A Too-Clever Game of Partial Truths
- March 30, 2018
- Clayton Rice, Q.C.
On February 16, 2018, Justice Jolaine Antonio of the Court of Queen’s Bench of Alberta, at Calgary, released the reasons for exclusion of evidence in a case reported as R v Sandhu, 2018 ABQB 112. The Calgary police had covertly installed a hallway camera in a downtown apartment building during a drug investigation targeting a suspected stash suite when it captured evidence of an unrelated drug rip. But the police didn’t get a warrant for the hallway camera which tainted a subsequent search warrant for the apartment. Here’s the story.
1. The Hallway Camera
The camera was installed after an investigator met with a building manager to get key fobs. He duped the manager by telling her that the police wanted access to “further an investigation” in the building. He kept the information “basic” to “not give up” any details. The video camera was then installed without the manager’s consent showing apartments 802 and 803 and a portion of the hallway. Apartment 803 was the suspected stash suite. The camera generated a constant live feed that could be remotely monitored but it did not constantly record. The recording was motion activated: when motion was detected in the hallway, the camera would store the feed from 30 seconds before the activity began to 30 seconds after the activity ended. There was no audio capability. The camera ran continuously from February 3 to 25, 2016.
2. The Drug Rip
On February 25, 2016, Keith Gall and Daryl Hegg were awakened by masked intruders in a house in the Citadel neighbourhood used for a marihuana grow operation. Gall was duct taped to his wheelchair. Hegg was struck in the head with a baseball bat and threatened with a gun when he was prone on the kitchen floor. He passed out. By the time he awoke, the intruders had made off with some drugs, cash and credit cards.
The day before the home invasion, the police had a Pontiac Torrent motor vehicle under surveillance that was registered to Gagandeep Sandhu. The police followed the Pontiac from the downtown apartment building to various retail locations where the occupants bought a baseball bat, four pairs of batting gloves and a machete. The police stopped the Pontiac and identified the occupants as Cole Safarik, Brandon Mayes, Aubre Maley and Steven Samson. After returning to the apartment building, the Pontiac left again, drove to the Citadel neighbourhood and circled Gall’s block twice before heading back downtown.
3. The Search Warrant
Later, on February 25, 2016, the police obtained a warrant to search apartment 803 and the Pontiac. In the sworn Information to Obtain the warrant, a police office said that the hallway camera was installed to monitor people coming and going from the apartment but she said nothing about the installation of the camera or how it operated. The police arrested Safarek, Mayes, Maley and Samson in the suite where the police found evidence linked to the Gill home invasion. Sandhu was arrested at another location.
The video footage led to an inference that, after the home invasion, Sandhu and others dropped plastic bags bearing identifiable store brands down the garbage chute in the apartment building. The police retrieved bags with those brands from the garbage. The bags contained items linked to Gall and the home invasion.
4. The Ruling
I will comment on these two important aspects of the ruling (a) whether the applicants had a reasonable expectation of privacy in the common area and (b) the exclusion analysis.
Justice Antonio held, at para 48, that all the defendants had a reasonable expectation of privacy in the hallway under s. 8 of the Charter. The camera revealed biographical core information where it was reasonable to expect that such information would remain private. It was therefore objectively unreasonable for the state to record it. Although the defendants’ weak territorial connection attenuated that finding – it did not eliminate it. Standing to challenge the search and seizure was established. (See: R v Duarte,  1 SCR 30 per La Forest J, at paras 22 and 30; and, R v Wong,  3 SCR 36 per La Forest J, at paras 22 and 27)
The Crown conditionally conceded that, if the court found standing, the covert installation of the hallway camera without the consent of the property manager constituted an unreasonable search. The excision rule was thus triggered and required that the unconstitutionally obtained evidence be automatically excised from the Information to Obtain. The Crown conceded excision. Without the tainted evidence, the issuing judge could not have granted the search warrant. The resulting searches of the apartment and the Pontiac were therefore warrantless and violated s. 8 of the Charter. (See e.g.: R v Batac, 2018 ONSC 546 per Dambrot J, at paras 39-45)
This is the first case where an Alberta court has held that an applicant under s. 8 of the Charter had a reasonable expectation of privacy in the common areas of a condominium or apartment building. As Justice Antonio observed, there is no catalogue of police techniques that engage a reasonable expectation of privacy. Each case requires a principled application of the privacy factors. The same applies to covert cameras in condominium or apartment hallways. “This explains,” she wrote at para 32, “why the precedents on hallway cameras have led to varied results on standing: each presents a unique combination of circumstances that influence the privacy analysis. The precedents are helpful in understanding what features have held significance to different courts at different times.”
