R. v. Salmon

R. v. Salmon Collection Decisions of the Court of Appeal Date 2024-09-19 Neutral citation 2024 ONCA 697 Docket numbers COA-22-CR-0379 Judges Gillese, Eileen E.; van Rensburg, Katherine; Roberts, Lois B. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Salmon, 2024 ONCA 697 DATE: 20240919 DOCKET: COA-22-CR-0379 Gillese, van Rensburg and Roberts JJ.A. BETWEEN His Majesty the King Respondent and Rashawn Salmon Appellant Lynda Morgan and Jocelyn Rempel, for the appellant Kerry Benzakein, for the respondent Heard: May 30, 2024 On appeal from the convictions entered by Justice Robert F. Goldstein of the Superior Court of Justice on September 12, 2022. van Rensburg J.A.: A. Overview [1] The appellant was charged with two co-accused on a multi-count indictment for various drugs and firearms offences. He was convicted of possession of a prohibited device and ammunition, contrary to s. 92(2) of the Criminal Code, R.S.C. 1985, c. C-46, possession of an unauthorized firearm, contrary to s. 92(1), possession of a prohibited firearm, contrary to s. 95(1), and possession of a controlled substance (carfentanil) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). He was sentenced to 6.5 years in prison less 13 months’ credit for pre-sentence custody. [2] The appellant and his co-accused brought a pre-trial motion alleging breaches of ss. 8, 9, 10(a) and 10(b) of the Charter.[1] The motion was heard by K. Campbell J. (the “reviewing judge”) over the course of several days in May and August 2022. On appeal from his convictions the appellant contends that the reviewing judge erred in dismissing his pre-trial motion in relation to alleged s. 8 breaches, and in refusing to exclude from evidence at trial a firearm, drugs and other items seized in the search of his home and vehicle. If he is successful on the appeal, he seeks to have his convictions set aside and a new trial. [3] For the reasons that follow, I would dismiss the appeal. B. Facts [4] In 2019 the Toronto police received detailed information from a confidential informant that Dennis Mensah (“Mensah”) was trafficking in fentanyl. Their subsequent investigation confirmed the accuracy of the information, and they obtained a tracking warrant to permit them to follow two cell phones associated with Mensah. They tracked Mensah and observed him making what appeared to be drug deals with various individuals from a black Lexus. They also observed Mensah driving the Lexus into the underground parking garage associated with condominium buildings at 1 and 3 Rean Drive, a location in close proximity to where suspected drug deals had taken place. [5] The police attended the building at 3 Rean Drive and spoke to a security guard who directed them to Jared McKensie Stone, who introduced himself as the “senior property administrator”. Mr. McKensie Stone (1) told the police that two parking passes had been issued to unit 1207 3 Rean Drive four months earlier for the Lexus; (2) informed them that the appellant was the registered tenant of unit 1207 and provided a copy of the lease; and (3) authorized the security guard to turn over CCTV footage from the building elevators and elevator vestibule. The CCTV videos showed, at various times, all three accused (sometimes together, sometimes alone and sometimes with others) in the building and taking elevators between the 12th floor and the underground parking lot. It also showed Mensah, after exiting the elevator, turning right down the hallway on the 12th floor, in the direction of unit 1207. [6] The police obtained search warrants for three locations: (1) unit 1207 at 3 Rean Drive, (2) Mensah’s condo unit (in another building), and (3) Mensah’s Lexus. The information to obtain (“ITO”) set out information from the confidential informant about Mensah’s drug dealing activities, described the police surveillance of Mensah and the results of the tracking warrant from Mensah’s cell phones, and included references to the above-noted information obtained from Mr. McKensie Stone and the CCTV footage from 3 Rean Drive. [7] While the search warrants were being executed, the police arrested all three accused. In their search of the appellant’s condo unit the police found an empty box for a Glock handgun, a 50 round over-capacity magazine with 35 rounds, $7,870 in cash bundled in stacks, cell phones, documents in the appellant’s name, and two sets of keys for a Kia vehicle. [8] The police located the Kia in the parking space allotted to unit 1207 in the underground parking lot. They seized the vehicle and then obtained a warrant to search it. The ITO for the search warrant for the vehicle referred to the information provided in the earlier ITO, as well as the search of the appellant’s condo unit and the items seized in that search. In the search of the Kia the police found, in a hidden compartment behind the passenger seat, a