This week’s top three summaries: R v Ames, 2022 ONSC 5039: #possession and stmt, R v JC, 2022 ONSC 4991: res judicata, and R v Biring, 2022 ONSC 2678: defence Vukelich.

This week's top case deals with possession an issue that arises most often in drug cases. For great general reference on principles of law often discussed in drug cases, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

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A practical guide to the different types of drug offences, including possession, trafficking, importing, exporting, and production offences, as well as conspiracy and criminal organization offences in the context of drug distribution offences.

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R v Ames, 2022 ONSC 5039

[September 2, 2022] Possession and Circumstantial Evidence: "If you find something, it's all mine." [Justice Doi]

AUTHOR’S NOTE: The accused in this case most definitely did not get the memo from defence counsel to maintain his silence. After unsuccessfully trying to escape through a basement window of a raided residence he was being walked out of the house and told police "If you find something, it's all mine." Police found a handgun wedged in a sofa under a jacket in the basement and drugs elsewhere. This case stands as a useful factual scenario for the application of the circumstantial evidence test to possession even where there is a statement from the accused. 

OVERVIEW

[1] In the early morning of October 2, 2018, police executed a drug warrant at a residential home in Brampton. Upon entering the home, police found Mr. Ames in the basement trying to leave through a window. Police searched the basement and found a loaded .45 calibre handgun that was covered with a black jacket and wedged between a sofa armrest and cushion.

[2] The sole issue in this case is whether Mr. Ames was in possession of the handgun.

[4] At trial, the following were agreed facts:

  1. The gun seized was a Glock .45 calibre;
  2. The gun was loaded with live ammunition;
  3. The gun was carelessly stored;
  4. Mr. Ames was on a weapons prohibition on October 2, 2018;
  5. Mr. Ames did not have a firearms license in 2018;
  6. S.P. and D.G. were charged with the same offences as Mr. Ames, save for the weapons prohibition charge, and C.W. was charged with the exact same charges as Mr. Ames;
  7. S.P., D.G. and C.W. all provided statutory declarations saying that they did not know about the presence of the gun at the subject residence nor have care or control of the gun;
  8. S.P., D.G. and C.W. all had their charges withdrawn prior to trial dates being set;
  9. At the time of Mr. Ames’ arrest on October 2, 2018, there was a warrant out for his arrest; and
  10. Mr. Ames never resided at the home where the subject gun was found.

BACKGROUND

[6] In October 2018, the Peel Regional Police Street Crime Unit was investigating two women who were believed to be trafficking drugs. As part of the investigation, police obtained a search warrant under the Controlled Drugs and Substances Act, SC 1996, c. 19, to search a vehicle and two addresses. One address was a Brampton home where S.P. resided with other family members.

[7] In the early morning of October 2, 2018, police conducted surveillance of the Brampton home before executing the search warrant. During the surveillance, police observed a vehicle arrive at the home. A person, believed to be Mr. Ames, left the vehicle and entered the home.

[8] Mr. Ames was not a target of the investigation.

[10] As police entered the basement, S.P. ran upstairs to join her daughter who was a young child at the time. In the basement, police found Mr. Ames apparently trying to exit the home by crawling through a basement window that had security bars which blocked his exit. Police also found two other persons, C.W. and D.G., in the basement....

[11] While police were bringing Mr. Ames from the basement to the secure location upstairs, he blurted out, “if you find something it’s all mine.”

[12] During their search of the basement, police found a .45 calibre Glock handgun loaded with six (6) bullets in the magazine. The handgun was covered by a black jacket and wedged between the left armrest and a seat cushion of a sofa located in a social area to the partly-finished basement. Police also found cocaine residue, cannabis resin, and edible marijuana on or by a coffee table and the sofa in the basement. In addition, police found several cell phones, two provincial health cards for C.W. and another person, J.M., a loyalty program card for an unknown person, and a purse with some personal items in the area of the sofa, none of which belonged to Mr. Ames.

[13]  No fingerprints or DNA were found on the handgun.

[14]  Police did not determine who owned the black jacket or the drugs found in the basement.

[16] At the time, Mr. Ames did not have a firearms licence and was the subject of an outstanding arrest warrant and weapons prohibition.

