



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Roy, 2020 ONCA 18

DATE: 20200113

DOCKET: C65127

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Greg Roy

Appellant

Frank Addario and James Foy, for the appellant

J. Sandy Tse, for the respondent

Heard: October 23, 2019

On appeal from the conviction entered on December 11,
    2017 by Justice Laurie Lacelle of the Superior Court of Justice, with reasons
    for ruling on pretrial application reported at 2017 ONSC 6020; 397 C.R.R. (2d)
    139.

REASONS FOR DECISION

[1]

Police suspected drugs were being produced at a rural residential
    property. They set up static surveillance from two locations: a neighbouring
    farmers field and a ditch across the road from the front of the property. On
    two occasions, the police heard gunshots. On one occasion, police saw the
    appellant holding a rifle, and on the other they observed a woman who they
    believed to be the appellants spouse firing a rifle from behind the residence.

[2]

The police obtained a warrant to search the house for weapons. Finding
    marijuana plants and psilocybin mushrooms, they suspended their search to
    obtain an additional warrant under the
Controlled Drugs and Substances Act
,

S.C. 1996, c. 19 (the 
CDSA
), to search for drugs.

[3]

Ultimately, the police seized 52 firearms, 28 kg of psilocybin
    mushrooms, and over 800 marijuana plants. The appellant was charged with
    various firearms and narcotics offences. He brought a pretrial application to
    exclude the evidence, arguing: (1) the surveillance was a violation of his
    right to be secure against unreasonable search or seizure under s. 8 of the
Charter
;
    (2) the first search warrant was invalid due to misrepresentations, the
    searches of the property were consequently illegal and the second warrant could
    not have issued; and (3) the evidence obtained as result of the searches should
    be excluded under s. 24(2) of the
Charter
. The trial judge dismissed
    the application and the appellant was convicted on the basis of an agreed
    statement of facts. He was sentenced to five years imprisonment.

[4]

The appellant largely renewed the arguments advanced below, and argued
    that the trial judge erred in the s. 8 analysis and in not excluding the
    evidence. An appeal against sentence was abandoned.

[5]

For the reasons that follow, the appeal is dismissed.

Issues

[6]

On appeal, the appellant raises the following issues:

1.

The
    appellants s. 8 rights against unreasonable search were violated by the police
    surveillance;

2.

The
    initial search warrant was not validly issued;

3.

The
    police surveillance was an abuse of process; and

4.

The
    evidence obtained ought to have been excluded under s. 24(2) of the
Charter
.

Analysis

A.

Section 8 and the police surveillance

[7]

Section 8 of the
Charter
states that every person has the
    right to be secure against unreasonable search or seizure. Police activity
    does not constitute a search, for the purposes of the s. 8 guarantee, unless
    that activity interferes with a reasonable expectation of privacy. Neither will
    it offend s. 8 if the search is authorized by a reasonable law and carried out
    in a reasonable manner:
R. v. Tessling,
2004 SCC 67, [2004] 3 S.C.R.
    432, at para. 18.

[8]

R. v. Edwards
, [1996] 1 S.C.R. 128, catalogues various lines of
    inquiry that can guide the s. 8 determination. These need to be tailored to the
    circumstances of the particular case. The application judge followed
R. v.
    Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, in identifying four salient
    inquiries: (1) an examination of the subject matter of the alleged search; (2)
    a determination of whether the claimant had a direct interest in the subject
    matter; (3) an inquiry into whether the claimant had a subjective expectation of
    privacy in the subject matter; and (4) whether the subjective expectation was
    objectively reasonable:
Spencer
, at

para. 18.

[9]

The application judge concluded that the subject matter of the search
    was what could be seen and heard on the [appellants] property from his
    neighbours. Contrary to the appellants submission, the application judge did
    not make the error of characterizing the subject matter of the search as the
    appellants property itself.  The reasons are clear, when read as a whole, that
    the purpose of the surveillance was to observe the appellant outside his house
    to establish whether he was engaged in the production of controlled substances.
    The application judge readily concluded that the appellant had a privacy
    interest in what happened on his lands, and that he had a subjective
    expectation of privacy. The only matter in dispute was whether his expectation
    of privacy was reasonable.