loaded Glock handgun with 12 rounds of 9 mm. ammunition in the magazine and one in the chamber, 35 g of carfentanil, 1.74 g of fentanyl, 27.51 g of cocaine, and a cutting agent, digital scales and a spoon. The Charter Motion [9] The reviewing judge dismissed the Charter motion in its entirety. It is unnecessary to refer to the other alleged breaches, as they are not engaged in this appeal. What follows is a brief summary of the reviewing judge’s reasons for dismissing the appellant’s s. 8 motion. [10] The reviewing judge concluded that there were reasonable grounds justifying the issuance of each of the search warrants, including the warrant to search the appellant’s rented condo unit. He found that the information provided by the confidential informant was credible and corroborated. He observed that the information provided to the police by the building employees came from individuals who ostensibly had the requisite authority to provide the information, and that accordingly there was no violation of any reasonable expectation of privacy the appellant might have had in the common areas of the building. With respect to the search warrant for the appellant’s vehicle, the reviewing judge stated that it was not at all unreasonable for the police, after discovering an empty box for a Glock firearm and a partially loaded, oversized ammunition drum magazine in the appellant’s residence, to believe that the missing firearm might well be inside his vehicle. [11] At his trial the appellant was convicted of all four counts, on an agreed statement of facts in which, among other things, he admitted knowledge and control of the controlled substances, the Glock firearm and ammunition found in the Kia, as well as the over-capacity magazine drum found in his condo unit. C. Issues on Appeal [12] In an appeal of a Charter ruling an appellate court should only interfere where there is an error of law, a misapprehension of the evidence or a failure to consider relevant evidence: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89. [13] The appellant contends that the reviewing judge made four reversible errors, any one of which is sufficient to exclude from evidence the items seized by the police, and to allow the appeal. He submits that the judge erred: 1. in failing to excise the CCTV surveillance information from the ITO for the search warrant for the appellant’s condo unit; 2. in upholding the search warrant for the condo unit in the absence of reasonable and probable grounds to believe the evidence sought would be found there, and in the absence of sufficient reasons; 3. in concluding that the Kia vehicle was lawfully seized without a warrant; and 4. in concluding that the search warrant for the vehicle could have issued. (1) Issue One: The reviewing judge did not err by failing to excise the CCTV surveillance information from the ITO for the search warrant for the appellant’s condo unit [14] The appellant contends that the reviewing judge erred in rejecting his claim to a reasonable expectation of privacy in information obtained from the CCTV footage from the elevator and elevator vestibule in the condominium building, and in his conclusion that information, including the CCTV footage, was provided to the police by individuals with the necessary authority. The appellant submits that references to information about the CCTV footage should have been excised from the ITO. [15] The Crown urges this court to find that, as the resident of a multi-unit property, the appellant had no reasonable expectation of privacy in the CCTV footage because it depicted areas of the building that were accessible or visible to the general public. In the alternative, the Crown contends that there was no error in the trial judge’s conclusion that the CCTV footage was provided to the police with lawful authority. [16] I would reject this ground of appeal. [17] As the appellant acknowledges, the reviewing judge implicitly accepted that he might have had a reasonable expectation of privacy in the common areas of the condo building but rejected the appellant’s s. 8 claim because the building employees who provided information to the police “ostensibly had the requisite authority to provide the information”. As such, it is unnecessary to determine whether on the evidence the appellant’s expectation of privacy in the CCTV footage was objectively reasonable. It is sufficient to explain why I reject the appellant’s argument that the police obtained information and seized CCTV footage from the condominium building without lawful authority. [18] The appellant contends that in R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, [2020] S.C.C.A. No. 38, this court recognized a “narrow carve-out” to the Reeves[2] expectation of privacy that permits a condo board to waive its residents’ privacy interests. He says that this carve-out must