



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang, 2017 ONCA 775

DATE: 20171010

DOCKET: M48288 (C64301)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Dat Quoc Tang

Appellant

Andrew Burgess, for the appellant

Amy Alyea, for the respondent

Heard: September 21, 2017

ENDORSEMENT


I.

OVERVIEW

[1]

The appellant, Dat Quoc Tang, was charged with ten drug trafficking
    offences as part of two investigations into Toronto-area gang activity known as
    Project Battery and Project Rx. Charges were laid against 34 other accused
    as part of the investigations.

[2]

Code J. heard a global motion brought on behalf of all accused under s.
    8 of the
Canadian Charter of Rights and Freedoms
challenging the
    legality of the issuance of various wiretap authorizations and general warrants
    by McMahon J. during the investigation. Code J. dismissed the motion.

[3]

As a result, the appellant entered a plea of not guilty to one count of
    possession of heroin for the purpose of trafficking and one count of
    trafficking a controlled substance for the benefit of a criminal organization.
    He did so without contesting allegations contained in two agreed statements of
    fact. The appellant was found guilty of the two offences by McMahon J. on April
    6, 2017; the Crown withdrew the remaining charges.

[4]

The appellant was sentenced on the morning of September 21, 2017 to
    seven years imprisonment, less credit for four months pre-sentence custody.


II.

POSITIONS OF THE PARTIES

[5]

The appellant seeks judicial interim release pending the hearing of his
    appeal on terms similar to those attached to his interim release prior to
    sentencing.

[6]

The Crown opposes the application for two reasons. First, the Crown
    submits the appellant has failed to establish his grounds of appeal are not
    frivolous. Second, the Crown takes the position the detention of the appellant
    is necessary in the public interest because he was convicted of very serious
    offences and his grounds of appeal are weak.

III.

HAS
    THE APPELLANT ESTABLISHED THAT HIS APPEAL IS NOT FRIVOLOUS?

A.

The governing standard

[7]

The bar for establishing that an appeal is not frivolous is very low:
R. v. Oland
, 2017 SCC 17, at para. 20. As
    described by Watt J.A. in
R. v. Manasseri
,
    2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An appeal is not frivolous if
    the proposed grounds of appeal raise arguable issues. An applicant need not
    establish a likelihood, much less a certainty of success on appeal, but must be
    able to point to a viable ground of appeal that would warrant appellate
    intervention if established.

B.

The grounds of appeal

[8]

The appellants grounds of appeal concern findings Code J. made in the
    two sets of reasons he released on the global s. 8 motion:
R. v. Brewster
,
    2016 ONSC 4133 (the Surveillance Decision) and 2016 ONSC 8038 (the Camera
    Decision.)

The failure to disclose information about the operation of
    mobile device identifiers

[9]

As his first ground of appeal, the appellant contends Code J. erred in
    characterizing as non-material the omission of the police to include in the ITO
    affidavits certain information about the workings of a surveillance technology
    known as a mobile device identifier (MDI), also known as a Stingray. The
    MDI mimics a cell phone tower and has two functions. First, it can identify a
    specific phone by revealing its International Mobile Subscriber Identity (IMSI)
    and International Mobile Equipment Identity (IMEI) numbers. The former attaches
    to the SIM card placed in a cell phone; the latter to the individual phone. Second,
    a MDI can track phones with known IMSI and IMEI numbers. The MDI does not
    intercept private communications; it identifies serial numbers associated with all
    cell phones in the vicinity where it is deployed.  As a result of this impact
    on all nearby phones, a standard general warrant minimization clause requires
    an operator to activate a MDI for not more than three minutes at a time, and
    allow a two minute rest period between activations.

[10]

The
    appellant argues the ITO affiant failed to disclose three material pieces of
    information to the issuing justice: (i) the MDI has a tracking function, as
    well as a location identification function; (ii) the MDI has two modes of
    operation, one of which can interrupt calls for up to two minutes; and (iii)
    the decision of the field operators not to follow the minimization clause but,
    instead, to replace the two minute rest period with the switching of frequencies
    every three minutes.

[11]

Code
    J. acknowledged the three deficiencies in the affidavits were omissions, but
    concluded they were not material ones in the sense that had they been fully
    explained to the issuing justice, they would have made no difference to the
    issuance of the General Warrant or to its minimization term.

[12]

The
    appellant argues that Code J. erred in so concluding, given how intrusive the
    MDI technology can be. He submits the omissions in the ITO affidavits were
    material and constituted a failure of the affiants duty to make full, fair and
    frank disclosure.

[13]

Code
    J. described this aspect of the global s. 8 motion has having a relatively
    narrow compass because the general warrant authorizing the use of the MDI
    device only had an impact on seven intercepted calls made by one accused. The
    appellant was not that accused.

