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Criminal - Search Warrants (3). R. v. Ifesimeshone
In R. v. Ifesimeshone (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown criminal appeal, here against an "acquittal on serious drug trafficking charges" grounded in a Charter s.24(2) warrant exclusion of evidence after a S.8 search and seizure violation.
Here the court considered whether warrant ITO evidence need be direct, as opposed to inferential - here where the issue was the warrant target location:[35] It is an error to hold that, in effect, direct evidence was required to establish a link between the Vaughan address and drugs that would be evidence of the commission of offences. Reasonable inferences may be relied on in the absence of direct evidence. The question was whether the ITO set out facts sufficient to allow the issuing judge to reasonably draw the inference that evidence of drug trafficking would be found at that location: R. v. Kalonji, 2022 ONCA 415, 162 O.R. (3d) 283, at paras. 22-25; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 16-18. In my view, it did. . R. v. Ifesimeshone
In R. v. Ifesimeshone (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown criminal appeal, here against an "acquittal on serious drug trafficking charges" grounded in a Charter s.24(2) warrant exclusion of evidence after a S.8 search and seizure violation.
Here the court comments of the appellate court's role when assessing warrant validity:[32] In any event, the question for the trial judge was not whether, if she had been the issuing judge, she would have discounted the value of the available corroboration and been concerned with the lack of corroboration of criminal activity. Nor was the question whether she would have found that more surveillance was required. As Watt J.A. said in Sadikov, at para. 88:It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplified record ... [or] to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued ... . . R. v. Mohamed [standing to challenge warrant]
In R. v. Mohamed (Ont CA, 2024) the Divisional Court dismissed a criminal appeal against a court finding that the appellant did not have standing to challenge a search warrant:[7] Mr. Mohamed submits that the trial judge erred in finding that he did not have standing to challenge the search of Ms. Goodale’s house because he failed to follow the Supreme Court’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696. Specifically, in deciding whether Mr. Mohamed had standing, the trial judge should have relied on the Crown’s theory of the case that Mr. Mohamed resided with Ms. Goodale at the house, as set out in the ITO.
....
[12] In advance of the trial, Ms. Goodale and Mr. Mohamed brought an application to challenge the search warrant under s. 8 of the Charter of Rights and Freedoms. ....
....
[16] The trial judge granted Ms. Goodale’s application but found that Mr. Mohamed did not have standing to challenge the search warrant. Following the application, the trial judge gave a brief oral explanation for this conclusion, stating that, based on the Supreme Court’s decision in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, it was clear that Mr. Mohamed did not have standing to bring the Charter application and that he, therefore, could not challenge the admissibility of anything seized at the Leeming Street house.
....
[19] We are satisfied that the trial judge did not make any legal errors in his approach to the issue of Mr. Mohamed’s standing and that his conclusion on the issue was supported by the evidence before him. In Edwards, the Supreme Court considered the rights of an accused to challenge a warrant obtained to search the premises of a third party. Cory J. explained that, in order to establish a violation of s. 8 of the Charter and obtain relief under s. 24(2), an accused must (1) establish standing by showing a reasonable expectation of privacy, and (2) if such an expectation is established, demonstrate that the search was conducted unreasonably: at para. 45. In deciding whether an accused has established a reasonable expectation of privacy, trial judges are to consider the totality of the circumstances, including the following factors:(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation. ....
....
[21] Mr. Mohamed argues that Edwards must be applied in conjunction with Jones, and that the trial judge erred in failing to consider and apply Jones. In Jones, the Supreme Court dealt with the evidentiary burden on an accused challenging a search warrant under s. 8 of the Charter. The search in that case involved text messages. The Crown’s theory, as set out in the ITO, was that Mr. Jones had authored the text messages. For the purpose of challenging the search warrant, Mr. Jones sought to rely on the evidence in the ITO to argue that he had a reasonable expectation of privacy in the text messages. He wanted to avoid presenting his own evidence on the application. This strategy was intended to allow Mr. Jones to challenge the search warrant without admitting authorship, which otherwise would amount to admitting the actus reus of the offence with which he had been charged: at paras. 16, 23.
[22] Côté J., for the majority, held that Mr. Jones should be able to rely on the Crown’s theory to mount his s. 8 challenge and that he did not have to provide his own evidence on the application: at paras. 9, 32-33. She stated, at para. 32, that, despite the evidentiary burden being on the applicant to establish a breach of his Charter rights, “where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant's s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements.” She reasoned that permitting applicants to rely on the evidence in an ITO to establish a reasonable expectation of privacy solves the dilemma that applicants like Mr. Jones would otherwise face when evidence supporting their position on the Charter application could subsequently incriminate them at trial. This is consistent with the principle against self-incrimination: Jones, at paras. 29-31. As this court stated in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270, at para. 24, “[t]he overriding point of Jones is that an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order [to] assert standing to challenge the reasonableness of a search.”
[23] Mr. Mohamed relies on Jones to argue that, on his s. 8 application, the trial judge erred in not accepting as true the Crown’s theory that he was in a common law relationship with Ms. Goodale and that he resided with her on Leeming Street. We disagree. The trial judge did not err. Jones does not stand for the proposition that a trial judge must accept the Crown’s theory of the case in all circumstances when assessing an accused’s reasonable expectation of privacy. Rather, as explained by this court in Labelle, at para. 31:The point of Jones is that the accused can rely on the Crown theory to establish certain facts relevant to their s. 8 claim. The trial judge is still required to assess those facts in the “totality of the circumstances” to determine whether the accused had a reasonable expectation of privacy in a particular territorial space [Emphasis added.]
See also: R. v. Greer, 2020 ONCA 795, 397 C.C.C. (3d) 40, at para. 85.
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