Date: 20230518 Docket: CR 22-01-39018 (Winnipeg Centre) Indexed as: R. v. Carrasco et al. Cited as: 2023 MBKB 83 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Michael M. Desautels ) for the Crown - and - ) ) Evan J. Roitenberg ARTURO CARRASCO and NOOTIN FONTAINE, ) ) Daniel A. Wolson for the accused, Arturo Carrasco ) accused. ) Judgment Delivered : ) May 18, 2023 GRAMMOND J.

Background [ 1 ] The two accused are charged with first degree murder relative to the shooting of Mohammed Ali (the “Victim”) at the rear of a house on Alfred Avenue in Winnipeg, on August 26, 2020. [ 2 ] On this voir dire , the accused Arturo Carrasco (“Carrasco”) challenged the admissibility of evidence obtained by a warranted search of a dark purple 2007 Mazda CX-7 GT with Manitoba licence plate KMC 595, registered to one Irene Daniels (the “Mazda”).

As a result of the search of the Mazda, police found a plastic bag with the accused Nootin Fontaine’s (“Fontaine”) fingerprints on it, together with a gas station receipt from the day of the shooting.

Thereafter, police continued to investigate, and obtained multiple warrant and wiretap authorizations, but none of those authorizations are the subject of this motion. [ 3 ] Carrasco has challenged the facial validity of the warrant to search the Mazda, issued by a Provincial Court Judge on September 17, 2020 (the “Warrant”), on the basis that the information to obtain (the “ITO”) filed in support of the Warrant did not reflect reasonable and probable grounds to search the Mazda.

Carrasco sought a declaration that the search was an infringement of his s. 8 rights under The Canadian Charter of Rights and Freedoms on the basis that the Warrant was invalid. At the hearing of the motion, Carrasco requested an opportunity to make further submissions on whether the evidence seized should be excluded under s. 24(2) if a breach was found, and I accepted that approach. Fontaine did not challenge the validity of the Warrant and did not participate in the voir dire . [ 4 ] On April 17, 2023, I advised counsel, in writing, that Carrasco’s motion was dismissed, with written reasons to follow.

These are those reasons. Issues [ 5 ] The Crown argued that Carrasco had no standing to challenge the Warrant, and I have considered that issue, as well as whether the Warrant was valid.

Standing [6] The leading case on standing is R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, where the court stated: 43 The following extracts from the reasons… [in R. v. Pugliese, (ON CA)] are … apposite: When an accused, such as the appellant, asserts at his trial that there has been a breach of his s. 8 Charter right to be securefrom unreasonable search or seizure, he is asserting a particular right to privacy which may, on occasion, be unrelated to any recognizedproprietary or possessory right.

Section 8 of the Charter is directed to the protection of the security of the person, not the protection ofhis property, and it is the appellant’s personal exposure to the consequences of the search and seizure that gives him the right tochallenge, not the search warrant itself, but the admission into evidence at his trial of the fact of the search and the account of what wasseized. …Section 8 guarantees a broad and general right to be secure from unreasonable search and seizure which at least protects aperson’s entitlement to a reasonable expectation of privacy.

Accordingly, s. 8 is available to confer standing on an accused person whohad a reasonable expectation of privacy in the premises where the seizure took place, even though he had no proprietary or possessoryinterest in the premises or in the articles seized. In a proper case, the remedy available to such an accused would be the exclusion unders. 24(2) of the Charter of the evidence obtained pursuant to the search. … The true test of a protected constitutional right under s. 8 of the Charter is whether there is a reasonable expectation ofprivacy.

This is so even where it is alleged that the privacy shelters illegal activity [citations omitted]. This is not to say that property rights do not confer privacy rights in a given case. They obviously do. But the appellant mustassert a personal privacy right, whatever be the foundation of his assertion.

And, since this reasonable expectation of privacy is a Charterprotected right, the burden of providing an evidentiary basis for any violation rests with the appellant. … [emphasis in original] … 45 A review of the recent decisions … indicates that certain principles pertaining to the nature of the s. 8 right to be secureagainst unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2.

Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra. 5.

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p.54, and Wong, supra, at p. 62.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, 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. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. [7] In addition, in R. v.

Okemow , 2019 MBCA 37 , the court stated: [22] In R v Tessling , 2004 SCC 67 , Binnie J, writing for the Court, noted that the “’totality of the circumstances’ [test], laid particular emphasis on” the factors of the subjective expectation of privacy and the objective reasonableness of that expectation (at para. 19). As he explained, the concept of territorial privacy is not per se the interest protected by

section 8, which protects people and not places. Rather, the territory or space in question serves as an analytical tool to evaluation the reasonableness of a person’s expectation of privacy (see paras 18, 22).

