R. v. Nguyen

R. v. Nguyen Collection Decisions of the Court of Appeal Date 2023-05-24 Neutral citation 2023 ONCA 367 Docket numbers C70420 Judges Hoy, Alexandra; Favreau, Lise G.; Copeland, Jill M. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Nguyen, 2023 ONCA 367 DATE: 20230524 DOCKET: C70420 Hoy, Favreau and Copeland JJ.A. BETWEEN His Majesty the King Appellant and The Dung Nguyen Respondent Amber Pashuk, for the appellant Maija Martin and Stephanie Brown, for the respondent Heard: April 25, 2023 On appeal from the acquittals entered by Justice Janet Leiper of the Superior Court of Justice on February 17, 2022. Hoy J.A.: A. INTRODUCTION [1] Police believed that The Dung Nguyen was part of a fentanyl drug network and was using unit 2806 in a Toronto condominium building known as 25 Telegram Mews as a stash location. [2] On December 12, 2019, police executed a general warrant on unit 2806. The items found included 11,601 grams of fentanyl powder, 2,489 grams of methamphetamine and 1,035 grams of ketamine, having a wholesale value of approximately $981,000. Based on the evidence found in the unit, police then obtained and executed a search warrant on Mr. Nguyen’s family residence. There, they found, among other things, a loaded handgun, ammunition, cash, a bulletproof vest and keys for unit 2806. [3] Mr. Nguyen was charged with multiple counts of possession of controlled drugs and substances for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c.19, and possession of a handgun and ammunition, contrary to the Criminal Code, R.S.C. 1985, c. C-46. He successfully brought a pre-trial application under s. 8 of the Canadian Charter of Rights and Freedoms (“Charter”) challenging the warrants. The s. 8 challenge focused on the Information to Obtain (“ITO”) for the general warrant, with the parties agreeing that if the general warrant fell, the subsequent search warrant for his residence would also fall. [4] The reviewing judge excised portions of the evidence in the ITO and made corrections to the ITO. She concluded that, once the excisions and corrections were made, there were insufficient grounds on which the issuing judge could have issued the general warrant. Moreover, she concluded that there was insufficient information for the issuing judge to conclude that the second component of the test for the issuance of a general warrant in s. 487.01(1)(b) of the Criminal Code was met. That component requires that the issuing judge be satisfied that it is in the “best interests of the administration of justice” to issue the warrant. Applying s. 24(2) of the Charter, she concluded that the evidence obtained under the authority of the warrants should be excluded. [5] While the Crown argues that the reviewing judge’s reasons are tainted by several errors, the primary issue it raises on appeal is whether Mr. Nguyen had a reasonable expectation of privacy in a video recording of him in the condominium building’s publicly accessible, glass-walled vestibule, captured by non-covert cameras placed in the vestibule by the condominium corporation. The reviewing judge concluded that he did and excised the portions of the ITO referring to police observations from reviewing the video showing Mr. Nguyen using a fob to enter 25 Telegram Mews on November 21, 2019. [6] I agree with the Crown that the reviewing judge erred in so finding. This error had a cascading effect. Without the resulting excision, there were sufficient grounds on which the issuing judge could have issued the general warrant. Further, the reviewing judge’s conclusion that there were insufficient grounds tainted her determination of whether the issuing judge could have been satisfied that it was in the best interests of the administration of justice to issue the warrant. In my view, the issuing judge could have. The parties take no issue with the final criterion for a general warrant set out in s. 487.01(1)(c). Consequently, there was no violation of Mr. Nguyen’s rights under s. 8 of the Charter. [7] This is sufficient to dispose of the appeal. It is unnecessary to address the other alleged errors. [8] Below, I will first address the reasonable expectation of privacy issue. Then I will explain why I conclude that, without the excision that the reviewing judge made, there were sufficient grounds on which the issuing judge could have issued the general warrant and why I conclude that the issuing judge could have been satisfied that it was in the best interests of the administration of justice to issue the warrant. B. NO REASONABLE EXPECTATION OF PRIVACY (1) The circumstances [9] On November 21, 2019, police were following Mr. Nguyen. He parked his grey Infiniti in the area of two condominium buildings, 4K Spadina and 25 Telegram Mews, exited the vehicle, put on his black backpack, and zipped a white plastic bag inside his jacket. Police then lost sight of him, as he was walking in the area near 4K Spadina and 25 Telegram Mews. [10] Photos filed show that 4K Spadina and 25 Telegram Mews are