



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. White, 2015 ONCA 508

DATE: 20150707

DOCKET: C56966

Simmons, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Merith White

Respondent

Emilie Taman and Jim Marshall, for the appellant

Andrew Burgess, for the respondent

Heard:  April 9, 2015

On appeal from the acquittals entered by Justice P.
    Lalonde of the Superior Court of Justice on April 5, 2013.

Huscroft J.A.:

[1]

The respondent owned and occupied a condominium unit in a small, 10-unit
    building. The following question is raised by this appeal: to what extent did
    the respondent have a reasonable expectation of privacy in the common areas  stairways,
    hallways, and storage rooms  of that building?

[2]

The police suspected that the respondent was involved with dealing drugs
    and made three surreptitious entries into common areas of his building. Once
    inside, a detective walked through the hallways, entered the storage area and
    viewed the contents of the respondents storage locker. The detective also hid
    in the stairwell, where he observed the respondents unit and listened to what
    was going on inside the unit. Using the information gathered from these entries,
    the police obtained a warrant and subsequently arrested the respondent on drug
    trafficking charges and possession of property obtained by crime.

[3]

At trial, the judge held that the evidence the detective gathered in the
    course of the three entries was obtained in breach of the respondents rights
    under s. 8 of the
Canadian Charter of Rights and Freedoms
and excluded
    it pursuant to s. 24(2). The trial judge acquitted the respondent of possession
    for the purpose of trafficking and possession of property obtained by crime, but
    convicted him of another charge. The Crown appeals against the acquittals,
    arguing that the respondent had no reasonable expectation of privacy in the
    common areas of his multi-unit building. For the reasons that follow, I
    disagree and would dismiss the appeal.

BACKGROUND

[4]

The respondent came to the attention of the police in the context of an investigation
    of Yianni Papadolias, whom they believed to be involved in drug trafficking. The
    police obtained a warrant to allow GPS tracking of Papadoliass car. Through
    this warrant, the police learned that Papadolias visited 711 Churchill Avenue,
    a condominium where the respondent owned a unit in which he resided, 75 times over
    a period of approximately four months (September 29, 2010  January 17, 2011).
    The police suspected that the respondent was a drug dealer for Papadolias and
    that Papadolias was using the condominium as a stash house.

[5]

Detective Hill entered the condominium at 711 Churchill Avenue on three
    occasions prior to obtaining a search warrant. Each of his visits is outlined
    below.

First Visit  December
    10, 2010

[6]

Detective Hill entered the respondents condominium to determine the
    layout of the building, points of entry and exit, and obtain information as to
    other people that might be of interest. The police were already aware that the
    respondent lived in unit 302 of the building.

[7]

Detective Hill entered the building without the knowledge of any of the
    residents and without any prior consent. He gained entry by following a postal
    worker into the building through a door that was always locked.

[8]

Once inside, he took the stairs to the lower level, where he entered an
    unlocked storage room. There he observed storage lockers with numbers
    corresponding to unit numbers in the building. The lockers were cage-like and
    their contents were visible. Detective Hill observed the contents of locker
    302, which corresponded to the number associated with the respondents unit.
    Specifically, he saw a charcoal or carbon filter, blower fan, and garden hose,
    among other things, all of which he considered could be used in a grow-op. He
    did not touch anything in the locker room, take photographs or video, or
    install any devices.

[9]

Detective Hill then went upstairs where he observed unit 302. He was in
    the building for approximately 20 minutes.

Second Visit  January
    20, 2011

[10]

The
    purpose of this entry was to determine whether Papadalios was coming or going
    from unit 302 and bringing or retrieving packages. Detective Hill entered the
    building through the north stairwell door, which he said was always locked.
    However, the door would not close properly and was not locked as a result.
    Again, he entered the building without the knowledge of any of the residents
    and without any prior consent.

[11]

Once
    inside the building, Detective Hill hid in a stairwell and from this location
    observed Papadalios leaving the respondents unit carrying a box. Papadalios
    was later observed transferring the box to a third person outside the building.

Third Visit  January
    21, 2011

[12]

Detective
    Hill used the same north stairwell door he had used on January 20 to gain entry
    to the condominium building in another attempt to find evidence linking
    Papadalios to unit 302. The door was still not closed properly and for the
    third time he entered the building without the knowledge of any of the
    residents and without any prior consent.