The degree to which a person may assert a reasonable expectation of privacy in a space is contextual and may be diluted dependent upon the space in question (see para 22). … [25] Despite the development of the law regarding the concept of privacy as it relates to advancing technology and protected spheres of personal information, the “totality of the circumstances” test continues to inform the reasonable expectation of privacy analysis (see , for example, Tessling at para 19 ; Cole at para 39; and R v Reeves , 2018 SCC 56 at para 12 ).

That is, the factors identified in Edwards are still relevant to a privacy analysis today. [8] In this case, police identified in their investigation a vehicle observed on surveillance footage near the scene of the shooting, at around the time of the shooting. The ITO reflected that this vehicle was a dark purple Mazda CX-7, anywhere between a 2007 and 2012 model, with a Manitoba licence plate.

For ease of reference, I will refer to this vehicle, observed on surveillance footage, as the “Vehicle of Interest”. [9] The ITO reflected the belief that the Vehicle of Interest and the Mazda (as defined in paragraph 2 above) were one and the same, for the reasons set out below, relative to whether there was a

section 8 breach. [10] The ITO also reflected, inter alia , that:

a) the Mazda was registered to Irene Daniels;

b) Ms. Daniels had lent the Mazda out to other people;

c) in May or June of 2020, Ms. Daniels’ son’s friend “Larry” paid the insurance for the Mazda until February 2021;

d) it was Ms. Daniels’ son’s idea to lend the Mazda to Larry, because Larry’s girlfriend had a child, and they required a vehicle;

e) Ms. Daniels received a speeding ticket in the mail, and suspected that either Larry or his girlfriend had been driving the Mazda when the infraction occurred;

f) Ms. Daniels’ friend, Darcy Picard, confirmed to police that Larry had been driving the Mazda when a photo radar ticket issued on or about July 13, 2020 [1] ;

g) on September 8, 2020, the Mazda was located by police, parked in front of 605 Cusson Street in Winnipeg; and

h) on September 16, 2020, police towed the Mazda from 605 Cusson Street to police headquarters. [11] The Warrant was requested pursuant to s. 487 of the Code , to search the Mazda for:

a) fingerprints, DNA, hair, or any other bodily substances to identify who had been within the Mazda, in addition to those who were known to have used it, which included “Larry” and his girlfriend;

b) gunshot residue that could have transferred from the shooter’s clothing on to surfaces within the Mazda; and

c) identity documents that could identify anyone within or having access to the Mazda. [12] Carrasco is not mentioned by name in the ITO, and did not testify at the voir dire . Certainly, he is not required to do so, though he bears the onus of satisfying me, on a balance of probabilities, that he had a reasonable expectation of privacy with respect to the Mazda ( R. v. Farrah , 2011 MBCA 49 , at para. 27 ).

For the purposes of the voir dire , Carrasco admitted that he is “Larry” as referenced in the ITO. [13] I have considered the contents of the ITO in the context of the totality of the circumstances, including the seven specific factors listed in paragraph 45(6) of Edwards . With respect to factors (

i) and (iii) respectively, it is clear that Carrasco was not present when the Mazda was seized and that he was not its registered owner. [14] With respect to factor (iv), historical use, the ITO reflects that “Larry” (Carrasco) borrowed the Mazda in May or June 2020, and paid the insurance premium through February 2021. Thereafter, Ms. Daniels received a photo radar ticket incurred by the driver of the Mazda on July 13, 2020. The only two pieces of evidence in the ITO relative to who was driving the Mazda when the ticket was incurred are Ms.

Daniels’ suspicion and Darcy Picard’s unexplained assertion that it was Carrasco. [15] The Crown conceded, and I accept, on the basis of the ITO and Carrasco’s admission that he is “Larry”, that Carrasco had historical use of the Mazda. Having said that, there is a dearth of evidence on the record before me, with respect to factors (ii), (v), (vi) and (vii) and whether, in mid-September 2020, at the time of the seizure:

a) Carrasco had possession or control of the Mazda;

b) Carrasco had the ability to regulate access to the Mazda;

c) Carrasco had a subjective expectation of privacy in the Mazda; and

d) any such expectation had an objective reasonableness. [16] The only evidence before me that relates to use of the Mazda in August or September 2020 is contained within the supplementary evidentiary record filed by Carrasco, which contains an excerpt from an application for authorizations and warrants filed in February 2021. In that application, police advanced the belief that:

a) Carrasco’s girlfriend was driving the Mazda several hours prior to the shooting on August 26, 2020;

b) Carrasco and Fontaine had access to the Mazda at the time of the shooting on August 26, 2020;

c) in early September 2020, Fontaine [2] loaned the Mazda to a friend; and

d) when police seized the Mazda, an individual believed to be Fontaine was watching them, and was “very attentive to what was happening”. [17] In other words, the only evidence before me relative to possession or control of the Mazda in September 2020, when the Mazda was seized, supports the notion that Fontaine and/or his friend had possession or control of it at that time.