be interpreted narrowly, and that only a building employee who has the approval of the board of directors, as the persons authorized under the Condominium Act, 1998, S.O. 1998, c. 19, may waive a resident’s privacy interest. The appellant contends that Mr. McKensie Stone acknowledged in the voir dire that he did not think he had authority to release the CCTV footage, and there was no evidence that the condominium board had in fact approved its turnover to the police. When pressed by the panel to articulate exactly what was required of the police when, as here, a person with apparent authority co-operated with their request, the appellant’s counsel asserted that the police would have to ascertain in each case whether the condominium board in fact had authorized the release of the information they requested. [19] I reject this argument. First, it proposes too narrow a reading of Yu. Second, it was a reasonable interpretation of the evidence as a whole that the building employees had the requisite authority to provide the requested information to the police, including the CCTV footage. [20] Yu recognizes that the ability of a condo board and property management to co-operate with a police investigation by providing access to common areas of the building and other information is relevant to two issues: first, it will attenuate a resident’s reasonable expectation of privacy in common areas of the building; and second, it can provide lawful authority for a warrantless search and seizure: at paras. 72-75. [21] It is not a question of “waiver” of a resident’s privacy interests, as suggested by the appellant, but whether an authorized person consents to entry and/or seizure on behalf of the residents of the building as a collective. In Yu, Tulloch J.A. (as he then was) referred to the duty of a condominium corporation under the Condominium Act to administer the common elements and to manage the property of the corporation on behalf of the owners, and he noted that it is the “condominium board and, by extension, property management” that is entrusted with security of the building and the residents: at paras. 91-92. [22] Further, and contrary to the appellant’s argument, Yu does not require evidence in each case that the condominium board specifically authorized the turnover of information to the police. At para. 131, Tulloch J.A. concluded: “the board and property management have valid authority to cooperate with the police and to consent on behalf of the residents to allow police entry” (emphasis added). The case recognizes as “property management” the persons who, by reason of their position, have the authority and ability to regulate access to the building: at para. 93. [23] I therefore reject the appellant’s reading of Yu to require (1) that there must be evidence of the actual delegation of authority from a condominium board to the individual concerned before there can be said to be lawful authority; and (2) that only persons with the specific title of “property manager” can authorize police entry into a condominium building and provide information to the police. [24] Whether a person is “property management”, that is a person with authority to control access to a condo building, and to respond to police inquiries, is a question of fact in each case. Here, it was open to the reviewing judge to conclude, based on the evidence on the voir dire, that the information and CCTV footage the police obtained was provided by authorized persons. The police officers who attended at the building testified that they asked the security guard for the property management office, that they were directed to Mr. McKensie Stone, and that he gave them his card with his title as “senior property administrator”. They testified that they told Mr. McKensie Stone the purpose of their attendance and that he was co-operative, competent and appeared comfortable in sharing information. [25] The appellant focuses on one passage from Mr. McKensie Stone’s testimony where he stated that he did not think he had authority to provide the CCTV footage to the police without a warrant. This statement however must be considered in the context of the whole of his evidence. Mr. McKensie Stone testified that he could not recall what information he provided to the police. Although the police testified that he had done so, he could not recall whether he had shown the lease documents and parking permits for unit 1207 to an officer, and he could not recall whether he authorized the security guard to provide the CCTV footage. While he expressed doubt about his authority to provide the CCTV footage to the police, he acknowledged that he could have done so with the permission of the property manager or assistant property manager who may have been on-site, and he testified that if he provided the documents to the police, it would “not necessarily [have