separate high-rise condominium towers linked by a shared low-rise structure, which housed a shared concierge and security desk. [11] In his investigative report, DC Naccarato detailed that on November 25, 2019, he attended the front desk for 4K Spadina and 25 Telegram Mews. He spoke to the security supervisor and advised him that he was trying to identify if someone had attended at their buildings. He requested just to see the video for the public entrances for both buildings. The security supervisor permitted him to do so. [12] From reviewing the video, DC Naccarato learned that Mr. Nguyen used a fob to gain access to the front lobby of 25 Telegram Mews at 11:38 pm on November 21, 2019. Mr. Nguyen walked in the front door and pointed an object at the fob system and the door automatically opened. [13] Photos filed show that the vestibule that Mr. Nguyen entered was entirely glass-walled and revealed three readily visible security cameras in the vestibule. All three cameras were installed by the condominium corporation. (2) The reviewing judge’s reasons [14] The reviewing judge adverted to several decisions regarding the expectation of privacy in a condominium building, including this court’s decisions in R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, R. v. Saciragic, 2017 ONCA 91, leave to appeal refused, [2017] S.C.C.A. No. 106, and R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, 2020 CanLII 41795 (SCC). [15] From the jurisprudence she adverted to, the reviewing judge extracted and applied several principles. She relied on White, at para. 52, and Yu, at para. 81, for the principle that “[r]esidents in condominium buildings have a reasonable expectation of privacy in common areas of the building.” [16] Relying on that principle, she wrote: An expectation of privacy may well be reduced in the foyer outside the controlled area of a building, just as there is in the common areas inside the lobby, the elevators, or the hallways. However, these areas are part of the commonly owned areas of a condominium building, which have been found to attract some reasonable expectation of privacy. [17] She concluded that Mr. Nguyen “had a reasonable expectation of privacy, albeit a low one, in the video of his movements inside the front entrance of the building.” As noted above, as a result of that finding, she excised the portions of the ITO referring to police observations from viewing the video of Mr. Nguyen’s movements inside the front entrance on November 21, 2019. (3) Analysis [18] Respectfully, White and Yu do not stand for the principle that residents of a condominium building have a reasonable expectation of privacy in all common areas. The reviewing judge erred by failing to consider the factors identified in White and Yu, and to engage in the contextual analysis that White and Yu require, in order to determine whether Mr. Nguyen had an objectively reasonable expectation of privacy in the video taken of him in the publicly-accessible vestibule. [19] Considering the relevant factors, and conducting the necessary contextual analysis, I conclude that Mr. Nguyen did not have an objectively reasonable expectation of privacy in the video of him in the vestibule. (4) White and Yu [20] White and Yu provide guidance in determining whether an individual’s subjective expectation of privacy in the common areas of a multi-residential building is objectively reasonable. [21] In White, police suspected that the owner and occupier of a condominium in a small, ten-unit building was involved with dealing drugs. They surreptitiously entered the building, walked the hallways, entered the storage area and viewed the contents of the owner’s storage locker. They hid in the stairwell, observed the owner’s unit and listened to what was going on inside. [22] In White, at paras. 41 and 44, Huscroft J.A. explained that a nuanced, contextual approach is required to determine whether residents of multi-unit buildings have a reasonable expectation of privacy in the common areas of those buildings, and whether police may conduct non-intrusive surveillance from these locations. …the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.[1] [23] Huscroft J.A. then identified several factors, at paras. 45-47: • The degree of possession or control exercised over the common area by the claimant; • The size of the building: it is reasonable to assume that the number of people that are present in the common areas of the building will vary in accordance with the size of the building and its population. The larger the building, the lower the degree of reasonable expectation of privacy may be in common areas; • Whether a security system or locked doors function to exclude the public and regulate access; and • The ownership of the unit. [24] Applying a nuanced and contextual approach, with regard to the factors he had identified, Huscroft J.A., at para. 52, concluded that in the particular circumstances of the case – involving a small building where the police surreptitiously