[19]  S.P. and D.G. were charged with the same offences as Mr. Ames, save for the weapons prohibition charge, and C.W. was charged with the same offences as Mr. Ames. After S.P., D.G. and C.W. gave statutory declarations attesting to their lack of knowledge of the presence of the handgun and their lack of care or control of the handgun, all of their charges were withdrawn.

[20] At the conclusion of the Crown's case, the defence brought a motion for a directed verdict of acquittal for which I reserved my decision. I then heard closing submissions. Mr. Ames called no evidence at trial.

LEGAL PRINCIPLES

[23] Subsection 4(3) of the Criminal Code sets out three (3) types of illicit possession, namely personal, constructive and joint possession: R. v. Morelli, 2010 SCC 8 at para 15. The Crown’s case is solely based on constructive possession which is the only relevant form of possession that arises in this matter.

[25] In R. v. Choudhury, 2021 ONCA 560 at para 19, Jamal J.A., as he then was, summarized the analysis for constructive possession in a case that was prosecuted on circumstantial evidence:

Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47;

Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47;

Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 2002 CanLII 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18; and

When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61. [Emphasis added]

[27] The standard of proof beyond a reasonable doubt is not achieved when the evidentiary record leads to reasonable inferences other than guilt: Villaroman at para 35. A reasonable doubt is, “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: Villaroman at para 36; citing R. v. Lifchus, [1997] 3 SCR 320 at para 30.

ANALYSIS

[32] The evidence against Mr. Ames is entirely circumstantial. Mr. Ames was never seen in actual possession of the handgun that was found wedged in the basement sofa under a jacket that concealed it from plain view. The owner of the jacket used to cover the handgun is unknown. The sofa was in an area of the basement some distance from the window that Mr. Ames tried to crawl through when police entered the residence. In addition, there is no DNA or fingerprint evidence to link the handgun to Mr. Ames.

[33] ...By blurting, “[i]f you find something it’s all mine,” the Crown submits that Mr. Ames clearly shared his comment with police to shield others from criminal liability by referring to the illegal handgun and drugs that were found in the basement as being in his possession. Although the drugs were in plain sight, the firearm was hidden in the sofa under the black jacket that, in the Crown’s submission, explains Mr. Ames’ initial “if you find something” remark by implying the need for some effort (i.e., by lifting the jacket) to find what he was alluding to. Claiming that Mr. Ames knew of the handgun and the drugs, the Crown submits that he desperately tried to flee the home by trying unsuccessfully to crawl through the barred basement window to evade arrest and criminal liability. Taking this all into account together with the statutory declarations from the others, the Crown submits that the court may find Mr. Ames guilty of the charges by making common sense inferences that he knew and maintained control of the hidden handgun.

[35] Taking the Crown’s case at its highest, I find that the circumstantial evidence is capable of supporting an inference that Mr. Ames is guilty beyond a reasonable doubt on the totality of the evidence: Jackson at para 7. Having blurted to police, “[i]f you find something it’s all mine,” a reasonable inference may be drawn that Mr. Ames intended to take responsibility for possessing the handgun found in the basement sofa. By considering only those reasonable inferences which favour the Crown, I am satisfied that the evidence reasonably allows for inferences to be drawn that Mr. Ames knew about the handgun, that he knowingly hid the handgun in the sofa under the jacket, and that he intended to have the handgun for his use or benefit: Sazant at para 18. As a result, I find that a trier of fact can reasonably infer that Mr. Ames had possession of the handgun. Accordingly, the motion for a directed verdict of acquittal is dismissed.

[36] Although the various inferences and factors cited by the Crown may arguably support a circumstantial case against Mr. Ames, I do not find that the only rational inference to draw is that he knew of the handgun hidden in the sofa. As set out earlier, there is no direct evidence to connect Mr. Ames to the handgun. In my view, it is possible that Mr. Ames blurted his utterance to police intending to only take responsibility for the cocaine and/or cannabis in the basement without necessarily having knowledge of the handgun hidden in the sofa under the black jacket. There is no evidence to show who owned the jacket or placed it over the handgun to cover or conceal it. The mere fact that Mr. Ames was in the basement where the handgun was found does not create a presumption of possession: Choudhury at para 19; Lights at para 50. Moreover, the sofa in which the handgun was hidden was in a different part of the basement from where police found Mr. Ames trying to exit the residence through a window. Importantly, Mr. Ames had an outstanding arrest warrant that may well explain his desperate attempt to flee the home through the window to avoid police and the prospect of being arrested. In addition, I give very little weight to the fact that S.P., D.G. and C.W. each gave a self-serving statutory declaration denying any knowledge or control of the handgun found in the basement. Taking this all into account, I find that the circumstantial evidence does not support an inference of guilt beyond a reasonable doubt.