[13]

Detective
    Hill stationed himself in the stairwell and observed Papadalios entering unit
    302. Detective Hill overheard a conversation inside the unit and believed that
    it concerned a drug deal. He also heard what he thought was the sound of
    packing tape being removed from a roll. Detective Hill observed Papadalios
    leaving the unit with a box in his possession and depositing the box into a
    minivan. The minivan was pulled over by the police and the box was found to contain
    2,679.4 grams of marijuana and 166.6 grams of cocaine.

The Search Warrant

[14]

Detective
    Norman Redmond prepared the Information to Obtain a Search Warrant (ITO) for
    three locations, including the respondents residence at 711 Churchill Avenue,
    unit 302. Although the ITO mentioned that Detective Hill had made observations
    from within the condominium, the provincial court judge who issued the warrant
    was not informed that Detective Hill had entered the locked building without
    permission. Detective Redmond testified that it was not necessary to inform the
    judge of the surreptitious entries because Detective Hill had not done anything
    wrong in entering the condominium.

The Execution of the Warrant

[15]

Following
    execution of the warrant the police found 1,708 grams of cocaine, 6,860 grams
    of marijuana, and 5.1 grams of crack cocaine in the respondents condominium
    unit. The respondent was arrested and found to be in possession of 0.4 grams of
    cocaine and $400 in Canadian currency.

[16]

The
    respondent was charged with possession of cocaine and marijuana for the purpose
    of trafficking, possession of cocaine, and possession of property obtained by
    crime.

The Evidence at the
Voir Dire

[17]

At
    trial, the respondent brought an application alleging a breach of his rights
    pursuant to s. 8 of the
Charter
arising from the three surreptitious
    entries and the subsequent search of his condominium unit. A
voir dire
was
    conducted into the admissibility of the evidence obtained pursuant to the
    search warrant.

[18]

The
    Crown called three witnesses at the
voir dire
.

[19]

Zoë
    Gillespie, a member of the board of directors of the respondents condominium,
    testified that the north stairwell door is supposed to be locked but the locks
    do not latch properly in the winter. She understood there had been only one
    entry by the police, and stated that if the police had requested permission to
    enter the building it would have been granted. She added that Detective Redmond
    met with the board of directors of the condominium following execution of the
    search warrant and that 70% of the residents of the condominium had voted to
    sign an authorization under the
Trespass to Property Act
, R.S.O. 1990, c. T.21,
allowing police
    to enter the building in the future. She noted that the building has inadequate
    insulation and as a result, she can hear voices from the hallway and other
    apartments when she is in her own unit.

[20]

Detective
    Hill outlined the circumstances of his entries into the condominium. He said
    that in his experience it is very common to enter locked apartment or
    condominium buildings for the purpose of investigating or conducting
    surveillance activities. In cross-examination, he acknowledged that he would
    not enter the property of a single-unit dwelling  even so much as step foot
    onto the lawn of the property  but reiterated his understanding that he was
    entitled to enter a multi-unit property in furtherance of an investigation. He
    drew a distinction between observing by installing a camera, which in his view
    would require judicial authorization, and observing by standing in the common
    area of a multi-unit dwelling, which in his view was permitted. Detective Hill
    acknowledged that during his entries on January 20 and 21, his focus was on
    unit 302. Detective Hill did not agree with the suggestion that an ordinary
    person entering the condominium for purposes of surveying it as he had done
    would be trespassing, and reiterated that his entry into the building was
    permissible because he was in the midst of an investigation.

[21]

Detective
    Redmond testified that he did not believe permission was required to enter the
    common areas of the building and that it would have compromised the
    investigation to have sought permission. In cross-examination, he stated that
    there was no trespass because the police were lawfully conducting surveillance
    of a person suspected of drug trafficking. He acknowledged that a warrant would
    be required to install a camera in the building but said that a police officer
    could observe a unit in the condominium because he was not physically altering
    the building. In his view, police officers can enter the condominium by any
    means so long as they do not break anything in doing so. Detective Redmond confirmed
    Zoë Gillespies testimony that he had returned to the building subsequent to
    the respondents arrest to meet with the condominium board and seek their
    authorization under the
Trespass to Property Act
to enter the building in the future
(which was obtained subsequently). In his view, the authorization was
    unnecessary; it simply cleared up any lingering ambiguity.