entered common areas protected by a security system – the owner and occupier of the unit had a reasonable expectation of privacy. [25] In Yu, the court considered whether the installation by police of hidden cameras without obtaining a warrant violated s. 8 of the Charter. Tulloch J.A. (as he then was) confirmed that a “contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas”: para. 81. He adverted to the factors identified in White, noting at para. 69 that “these factors lead to different conclusions, depending on the type of common area accessed by the police…”. [26] In Yu, the police had accessed two underground parking garages and condominium hallways. Tulloch J.A. concluded that the appellants did not have a reasonable expectation of privacy in the two parking garages. They were large (each condominium building had over 300 units) and the appellants had limited control over them. In the case of one, police had obtained management’s consent before all prolonged surveillance. In the case of the other, the police had entered a visitor’s section that was accessible to the general public “to determine whether a target’s car was parked in the garage or not, which they were entitled to do as any visitor could do”: at para. 80. The appellants “had no reasonable expectation of privacy regarding observations made from a space accessible to the general public”: at para. 80. [27] However, Tulloch J.A., at para. 87, concluded that the appellants did have a reasonable expectation of privacy – albeit low – in the hallways: The buildings had strict security features designed to exclude outsiders, and the condominium rules… barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellant to believe that the building security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. (5) The subject matter of the search [28] Before turning to the application of White and Yu in this case, it is necessary to properly define the subject matter of the search, which must be defined functionally by reference to the nature of the privacy interests potentially compromised by the state action: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 14-15. This requires a consideration of the nature of the information that the police obtained and how they obtained it: Saciragic, at para. 29. [29] The reviewing judge did not make a clear finding about the subject matter of the search. What, then, was the subject matter of the search? [30] The nature of the information sought, and ultimately revealed, was that Mr. Nguyen entered 25 Telegram Mews and used a key fob to do so. The video was recorded in the ordinary course, and not at the behest of police. DC Naccarato requested just to see the video for the public entrances. He viewed but did not seize the video. [31] In Saciragic, the police obtained information from the apartment’s property manager, who had reviewed fob data and a video indicating that the applicant had attended at a particular floor in the building during the relevant time. This information from the property manager led police to believe that a particular unit was being used as a stash location. The trial judge concluded that the applicant did not have a reasonable expectation of privacy in the information obtained. [32] On appeal, this court, at para. 32, rejected the argument that there is a categorical reasonable expectation of privacy in one’s physical address: A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access. [33] Nor did the particular circumstances of that case reveal a reasonable expectation of privacy in the information revealed by the physical address, namely the appellant’s connection to the specific unit, as noted at para. 33: The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police. [34] Here, similarly, no intimate or biographical details of Mr. Nguyen’s life were sought by police or revealed when they viewed the video. Police did not even obtain information about what unit Mr. Nguyen was attending at. The video revealed nothing about what Mr. Nguyen did once he was through the fob‑accessed door. [35] The information obtained was less revealing than the information obtained in Saciragic. If the information obtained in Saciragic was analogous to one’s municipal address, the information obtained in this case was analogous to what neighbourhood one lived in. Applying Saciragic, I conclude that the subject matter of the search, properly defined, was narrow and did not significantly engage Mr. Nguyen’s informational privacy interests. (6) The application of White and Yu in this case [36] Having determined the subject matter of the search, the next question is whether Mr. Nguyen has a reasonable expectation of privacy in that subject matter. Three further questions have been identified, namely: (i) whether Mr. Nguyen has a direct interest in that subject matter; (ii) whether Mr. Nguyen has a subjective expectation of privacy in that subject matter; and, if so, (iii) whether Mr. Nguyen’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances: