COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yu, 2019 ONCA 942

DATE: 20191202

DOCKET: C64338, C64301,
    C64280 & C63924

Tulloch,
    van Rensburg and Harvison Young JJ.A.

DOCKET:
C64338

BETWEEN:

Her Majesty the Queen

Respondent

and

Larry Yu

Appellant

DOCKET: C64301

AND BETWEEN:

Her Majesty the Queen

Respondent

and

Dat Quoc Tang

Appellant

DOCKET: C64280

AND BETWEEN:

Her Majesty the Queen

Respondent

and

Ken Ying Mai

Appellant

DOCKET: C63924

AND BETWEEN:

Her Majesty the Queen

Respondent

and

Christopher Saccoccia

Appellant

R. Craig
    Bottomley and Sherif M. Foda for the appellant Larry Yu

Andrew
    Burgess for the appellant Dat Quoc Tang

James
    Lockyer and Eva Taché-Green for the appellant Ken Ying Mai

Anthony
    Moustacalis and Christen Cole for the appellant Christopher Saccoccia

Randy
    Schwartz and Jennifer Epstein for the respondent

Heard: April 8-9, 2019

On appeal from the orders of
Justice Michael Code of the Superior Court of Justice, dated June
    27, 2016 and December 21, 2016, with reasons reported at
R. v. Brewster
,
    2016 ONSC 4133 and
R. v. Brewster
, 2016 ONSC 8038 (
C64338, C64301, C64280 & C63924)
.

On appeal from the convictions entered
    by Justice John McMahon of the Superior Court of Justice on April 6, 2017 and
    from the sentence imposed on September 21, 2017 (
C64338)
.

On appeal from the conviction entered by
    Justice John McMahon of the Superior Court of Justice on April 6, 2017
    (C64301).

On appeal from the conviction entered by
    Justice John McMahon of the Superior Court of Justice on May 26, 2017 and from
    the sentence imposed on September 21, 2017 (C64280).

On appeal from the conviction entered by
    Justice Julie A. Thorburn of the Superior Court of Justice on May 18, 2017
    (C63924).

Tulloch J.A.:

A.

OVERVIEW

[1]

This is a joint appeal by four co-accused.

[2]

The appeal concerns the constitutionality of certain
    police investigative techniques and

wiretap

authorizations issued by
    McMahon J. on February 24, April 15, 2014 and May 2, 2014, and a related
    general warrant issued on February 24, 2014, and renewed on April 15, 2014.
    Police were investigating criminal gang activity in Toronto.

[3]

Police obtained wiretap authorizations under ss.
    185 and 186 of the
Criminal

Code
, R.S.C. 1985, c. C-46,
    authorizing them to intercept the communications of certain targets. The
    initial wiretap authorized interception of the communications of 144 known
    persons.

[4]

The general warrant issued under s. 487.01 of
    the
Criminal

Code
authorized the police to use a Mobile Device
    Identifier (MDI) to identify the cell phones of the targets of the
    investigation.

[5]

The general warrant also authorized the police
    to enter common areas of multi-unit buildings, to enter the private units of some
    of the appellants and their associates, and to install hidden cameras in the
    hallways outside the condominium units of some of the targets of the
    investigation
.

[6]

The police investigation led to the arrest of
    some 112 individuals on a variety of charges.

[7]

A combined pre-trial application was brought by
    35 accused  including each of the appellants  seeking to exclude evidence
    obtained through the wiretaps and general warrants on the basis that the
    authorization and execution of the wiretaps and general warrants violated their
    rights under s. 8 of the
Canadian
Charter of Rights and Freedoms
.

[8]

Code J., acting as the designated case
    management judge, dismissed the application.

[9]

The first part of the decision on the
    application,
R. v. Brewster,
2016 ONSC 4133 (
Brewster

I
),
    dealt with the following key issues:

·

Whether there had been non-disclosure or
    omissions with respect to obtaining a judicial authorization to use a cell
    phone identifier (referred to as a MDI), and if so, the materiality of those
    omissions; and

·

Whether warrantless entries made by the police
    into the common areas of certain condominium buildings were constitutional, and
    if not, the impact of those warrantless entries on the warrants that followed.