Warrantless searches: surveillance in underground parking lots
    and covert hallway cameras

[14]

The
    appellants second ground of appeal involves the failure of the police to
    disclose to the issuing justice information about two investigative techniques
    they had used before seeking judicial authorizations: (i) the physical
    surveillance of common areas of the condominiums, primarily underground parking
    lots; and (ii) the installation of covert hallway cameras with the consent of
    the buildings property managers or boards of directors.

[15]

First,
    a small portion of the surveillance conducted by the police prior to the
    authorizations involved the police entering common areas of condominium
    buildings, primarily underground parking lots, to conduct surveillance. Initially,
    the police entered without permission. As the investigations progressed, they
    secured consent from the condominiums property managers to enter common areas.

[16]

Code
    J. described the information obtained from such searches as factually
    insignificant and of a relatively minor amount. He concluded that when
    conducting the surveillance the police were not acting unlawfully and they did
    not violate s. 8 by conducting limited physical surveillance in the common
    areas of multi-unit buildings. He held there was no reasonable expectation of
    privacy in non-obtrusive observations made in the underground parking lots,
    elevators or hallways of large, multi-unit condominium buildings. Code J.
    concluded, at para. 114 of the Surveillance Decision:

I am satisfied that the physical surveillance carried out in
    this case in the common areas of multi-unit buildings did not amount to a
    search. Accordingly, s. 8 of the
Charter
was not engaged. I am also
    satisfied that the detailed circumstances surrounding this surveillance were
    not material to issuance of the wiretap authorization and the related General
    Warrants and did not need to be set out in the Affidavits.

[17]

The
    appellant submits Code J. erred in so finding. Although the appellant
    acknowledges that the determination of whether a reasonable expectation of
    privacy exists turns on the specific facts of a case, he argues that the
    frequency and duration of the police entries into the common areas distinguish
    the present case from those in which no reasonable expectation of privacy in
    common areas was found. The appellant also contends the case law has not been
    unanimous on the question of s. 8 protection in common areas of multi-unit
    buildings.

[18]

Second,
    prior to seeking the authorizations from McMahon J. the police had installed
    surveillance cameras in the common hallways of three buildings pursuant to
    consents obtained from the property managers or condominium board. The cameras
    generated evidence of the comings and goings of the suspects of the
    investigation, either in the hallway leading from an elevator to a unit or in
    the hallway coming from a unit to an elevator. The appellant contends the
    police did not make full and frank disclosure of the prior installations of
    hallway cameras to the issuing justice on the initial application for a general
    warrant to install more cameras. As a result, the warrant authorizing the
    installation of cameras should be set aside and the resulting video evidence
    excluded pursuant to ss. 8 and 24(2) of the
Charter
.

[19]

Code
    J. observed there was little guidance in the case law on whether the
    warrantless installation of cameras in the hallways of condominiums with the
    consent of the buildings property manager or board of directors infringed s. 8
    of the
Charter
. He held s. 8 was engaged on the basis that the
    surreptitious video recording in common areas of multi-unit buildings
    constituted a search or seizure. Code J. was satisfied the police obtained a
    sufficient consent to install the cameras and a warrant to install them was not
    required because of the reduced privacy interest engaged. He concluded the
    installation of the cameras did not violate s. 8 of the
Charter
.

[20]

Code
    J. went on to find the police failed to comply with their duty to make full and
    frank disclosure by not mentioning the prior installation of hallway cameras in
    the affidavits in support of the general warrants. However, he concluded the
    non-disclosure was not material in the circumstances.

[21]

The
    appellant argues Code J. erred in so finding. In addition, the appellant
    contends Code J. erred in concluding the property management staff had the
    authority to cooperate with an ongoing investigation and consent to the police
    entry into common areas. The appellant submits the consents of the buildings
    boards of directors were required.

The naming of the appellant as a Known Person

[22]

The
    final ground of appeal advanced by the appellant is that Code J. erred in
    finding there was sufficient evidence to name him as a Known Person in the
    renewal and expansion authorizations granted by the issuing justice.

[23]

Code
    J. relied on the combination of three pieces of evidence to support his
    finding: (i) information from a confidential informant that the appellant was a
    heroin dealer; (ii) the appellants longstanding history of association with
    the Asian Assassins gang, including his arrest and charge on five relatively
    serious criminal incidents between 2003 and 2006; and (iii) recent evidence
    inferring the appellants current association with alleged members/associates
    of the Asian Assassins.

C.

Analysis

[24]

Dealing
    first with the last ground of appeal, given the low threshold to satisfy the
    statutory test for naming a known person, I am not persuaded this ground of
    appeal is not frivolous.

[25]

The
    same cannot be said for the other grounds of appeal. Code J. characterized the
    MDI issues as somewhat novel s. 8 issues involving, as they do, a new
    investigative technology. As to the grounds relating to the warrantless
    surveillance, the determination of whether a reasonable expectation of privacy
    exists often turns on the specific circumstances. At issue on this appeal is
    the extent to which a reasonable expectation of privacy exists in the common
    areas of large, multi-unit condominiums. I cannot say that issue is a frivolous
    one. Accordingly, I am satisfied the appellant has established his appeal is
    not frivolous.