[37] Based on the foregoing, I am left with reasonable doubt of Mr. Ames’ knowledge and control of the handgun. Accordingly, Mr. Ames is acquitted of all the charges.

R v JC, 2022 ONSC 4991

[September 1, 2022] Res Judicata [Justice Schreck]

AUTHOR’S NOTE: Res Judicata is not often litigated. Although in this case, the defence sought to lead evidence about what happened in a prior trial from which there was no appeal on the issue, the result is helpful primarily for defence lawyers dealing with re-trials. The case is a useful review of the principles that apply to this doctrine.

[1] J.C. is charged with sexual assault and extortion. At his trial, he wishes to adduce certain evidence of sexual activity on the part of the complainant other than that which forms the subject matter of the charge and has accordingly brought an application pursuant to ss. 276, 278.93 and 278.94 of the Criminal Code.[1] This is an unusual s. 276 application which raises issues relating to the doctrine of issue estoppel and the law surrounding the admissibility of evidence of discreditable conduct.

[2] This will be J.C.’s second trial on these charges. He was initially convicted of them following an earlier judge-alone trial, but was acquitted of a second sexual assault charge as well as a charge of voyeurism. The convictions were set aside following a successful appeal. There was no appeal of the acquittals.

[3] At the first trial, the complainant testified that J.C. made a sexual video of her and that she did not consent to the sexual activity in the video or the making of it. She testified that the applicant then threatened to post the video on the internet unless she had sex with him. Because of the threat, she had sex with him on several occasions and was also coerced by him to have sex with his friends. The trial judge at the first trial was not satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity in the video, or that it was made surreptitiously, and accordingly acquitted J.C. of voyeurism and one count of sexual assault. The trial judge was satisfied that J.C. threatened to post the video unless the complainant had sex with him and accordingly convicted him of extortion and sexual assault. As noted, those convictions were set aside on appeal.

[4] J.C. applies to have three categories of evidence admitted. First, despite J.C.’s acquittal, both he and the Crown wish to have the complainant testify that the sexual activity in the video was not consensual. They both agree that the jury should be told of the acquittal at the first trial, and J.C. goes further and submits that the jury should be instructed that it is bound to conclude that the complainant’s evidence that the sexual activity was not consensual was false. Second, J.C. wishes to adduce evidence of earlier consensual sexual encounters between him and the complainant in support of a defence of honest but mistaken belief in communicated consent. Third, he wishes to cross-examine the complainant on her allegation that she was coerced into having sex with his friends. Although no charges are based on that allegation, he wishes to expose inconsistencies in the complainant’s evidence.

[5] I have concluded as follows:

(1) The complainant’s evidence about non-consensual activity during the making of the video is inadmissible by virtue of both the doctrine of issue estoppel and because it is evidence of discreditable conduct whose prejudicial effect outweighs its probative value. As a result, the s. 276 issue does not arise.

(2) The evidence of earlier consensual sexual encounters between J.C. and the complainant is of marginal relevance and does not meet the requirements of s. 276.

(3) The complainant’s evidence with respect to sexual activity with J.C.’s friends is relevant to her credibility and admissible.

The following reasons explain these conclusions.

II. ANALYSIS

B. The Complainant’s Evidence About the Making of the Video

(ii) The Doctrine of Issue Estoppel

(a) The Doctrine

[30] The doctrine of issue estoppel arises out of the broader doctrine of res judicata (literally “a matter decided”) and provides that a factual issue that is decided in one proceeding must be accepted and cannot be relitigated in another proceeding unless the earlier decision is set aside on appeal. The purpose of the doctrine is to ensure fairness to the accused, avoid inconsistent verdicts and maintain the principle of finality: R. v. Mahalingam, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 2, 38. In the criminal context, there are three requirements that must be met for the doctrine to apply.