R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, at para. 113. [37] No clear findings were made by the reviewing judge as to whether Mr. Nguyen had a direct interest and a subjective expectation of privacy in the subject matter. The appellant Crown concedes that Mr. Nguyen certainly had a direct interest in the video of his image and movements. The appellant Crown also proceeds on the assumption, which I am prepared to accept, that Mr. Nguyen would assert a subjective expectation of privacy in the video. [38] The live issue remaining is whether, considering and applying the factors identified in White and Yu, and considering the subject matter of the search, Mr. Nguyen’s subjective expectation of privacy in the video of his movements in the vestibule was objectively reasonable. I conclude that it was not, for the following reasons: • Mr. Nguyen had no control over the glass-walled vestibule. It is accessible to the general public. • 25 Telegram Mews is a large, high-rise condominium building. Given the size of the building, presumably many people enter the vestibule. • No security features bar non-owners or non-occupants from entering the condominium’s vestibule. • The cameras which recorded the video that the police viewed were installed by the condominium corporation and were situated, in plain view, in the publicly-accessible vestibule. The circumstances are analogous to the observations police made from the visitor’s section of the garage in Yu. As in Yu, the observations in this case (the video) were made from a space accessible to the general public. • Mr. Nguyen did not own unit 2806. In fact, he did not even reside at 25 Telegram Mews. • As discussed above, the information obtained about Mr. Nguyen was strictly limited and did not substantially compromise his informational privacy interests. [39] I note that the reviewing judge did not appear to be satisfied that someone outside the building could see whether someone inside the glass-walled vestibule used a fob to pass through the door at the end of the vestibule and enter the secured portions of the common areas. She wrote that “[t]he photographs of the cameras do not demonstrate that passersby could have seen the movements of those inside the front door, or as they passed through the fob-controlled entrance, which appears to be what DC Naccarato was able to see from the building video footage.” Viewing the photographs, I come to a different conclusion. However, in deference to the reviewing judge, I do not rely on it in my analysis. Given my review above of the factors relevant to the objective reasonableness of Mr. Nguyen’s subjective expectation of privacy, whether passersby could or could not see the movements of people inside the front door of the lobby should not have affected the outcome in this case. [40] I turn now to whether, without the excision that the reviewing judge made, there were sufficient grounds on which the issuing judge could have issued the general warrant. C. THERE WERE SUFFICIENT GROUNDS ON WHICH THE ISSUING JUDGE COULD HAVE ISSUED THE WARRANT [41] Reading the record that was before the authorizing judge as a whole, as otherwise excised and as amplified by the reviewing judge, I conclude that it allowed the authorizing judge to infer that there was a fentanyl trafficking network operating from a unit at 25 Telegram Mews, which included Mr. Nguyen. Accordingly, there were sufficient grounds on which the issuing judge could have granted the authorization. [42] Police believed that Mr. Nguyen was a fentanyl supplier and supplied SS with fentanyl, that SS then supplied to AB. Police believed that Mr. Nguyen resided at a particular address in Richmond Hill and was using unit 2806 at 25 Telegram Mews as a stash location. In summary, the record, as so excised and amplified indicated the following as the basis for the police’s belief: • Police received information from two confidential informants that AB was selling fentanyl in Oshawa. They provided information that AB was supplied with a large amount of fentanyl at a time. • Police surveilled AB between July and September 2019. They observed her conducting several short meetings throughout Oshawa and Courtice, typically in her white Subaru, that were indicative of drug trafficking. Investigators observed AB conduct 24 short meetings spanning six dates of surveillance. Tracking data for her white Subaru indicated that she continued to conduct these short meetings. • In September 2019, police observed AB having a short meeting with SS, in SS’s grey Acura vehicle. It was the first meeting AB had outside the Oshawa/Courtice area. AB and SS met at the same location multiple times for short meetings, after which AB returned to Oshawa. AB continued her pattern of behaviour. • Before two of his meetings with AB, police observed SS meeting with a male – subsequently identified as Mr. Nguyen – who exited a grey Infiniti carrying a small plastic bag, entered the passenger side of SS’s grey Acura, exited