R. v. Nguyen, 2023 ONCA 367
what you need to know
-Whether an accused has an objectively reasonable expectation of privacy in a common area of a multi-residential building is a contextual analysis that depends on a number of factors including:
> ownership of the unit,
> degree of control over the common area,
> the size of the building;
> whether a security system or locked doors function to regulate access (i.e. whether or not there are mechanisms to exclude the public from the area).
-In this case, a publicly accessible, glass-walled front entrance/vestibule in a large condominium building where no security features prevented non-owners or occupants from entering did not attract an REP. In this case, the accused also did not own or reside in the unit of the condominium in question.
background
Police believed that the respondent, Mr. Nguyen, was part of a fentanyl drug network and was using his condominium unit as a stash location. On December 12, 2019, police executed a general warrant at his unit and found large quantities of fentanyl powder, methamphetamine and ketamine - valued at approx. $981,000. Based on the results of this search, the police then obtained and executed a search warrant at Mr. Nguyen’s family residence where they found, among other things, a loaded handgun, ammunition, cash, a bulletproof vest and keys for the previously searched condo unit.
As a result, Mr. Nguyen was charged with multiple counts of possession of controlled substances for the purpose of trafficking contrary to the Controlled Drugs and Substances Act and possession of a handgun and ammunition contrary to the Criminal Code. He successfully challenged the general warrant pursuant to s. 8 of the Charter. The pre-trial judge excised portions of the Information to Obtain (“ITO”) and made corrections to the ITO. Following the excisions and corrections, the pre-trial judge concluded there were insufficient grounds on which the issuing judge could have issue the general warrant. Applying s. 24(2), the pre-trial judge concluded that the evidence obtained under the general warrant, and the subsequent search warrant, should be excluded. The Crown led no further evidence, and Mr. Nguyen was therefore acquitted.
The Crown now appeals the pre-trial judge’s decision alleging the reasons were tainted by a number of errors. The main ground of appeal, however, focuses on the pre-trial judge’s conclusion that Mr. Nguyen had a reasonable expectation of privacy in a video recording of him in the condominium’s front entrance vestibule.
Disposition - Appeal allowed. Acquittals set aside and new trial ordered.
THE S. 8 RULING
The police followed Mr. Nguyen. He parked his vehicle in the area of two condominium buildings. The police attended the front desk of both buildings and spoke to the security supervisor advising him they were trying to identify if someone had attended their buildings. The officer requested to view the video footage for the public entrances for both buildings. The supervisor permitted him to do so. From reviewing the video, the officer learned that Mr. Nguyen used a key fob to access the front lobby of one of the buildings.
Citing R. v. White, 2015 ONCA 508 and R. v. Yu, 2019 ONCA 942, the pre-trial judge concluded that “residents in condominium buildings have a reasonable expectation of privacy in common areas of the building”. She ultimately concluded that Mr. Nguyen had a reasonable expectation of privacy (albeit a low one) in the video of his movements inside the front entrance/vestibule of his condo building. As noted above, as a result of this finding, she excised portions of the ITO.
analysis
First, 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. White and Yu provide guidance in determining whether an individual’s subjective expectation of privacy in the common areas of multi-residential buildings is objectively reasonable. This analysis is contextual, and there may be a number of relevant considerations in determining whether an expectation of privacy is reasonable in the circumstances, including but not limited to:
the degree of possession or control exercised over the common area by the claimant;
the size of the building (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
ownership of the unit.
The pre-trial judge erred by failing to engage in the contextual analysis and failing to consider the factors outlined in White and Yu.
The information sought in this case was that Mr. Nguyen entered a particular condominium building and used a key fob to do so. All parties agree that Mr. Nguyen certainly had a direct interest in the video of his image and movements. They also agree that Mr. Nguyen would assert a subjective expectation of privacy in the video.
The remaining question then is, considering and applying the factors in White and Yu, is whether Mr. Nguyen’s subjective expectation of privacy in the video of his movements in the public vestibule was objectively reasonable.
For the following reasons, the Court of Appeal concluded that Mr. Nguyen did not have an objectively reasonable expectation of privacy in the same:
Mr. Nguyen had no control over the glass-walled vestibule. It is accessible to the general public.
The condominium in this case 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 the unit in question. In fact, he did not even reside in the condominium building in question.
The information obtained about Mr. Nguyen was strictly limited and did not substantially compromise his informational privacy interests.
The pre-trial judge’s error in concluding that Mr. Nguyen had a REP in the condominium’s front entrance had a cascading effect. Had she properly concluded that Mr. Nguyen did not have an REP, she would have concluded that there were sufficient grounds on which the issuing judge could have issued the warrant.