[31] First, the issue must have been decided in favour of the accused in the prior proceeding, that is, the finding must be logically necessary to the verdict of acquittal: Mahalingam, at para. 53; R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396, at paras. 7-8. This is a factual issue which the defence bears the onus of establishing: Mahalingam, at paras. 26, 52. Whether the issue was resolved in the accused’s favour on the basis of a positive factual finding or a reasonable doubt does not matter for the purposes of the doctrine: Mahalingam, at paras. 22-23, 28; R. v. Grdic, [1985] S.C.R. 810, at p. 825.

[32] Second, the determination of the issue must be final. Issues determined at trial are final, unless set aside on appeal: Mahalingam, at para. 55.

[33] Third, there must be mutuality, that is, the parties must be the same in both the earlier and the subsequent proceedings: Mahalingam, at para. 56.

[34] The doctrine of issue estoppel clearly applies in this case. The issue of whether the complainant consented to sexual activity with the applicant at the time the video was made was clearly decided in his favour at the first trial. The applicant’s identity was not in issue, nor was there any issue that there had been sexual contact between him and the complainant (which the video conclusively demonstrated). The only issue at the first trial was whether the complainant had consented. The first trial judge was not satisfied beyond a reasonable doubt that she had not.

[35] The other two requirements for the application of the doctrine are also met. As there was no appeal of the acquittal, the first trial judge’s findings are final, and the parties to both proceedings, J.C. and the Crown, are the same.

[37] In my view, there are several reasons why despite the positions of the parties, the Crown should not be permitted to lead evidence that the complainant did not consent to the sexual activity in the video.

(b) No Residual Discretion

[38] First, there is binding authority to the effect that once the requirements for the application of the doctrine are met, it must be applied. The court has no residual discretion to decline to apply the doctrine: R. v. Thompson, 2014 ONCA 43, 305 C.C.C. (3d) 218, at paras. 81-80; Regina v. Wright, [1965] O.R. 337 (C.A.), at pp. 340-341.

(c) The Doctrine is a Shield, Not a Sword

[39] Second, the applicant is seeking to use the doctrine of issue estoppel as a sword rather than a shield: Almrei v. Canada (Attorney General), 2011 ONSC 1719, 233 C.R.R. (2d) 217, at para. 6; Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. (1987), 47 D.L.R. (4th) 431 (B.C.S.C.), at para. 20. That is not the intended purpose of the doctrine. It exists to protect the accused from having to defend himself in relation to issues that have already been decided in his favour, not to give him an advantage in subsequent proceedings.

(d) Can the Doctrine Be Waived?

[40] It could be argued that the applicant should be entitled to waive the protection afforded by the doctrine. However, it not clear that this is what the applicant wishes to do. At most, he seeks only a partial waiver in that he wants the protection of the doctrine insofar as it precludes the jury from deciding the issue against him, but not insofar as it would prevent the Crown from leading the evidence.

[41] In any event, protection of the accused is only one of the purposes of issue estoppel. It has other purposes that go beyond the interests of the accused. As explained in Mahalingam, at para. 45, issue estoppel protects “the integrity and coherence of the justice system as a whole.” This protection is not the applicant’s to waive.

[42] The doctrine also protects “the related institutional values of judicial finality and economy,” which are “essential to preserving confidence in the justice system”: Mahalingam, at para. 46. This is also something which the applicant cannot waive.

(e) The Doctrine as Evidence

[43] The applicant’s proposal involves treating the result at the first trial as a form of evidence akin to an admission that is binding on the jury. There is no precedent for this. Juries are routinely instructed that the evidence at a trial consists only of (1) the testimony of the witnesses; (2) exhibits; and (3) admissions: Hon. D. Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 274-275 (“Final 17: Evidence Defined”). With respect to the first two, it is up to the jury whether to accept or reject the evidence. With respect to the third category, admissions, jurors are usually instructed that they “must take what [counsel] have agreed on as facts in this case”: Watt, at p. 275. However, it has been suggested that this instruction may overstate the legal effect of an admission because it is in fact open to the jury to reject it: Hon. S.C. Hill, D.M. Tanovich and L.P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2022), at §25.9. If admissions are not binding on a jury, then it is difficult to see how findings by another trier of fact at another trial could be.