been] outside of [his] authority”, and would depend on the circumstances, including the seriousness of the allegations being investigated. [26] On this evidence, it was open to the reviewing judge to conclude that the information that was provided to the police, including the CCTV video footage, came from individuals who ostensibly had the requisite authority to provide the information. The reviewing judge was correct to conclude that there was no breach of the appellant’s s. 8 rights in respect of the CCTV footage, and accordingly that there was no basis for the exclusion of all references to such evidence from the ITOs. (2) Issue Two: The reviewing judge did not err in upholding the search warrant for 3 Rean Drive, and his reasons were sufficient [27] The reviewing judge was required to determine whether, based on the record before the authorizing judge as amplified on review, the search warrant could have issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. The appellant challenges the sufficiency of the information to connect the offence under investigation, that is Mensah’s alleged possession of fentanyl for the purpose of trafficking, to the appellant’s condo unit, such that the police would have reasonable grounds to believe that evidence of trafficking would be found there. He also contends that the reviewing judge’s reasons were insufficient. [28] The appellant does not take issue with the characterization by the reviewing judge of the confidential informant’s information as compelling, corroborated (in certain respects), and credible. That information provided significant details about Mensah’s drug trafficking activities and his use of a black Lexus in apparent drug transactions (which was confirmed by police surveillance). The appellant also acknowledges that the police saw Mensah driving the Lexus into the underground parking garage and that they received information indicating that parking passes for that vehicle had been obtained by the appellant in January; that they had CCTV footage from the elevators in the building showing the three accused travelling between the 12th floor and the underground parking lot, and getting off the elevator at the 12th floor and turning right towards the appellant’s unit; and that the appellant was seen on one video clip carrying a bag that appeared to have something in it. [29] The appellant asserts however that, at its highest, this information supported only the conclusion that Mensah attended at 3 Rean Drive, and did not support an inference that he was using the appellant’s condo unit as a stash house or that any drugs would be found there. There was no evidence that Mensah was storing drugs or drug paraphernalia in the appellant’s unit or that he had such items with him when he visited the building. The appellant contends that, as in R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721 (which also involved the search of an apartment for evidence of a crime committed by another person), it was not sufficient that the target of the investigation had attended at the place to be searched. [30] The appellant also refers to what he characterizes as “misapprehensions of the evidence”. He says that the evidence about parking passes having been issued for the black Lexus in January at the request of the appellant was not a ground supporting the issuance of the warrant because the police admitted that they did not know whether the passes were used by Mensah or anyone else, whether he attended at the building at that time, or whether the passes were issued to someone else (since the passes were not issued in Mensah’s name). He also asserts that, while the tracking of Mensah’s cell phone was consistent with two overnight visits at 3 Rean Drive on May 24 and 25, 2019, there was nothing to connect drug trafficking activity to the appellant’s unit. The appellant argues that the evidence suggested only that Mensah might have gone to the appellant’s unit on one occasion. [31] I do not agree with these submissions. Rather, as the Crown contends, the information in the ITO provided a “clear connection” between Mensah’s drug trafficking and his attendance at the appellant’s condo unit at 3 Rean Drive. On May 23, Mensah, while driving the black Lexus, was followed to the building just after he had engaged in a suspected drug transaction a short distance away, and on May 24, data from Mensah’s tracker established that he had returned to the building after he had been observed conducting three suspected drug deals. The CCTV footage also showed Mensah carrying a bag when he left the building the night of May 23/24, which suggested that he had stored items there. There were also ample grounds to believe that Mensah was inside unit 1207 when he attended at 3 Rean Drive: in addition to the fact that a few months earlier parking passes had been issued for the black