R. v. White
Her Majesty the Queen, Appellant, and
Merith White, Respondent
 O.J. No. 3563
2015 ONCA 508
Ontario Court of Appeal
J.M. Simmons, D.M. Brown and G. Huscroft JJ.A.
Heard: April 9, 2015.
Judgment: July 7, 2015.
On appeal from the acquittals entered by Justice P. Lalonde of
the Superior Court of Justice on April 5, 2013.
Emilie Taman and Jim Marshall, for the appellant.
Andrew Burgess, for the respondent.
The judgment of the Court was delivered by
G. HUSCROFT J.A.: 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
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 respondent's storage
locker. The detective also hid in the stairwell, where he
observed the respondent's 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.
At trial, the judge held that the evidence the
detective gathered in the course of the three entries was
obtained in breach of the respondent's 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.
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 Papadolias's 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.
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
Detective Hill entered the respondent's
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.
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.
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 respondent's 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.
Detective Hill then went upstairs where he
observed unit 302. He was in the building for approximately 20
Second Visit - January 20, 2011
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
Once inside the building, Detective Hill hid in a
stairwell and from this location observed Papadalios leaving
the respondent's unit carrying a box. Papadalios was later
observed transferring the box to a third person outside the
Third Visit - January 21, 2011
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
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
Detective Norman Redmond prepared the Information
to Obtain a Search Warrant (ITO) for three locations,
including the respondent's 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 Execution of the Warrant
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 respondent's condominium
unit. The respondent was arrested and found to be in
possession of 0.4 grams of cocaine and $400 in Canadian
The respondent was charged with possession of
cocaine and marijuana for the purpose of trafficking,
possession of cocaine, and possession of property obtained by
The Evidence at the Voir Dire
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.
The Crown called three witnesses at the voir
Zoë Gillespie, a member of the board of directors
of the respondent's 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.
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
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 Gillespie's testimony that he had returned to
the building subsequent to the respondent's 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
THE TRIAL JUDGE'S DECISION
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
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 respondent's 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.
The trial judge went on to consider whether the
evidence should be excluded under s. 24(2) of the
Charter. He found that Detective Hill's
unconstitutional searches of the common areas of the building
formed the foundation for the search warrant pursuant to which
the respondent's 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.
The trial judge applied the three criteria
outlined by the Supreme Court in R. v. Grant, 2009 SCC 32,
 2 S.C.R. 353, at para. 71, and concluded as
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
respondent's unit was warrantless;
there was a serious impact on the respondent's
Charter rights; and
admission of the evidence would bring the
administration of justice into disrepute.
On this basis, the trial judge excluded the
Ruling as to Guilt
Having excluded the evidence obtained at the
respondent's 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.
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
respondent's 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
ISSUES ON APPEAL
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
Did the trial judge err by excluding the evidence of
drugs pursuant to s. 24(2) of the Charter?
The appellant argues that the trial judge erred
in failing to conduct the thorough analysis as set out in
R. v. Edwards,  1 S.C.R. 128, which, it submits,
is fatal to his decision, and that he fixated on the
respondent's 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
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
respondent's 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.
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
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:
presence at the time of the search;
possession or control of the property or place
ownership of the property or place;
historical use of the property or item;
the ability to regulate access, including the right
to admit or exclude others from the place;
the existence of a subjective expectation of
the objective reasonableness of the expectation.
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.
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 resident's door, and once inside the building smelled
marijuana in the hallway outside the appellant's apartment.
This court concluded that the police infringed the appellant's
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 police's] 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".
The second case is R. v. Thomsen, 
O.J. No. 6303 (S.C.J.), aff'd 2007 ONCA 878, which the
appellant submits is fatal to the respondent's 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 applicant's apartment and heard a fan
or droning sound coming from the apartment.
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.
In my view, Laurin and Thomsen are
distinguishable from the present case. I deal with each case
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.
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
Thomsen also concerned an investigation
pursuant to a complaint, in this case from the building's
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.
In summary, both Laurin and Thomsen
involved single entries into the common hallways of apartment
buildings in order to walk to a resident's 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.
In my view, these cases are not authority for the
appellant's 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.
The unreasonableness of granting the police
virtually unfettered access to multi-unit dwellings is
illustrated in the testimony of Detective Redmond, elicited in
And from your point of view, there's - there's
nothing preventing him [Detective Hill] from
entering into the building for the common areas of
the building. There's nothing wrong with that.
No, there wasn't.
Okay. Is there any limit on how he enters into those
common parts of the building?
Well, I wouldn't - I wouldn't be happy, if he broke
the front door, kicked it in and entered. To me,
that would be unreasonable.
Okay. And that would be because he'd be damaging
Correct. He's. . .
What if you could climb into a window or something
Climb into a...?
Let's say there's a window that opens and it's in
the common areas and he can open it from the outside
and climb in. Is that okay?
I mean, if he's not breaking anything then, why not?
Okay. So the test for whether he's committing an
unlawful act or not is whether he's breaking
something when he enters the place, in your mind?
Yeah. Whether he's, you know, damaging the property
or - anything like that. Correct.
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
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,  O.J. No.
3319 (S.C.J.); R. v. Simpson,  O.J. No. 5056
(S.C.J.), rev'd on other grounds 2007 ONCA 793, 231 O.A.C. 19;
R. v. Nguyen, 2008 ABQB 721, 462 A.R. 240, aff'd 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
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.
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 respondent's 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.
Although the respondent did not have absolute
control over access to the building, it was reasonable for him
to expect that the building's 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
building's 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.
In any event, the fact that a relatively large
number of people may have access to a building's 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
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
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,
 3 S.C.R. 432, at para. 42. Some limits on police
activity are necessary if privacy is to be protected.
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.
In my view, the trial judge's 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 respondent's building surreptitiously on December 10,
2010, January 20, 2011 and January 21, 2011.
Before proceeding to the trial judge's s. 24(2)
analysis, I analyze whether the trial judge erred in finding
that the three searches conducted by Detective Hill violated
the respondent's right to be secure against unreasonable
search and seizure under s. 8 of the Charter.
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,  1 S.C.R. 607, at p. 634.
The three searches by Detective Hill were
conducted without a warrant and so are prima facie
unreasonable: R. v. Caslake,  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.
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 respondent's door. On the
contrary, the police did everything possible to conceal their
presence in the building.
In my view, the trial judge's 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.
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
respondent's 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 respondent's unit from the stairwell.
In my opinion, Detective Hill's searches violated
the respondent's rights under s. 8 of the Charter.
Did the trial judge err in excluding the evidence
pursuant to s. 24(2) of the Charter?
Detective Redmond acknowledged there was no basis
for the judge to issue a search warrant to search the
respondent's 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
respondent's Charter rights, the threshold question in
s. 24(2) is met.
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 respondent's Charter
rights; and third, society's 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
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.
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,  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 judge's findings of
In my view, the police misconduct in this case is
exacerbated by Detective Redmond's 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 respondent's 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
The trial judge found that there was a serious
impact on the respondent's 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
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
respondent's privacy rights.
Society's Interest in Having the Case Adjudicated on its
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
The trial judge's s. 24(2) analysis is brief, but
it is entitled to deference from this court. I see no basis to
interfere with his conclusion.
For these reasons, I would dismiss the appeal.
G. HUSCROFT J.A.
J.M. SIMMONS J.A.: I agree.
D.M. BROWN J.A.: I agree.