Objective reasonableness
    of expectation of privacy

[10]

The application judge concluded that the appellant had no reasonable
    expectation of privacy in the circumstances. The appellant argues that the
    application judge erred in her application of the relevant factors. As
    explained below, we disagree.

[11]

In assessing whether the expectation of privacy was reasonable, the appellant
    submits that the following factors from
Tessling
are applicable: a)
    the place where the alleged search occurred; b) whether the subject matter was
    in public view; c) whether the police technique was intrusive in relation to
    the privacy interest; and d) whether the surveillance technique exposed any
    intimate details of the respondents lifestyle, or information of a
    biographical nature. We consider each of these in turn.

a)

The place where the search
    occurred

[12]

The appellant argues that the application judge erred by focussing on
    the fact that the police were located on lands that were not under his control:
    the neighbours field and the ditch across the road.
On the
    evidence before the application judge, it was unclear whether the ditch was
    located on public or private lands. Because the application judge doubted that
    the appellant could advance a s. 8 claim with respect to observations made
    either from public land or private land that (unlike the farmers field) the
    appellant had no authority to enter or use, the application judge chose to put
    the appellants case at its highest, and assume for the purposes of analysis
    that all the observations supporting the grounds for the firearms warrant were
    made from [the neighbouring farmers] parcel of land.

[13]

We agree that little if anything turned, on the facts
    before the application judge, on whether the police made their observations
    from public land or private land. For the purposes of assessing whether there
    was a reasonable expectation of privacy, what is salient is what the police
    were viewing, not whether they were standing on public land or a neighbouring
    farmers field. The fact that the appellant lacked control over the lands where
    the police were standing was not highly probative of the question whether he
    had an expectation of privacy in his conduct in the open areas outside his
    house.

b)

Whether the subject matter was
    in public view

[14]

The appellant argues that the subject matter of the search was
    information about the appellant (his activities) that was not exposed to the
    public view. He relies on
R. v. White
, 2015 ONCA 508, 325 C.C.C. (3d)
    171, in which this court held that residents of a small residential condominium
    building had a reasonable expectation that police would not trespass into the
    common areas of the building (stairwells, hallways) and listen through poorly
    insulated walls to people conversing in their apartments.

[15]

White
is distinguishable from the present case. There is a
    significant difference between the nature of the police surveillance in
White
and the surveillance here. In
White
, police exploited a faulty door
    lock to enter a small, multi-unit residential building. They set up
    surveillance in a hallway and stairwell steps from the door to the appellants
    apartment. From there they could, unaided, overhear conversations on the other
    side of the poorly insulated walls.

[16]

In this case, the police were outdoors and a considerable distance from
    the appellants house. The ditch location was on the other side of a public
    road. Their location in the farmers field was approximately 200 metres away.
    They could not overhear conversations. Even with binoculars, they could not see
    into the house beyond the silhouette of figures immediately in front of a
    window. They were not able to discern any activity that would have been taking
    place inside of the house. For the purposes of this stage of the analysis,
    nothing turns on the fact that the police were trespassing on a neighbours
    property. What is salient from
White
is not that the police were
    trespassing on common property, but their proximity to the residential
    apartment and the access it gave them to private conversations.

[17]

Furthermore, a
s the Crown points out, even if the ditch
    itself was located on private property, which is unclear on the record,
    everything that could be seen and heard from the ditch could also be seen and
    heard from the road in front of it, which was indisputably public land.