THE TRIAL JUDGES DECISION

[22]

The
    trial judge issued detailed reasons outlining his decision on the
Charter
application.
    These reasons were later followed by a brief oral ruling in which he acquitted
    the respondent of possession for the purpose of trafficking and possession of
    property obtained by crime, and convicted the respondent of possession of
    cocaine. I discuss each decision below.

Charter
Application Decision

[23]

The
    trial judge conducted a thorough review of the jurisprudence and concluded that
    the respondent had a reasonable expectation of privacy in the condominium and
    its common areas as a result of his ownership interest and residency. He
    further concluded that the respondents rights under s. 8 of the
Charter
were violated by the warrantless searches conducted by the police. He found
    that the police had neither statutory authority to conduct the searches nor a
    constitutionally unrestricted right to trespass upon private property to
    conduct the searches.

[24]

The
    trial judge went on to consider whether the evidence should be excluded under
    s. 24(2) of the
Charter
. He found that Detective Hills
    unconstitutional searches of the common areas of the building formed the
    foundation for the search warrant pursuant to which the respondents unit was
    searched and that the temporal link was unbroken by any intervening event. Accordingly,
    the trial judge held that the threshold inquiry of s. 24(2)  which asks
    whether the evidence was obtained in a manner that infringed the
Charter

 was met.

[25]

The
    trial judge applied the three criteria outlined by the Supreme Court in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353,
at para. 71, and concluded as follows:


i.

the breach was serious because the police were willfully blind or
    ignorant as to the requirements of the
Trespass to Property Act
. There
    was also some bad faith on their part, which was confirmed by their refusal to
    answer questions in cross-examination. The evidence obtained from the illegal
    entries had to be excised from the affidavit that was used to obtain the search
    warrant and, once that occurred, there were no grounds for issuance of the
    warrant. As a result, the search of the respondents unit was warrantless;


ii.

there was a serious impact on the respondents
Charter
rights;
    and


iii.

admission of the evidence would bring the administration of justice into
    disrepute.

[26]

On
    this basis, the trial judge excluded the evidence.

Ruling as to Guilt

[27]

Having
    excluded the evidence obtained at the respondents condominium unit, the trial
    judge acquitted the respondent of possession of cocaine and marijuana for the
    purpose of trafficking. He also acquitted the respondent of possession of
    property obtained by crime.

[28]

However,
    counsel for the respondent conceded the admissibility of other evidence that
    came from other aspects of the investigation apart from the search executed at
    the respondents residence. This evidence included a certificate of analysis
    confirming that the 0.4 grams of white powder found on the respondent at the
    time of his arrest was in fact cocaine. Counsel for the respondent also made
    all the admissions necessary to ground a conviction for possession of
    cocaine. Based on these admissions and this evidence, the trial judge convicted
    the respondent of possession of cocaine. The trial judge sentenced the
    respondent to time served and a $500 fine. The respondent has not appealed his
    conviction or sentence.

ISSUES ON APPEAL

1.       Did the trial judge err in finding that the
    respondent had a reasonable expectation of privacy in the common areas of his
    condominium building and err in finding an infringement of s. 8 of the
Charter
?

2.       Did the trial judge err by excluding the
    evidence of drugs pursuant to s. 24(2) of the
Charter
?

[29]

The
    appellant argues that the trial judge erred in failing to conduct the thorough
    analysis as set out in
R. v. Edwards
, [1996] 1 S.C.R. 128, which, it
    submits, is fatal to his decision, and that he fixated on the respondents
    ownership of his condominium in distinguishing cases that have established that
    there is no reasonable expectation of privacy in the common areas of multi-unit
    buildings. The appellant further submits the police understood their common law
    duties and did not trespass on the respondents property.

[30]

The
    respondent argues this was a situation that required a warrant, but the police
    chose not to get one initially and conducted surveillance while trespassing on
    the respondents property. The respondent submits the trial judge made no
    errors in applying the
Edwards
test and that the case law establishes
    that the respondent had a reasonable expectation of privacy in the common areas
    of the condominium.

ANALYSIS

(1)

Did the trial judge err in finding that the respondent had a reasonable
    expectation of privacy in the common areas of his condominium building and err
    in finding an infringement of s. 8 of the
Charter
?

[31]

The
    right to be secure from unreasonable search or seizure protects
reasonable
expectations of privacy, and the reasonableness of an expectation is determined
    having regard to all of the relevant circumstances in a particular case.
    Justice Cory enumerated several relevant considerations in
Edwards
, at
    para. 45:

(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.