[10]

The second part of the decision on the application,
R. v. Brewster
, 2016 ONSC 8038 (
Brewster
II
), which
    was released following further submissions, considered:

·

Whether police cameras installed in common areas
    of condominium buildings without a warrant, but with the consent of the
    condominium management, violated s. 8 of the
Charter
;

·

Whether the officers violated the duty to make
    full, frank and fair disclosure by failing to disclose these prior camera
    installations when seeking judicial authorization to install more cameras; and

·

Whether any such non-disclosure was material to
    the issuing judges decision to grant the subsequent warrants, in violation of
    the applicants s. 8
Charter
rights.

[11]

After the application was dismissed, the
    appellants Mr. Mai, Mr. Tang and Mr. Yu, did not contest their convictions and
    were convicted on an agreed statement of facts. McMahon J. sentenced Mr. Mai
    and Mr. Yu to 13 years imprisonment less 19 months credit for time served, and
    sentenced Mr. Tang to 7 years imprisonment less 4 months credit for time
    served.

[12]

The appellant Mr. Saccoccia brought an
    application to exclude evidence obtained after a search of his condominium unit
    under the considerations as set out in
R. v. Garofoli
, [1990] 2 S.C.R.
    1421, and a s. 11(b) application claiming that he was not tried within a reasonable
    time. Thorburn J., as she then was, dismissed both applications.

[13]

Following those dismissals, Mr. Saccoccia also
    did not contest his conviction. Thorburn J. sentenced him to 33 months
    imprisonment.

[14]

The appellants jointly argue that the
    application judge erred in failing to exclude evidence obtained through the
    wiretaps and general warrant. They renew the s. 8 arguments made before the
    application judge surrounding: (1) material non-disclosure in relation to the
    MDI; (2) warrantless entries into condominium common areas; and (3) warrantless
    installation of hidden cameras in condominium hallways.

[15]

The appellants also raise individual arguments.

[16]

Mr. Tang argues that there were insufficient
    grounds to name him in the second wiretap authorization.

[17]

Mr. Saccoccia argues that the trial judge erred
    in dismissing his
Garofoli
application and s. 11(b) application, and
    that the sentence imposed on him was demonstrably unfit.

[18]

Mr. Mai also appeals his sentence. He claims
    that the reasons for sentence are unclear and alleges the trial judge made
    several errors.

[19]

For the reasons that follow, the appeals are
    dismissed apart from Mr. Mais sentence appeal.

B.

BACKGROUND FACTS

[20]

This matter arose out of a large scale,
    multi-jurisdictional, coordinated police investigation targeting criminal gangs
    in Toronto engaged in high level drug trafficking.

[21]

The police investigations, named Project Battery
    and Project Rx, investigated a number of offences related to several major
    Toronto gangs. The Asian Assassinz and Project Originals gangs were
    targeted in Project Battery, and the Sick Thugz, Young Regent Niggas, and
    Chin Pac gangs were targeted in Project Rx. These two sets of criminal gangs
    were involved in a gang dispute synonymous with open warfare in downtown
    Toronto. All of the appellants were targets of Project Battery and were members
    of, or investigated in association with, the Asian Assassinz gang.

[22]

Many of the targets of the police investigation
    lived in condominium buildings, including buildings on Western Battery Road,
    Joe Shuster Way and Valley Woods Road.

[23]

The investigation resulted in the arrest of 112
    individuals. Those individuals were charged with offences including murder,
    drugs and firearms and human trafficking, possession of firearms, and
    possession of drugs for the purpose of trafficking. The police seized items
    including firearms, ammunition, bullet proof vests, GPS tracking devices,
    almost $350,000 cash, and large amounts of heroin, cocaine and other drugs. The
    facts and background of this matter are described in greater detail in the
    application judges two decisions,
Brewster
I
and
Brewster
II
.

[24]

As part of the investigation, on February 21,
    2014 the police applied before the issuing justice, McMahon J., to obtain a
    wiretap authorization, general warrants and other ancillary orders. The issuing
    justice approved that application and subsequently renewed and expanded it on
    April 15, 2014. The latter application targeted, among others, Mr. Mai, Mr.
    Tang and Mr. Yu. Through inadvertence, it did not include Mr. Saccoccia even
    though by that time police knew that he was associated with Mr. Mai. On May 4,
    2014, the police obtained a revised authorization, also targeting Mr.
    Saccoccia.