Lexus at the request of the occupant of unit 1207, Mensah was observed in the CCTV video footage turning right, in the direction of unit 1207 when he got off the elevator on the 12th floor on May 23 and he was seen in the company of the appellant on two occasions that day and the next. The evidence, considered as a whole, and not on a piecemeal basis, supports the conclusion that the authorizing justice could have reasonably believed that there was evidence of Mensah’s drug trafficking to be found at unit 1207, 3 Rean Drive: R. v. Cusick, 2019 ONCA 524, 146 O.R. (3d) 678, at para. 89. [32] I also do not accept that the reviewing judge’s reasons were insufficient. The question is whether the reasons, viewed in light of the record and counsel’s submissions, “explain why the decision was reached”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69-71. Reasons are legally insufficient only when, after being read as a whole and in the context of the whole of the record, appellate review is frustrated: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28 and 55. [33] In this case, the reviewing judge heard several days of evidence on the voir dire in which multiple issues were raised on behalf of three accused. He made rulings on the defence requests to cross-examine the ITO affiants, provided a judicial summary of the redacted information in each of the ITOs, and heard a full day of submissions. Within a week of the submissions and a few days before the scheduled trial date, he released his written reasons. While his reasons with respect to the validity of the search warrants were brief, they were sufficient. The reviewing judge accurately set out the applicable legal principles. He engaged meaningfully with the contents of the ITO, and he concluded, correctly, that information provided by the confidential informant met the Debot standard. He further found that the police investigation, as summarized in the ITO, established a strong connection between Mensah, as a drug trafficker, and 3 Rean Drive. In addition to the reviewing judge’s specific findings, the record (including the ITO itself, the transcripts of the evidence on the voir dire and the arguments of counsel) has permitted this court to fully consider this ground of appeal, that is whether a search warrant for the appellant’s condo unit could have issued. Accordingly, there is no question that the reviewing judge’s reasons with respect to the validity of the search warrants, when considered in the context of the entire record, are sufficient to permit appellate review. (3) Issues Three and Four: The reviewing judge did not err in finding that the Kia was lawfully seized without a warrant, and that the search warrant for the Kia could have issued [34] The appellant asserts that the reviewing judge erred in concluding that the warrantless seizure of the Kia vehicle was lawful, and in concluding that there were reasonable grounds for the search warrant for the vehicle to have issued. These grounds can be addressed together. [35] The thrust of the appellant’s argument is that there was no evidence before the reviewing judge that provided legal justification for the police to seize the vehicle, and that the ITO did not provide reasonable grounds for its search. [36] I disagree. [37] The reviewing judge’s reasons with respect to the search of the Kia were set out at para. 18 as follows: [I]t was not at all unreasonable for the police, after discovering the empty box for a Glock firearm and the partially loaded, oversized ammunition drum magazine in the Salmon residence, to believe that the missing firearm may well be inside Mr. Salmon’s automobile. Mr. Salmon had the keys to the Kia in his condominium unit, the police had previously (in March of 2015) found an unlawful firearm (fully loaded) in his motor vehicle, and the Kia vehicle was located in the underground parking spot allocated to his residence. Further, the officer that authored the ITO for the Kia vehicle noted that, from his experience, he has learned that people often keep “personal items” associated with their involvement in the drug trade in their residences ‘and vehicles.’ As I have already concluded, the search warrant could have issued permitting the police to search the Kia motor vehicle associated with Rashawn Salmon. [38] The reviewing judge made findings of fact based on the evidence that he heard on the voir dire as to why the police seized the vehicle and obtained a search warrant. It was on the basis of what the police found in their lawful search of the condo unit – an empty box for a Glock firearm and a partially loaded, oversized ammunition drum magazine – that they reasonably believed the missing firearm might be inside the appellant’s automobile. Two sets of keys to the car were found in the appellant’s condo, and the vehicle was in the parking space allocated to the unit. In carrying out their search of the condo unit, the police were authorized under s. 489(1)(c) of the Criminal Code to seize any thing that they believed on reasonable grounds would afford evidence in respect of an offence. And, under s. 11(8) of the CDSA, “in addition to the things mentioned in the warrant”, they were permitted to seize “any thing that the peace officer [believed] on reasonable grounds [had] been obtained by or used in the commission of an offence or that [would] afford evidence in respect of an offence”: see R. v. Iraheta, 2020 ONCA 766, at paras. 