[32]

Justice
    Cory emphasized that these considerations are a guide to the question.

There is no requirement
    that each of the
Edwards
factors be considered in a mechanical fashion
    in order to render a valid decision.

[33]

In
    addition to its submissions on
Edwards
, the appellant relies chiefly on
    two decisions of this court. The first is
R. v. Laurin
(1997), 98 O.A.C. 50
.
In that
    case,

responding to an anonymous complaint, the police trespassed on
    private property by peering into the window of the basement apartment occupied
    by the appellant (with their faces two inches from the window). They entered
    the apartment building through unlocked doors for the purpose of knocking on
    the residents door, and once inside the building smelled marijuana in the
    hallway outside the appellants apartment. This court concluded that the police
    infringed the appellants reasonable expectation of privacy by peering into the
    window but not by smelling marijuana in the hallway, reasoning that the police
    were entitled to be in the hallway along with visitors, repair people, and the
    landlord. The court stated, at para. 39: [The polices] presence was not
    dependent on the invitation of the appellant, express or implied. I refer to
    the fact that the outer doors of the building were not locked or otherwise
    secured.

[34]

The
    second case is
R. v. Thomsen
,
[2005] O.J. No. 6303 (S.C.J.),
    affd 2007 ONCA 878,

which the appellant submits is fatal to the
    respondents
Charter
claim. In
Thomsen
, the police were called
    by the property manager, who advised of a possible marijuana grow-op in a
    particular apartment. They entered the building through a locked door that had
    a buzzer-entry system by following a tenant. Once inside the building, the
    police smelled marijuana in the hall outside the applicants apartment and
    heard a fan or droning sound coming from the apartment.

[35]

Applying
    the
Edwards
factors, Garton J. found that the applicant was not
    present at the time; he had no right of possession or control or ownership of
    the hallway; there was no history of use of the hallway that would have
    excluded others such as the police; the applicant had no right to regulate
    access to the hallway; there was no evidence that he had a subjective
    expectation of privacy in the hallway; and there was no objective reasonable
    expectation of privacy. In these circumstances, Garton J. concluded that the
    applicant had no reasonable expectation of privacy in the apartment hallway. An
    appeal from her decision was dismissed in

a two-line endorsement in
    which this court agreed with the reasons of the trial judge.

[36]

In
    my view,
Laurin
and
Thomsen
are distinguishable from the
    present case. I deal with each case in turn.

[37]

In
Laurin
,
the police
    were investigating in response to a complaint. The apartment building was not
    locked or otherwise secured. Moreover, the building in question was an
    apartment building rather than a condominium and the accused had no ownership
    interest in the common areas of the building. In any event, the court did not
    conclude there was never a reasonable expectation of privacy in an apartment
    hallway. On the contrary, the trial judge found that the police conduct at issue
    could not be considered intrusive and that the police did not take unusual
    advantage of their presence in the hallway: para. 44. It was simply a case in
    which there was no reasonable expectation of privacy concerning smells
    emanating from an apartment into the common hallway of the building.

[38]

The court acknowledged the competing considerations involved,
    at para. 46:

[T]he policy considerations relating to the reasonable
    expectation of privacy of an apartment dweller with respect to different kinds
    of police surveillance in the common hallways may be varied. On the one hand,
    it may be thought that tenants would not wish police officers to have the same
    scope as neighbours and visitors with respect to making ordinary decisions in
    the hallways. On the other hand, it may be quite in the interests of the
    tenants that they have this scope if they are legitimately engaged in
    investigating a complaint, to enter and make observations in the hallway which
    are not intrusive.

[39]

Thomsen
also concerned an investigation pursuant to a complaint, in this case from the
    buildings property manager. The trial judge found that the police had
    permission to enter the building and be in the hallways by virtue of the
    complaint and that the smell of marijuana was noticeable from the elevator
    doors in any event.

[40]

In
    summary, both
Laurin
and
Thomsen
involved single entries into
    the common hallways of apartment buildings in order to walk to a residents
    door in the course of investigating complaints. The police conduct involved in these
    cases was much less intrusive than in this case. And in neither
Laurin
nor
Thomsen
did the resident

own the unit. These were the
    circumstances in which it was concluded that the residents in
Laurin

and
Thomsen
had no reasonable expectation of privacy in the common
    hallways of their buildings.