[25]

One of the investigative tools that the police
    used, and that was authorized under the general warrants, was a Mobile Device Identifier.
    The MDI functions by mimicking a cell phone tower. It allows the police to pick
    up all cell phone signals from a particular area and record the serial numbers
    associated with the cell phones in that area. The MDI does not record
    conversations. Rather, it assists police in identifying what cell phone is
    being used by a particular suspect. By deploying the MDI to two or more
    locations where a suspect is under surveillance the police can, by process of
    elimination, identify the serial number of the cell phone being used by the
    suspect.

[26]

On April 15, 2014 and May 2, 2014, the issuing
    justice issued general warrants authorizing the police to enter the common
    areas of three condominium buildings to make observations, and to install a
    hallway camera in one of the buildings. Prior to the issuance of those
    warrants, the police had already accessed common areas of the condominium
    buildings to make observations, including in

the
    parking garages, hallways and stairwells. This generally had been done with the
    consent of the condominium building management. The police had also installed
    hidden hallway cameras in some of the condominium buildings, again with the
    consent of condominium management. Only one of the cameras, in the building on
    Joe Shuster Way, is relevant to this appeal.

[27]

The investigation culminated in a take-down
    conducted on May 28, 2014.  The police executed numerous search warrants that
    day, which included searches of the units occupied by the four appellants. The
    evidence obtained against the appellants was overwhelming. Their defences to
    the criminal charges were largely dependent upon the exclusion of the evidence
    obtained through the warrants and authorizations.

C.

PROCEDURAL HISTORY

(i)

R. v. Brewster
,
    2016 ONSC 4133 (
Brewster
I)

(a)

Issue No. 1: MDI Device

[28]

In the first of the application decisions,
Brewster

I
, the application judge dismissed the application, finding that the
    manner in which the wiretaps and general warrants were authorized did not
    violate the applicants s. 8
Charter
rights.
[1]
He concluded that while there
    were some omissions relating to the proposed use of the MDI by the police,
    those omissions were immaterial and would not have affected the issuing
    justices decision to issue the general warrant.

(b)

Issue No. 2: Warrantless Entries

[29]

The applicants argued that the affiants on the
    wiretap authorizations and general warrants failed

to
    make full, fair and frank disclosure, by failing to mention that the police had
    already made warrantless entries into the common areas of condominium buildings
    of interest in the investigation, including the parking garages, elevators and
    hallways.

[30]

The applicants did not seek to excise the
    references to the warrantless entries from the wiretap authorizations  as they
    conceded that excision would have no impact on the grounds for the wiretap in
    this case  but rather sought a declaration that the affiants failed to make
    full disclosure.

[31]

The application judge reviewed the surveillance
    reports generated in the investigation (not all of which were before the
    issuing justice or summarized in the affidavits filed in support of the wiretap
    authorization) and heard testimony from several surveillance officers.

[32]

Based on the evidence before him, the
    application judge made several findings:

·

The vast majority of the physical surveillance
    conducted in the investigation did not include entries into the common areas of
    the condominium buildings. Of those that did, most of the warrantless entries
    occurred in relation to parking garages, rather than hallways or other common
    areas;

·

The purpose of entering a buildings parking
    garage was to determine whether the suspects car was parked in the garage.
    These entries allowed police to decide whether to set up surveillance outside
    the building. Generally, this entry would occur at the start of a surveillance
    shift and last approximately two to three minutes;

·

The purpose of the entries into the elevators
    and hallways (which comprised a small portion of the overall entries) was to
    confirm whether the suspect was a resident of the building, determine the unit
    number that the suspect entered and determine which way the unit faced. This
    information was important not only to enable police to obtain a search warrant,
    but also so that the surveillance team could know where to position themselves
    inside or outside of the building to avoid detection; and

·

The evidence established that, at the early
    stages of the investigation, the surveillance officers did not always obtain
    consent from the buildings property management to enter the common areas, but
    ultimately did obtain consent in relation to all relevant buildings.