(iv) How the Evidence Can be Used

[55] Based on the foregoing, the complainant’s testimony that the sexual activity in the video was not consensual is inadmissible. As a result, the issue of whether it meets the requirements of s. 276 of the Code does not arise.

[56] The jury will have to learn of the existence of the video. In my view, this could be accomplished through an ASF outlining the existence of the video and a general description of its contents. The jurors could be instructed that there is no evidence as to the provenance of the video and that they should not speculate in this regard.

[57] The Crown submits that it is necessary for the jury to view the video. Counsel for the applicant takes the position that it is not necessary, and counsel for the complainant vigorously objects to it being played. In my view, allowing the jury to see the video would be deeply injurious to the complainant’s privacy and dignity and is unnecessary for a resolution of the central factual issue which must be determined in relation to it, which is whether the applicant threatened to post it on the internet. As a result, the Crown may not play the video at trial.

D. The Complainant’s Evidence About Sexual Activity With the Applicant’s Friends

(i) Overview

[68] In her statement to the police, the complainant stated that the applicant coerced her into having sex with his friends by threatening to post the video if she did not. She also testified about this at the first trial without objection from the defence on the basis that it was relevant to the extortion charge. The applicant denied telling the complainant to have sex with his friends and any knowledge that she had done so. The first trial judge made no findings with respect to this evidence: J.C. (S.C.J.), at para. 113, FN 9.

[69] The Crown does not intend to adduce this evidence at the retrial. However, counsel for the applicant wishes to cross-examine the complainant with respect to it in order to expose inconsistencies between her testimony and her statement to the police. The applicant takes the position that there were significant inconsistencies with respect to the number of friends she had sex with and her descriptions of them. The Crown does not object to this evidence being adduced for this purpose. Counsel for the complainant submits that the evidence is inadmissible.

(ii) Applicability of Section 276

[70] The complainant’s evidence about having sex with the applicant’s friends relates to the extortion charge. While extortion is not an offence enumerated in s. 276(1) of the Criminal Code, given the complainant’s evidence that she was coerced through extortion into having sex with the applicant’s friends, it is clear that sexual assault “has some connection to the offence charged” and the s. 276 regime therefore applies: Barton, at para. 76.

(iii) Relevance to Credibility

[68] In her statement to the police, the complainant stated that the applicant coerced her into having sex with his friends by threatening to post the video if she did not. She also testified about this at the first trial without objection from the defence on the basis that it was relevant to the extortion charge. The applicant denied telling the complainant to have sex with his friends and any knowledge that she had done so. The first trial judge made no findings with respect to this evidence: J.C. (S.C.J.), at para. 113, FN 9.

[69] The Crown does not intend to adduce this evidence at the retrial. However, counsel for the applicant wishes to cross-examine the complainant with respect to it in order to expose inconsistencies between her testimony and her statement to the police. The applicant takes the position that there were significant inconsistencies with respect to the number of friends she had sex with and her descriptions of them. The Crown does not object to this evidence being adduced for this purpose. Counsel for the complainant submits that the evidence is inadmissible.

(ii) Applicability of Section 276

[70] The complainant’s evidence about having sex with the applicant’s friends relates to the extortion charge. While extortion is not an offence enumerated in s. 276(1) of the Criminal Code, given the complainant’s evidence that she was coerced through extortion into having sex with the applicant’s friends, it is clear that sexual assault “has some connection to the offence charged” and the s. 276 regime therefore applies: Barton, at para. 76.

(iii) Relevance to Credibility

[71] In my view, this evidence is admissible. The complainant’s testimony about having sex with the applicant’s friends in inextricably linked to her testimony in support of the extortion charge in that she states that he threatened to post the video in order to coerce her to have sex with not only him, but his friends as well.