[18]

What gave rise to the search warrant was the sound of
    the discharge of firearms  a sound which could scarcely have been concealed 
    together with the observation of persons either firing a rifle or subsequently
    holding a rifle.
What the police were able to observe from the lands
    surrounding the house was observable to anyone who happened to be in the area,
    either on the road or on the neighbours open field.

c)

Whether the surveillance
    technique was intrusive in relation to the privacy interest

[19]

The surveillance technique was audio and visual observation of anything
    happening outside of the appellants house and out-buildings. As the

application
    judge found, the information that the police were able to obtain about the appellant
    was at the lower end of what is protected by informational privacy: it could
    yield no information about the [appellants] communications, core biographical
    data, activity taking place within his home, or other highly personal
    information.

d)   Whether
    the surveillance technique disclosed personal information

[20]

What triggered the application for the first warrant was the sound of
    the discharge of a firearm

something that could
    scarcely be concealed

coupled with visual
    observations of persons outdoors either firing a rifle or holding a rifle.
    These were bare observations of physical acts. There was no personal
    information obtained.

Conclusion
    on objective reasonableness of expectation of privacy

[21]

The application judge concluded that the expectation of privacy was not
    reasonable in all the circumstances. Her analysis of reasonable expectation of
    privacy was sound. Although the appellant may have believed he would not be
    observed by anyone because there would not ordinarily be anyone outside of his
    rural home, the ultimate question is whether anyone owed him an obligation not
    to observe him  from a distance of up to 140 metres  fire a rifle from his
    porch. The application judge made no error in canvassing the four
Tessling
factors and coming to the conclusion that she did.

B.

Failure to make full and frank disclosure in the ITO

[22]

As a second ground of appeal, the appellant argues that the initial
    search warrant was not validly issued because the police failed to make full
    and frank disclosure in the ITO of illegal investigative conduct: the fact that
    they trespassed in entering the neighbouring farmers field to set up
    surveillance.

[23]

The appellant argues that the application judge made two errors in
    finding that the search warrant was validly issued. First, she accepted that it
    was relevant to the issuance of the warrant that the police had acted in good
    faith by obtaining legal advice that the trespass was authorized by s. 25.1 of
    the
Criminal Code
. Second, she concluded that even if the reliance on
    the erroneous legal advice had been disclosed, the issuing justice would have
    issued the warrant anyway.

[24]

We do not agree that the application judge erred in either respect. The
    fact that the police had trespassed ought to have been disclosed. Nevertheless,
    failure to disclose was not a material omission. The misconduct was neither
    intentional nor terribly serious. The application judge made no error in
    concluding that the search warrant would have issued in any event had the
    affiant attested that some of the observations had been made from a
    neighbouring property, and the officers believed, on the basis of legal advice,
    they were entitled to be there.

C.

Abuse of process

[25]

Similarly, the appellant argues that the trespass  and the reliance by
    the police on s. 25.1 of the
Criminal Code
 constitutes an abuse of
    process. The appellant contends that the proceedings should therefore be
    stayed.

[26]

Again, there is no dispute that the police trespassed and that they
    acted on erroneous legal advice in so doing. A stay of proceedings, however,
    does not automatically follow. As the Supreme Court noted in
R. v. Campbell
,
    [1999] 1 S.C.R. 565, at para. 47, [a] police force that chooses to operate
    outside the law is not the same thing as a police force that made an honest
    mistake on the basis of erroneous advice.

[27]

The trespass, it bears repeating, was not into the appellants home, or
    even onto his lands, but onto an adjacent farmers field. There is nothing
    about such a trespass, consequent to faulty legal advice, that would shock a
    communitys conscience or sense of fair play.

[28]

The application judge made no error in this respect.

D.

Section 24(2)

[29]

Although we do not accede to the appellants submission that his rights
    against unreasonable search or seizure were violated by the police
    surveillance, the Crown concedes that application judge correctly found two
    other breaches of s. 8 of the
Charter
. These were delayed reporting to
    a justice and the service of a defective warrant on the day of the search. The
    application judge characterized these errors as minor, technical, an
    oversight, and the product of inattention. The appellant concedes that these
    breaches fall at the lower end of
Charter
breaches.

[30]

The application judge conducted the appropriate s. 24(2) analysis as set
    out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. Deference is
    owed to that analysis, and we find no basis to justify engaging in a
    rebalancing.

DISPOSITION

[31]

The appeal is dismissed.

Janet
    Simmons J.A.

David
    Watt J.A.

B.W. Miller J.A.