[33]

The application judge accepted that the
    information placed before the issuing justice contained very little detail
    about the manner, duration, purpose and permission (or lack thereof) for the
    warrantless entries. However, the application judge was satisfied that those
    omissions were not material and would not have affected the decision to issue
    the authorizations. In support of this conclusion, the application judge was
    satisfied that the warrantless entries into the common areas did not violate s.
    8 of the
Charter.

[34]

To begin, the application judge found that the
    information set out in the affidavits was not erroneous or misleading; it
    simply lacked additional detail. The issuing justice would have appreciated,
    from the summaries of the surveillance reports which were before him, that
    police had entered into the common areas of various condominium buildings on
    several occasions without a warrant.

[35]

Further, the application judge concluded that
    the police did not violate s. 8 of the
Charter
by conducting limited
    physical surveillance in the common areas of the buildings.

[36]

He reviewed the relevant authorities and
    concluded that the entries into the common areas of buildings did not
    constitute a search within the meaning of s. 8 of the
Charter
, as the
    applicants had no reasonable expectation of privacy in the common areas of
    condominium buildings. He relied on the following considerations in reaching
    this conclusion:

·

The officers had abundant reasonable grounds to be following and
    investigating the suspects;

·

The nature of the observations, like those in
R. v. Tessling
,
    2004 SCC 67, [2004] 3 S.C.R. 432, were unobtrusive and mundane. None of the
    observations touched on a biographical core of personal information or
    intimate details of personal life;

·

The surveillance officers never acquired information about any
    activity inside a unit (distinguishing this case from
R. v. Evans
,
    [1996] 1 S.C.R. 8; and
R. v. White
, 2015 ONCA 508, 127 O.R. (3d) 32);

·

The condominium buildings in question were large with many units.
    Large numbers of residents, their friends, family, guests, condo staff and
    tradespeople, etc., had access to the common areas. As a result, the residents
    could not regulate access to these common areas;

·

Once the fact of residency was known to exist in relation to some
    suspects, the police did seek permission to enter from property management or,
    sometimes, the condominium board. In all cases, they were granted permission;
    and

·

There was evidence that the property management was already
    conducting video surveillance of the common areas of the buildings. This
    suggested that the residents had given up certain expectations of privacy in
    relation to these common areas.

[37]

As a consequence, the application judge was
    satisfied that the limited physical surveillance carried out in the common
    areas of the condominium buildings did not amount to a search under s. 8 of
    the
Charter
. He was also satisfied that the detailed circumstances
    surrounding this surveillance were not material to the issuance of the wiretap
    authorization and related general warrants.

[38]

The applicants had conceded that excising the
    observations made in the common areas of the condominium buildings would not
    affect the issuance of the wiretap authorization or general warrant. Given the
    factual insignificance of the warrantless surveillance of the common areas,
    detailed elaboration in the affidavits would not have been helpful or
    justified. In the application judges view, this distinguished the present case
    from
White
, because in that case, the warrantless entries into the
    condominium buildings common areas were essential to the grounds for the
    search warrant.

[39]

The application judge was satisfied that the
    property management staff  not solely the condominium board  had the
    authority to consent to allow police officers to enter the common areas of the
    condominium buildings to conduct surveillance.

[40]

The application judge further concluded that,
    had he found the warrantless entries to constitute a search, the entries were
    reasonable and authorized by law, based on the doctrine of implied licence.

[41]

Finally, the application judge found that the
    warrantless surveillance entries  if considered searches within the meaning
    of s. 8 of the
Charter
 were reasonable because they were
    authorized by law. This provided another reason for concluding that the
    omission of details concerning the prior warrantless entries was not material.

(ii)

R. v. Brewster
,
    2016 ONSC 8038 (
Brewster
II)

[42]

In the second decision, issued on December 21,
    2016, the application judge addressed the applicants challenge to the general
    warrant issued on February 24, 2014, which authorized the installation of
    surveillance cameras in the common areas, including hallways, of certain
    condominium buildings associated with targets of the investigation.