[72] The apparent inconsistences in the complainant’s account are directly relevant to her credibility: Barton, at para. 65; R. v. Crosby, [1995] 2 S.C.R. 912, at paras. 9-11. If the inconsistencies lead the jury to reject the complainant’s evidence about having sex with the applicant’s friends, this may well impact on her credibility with respect to being coerced to have sex with the applicant.

[73] This case turns entirely on an assessment of the credibility of the applicant and the complainant. There were no other witnesses at the first trial, and there was no independent evidence confirming or refuting the testimony of either of them. In these circumstances, evidence that relates to the complainant’s credibility is critical to the applicant’s ability to make full answer and defence.

[74] Given the complainant’s evidence that her sexual activity with the applicant’s friends was coerced, the danger that the jury will infer consent to sex with the applicant from consent on prior occasions (the first “twin myth”) is attenuated, as is the danger that the jury will draw conclusions about her credibility based solely on the fact that she engaged in sexual activity with others (the second “twin myth”). Any danger of improper reasoning that does exist can be addressed through a limiting instruction.

(iv) Conclusion

III. DISPOSITION

[76] The application to admit the complainant’s evidence about sexual activity with the applicant’s friends is granted. The remainder of the application is dismissed.

R v Biring, 2021 BCSC 2678

[December 3, 2021] Charter s.8 - Consent of Others to Seize Video & Defence Vukelich [Justice Schultes]

AUTHOR’S NOTE: In this case, the Crown tried to respond to the s.8 Charter challenge by disputing clearly established Supreme Court authorities that found that a third party could not waive the accused's reasonable expectation of privacy vis a vis the state. They even sought to use a pre-Marakah case to do it. The Defence responded with a Vukelich motion and won. The case provides an excellent way for defence counsel to prevent the misuse of the resources of the court by Crown counsel unconcerned with binding precedents or on a mission to subvert them.

INTRODUCTION

[1] The accused are charged with manslaughter. As part of its case against them, the Crown wishes to rely on surveillance video, taken around the time of the fatal incident, of them entering and leaving the areas surrounding the basement suite in which they were living at that time.

[2] The video was recorded by a security system that was maintained by the owners of the home in which the suite was located. The investigators viewed and downloaded the relevant recordings without first obtaining a search warrant. In a previous ruling, I found that the accused had a reasonable expectation of privacy in the information about their actions that was recorded by the security system, and thus had standing to argue a breach of their s. 8 Charter right.

[3] Rather than conceding that a s. 8 breach had occurred based on the warrantless search and the presumption of unreasonableness that arises from it, and proceeding directly to the question of the applicability of s. 24(2), the Crown seeks to justify the search on the basis that it was authorized by law, that the law itself was reasonable, and that the search was carried out in a reasonable manner, as set out in R. v. Collins, [1987] 1 S.C.R. 265 at para. 23.

[4] The Crown rests its position on two bases: first, that the homeowners were capable of providing consent to the police for the search; and second, that I should find that there is an ancillary police power to obtain such video surveillance evidence from private homeowners in circumstances where they do not yet have the grounds to obtain a warrant.

[5] In response, the defence has made the present application, sometimes referred to as a Vukelich application from the case that first identified its applicability2, to preclude the Crown from embarking on an evidentiary hearing to demonstrate the reasonableness of this search.

Governing Principles
[6] The test to be applied in such an application was helpfully summarized in R. v. Haevischer, 2021 BCCA 34, beginning at para. 372:

[372] The “Vukelich application”, as it has come to be known, allows a party to apply to the court to dismiss, on a summary basis, an application for an evidentiary hearing. This process is grounded in the fact there is no automatic right to a voir dire in a criminal trial. Rather, the appropriate procedure to follow in a particular case is a matter to be decided by the trial judge in accordance with their trial management powers.

[373] Vukelich described the applicable threshold as being a question of whether a full hearing would “assist the proper trial of the real issues” or whether the grounds put forward in the application disclose any basis for the judge to issue the remedy sought: at para. 26. More recently, the Supreme Court of Canada has articulated this standard as requiring an application to have a “reasonable prospect” of success or of assisting in determining the issues before the court: R. v. Pires . . . R. v. Cody [citations omitted] . . . This assessment is based on an assumption that the allegations advanced in the proposed application could be proven: R. v. Frederickson, [citation omitted].

...