There is no evidence before me that in September 2020 Carrasco had possession or control of the Mazda, the ability to regulate access to it, or a subjective expectation of privacy in it. [18] I am not prepared to infer, therefore, as suggested by defence counsel, that Carrasco’s status relative to the Mazda at the time of the seizure was similar to that of a lessee of a vehicle from a leasing company. [19] Having considered Carrasco’s historical use of the Mazda and the fact that he paid the insurance premium for it through February 2021, together with all of the other relevant facts and the totality of the circumstances, Carrasco has not satisfied me that he had a reasonable expectation of privacy in the Mazda at the time of the seizure.

As such, he does not have standing to challenge the validity of the Warrant and the ensuing search of the Mazda. Carrasco’s motion should be dismissed, therefore, for that reason alone.

Section 8 Breach [20] Despite my finding that Carrasco does not have standing on this motion, I have considered the validity of the Warrant. [21] Pursuant to s. 487 (1) of the Criminal Code , R.S.C., 1985, c. C-46 , a search warrant may be issued where a justice is satisfied that there are reasonable grounds to believe that an offence has been committed [3] , that the items to be searched for will afford evidence of the offence, and that the items to be searched for are at the place to be searched. [22] As counsel acknowledged, the case law relative to the review of search warrants issued under s. 487 is well-established. The key principles are as follows.

[23] As stated in R. v. Garafoli, [1990] 2 S.C.R. 1421 (QL), (SCC), the scope of review is deferential in nature: 56 The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was beforethe authorizing judge… the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or sheshould not interfere. [24] In R. v.

Araujo, 2000 SCC 65, the court described the applicable test as follows: 54 … An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances theneed for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence thatmight reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewingjudge, the application should have been granted at all by the authorizing judge. [emphasis in original] [25] Put another way, in R. v.

Morelli, 2010 SCC 8, the court stated: 40 …The question is … whether there was sufficient credible and reliable evidence to permit a justice … to find reasonable andprobable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified timeand place. [26] The test has also been described as a “credibly-based probability” (R. v. Bickerton, 2016 MBQB 201, at para. 4, citing R. v.Debot, (ON CA), [1986] O.J. No. 994, affirmed (SCC), [1989] 2 S.C.R. 1140). [27] In addition, the law is clear that

a) a warrant is presumed to be issued validly (R. v. Collins, [1989] O.J. No. 488, (ONCA), at para. 38);

b) the record examined on a facial review is the ITO, not an amplified or enlarged record (R. v. Sadikov, 2014 ONCA 72, at para.37);

c) the reviewing judge should take into account reasonable inferences that can be drawn from the information in the ITO whendetermining whether there was a sufficient evidentiary basis to issue the warrant (R. v. Evans (E.D.), 2014 MBCA 44, at para. 10, citingR. v. Vu, 2013 SCC 60, at para. 16); and

d) a credibly-based probability, “on a spectrum of proof, is higher than a reasonable suspicion … but lower than proof on a balanceof probabilities … or proof of a prima facie case” (R. v. O’Neill, 2016 MBQB 47, at para. 22). [28] Carrasco argued that the ITO did not reflect reasonable grounds to issue the Warrant because police did not establish either thatthe Vehicle of Interest was linked to the shooters, or that the Vehicle of Interest was in fact the Mazda. [29] In particular, Carrasco argued that:

a) although the ITO reflected that the Vehicle of Interest was seen on Alfred Avenue, the ITO does not reflect where on AlfredAvenue it was observed, or by what source. The ITO simply reflected that police gathered and viewed surveillance footage from varioussources in the neighborhood[4];

b) the ITO reflected that the Vehicle of Interest “followed” a taxicab in which the Victim was a passenger (the “Taxicab”), fromAlfred Avenue to a Shoppers Drug Mart, and back to Alfred Avenue, just before the shooting, which was an unsubstantiated statement;

c) surveillance footage obtained from the Taxicab reflected that the shooters accessed the scene on foot from the back lane behindAlfred Avenue, whereas the Vehicle of Interest appears to have been seen on the front street;

d) neither of the two suspected shooters were seen in or using the Vehicle of Interest; and

e) the licence plate of the Vehicle of Interest could not be determined. [30] I will comment first upon the issue of a link between the Vehicle of Interest and the shooters. [31] I agree with Carrasco that the notion that the Vehicle of Interest “followed” the Taxicab was included in the