approximately a minute later without the plastic bag, and returned to the grey Infiniti. SS then travelled directly to meet with AB on both occasions. • Subsequent searches indicated that Mr. Nguyen was the registered owner of the grey Infiniti and that his residence address was a particular address in Richmond Hill. Police observed the grey Infiniti in the driveway of that residence. Police believed that Mr. Nguyen and his spouse, Xuefei Jia, resided at that residence: on multiple days of surveillance, they observed Mr. Nguyen and Ms. Jia leaving there in the morning and also spending the night. They also observed Ms. Jia entering the house with children. • Mr. Nguyen was observed conducting short meetings with multiple individuals, which are indicative of drug trafficking. During some of them, he was observed receiving bags from the other individuals. • In the 14-day period between November 21, 2019 and December 4, 2019, Mr. Nguyen attended at 25 Telegram Mews on 7 days. On four of those days, police observed him carrying bags. On three of those days, he met with other individuals, before or after attending at 25 Telegram Mews. On one of those days (December 3, 2019), he was observed both carrying bags and having met with another individual before attending at 25 Telegram Mews. More specifically, on that day, Mr. Nguyen and Ms. Jia exited the Richmond Hill address, with Mr. Nguyen carrying a black backpack and Ms. Jia carrying a white plastic bag. They departed in the grey Infiniti. Ms. Jia dropped Mr. Nguyen off in a parking lot. Six minutes later, a white Hyundai picked him up. Three minutes later, he exited the white Hyundai, carrying a red and white backpack. Two minutes later, Ms. Jia picked him up. They proceeded to the area of Telegram Mews, where Mr. Nguyen entered 25 Telegram Mews, carrying the black and red and white backpacks. • A Production Order revealed that Mr. Nguyen was accessing 25 Telegram Mews and its elevators with a fob issued for unit 2806. Three tenants are listed on a 2017 lease. They do not include Mr. Nguyen or Ms. Jia. The lease indicated that three fobs were issued for the unit [2], but the building’s security officer told police that there was only one fob issued for unit 2806. The results of the Production Order related to only one fob. • Based on investigation of the occupants listed from the 2017 lease, investigators did not believe tenants were currently residing within unit 2806. [43] I am satisfied that, read as a whole, the record establishes a pattern of conduct that allowed the authorizing judge to infer that there was a fentanyl trafficking network operating from unit 2806 at 25 Telegram Mews, which included Mr. Nguyen. [44] The previously excised information police obtained from viewing the video of Mr. Nguyen entering 25 Telegram Mews on November 21, 2019 is significant. On November 21, 2019, VR, a previously identified customer of SS, visited Mr. Nguyen’s residence in Richmond Hill for a short time (five minutes). Shortly thereafter, Mr. Nguyen left for 25 Telegram Mews and attended there wearing a black backpack, and with a plastic bag concealed inside his jacket. The information that Mr. Nguyen attended at 25 Telegram Mews after meeting with VR, carrying a backpack, and with a plastic bag concealed under his jacket, further links Mr. Nguyen to the “network”, and the network to 25 Telegram Mews, and adds to the cumulative effect of the balance of the record. When considered with the balance of the record, it was sufficient to allow the authorizing judge to infer that there was a fentanyl trafficking network operating from a unit at 25 Telegram Mews, which included Mr. Nguyen. D. THE BEST INTERESTS OF THE ADMINISTRATION OF JUSTICE [45] Section 487.01(1)(b) of the Criminal Code requires that the issuing judge be satisfied that it is in the best interests of the administration of justice to issue the general warrant. [46] This analysis engages two components: consideration of whether the authorization would further the objectives of justice, and a balancing of the interests of effective law enforcement against the individual’s interest in privacy: R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632 (C.A.) at pp. 654-56: R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, leave to appeal refused, [2014] S.C.C.A. No. 460, at para. 118; R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751, leave to appeal refused, [2009] S.C.C.A. No. 295, at para. 46. [47] In the ITO, under the bolded heading “Best Interests of the Administration of Justice”, the affiant stated his belief that the issuance of the warrant would be in the best interests of the administration of justice because the information gained would assist the drug investigation in gaining the best information and evidence to support the charges against Mr. Nguyen and his network. [48] The affiant further stated that a traditional Controlled Drugs and Substances Act warrant into Mr. Nguyen’s residence would immediately end any