[403] On a Vukelich application, the judge should assume the facts the applicant seeks to prove as true and assess whether those facts, assuming they are ultimately proven, are legally capable of supporting the remedy sought. If the remedy could not flow from the facts alleged, the judge may exercise their discretion not to hold an evidentiary hearing . . .

[Emphasis in original]

[7] The Court went on to warn against inadvertently deciding the actual issue in the course of deciding whether to proceed to an evidentiary hearing. There was a further caution:

[406] The Vukelich hearing was introduced as an expedient process designed to prevent undue delay or potential abuse arising from frivolous applications for voir dires in circumstances where the applicant is unable to demonstrate that the results of the hearing could affect the admissibility of the impugned evidence at trial . . . Similarly, Vukelich applications have been used to screen other applications that have no reasonable prospect of success, including applications for a stay of proceedings based on an alleged abuse of process . . .

[407] Vukelich applications were “never intended as a tool by which to prevent legitimate investigation of alleged Charter breaches” or to be a “protracted pre-hearing examination of the minutiae of the accused’s application” . . . Extensive submissions concerning the ultimate merits of an application at the Vukelich hearing stage without the full evidentiary foundation have the potential to unduly limit the ambit of the inquiry that should be undertaken, resulting in an injustice . . . Ironically, this can sometimes lead to circumstances in which Vukelich applications unnecessarily extend the length of the court’s inquiry into the issue, contrary to the goal of minimizing delay and improving efficiency in the conduct of legitimate applications and motions.

[8] The Supreme Court of Canada has made it clear that this exercise of the trial management power applies equally to proposed applications by the Crown: R. v. Cody, [2017] 1 S.C.R. 659 at para. 38.

[9] There is another situation in which short-circuiting an evidentiary hearing by this type of application is not appropriate, and that is where the applicable legal principles to be applied to the assumed facts are not sufficiently clear or settled....

Response to Crown’s Arguments and Authorities
[11] Dealing first with the Crown's proposed authorization for the search based on the consent of the property owners to the video being accessed by the police, the defence submits that the insufficiency of such consent was definitively established by the Supreme Court of Canada in the decisions of R. v. Cole, [2012] 3 S.C.R. 34, and R. v. Reeves, [2018] 3 S.C.R. 531.

[12] In Cole, the accused's work-issued laptop, which he was permitted to use for incidental personal purposes, had been found to contain child pornography by a technician who was performing maintenance on it on behalf of the employer. The police had seized the laptop and searched its contents for evidence of the crime, without the accused's consent or any prior judicial authorization. As in this case, the subject matter of the search was defined as the informational content of the laptop's hard drive. The Court noted that computers used for personal purposes in a matter to whom they belong contain a wide variety of personal details and that the ownership of the computer, while a relevant consideration in the analysis, did not deprive this accused of a privacy interest in that personal data. The fact that they had received the laptop from the employer did not “afford [them] warrantless access to the personal information contained within it”. The information remained “subject...to [the accused]'s reasonable and subsisting expectation of privacy” (para. 73).

[13] Most significantly for the present purposes, the Court rejected the proposition that a third party can waive a person's privacy interest....

...This conclusion was expressed in what the defence characterizes as broad and definitive terms:

[79] I would therefore reject the Crown’s contention that a third party could validly consent to a search or otherwise waive a constitutional protection on behalf of another.

[14] In Reeves, the accused's estranged spouse reported having found child pornography on the home computer that they shared, and consented to the police seizing the computer for examination. The Court rejected the Crown's argument that the consent of a party who also has a privacy interest in the item in question could provide valid consent to a search, explaining at para. 43:

[43] ... [W]hile it is reasonable to ask citizens to bear the risk that a co- user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co-user could consent to the police taking this computer. In Marakah, this Court held that, when a claimant shares information with another person through a text message, he accepts the risk that this information may be disclosed to third parties. But that does not mean the claimant “give[s] up control over the information or his right to protection under s. 8” (para. 41 [of Marakah]).

[44] I cannot accept that, by choosing to share our computers with friends and family, we are required to give up our Charter protection from state interference in our private lives. We are not required to accept that our friends and family can unilaterally authorize police to take things that we share. The decision to share with others does not come at such a high price in a free and democratic society. . . .