[41]

In
    my view, these cases are not authority for the appellants categorical
    proposition that residents of multi-unit dwellings do not have a reasonable
    expectation of privacy in the shared common areas of those buildings, and that
    police may conduct non-intrusive surveillance from these locations. A more
    nuanced, contextual approach is required.

[42]

The
    unreasonableness of granting the police virtually unfettered access to multi-unit
    dwellings is illustrated in the testimony of Detective Redmond, elicited in
    cross-examination:

Q. And from your point of view, theres  theres nothing
    preventing him [Detective Hill] from entering into the building for the common
    areas of the building. Theres nothing wrong with that. Right?

A. No, there wasnt.

Q. Okay. Is there any limit on how he enters into those common
    parts of the building?

A. Well, I wouldnt  I wouldnt be happy, if he broke the
    front door, kicked it in and entered. To me, that would be unreasonable.

Q. Okay. And that would be because hed be damaging property.
    Right?

A. Correct. Hes. . .

Q. What if you could climb into a window or something like
    that?

A. Climb into a?

Q. Lets say theres a window that opens and its in the common
    areas and he can open it from the outside and climb in.  Is that okay?

A. I mean, if hes not breaking anything then, why not?

Q. Okay. So the test for whether hes committing an unlawful
    act or not is whether hes breaking something when he enters the place, in your
    mind?

A. Yeah. Whether hes, you know, damaging the property or 
    anything like that. Correct.

[43]

If
    the police are entitled to climb through windows to gain entry to multi-unit
    residential buildings and, once inside, enter common areas such as storage
    rooms, hide in stairwells, and conduct surveillance operations for as long as
    they want on those who live there ­ all without a warrant  on the basis that
    those who live in these buildings have no reasonable expectation of privacy in
    the common areas, then the concept of a reasonable expectation of privacy means
    little.

[44]

It
    is clear that lower courts have rendered decisions rejecting reasonable
    expectation of privacy claims in several cases involving the common areas of
    multi-unit buildings: see e.g.
R. v. Piasentini
, [2000] O.J. No. 3319
    (S.C.J.);
R. v. Simpson
, [2005] O.J. No. 5056 (S.C.J.), revd on other
    grounds 2007 ONCA 793, 231 O.A.C. 19;
R. v. Nguyen
, 2008 ABQB 721, 462
    A.R. 240, affd 2010 ABCA 146, 477 A.R. 395; and
R. v. Verrett
, 2013 ABQB 658, 574 A.R. 212
. But the
    lesson from
Edwards
is that the reasonable expectation of privacy is a
    context-specific concept that is not amenable to categorical answers. A number
    of considerations may be relevant in determining whether an expectation of
    privacy is reasonable in the context of particular multi-unit buildings, albeit
    that none of them is dispositive. The
Edwards
factors must be
    considered as a whole, having regard to the particular circumstances of each
    case.

[45]

A
    resident may have possession or control of the common areas of a building to a
    greater or lesser extent. The size of a building may be a relevant
    consideration in determining reasonable expectations of privacy, as even in the
    context of a locked building protected by a security system it is reasonable to
    assume that the number of people that may be present in the common areas of the
    building will vary in accordance with the size of the building and its
    population. Ownership of the property may be of greater or lesser significance
    for the same reason. A resident of a large building with 200 units may have a
    lesser expectation of privacy than a resident of a small building with 2
    apartments.

[46]

In
    this case, the respondent owned a unit in a relatively small building that Detective
    Redmond testified had only 10 units over four floors. The building was small
    enough that Detective Hill had to hide, otherwise his presence as a stranger in
    the building might have been noteworthy. It was small enough that, from the
    stairwell, Detective Hill could overhear conversations taking place in the
    respondents unit and identify specific sounds connected to activities going on
    in the apartment (such as the unrolling of packing tape). And, save for the
    malfunctioning north stairwell door, the building was always locked to
    non-residents.

[47]

Although
    the respondent did not have absolute control over access to the building, it
    was reasonable for him to expect that the buildings security system would
    operate to exclude strangers, including the police, from entering the common
    areas of his building several times without permission or invitation and
    investigating at their leisure. It was reasonable for him to assume that
    although access to the buildings storage area was not regulated, it was not open
    to the general public. And it was reasonable for him to assume that people
    would not be hiding in stairwells to observe the comings and goings and
    overhear the conversations and actions within his unit.