further investigation and a search warrant into unit 2806 at 25 Telegram Mews would have a drastic impact on the investigation. It would alert Mr. Nguyen that he is being investigated by police, thereby ending the investigation before the drug distribution network was fully identified. [49] Three pages before this section of the ITO, the affiant stated that, based on the investigations of the occupants listed from the 2017 lease, investigators did not believe there were any tenants currently residing within unit 2806. Further, the affiant stated his belief that Mr. Nguyen lived at the Richmond Hill address, and not at the unit. [50] The reviewing judge found that: The affiant asserted that the General Warrant was necessary to obtain evidence to support criminal charges against the Applicant and members of his network. This could be said of any step in an investigation…The ITO was silent on any intrusions on privacy interests of potential third parties, and it did not recognize that this was an exceptional “ask”… … The ITO failed to balance the benefits from the investigation sought against the intrusions on privacy involved; it did not allow the issuing judge to conclude that the intrusions were justifiable… …a failure to address the mandatory second component of the test found in s. 487.01(1)(b), is on its own, fatal to the General Warrant. [51] While the reviewing judge did not explicitly refer to what she found was a lack of reasonable and probable grounds in this portion of her reasons, in my view, reading the whole of her reasons, that finding clearly tainted her analysis of whether the ITO satisfied the requirement under s. 487.01(1)(b). A finding that there was a lack of reasonable and probable grounds would necessarily diminish the weight to be accorded to the interests of effective law enforcement, and affect the balancing of that interest against the individual’s interest in privacy. [52] Further, and respectfully, the reviewing judge erred in concluding that the ITO was silent on any intrusions on privacy interests of potential third parties and did not allow the issuing judge to conclude that the intrusions were justifiable. [53] As noted above, there was credible and reliable evidence that Mr. Nguyen did not reside in that unit but rather at the Richmond Hill address. Even on the amplified version of the ITO, noting that three fobs had been issued to named tenants in 2017, the affiant was aware that the lease dated back several years and that there was more recent information from the security manager that only one fob was issued for that unit. [54] The police wanted to continue investigating the unit, and covert searches would avoid tipping off Mr. Nguyen and his associates and would allow police to monitor product moved in and out of the unit. The affiant stated that the execution of a traditional search warrant would have ended the investigation. In that respect, this case is similar to Ha. In Ha, in concluding that the second component of s. 487.01(1)(b) had been satisfied, this court considered that the execution of a traditional search warrant would have terminated the investigation of the drug trafficking that police suspected: at para. 53. [55] The information contained in the ITO was a sufficient basis for the issuing judge to conclude that it was in the best interests of the administration of justice to issue the general warrant. The affiant explained how the general warrant would further the objectives of justice by enabling the police to continue their investigation into these serious drug trafficking offences, involving the distribution of significant amounts of fentanyl. There was also ample basis for the issuing judge to conclude that these law enforcement considerations outweighed the potential impact on the privacy of any potential tenants – listed in a dated lease when, according to building security, only one fob had been issued and that fob was used by Mr. Nguyen. E. DISPOSITION [56] For the above reasons, I would allow the appeal. [57] After the reviewing judge granted Mr. Nguyen’s Charter application and excluded the evidence obtained under the authority of the warrants, Mr. Nguyen was arraigned and pled not guilty. The Crown led no evidence and Mr. Nguyen was acquitted. [58] I would set aside the acquittals and order a new trial. Released: May 24, 2023 “A.H.” “Alexandra Hoy J.A.” “I agree. L. Favreau J.A.” “I agree. J. Copeland J.A.” [1] In R. v. Edwards, [1996] 1 S.C.R. 128, Cory J., at para. 45, enumerated several relevant factors to consider in assessing whether a reasonable expectation of privacy exists, having regard to the totality of the circumstances: (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; (vii) the objective reasonableness of the expectation. [2] Following a heading entitled “Additional obligations” in the lease agreement, a handwritten notation indicated: “Three sets of key [sic] 3 FOB 1 Mail Box, 3 Door Key”. The reviewing judge inferred that three fobs and three keys were issued.