[45] ... Although the legitimate interests of third parties can, in some circumstances, attenuate a reasonable expectation of privacy . . . they cannot eliminate it. I would note that [the accused's spouse] was of course free to, and did, notify the police about what she saw on the computer. Further, while [the accused's spouse] also had a reasonable expectation of privacy in the computer data, she is not the claimant in this appeal. . .

[15] Citing Cole, the Court also rejected the Crown's argument that because the spouse had an equal and overlapping interest in the computer herself, she could waive the accused's Charter rights.

[16] In light of this analysis, the defence argues that the Crown's reliance on the decision of our Court of Appeal in R. v. Clarke, 2017 BCCA 453, which was decided before Reeves and is referred to in it, renders the police action in this case reasonable. In Clarke, the Court of Appeal found that a tenant's consent for the police to enter a residence that was jointly owned by the accused and his mother and carry out a search was valid as far as it dealt with shared common spaces. However, it could not extend to a search of what was identified as exclusively the accused's property. The tenant had no overlapping interest in that space. The principles set out in Cole precluded an effective waiver of his Charter rights in that space.

[24] On the issue of consent by the property owners to the search of the security videos, Cole and Reeves unambiguously rejected the proposition that a reasonable expectation of privacy and information kept on a computer can be superseded, or that the s. 8 rights of such a person in such information can be waived, by the consent of the owner or co-owner of the device.

[25] Despite the lesser degree of privacy attaching to video recordings of tenants in common parts of the property, and the lack of deliberate involvement of the tenant in placing their personal information on that video system, it is still difficult to see how those cases' prohibition of waiving the tenant's right to assert that privacy interest can be distinguished here.

[27] Yu addressed this in the context of surreptitious police video recording:

[125] ... While it might be arguable that condominium residents could not reasonably expect that building management would be unable to share with the police video recordings from cameras that management had installed for its own purposes, it does not follow that residents would reasonably expect building management to permit the police to install cameras for the police’s own purposes.

[126] The installation of hidden cameras by the state is not something that condominium residents would reasonably expect the board to do in carrying out its management duties.

[29] The difficulty I have with the Yu analysis here is that I have already drawn the inference on the reasonable expectation of privacy application that the accused "did not intend any recordings that were made by that system to proceed beyond the control of the owners"(para. 67). I also found that "their expectation would have been that the information would reside in the system under control of the owners unless required for some purpose relating to the security of the dwelling itself" (para. 70).

[30] There is no evidence in the will-say statements or the submissions of the Crown previewing an evidentiary hearing that would suggest a delegated consent to the owners by the accused to share the information beyond that scope, so as to supplant or modify those findings in the previous application. Indeed, the will-says indicate there was no written tenancy agreement, and that the issue of the CCTV was not discussed.

[31] As we know from Reeves at paras. 49 to 52, consent by a third party is only valid if it encompasses the rights holder's own informed and voluntary consent....

[32] Thus, with respect to consent as an authorization for the search, I am unable to find that the facts put forward by the Crown could reasonably support a legal basis for the order being sought.

[33] This conclusion is also determinative of the ancillary powers argument, since the consent of the owners that I have rejected as a potentially viable legal authorization is also an essential component of the Crown’s position on this issue.

[34] I would go farther, and say that the only gap to which the power being proposed could conceivably apply is the current inability of police officers to seize items without a warrant, in circumstances in which they do not have the grounds to obtain one, and none of the other established exceptions to the unreasonableness of warrantless seizure, such as a search incidental to arrest of objects in plain view, or on the basis of valid consent from the rights holder, applies. It appears to me that this proposed power is tailored to the necessity of the current situation, solely to excuse the particular actions of the officers here, and that it would expand police powers in a way that is not justified by any gap in their general powers of search.

[35] If such a power were found to exist, it would amount to a right to preview this category of evidence on suspicion, which would be quite out of step with the accumulated body of law that has developed in relation to it.

[36] Accordingly, I find that the proposed facts could not support the remedy sought on that basis either.

[37] In light of these conclusions, the Crown will not be entitled to proceed to an evidentiary hearing on its application to justify the police actions in question as having been authorized by law.

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