[43]

The applicants argued that the affiant failed to
    make full, fair, and frank disclosure in the application for the general
    warrant, and that the warrant should be set aside. In particular, the
    applicants focused on the fact that the affiant failed to disclose that the
    police had already installed video surveillance cameras in three of the
    buildings (including the building on Joe Shuster Way) with the consent of
    property management, prior to issuance of the general warrant authorizing the
    installation of video cameras. While the affiant did not disclose the
    pre-existing cameras in his affidavit filed in support of the initial general
    warrant, he did disclose the existence of the earlier warrantless cameras in
    his affidavit filed on the extension of the general warrant, two months later.

[44]

Again, only the camera installed at Joe Shuster
    Way is relevant to this appeal.

[45]

The Crown intended to tender at trial evidence
    obtained from the camera which had been installed before a warrant was obtained
    at Joe Shuster Way, at least in relation to Mr. Mai. The applicants argued that
    the consent of condominium management to install the camera was insufficient
    for the purpose of s. 8 of the
Charter
, and that a warrant was
    required.

[46]

The application judge addressed three issues:

·

Whether the cameras installed without warrant,
    but with the consent of the condominium management, violated s. 8 of the
Charter
;

·

Whether the failure to disclose these prior
    installations in the affidavit sworn in support of the application for the February
    24, 2014 general warrant violated the duty to make full, fair and frank
    disclosure; and

·

Whether any such non-disclosure was material to
    the issuing justices decision to grant the warrant, thus violating the
    applicants s. 8
Charter
rights.

[47]

The application judge concluded that the police
    did not violate the applicants s. 8 rights by installing hidden hallway
    cameras without a warrant. He found that the police had obtained valid and
    sufficient consent from condominium management to install the cameras, and that
    a warrant was not required in the circumstances given the diminished
    expectation of privacy in common areas such as the hallways.

[48]

The application judge further concluded that
    while there was a failure to make full, fair and frank disclosure in relation
    to these two warrantless cameras, the omissions were not material to the
    decision to issue the general warrant given the minimization conditions imposed
    in the general warrant.

D.

ISSUES ON APPEAL

[49]

The appellants raise
    individual and joint grounds of appeal. The joint grounds are:

1)

Did the police make material omissions in the
    Information to Obtain (ITO) concerning the use of the MDIs?

2)

Warrantless Entries

(a)

Did
the police fail to
    make full, frank and fair disclosure in the application for the general
    warrants, by failing to mention the warrantless entries they had already made
    into common areas of targeted condominium buildings?

(b)

Did these entries violate the appellants s. 8
    rights?

(c)

If the entries did violate s. 8, should the
    subsequent general warrants be quashed, and the evidence obtained from them
    excluded under s. 24(2)?

3)

Warrantless Video Cameras

(a)

Did the police fail to make full, frank and fair disclosure in the
    application for the February general warrants by failing to mention that they
    had already installed hidden cameras in the hallways of some condominium
    buildings, and using misleading forward-looking language implying they had not
    yet installed any cameras?

(b)

Did the installation of the warrantless hidden
    cameras violate the appellants s. 8 rights?

(c)

If the cameras did violate s. 8, should any
    evidence from them be excluded, and should certain of the subsequent general
    warrants be quashed and the evidence from them also be excluded under s. 24(2)?

[50]

They raise the following individual grounds:

1)

Did the police have insufficient grounds to name Mr. Tang in the
    second wiretap authorization?

2)

Did the trial judge err in dismissing Mr. Saccoccias applications
    under ss. 8 and 11(b) of the
Charter
?

3)

Was the sentence imposed on Mr. Mai demonstrably unfit?

E.

Discussion

[51]

I will deal first with the joint grounds of
    appeal, and then turn to the individual grounds of appeal raised by Mr. Tang,
    Mr. Saccoccia, and Mr. Mai.

(1)

The Joint Grounds of Appeal

I.

MDI Arguments

[52]

The Crown submits that it is unnecessary to
    consider this ground of appeal for several reasons. First, the Crown argues
    that Mr. Tang, Mr. Yu and Mr. Saccoccia have no standing to make submissions
    regarding the MDI, since the police never obtained nor even attempted to obtain
    evidence about them through the use of an MDI.

[53]

The only appellant who was targeted for
    investigation through the use of an MDI was Mr. Mai. However, he never had his
    phone identified through the use of the MDI, and none of his communications
    were intercepted. As a result, the Crown submits that the use of the MDI played
    no role in his conviction. A decision on this ground therefore would have no
    bearing on his appeal.