IV.

THE PUBLIC INTEREST

[26]

The
    public interest criterion in s. 679(3)(c) of the
Criminal Code
consists
    of two components: public safety and public confidence in the administration of
    justice:
Oland
, at para. 23.

[27]

There
    is no suggestion in the present case that the appellants release would
    jeopardize public safety. He complied without incident with the terms of his
    bail pending his trial and sentencing.

[28]

The
    public confidence criterion requires balancing several factors: the seriousness
    of the offence; the strength of the grounds of appeal; public safety; and
    flight risks.

[29]

Dealing
    first with the seriousness of the offence, the appellant was convicted of
    possession of heroin for the purpose of trafficking and trafficking a
    controlled substance for the benefit of a criminal organization.

The
Oland
framework for considering applications for bail pending appeal assumes the
    appeal judge will have the benefit of the trial judges reasons for sentence in
    which the factors going to the seriousness of the crime will have been
    addressed: at para. 38.

[30]

That
    did not occur on the present application. The appellant had pre-booked a 2:30
    p.m. time slot on September 21, 2017 for hearing his application for judicial
    interim release pending appeal, as permitted by s. 7.2.2(3) of the
Practice
    Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
(1 March 2017). The sentencing reasons were delivered orally on the morning of
    September 21, 2017. However, the appellant did not file a transcript or
    synopsis of the sentencing reasons.

[31]

Such
    an approach by counsel is not helpful. The appellant bears the burden of
    establishing each s. 679(3) criterion on a balance of probabilities:
Oland
,
    at para. 19. The absence of sentencing reasons creates a gap in the evidentiary
    record. Accordingly, I cannot accept the submission of appellants counsel in
    her affidavit that he was a relatively peripheral target of the larger police
    investigation or counsels submission at the hearing that the appellant was at
    the low end of the investigation. I will proceed on the basis the appellant
    was convicted of very serious drug offences, as reflected by the lengthy
    sentence he received.

[32]

Oland
calls on the appeal judge to examine the grounds identified in the notice of
    appeal with an eye to their general legal plausibility and their foundation in
    the evidence: at para. 44. Given that the appellant rests his reasonable expectation
    of privacy arguments on the recent decision of this court in
R. v. White
,
    2015 ONCA 508, 325 C.C.C. (3d) 171, it would not be appropriate to comment on
    those grounds in any detail. Suffice it to state, the main grounds of appeal are
    founded in the evidence and are not frivolous.

[33]

There
    is no concern that the appellant is a flight risk or poses a threat to public
    safety.

[34]

When
    balancing the relevant factors as part of the public confidence analysis, one
    must recall the observation of the Supreme Court in
Oland
, at para. 29,
    that [r]arely does this component play a role, much less a central role, in
    the decision to grant or deny bail pending appeal. In the present case, the
    seriousness of the offence points in the direction of the enforceability
    interest, while the absence of flight risk or threat to public safety points
    towards reviewability. I regard the non-frivolous nature of the main grounds of
    appeal as somewhat neutral. In the end, this is a close case, but overall the
    factors favour reviewability.

[35]

Accordingly,
    I grant the application.

[36]

That
    said, the conditions of bail pending appeal must reflect the strong
    enforceability interest in this case. Counsel provisionally agreed on the terms
    of release. I accept all of their proposed terms, except for proposed Condition
    13, which states: Pursue the appeal diligently. The strong enforceability
    interest in this case requires imposing a stronger obligation on the appellant
    to bring his appeal on for a timely hearing.

[37]

To
    give effect to the strong enforceability interest, I shall fix a date for
    perfection of the appeal as a condition of bail pending appeal. I recognize
    this appeal is only one of several related appeals that seek to review the
    Surveillance and Camera Decisions. Yet, slightly over six months have elapsed
    since the appellant was convicted. The appellant has had ample time to begin
    the process of securing the materials from the 2016 hearings before Code J. for
    inclusion in his appeal book. The appellant proposes as a term of bail a
    surrender date of January 12, 2018, from which I conclude the appellant should
    be in a position to perfect his appeal by that date. Accordingly, Condition 13
    of the order granting this application shall read as follows:

13. PERFECT the appeal by January 12, 2018. If you do
    not perfect the appeal by that date and seek an extension of this order, you
    must include in your extension application materials an explanation for your
    failure to perfect by January 12, 2018, together with a detailed plan for
    perfecting the appeal, which itemizes the remaining steps for perfection and
    commits to fulfilling each step by a specified date.

[38]

I
    have placed my fiat on the draft order provisionally agreed to by counsel, as
    amended by this endorsement.

David Brown J.A.