Justice Antonio said this at the heart of the analysis on exclusion, at para. 56: “I have no evidence that the police gave any thought to the legality of the technique at all. At best, this is tantamount to negligence or wilful blindness.” The police had not informed the building manager “thereby depriving her of the ability to give informed consent to the violation of her tenants privacy” and the same silence appeared in the Information to Obtain. Justice Antonio reached this conclusion, at para 59, on the seriousness of the police conduct: “The pattern of omission demonstrates that the police wanted the camera’s legal status to remain unnoticed and unexamined. I am unable to conclude that the police obtained and relied on the warrant in good faith.”
Here is Justice Antonio’s penultimate conclusion, at para. 76: “The police installed a surveillance camera in a semi-private space. In its three weeks of continuous operations, it happened to catch criminal activity by people who were not previously suspected of any wrongdoing. Evidence from the camera formed a critical portion of the ITO, but that content was excised because the police concealed a tactic they should have known was of dubious legality. Both at the stage of seeking access to the building and at the stage of seeking the warrant, the police attempted to acquire permission and authorization by playing a too-clever game of partial truths.”
As important as the suppression of evidence was to the applicants and the Crown’s case, it is the ruling on standing that has broader implications for privacy law. As Justice Antonio discussed, at para 24, standing is concerned with whether an applicant is entitled to invoke the jurisdiction of a court to seek a remedy. Standing means two things that are context specific (a) a tautological meaning when the question of entitlement to seek relief is identical to the question of entitlement to relief or (b) whether the claimant has a sufficient stake in the outcome to invoke the judicial process that focuses on the position of the party who seeks standing and not on the issues to be resolved.
Under s. 8 of the Charter, the Supreme Court of Canada established in R v Edwards,  1 SCR 128 that an applicant’s standing is not defined by proximity to the prosecution but by the privacy interest asserted. Standing turns on the subject matter of the police technique that is alleged to be a search. The question in Sandhu therefore was: Did the police technique engage a reasonable expectation of privacy? (See: R v Tessling,  3 SCR 432 per Binnie J, at para 19)
The Crown’s theory was that the applicants used apartment 803 for offence related purposes, jointly perpetrated the drug rip and jointly possessed evidence that was seized by the police when the search warrant was executed. The Crown relied on a narrow construction of the Edwards test asserting that “the subject matter of the search was a common hallway over which the accused had no known proprietary connection and no control or exclusivity.”
Justice Antonio rejected the narrow approach, at paras 40-1, citing the recent ruling in R v Marakah, 2017 SCC 59 where the Supreme Court of Canada “rejected the assertion that a privacy interest is lost once control is lost”. Although the hallway was not “fully private” it was “more private than public”. In determining whether the applicants’ subjective expectation of privacy was objectively reasonable, Justice Antonio concluded that it was reasonable for people in the eighth floor hallway “to believe they were not being watched by an unseen watcher”.
And with that, Justice Antonio brought privacy law as applied by Alberta courts in line with the leading decisions in Ontario by putting the emphasis where it should be – on people, not places. The ruling in Sandhu is an important development in the right to anonymity in modern urban life – that all Canadians who live in apartment and condominium buildings may blend into the situational landscape free from the remote eyes of unseen watchers. (See also: R v White, 2015 ONCA 508 per Huscroft JA, at para 51; and, On The Wire. Privacy Rights In Residential Buildings. July 20, 2015)