[54]

I agree with the Crowns submissions that it is
    unnecessary to decide the appellants arguments in relation to the MDI.  As the
    application judge noted in
Brewster

I
, the general warrant
    authorizing the use of the MDI affected only a co-accused, and not any of the
    appellants.

[55]

I would dismiss this ground of appeal.

II.

Warrantless Entries

[56]

The appellants make three distinct arguments
    about the warrantless entries into the common areas of the condominiums, made
    both prior to and after the consent of the condominium management. First, they
    argue that in the ITO for the general warrant, the affiant failed to make full,
    fair, and frank disclosure about the extent of the warrantless entries, and
    that this failure would have undermined the basis for the general warrant.
    Second, they argue that these entries violated their s. 8 rights to be free
    from unreasonable search. Third, they argue that if the warrantless entries
    were contrary to s. 8, the general warrant should be quashed and the evidence
    obtained from it excluded pursuant to s. 24(2) of the
Charter
.

[57]

I reject the appellants argument about the
    failure to make full, fair, and frank disclosure, largely for the reasons of
    the application judge.

[58]

With respect to the alleged s. 8 breach, as I
    will explain, the vast majority of the pre-consent warrantless police entries
    into common areas of the condominiums did not violate s. 8. Most of the entries
    were into underground parking garages. In these cases, the appellants did not
    have a reasonable expectation of privacy in the parking garages of these
    buildings, and their s. 8 rights were not engaged.

[59]

The only entries which engaged s. 8 were those
    into condominium hallways. The appellants had a reasonable, but low expectation
    of privacy in the condominium hallways. However, the appellants reasonable
    expectation of privacy was attenuated by the authority of the condominium board
    and property management to consent to police entry. The valid consent given by
    property management at Joe Shuster Way authorized the police entries that
    followed. The entries into the hallways with the valid consent of property
    management did not infringe s. 8.

[60]

In the single instance where the police entered
    the common hallways without the consent of property management, this violated
    the s. 8 rights of the targets of their surveillance. The entry was not
    authorized by law. This violation had only a minor impact on the
Charter
-protected
    interests of the affected appellants, which was not the result of any bad faith
    on the part of the police.

(i)

Appellants Arguments on Warrantless Entries and the General Warrant

[61]

The appellants arguments on this issue have
    many layers. They argue first that the affiant failed to disclose the fact of
    the warrantless entries into multiple buildings, not just the ones discussed
    above, thus failing in the obligation to make full, fair, and frank disclosure.
    As I understand this argument, it does not turn on whether the warrantless
    entries violated s. 8. The appellants submit that the failure to disclose the
    extent of the warrantless entries would have been misleading to the issuing
    judge, and had the entries been disclosed, the issuing judge would have
    appreciated that the warrantless entries were largely ineffective as an investigative
    technique, and he either would not have authorized further entries or he would
    have limited further entries. The appellants argue that the application judge
    should have excised the references to the warrantless entries in the April ITO.
    Had he done so, the general warrant authorizing further covert entries and the
    installation of covert cameras at Joe Shuster Way and Western Battery Road, as
    well as covert entry and audio and video probes at Mr. Mai and Mr. Saccoccias
    units at Joe Shuster Way could not have issued.

[62]

I reject these arguments, based on three key
    findings made by the application judge. First, he found that the issuing justice
    would have appreciated from the context that some of the entries referred to
    were warrantless. The ITO therefore was not misleading. Second, he found that
    the affiant was not required to set out the detailed circumstances surrounding
    the prior warrantless surveillance because

those

circumstances were not material. His findings are
    entitled to deference:
R. v. Paryniuk
, 2017 ONCA 87, 134 O.R. (3d) 321,
    at paras. 72-73, leave to appeal refused, [2017] S.C.C.A. No. 81. Finally, as
    the application judge found, none of the information gathered from the
    warrantless surveillance was material to the issuance of the subsequent
    warrants. Its excision from the ITOs would have had no impact on the validity
    of the warrants. Notably, before the application judge, the appellants conceded
    that the observations made in the common areas could all be excised with no
    impact on the general warrants.