[48]

In
    any event, the fact that a relatively large number of people may have access to
    a buildings common areas need not operate to eliminate a reasonable
    expectation of privacy. It is one thing to contemplate that neighbours and
    their guests, all of whom may be strangers to another resident, might be present
    in the common areas of a building, but another to say that a resident has no
    reasonable expectation of privacy as a result. An expectation of privacy may be
    attenuated in particular circumstances without being eliminated.

[49]

The
    appellant submits what it describes as a strong policy justification for
    finding that there was no reasonable expectation of privacy. Noting that an
    ever-increasing number of Canadians live in multi-unit buildings, the appellant
    contends that it would be perverse to make the common areas of their homes a
    zone of protection for criminal activity which diminishes their safety and
    quality of life.

[50]

I
    think this overstates things considerably. The reasonable expectation of
    privacy does not establish a zone for the protection of criminal activity in
    the common areas of multi-unit buildings, but neither does it permit the police
    to enter common areas of those buildings at any time and for any reason. The
    reasonable expectation of privacy is a concept which protects those interests
    that courts think ought to be protected having regard to the interests at stake
    in particular circumstances:
R. v. Tessling
, 2004 SCC 67, [2004] 3
    S.C.R. 432, at para. 42. Some limits on police activity are necessary if
    privacy is to be protected.

[51]

There
    is nothing perverse about providing a measure of privacy protection to the
    many Canadians who live in multi-unit dwellings. They, no less than those who
    live in detached homes, are entitled to the protection against unreasonable
    search and seizure the
Charter
provides. In any event, it is not an
    all or nothing choice. A balance must be struck between law enforcement
    objectives and privacy in modern urban life. Cases such as
Laurin

and
Thomsen
demonstrate that the police have considerable ability to investigate
    crime in multi-unit buildings. But they do not have
carte blanche
.

[52]

In
    my view, the trial judges conclusion that the respondent had a reasonable
    expectation of privacy in the common areas of his condominium building is
    correct. It follows that Detective Hill conducted a search when he entered the
    respondents building surreptitiously on December 10, 2010, January 20, 2011
    and January 21, 2011.

[53]

Before
    proceeding to the trial judges s. 24(2) analysis, I analyze whether the trial
    judge erred in finding that the three searches conducted by Detective Hill
    violated the respondents right to be secure against unreasonable search and
    seizure under s. 8 of the
Charter
.

[54]

To
    be constitutionally compliant, a search must be authorized by law; the law
    authorizing the search must be reasonable; and the search must be carried out
    in a reasonable manner:
R. v. Stillman
, [1997] 1 S.C.R. 607, at p.
    634.

[55]

The
    three searches by Detective Hill were conducted without a warrant and so are
prima
    facie
unreasonable:
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 30
.  It is not argued
    that this is a case of exigent circumstances. Nor is this a case in which the
    police were responding to a complaint.

[56]

The
    appellant asserts, but did not establish, that the searches were authorized by
    law because the police had an implied invitation to enter common areas of the
    building to conduct non-intrusive investigative steps. Although it is clear
    that the police, along with members of the public, have an implied licence to
    enter a property and knock on the door, this is for purposes of communicating
    with the resident. In this case, the police did not use their implied licence to
    knock on the respondents door. On the contrary, the police did everything
    possible to conceal their presence in the building.

[57]

In
    my view, the trial judges conclusion that the evidence obtained by the police during
    the three visits to the condominium prior to obtaining a search warrant was
    obtained by trespassing on private property is correct. The evidence of Zoë Gillespie,
    that consent to enter the building would have been granted had the police
    asked, cannot be relied on to provide retrospective license to the police to
    enter the building surreptitiously. Indeed, the action of the police in
    obtaining after-the-fact authorization from the condominium residents to allow
    the police to enter the building in the future suggests that they were aware of
Trespass to Property Act
concerns.

[58]

Even
    assuming that the police entered the building pursuant to an implied licence, the
    appellant would have to establish that the searches were conducted reasonably.
    In my view, it would also fail at this step. Detective Hill did not simply walk
    through the hallways of the building. He took advantage of defects in a
    security system in order to enter the building and conduct surveillance. He hid
    near the respondents unit in an attempt to eavesdrop or witness something. The
    building was so small and the insulation was so poor that he was able to
    overhear conversations and activities in the respondents unit from the
    stairwell.

[59]

In
    my opinion, Detective Hills searches violated the respondents rights under s.
    8 of the
Charter
.