29 and 30. [39] The appellant makes two arguments on appeal to challenge the reasonableness of the police action in seizing the Kia. First, he contends that the police, although lawfully in the condo unit where they found the keys to the vehicle, were not lawfully in the parking garage where the Kia was found. I am not persuaded by this argument, which was not made at first instance. While the police required a warrant to access the appellant’s condo unit, where he undoubtedly enjoyed a reasonable expectation of privacy, the underground parking garage was a common area to which a resident’s right to a reasonable expectation of privacy would not ordinarily attach: see e.g., Yu, at paras. 78-80; R. v. Drakes, 2009 ONCA 560, 252 O.A.C. 200, at para. 18, leave to appeal refused, [2009] S.C.C.A. No. 381. This issue was not explored to any extent in the voir dire, and there is accordingly no evidence that would undermine these general principles. Second, the appellant contends that the “assumption” that the police would find a firearm in the Kia was unreasonable because they had “zero information” about what was in the car, or who put it there, or about when the vehicle was last used. The reviewing judge accepted that it would be reasonable to conclude that the missing gun was in the Kia, which was parked in the parking space allocated to the appellant’s unit. This was not speculative, but was based on the presence of the Glock box and ammunition drum magazine in the condo, together with the officer’s experience that people often store contraband in their vehicles. There was no indication that someone else might have had access to the vehicle, as two sets of keys were found in the condo unit. [40] I turn to the search warrant itself. The focus of the appellant’s argument is that, in upholding the warrant, the reviewing judge incorrectly relied on the empty Glock box (which was not in fact referred to in the ITO), and that the balance of the information in the ITO was insufficient to support the warrant. [41] I disagree. Even if the ITO did not refer to the empty Glock box, the other facts that were relied on by the reviewing justice, when considered together, justified the issuance of the Kia warrant. These included (a) the fact that the police found a partially loaded, oversized ammunition drum in their search of unit 1207; (b) the police discovered the Kia keys in unit 1207; (c) the Kia was found in the underground parking spot assigned to unit 1207; (d) the police had previously found an unlawful firearm in Mr. Salmon’s automobile (in 2015); and (e) the affiant stated that the items to be searched for are “routinely found” in places such as residences and vehicles. The appellant states that the latter two reasons were of little probative value because they did not support a belief that a firearm (and not some other form of contraband) would be found in the Kia, and that finding an ammunition drum and Kia keys in the apartment, and the Kia in the 1207 parking spot was not enough when the police did not see the appellant drive or access the Kia, which was not registered to him. [42] I do not agree with the appellant’s submissions, which again adopt a piecemeal approach to the information that was considered by the reviewing judge, an approach to warrant review that has been repeatedly rejected by this court: see e.g., Herta, at para. 21. On the evidence, there was a very strong inference that the appellant had control over the Kia and that a gun would be found in the vehicle. On the totality of the circumstances known to the police and conveyed to the issuing justice, the warrant for the Kia could have issued. D. Conclusion and Disposition [43] For these reasons I reject the appellant’s submissions that the reviewing judge erred in failing to find a s. 8 breach in relation to the searches of his apartment and the seizure and search of his vehicle. The s. 24(2) remedy does not accordingly arise. The contested evidence was properly admitted and there is no basis to set aside the appellant’s convictions. I would therefore dismiss the appeal. Released: September 19, 2024 “E.E.G.” “K. van Rensburg J.A.” “I agree. E.E. Gillese J.A.” “I agree. Roberts J.A.” [1] R. v. Mensah, 2022 ONSC 5091. [2] R. v. Reeves, 2018 SCC 56, [2018] 3 SCR 531.