and generally socializing. There was also some fairly intimate contact with female persons such as Cathy.

Again, all of these things would have been visible to the many members of the public who were immediately at hand. [ 46 ] The recordings captured a non-intrusive view of the accused’s person, similar to what everyone in the VIP room would have been able to see, although the camera did appear to have a “night vision” functionality which allowed for improved vision in low lighting. [ 47 ] The video cameras were overt and not covert.

They were not covered by any mirror or dome and there were two signs on the premises, including one in the main entryway, which advised visitors like the accused that video recordings were being created. [ 48 ] The video recordings did not capture any confidential or biographical data respecting the accused beyond his outwardly visible clothing and facial features. [ 49 ] The video recordings captured the accused’s activities for approximately 1 hour and 15 minutes on a single evening, and the police only requested that video after that time period had concluded. [ 50 ] The video recordings were created by the ownership of the Mix for their own purposes, such as maintaining the security of the premises, and were not created by or with any input from the police.

The owners owed no duty of confidentiality to the accused or its other customers respecting the contents of those recordings. [ 51 ] Finally, it bears emphasis that since the nightclub constituted “licensed premises”, the behaviour and activities within it were regulated by such legislation as the Gaming, Liquor and Cannabis Act , RSA 2000, c G-1 , and its associated regulations, and the video recordings were created for the partial purpose of ensuring compliance with that legislation. [ 52 ] For these reasons, I find that the accused had no objectively reasonable expectation of privacy in the electronic video files obtained by the police from Mr.

Fung on behalf of the ownership of the Meinginful Mix Lounge. F. Conclusions on

Section 8 [ 53 ] Having considered the totality of the circumstances, I conclude that the accused had no reasonable expectation of privacy in the CCTV video recordings obtained by the police. Consequently, the gathering of that evidence by the police did not engage s. 8 of the Charter , and the accused’s s. 8 application is denied. V. Conclusions on Charter Voir Dire [ 54 ] In conclusion, the accused’s ss. 8 and 9 applications are denied. Under the circumstances, I do not find it necessary or advisable to conduct a hypothetical analysis of s. 24(2) .

Heard on the 8 th day of January, 2024 to the 11 th day of January, 2024. Dated at the City of Edmonton, Alberta this 30 th day of January, 2024. N. Whitling J.C.K.B.A. Appearances: Richard Tchir K.C. for the Crown Brian Beresh K.C. for the Accused