(2)

Did the trial judge err in excluding the evidence pursuant to s. 24(2)
    of the
Charter
?

[60]

Detective
    Redmond acknowledged there was no basis for the judge to issue a search warrant
    to search the respondents unit in the absence of the evidence obtained by
    Detective Hill pursuant to the three searches. Given that the evidence was
    obtained in a manner that infringed the respondents
Charter
rights, the
    threshold question in s. 24(2) is met.

[61]

At the second stage of the s. 24(2) analysis,
Grant
requires the court to consider three things. First, the seriousness of the
Charter
infringement; second, the impact of the breach on the respondents
Charter
rights; and third, societys interest in having the case adjudicated on the
    merits. Ultimately, the question is whether, in all the circumstances,
    admission of the evidence would bring the administration of justice into
    disrepute:
Grant
, at para. 85.

Seriousness of the Breach

[62]

The
    trial judge found that Detectives Hill and Redmond were willfully blind to
    their obligations under the
Trespass to Property Act
. He found that
    they refused to answer questions in cross-examination and described their
    investigatory conduct as egregious and in bad faith. I note that this conclusion
    appears to be at odds with remarks the judge made during sentencing for the
    other offence. In passing sentence for possession of 0.4 grams of cocaine, the
    trial judge said:

I would like to say just one thing to the police officers. I do
    not want the police officer[s] to feel bad because of my decision. Even as a
    judge, I make mistakes. I know the local newspapers said that I said the police
    got it all wrong, well, that was not my intention in sentencing. I have high
    respect for the police officers work in this case.  They tripped up, so, they
    tripped up. No big deal. And next time, they will do better.

[63]

Nevertheless,
    the Supreme Court has made it clear that considerable deference is owed to the
    decisions of trial judges concerning the application of s. 24(2):
R.
    v. Mian
, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. It is not open to
    this court to substitute its views of police conduct, barring clear and
    determinative error. I do not find any such error, so I accept the trial
    judges findings of police misconduct.

[64]

In
    my view, the police misconduct in this case is exacerbated by Detective
    Redmonds failure to inform the judge who issued the warrant about the
    circumstances in which Detective Hill obtained the evidence in the ITO. If the
    police were confident that they had acted in accordance with the law, one would
    have expected to see details of their investigation in the ITO. There were not
    one, not two, but three surreptitious entries into the respondents condominium
    in order to obtain evidence to support the issuance of a warrant. The judge
    should have been informed of these details. The failure to do so is serious. As
    the trial judge noted, there was no apparent urgency to this matter. And, as I
    have noted, the decision to seek permission to enter the common areas of the
    building after-the-fact suggests that the police were not as confident in their
    authority as the appellant argues.

Impact of the Breach

[65]

The
    trial judge found that there was a serious impact on the respondents
Charter
rights, but did not elaborate. In my view, the breach in this case seriously
    undermines the interests protected by s. 8 of the
Charter
. I accept
    that the reasonable expectation of privacy may be attenuated in the context of
    multi-unit buildings, where common areas including hallways, stairwells, and storage
    rooms are shared by the residents, but as I have said, the reasonable
    expectation of privacy does not disappear. Those who live in multi-unit
    dwellings are no less entitled to the protection of their privacy than those
    who live in single-family homes, albeit that the nature and extent of the
    expectations of privacy that they might reasonably hold may differ.

[66]

In
    this case, the police overheard conversations and activities taking place
    within a unit by hiding in a nearby stairwell. The home is entitled to the
    greatest degree of protection from unreasonable search, and in my view, the
    police conduct in this case had a serious impact on the respondents privacy
    rights.

Societys Interest in Having the Case Adjudicated on
    its Merits

[67]

The
    trial judge considered both the impact of admitting the evidence on the repute
    of the administration of justice and the impact of failing to admit the
    evidence. He concluded that the long-term impact of admitting evidence obtained
    in the search of a dwelling house with an improperly obtained warrant would
    bring the administration of justice into disrepute.

[68]

The
    trial judges s. 24(2) analysis is brief, but it is entitled to deference from
    this court. I see no basis to interfere with his conclusion.

DISPOSITION

[69]

For
    these reasons, I would dismiss the appeal.

Released: July 7, 2015 GH

Grant
    Huscroft J.A.

I
    agree Janet Simmons J.A.

I
    agree David Brown J.A.