summary

section ofthe ITO, but not in the body of the ITO narrative. The body of the ITO reflected, however, that the Vehicle of Interest “…was seenparking on Alfred Avenue just prior to a taxi cab arriving at 8:23 p.m. to pick up [the Victim] on August 26, 2020. The [Vehicle ofInterest] was also seen leaving the area shortly after the same taxi cab departed with [the Victim] as the fare at 8:27 p.m.”. In addition,surveillance showed the Vehicle of Interest “…returning, 14 minutes later, again immediately after the cab arrived with [the Victim] at8:41 p.m. (at 877 Alfred Avenue)”. [32] I have concluded, therefore, that the suggestion in the ITO

summary that the Vehicle of Interest “followed” the Taxicab was aninference drawn by police. In my view, the basis for that inference was that the Vehicle of Interest was seen at Alfred Avenuecontemporaneously with each of the initial arrival, the subsequent departure, and the second arrival of the Taxicab in the area of the

scene. [33] For the purposes of obtaining the Warrant, these facts, which relate to the timing and movements of the Vehicle of Interest relative to the Taxicab, were material. The law is clear that to issue the Warrant, the issuing judge need not have concluded that the Vehicle of Interest was used by the shooters.

Rather, the issuing judge could have found that there were reasonable grounds to believe that the Vehicle of Interest would afford evidence with respect to the shooting, given the timing with which it was observed at or near the scene, relative to the Taxicab. [34] As I have already referenced, the ITO reflects that the Vehicle of Interest and the Taxicab arrived at the scene, departed the scene and re-attended at the scene in temporal proximity with one another.

In addition, the ITO reflected that “[a]fter the gunfire was heard [the Vehicle of Interest] was seen leaving the area.” I have concluded that these details, taken together, reflect reasonable grounds upon which a justice could conclude that evidence would be found in the Vehicle of Interest. [35] I will comment next upon the issue of a link between the Vehicle of Interest and the Mazda, and Carrasco’s argument that the Reid Report was deficient in that regard. [36] The ITO reflected that a dark purple Mazda CX-7, anywhere between a 2007 and 2012 model, with a Manitoba licence plate, was observed near the scene.

The ITO and the Reid Report reflected the belief that the Vehicle of Interest and the Mazda were one and the same, on the basis that:

a) both vehicles were Mazda CX-7 models [5] ;

b) both vehicles were dark purple in colour [6] ;

c) the Vehicle of Interest was anywhere between a 2007 and 2012 model, and the Mazda was a 2007 model; and

d) both vehicles had the following identifying characteristics:

i) Manitoba licence plates; ii) a window visor on the driver’s side front door jamb, but no visor on the driver’s side rear window; iii) a thin chrome strip above the rear licence plate; iv) a thick chrome strip between the front and rear passenger doors;

v) chrome exterior door handles; vi) an antenna on the rear portion of the roof; and vii) fog lamps on the front. [37] I agree with Carrasco that the quality of the ITO photographs is not ideal. In particular, the images of the Vehicle of Interest in the Reid Report are not crystal clear, the lighting differs from one photograph to the next, and the aspect ratio of some of the photographs is unusual. For those reasons, I accept that there may be differences between the Vehicle of Interest and the Mazda that better quality photographs would or could reveal, but that is not the question before me.

Rather, I must determine whether, given the totality of the information contained within the ITO, the issuing judge could have granted the Warrant. [38] I accept Carrasco’s submissions that it is unclear from the ITO whether the majority of the identifying characteristics listed in sub-paragraphs 36(d)(ii) to (vii) above were, or could have been, factory-issued features or after-market features.

Having said that, each of these items as identified in the Reid Report is specific, and each of them is discernible when the surveillance of the Vehicle of Interest is compared with the Mazda. [39] Moreover, the thick chrome strip identified in sub-paragraph 36(d)(iv) above is identified specifically in the ITO as an after- market feature, which lends it a somewhat distinct character.

In addition, the ITO reflected that there were two window visors (front and rear) on the passenger side of the Mazda, which is different than the driver’s side, which bore only one visor, on the front door jamb, but none on the rear window, as referenced in sub-paragraph 36(d)(ii) above. In my view, this feature is also unique. [40] I am mindful of the fact that the issuing judge was not required to conclude that the Vehicle of Interest and the Mazda were one and the same.

Rather, the standard was the establishment of reasonable grounds, and I have concluded that, based upon all of the details identified by police, the issuing judge could have found that there existed a credibly-based probability that the Vehicle of Interest and the Mazda were the same vehicle. [41] In conclusion, there were reasonable grounds for the issuing judge to conclude that the Mazda would afford evidence with respect to the shooting, and as such the Warrant was issued validly.

Conclusion [42] Carrasco does not have standing to challenge the validity of the Warrant. [43] The Warrant was issued validly, and there was no breach of s. 8 of the Charter . [44] Carrasco’s motion is dismissed.

____________________________ J.