(ii)

Section 8 of the
Charter

[63]

For s. 8 of the
Charter
to be engaged,
    the accused person must possess a reasonable expectation of privacy:
R. v.
    Edwards
, [1996] 1 S.C.R. 128, at para. 45. Once it is determined that the
    accused has a reasonable expectation of privacy, a warrantless search that
    intrudes on that expectation will be presumptively unreasonable. The onus is on
    the Crown to show that the search was authorized by law:
R. v. Caslake
,
    [1998] 1 S.C.R. 51, at para. 30. The authorizing law must be reasonable, and
    the search must have been conducted in a reasonable manner:
Caslake,
at
    para. 10.

[64]

As a preliminary matter, the Crown argues that
    even if condominium residents in general have a reasonable expectation of
    privacy in the common areas of their buildings, the appellants cannot all have
    a reasonable expectation of privacy in both of the relevant addresses  Joe
    Shuster Way and Western Battery Road  because some of the appellants are
    unconnected with one or both of these addresses. If the appellants cannot have
    a reasonable expectation of privacy in these addresses at all, let alone in the
    common areas, they would not have standing to challenge the warrantless entries
    at addresses with which they are unconnected. For example, the Crown submits
    that Mr. Tang has no standing to challenge the warrantless entries at either
    address, because (1) Mr. Tang did not have any connection with Joe Shuster Way,
    and (2) although Mr. Tang resided at the Western Battery Road address, the
    surveillance at that address did not target him, nor did it yield any
    information relating to him.

[65]

I agree with the Crown that Mr. Tang does not
    have standing in relation to Joe Shuster Way. Mr. Yu, who did not have any
    connection with that address, also does not have standing. Neither had any
    reasonable expectation of privacy at that address. Similarly, Mr. Saccoccia did
    not have any connection with the Western Battery Road address. The Crown
    accepts that Mr. Mai has standing in relation to both addresses.

[66]

I disagree with the Crowns position that Mr.
    Tang does not have standing in relation to Western Battery Road  where he
    resided  because the surveillance in the common areas of that building did not
    target him and yielded no information relating to him. Assuming condominium
    residents have a reasonable expectation of privacy in the common areas of their
    residence (discussed below), I am not prepared to say that Mr. Tang lacked such
    an expectation of privacy in his own residence simply because the surveillance
    was not directed at him. Further, the fact that the surveillance yielded no
    information about him is more relevant to the issues that arise under s. 24(2),
    should a breach of s. 8 be found, than to the question of standing.

[67]

I turn now to the issue of reasonable
    expectation of privacy in the common areas of a multi-unit dwelling. The
    existence of a reasonable expectation of privacy is determined against the
    totality of the circumstances. The Supreme Court of Canada stated in
R. v.
    Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, that the various factors in
    this contextual analysis can be grouped into four lines of inquiry:

1)

The subject matter of the alleged search;

2)

The claimants interest in the subject matter;

3)

Whether the claimant had a subjective
    expectation of privacy in the subject matter; and

4)

Whether the subjective expectation of privacy was objectively reasonable.

[68]

This court expanded on this analysis in the
    context of the reasonable expectation of privacy in common areas of a
    multi-unit dwelling in
White
. The court laid out the following factors
    that are relevant to the level of expectation of privacy in common areas of
    multi-unit buildings:

·

Degree of possession or control exercised over
    the common area by the claimant;

·

Size of the building: the larger the building,
    the lower the degree of reasonable expectation of privacy in common areas;

·

Security system or locked doors that function to
    exclude the public and regulate access; and

·

Ownership of the property.

[69]

In my view, these factors

lead to
    different conclusions depending on the type of common area accessed by the
    police, which in this case relates to the parking garage and the hallways. I
    conclude that the appellants did not have a reasonable expectation of privacy
    in the parking garages, but they did have such an expectation of privacy in
    their hallways, albeit a diminished one. I address first what I consider to be
    the subject matter of the search, and then explain why I conclude

that the appellants had no reasonable expectation of
    privacy in relation to the garages but did have a reasonable expectation in the
    hallways.

[70]

Third party consent to the police entries
    here, property management or the condominium board  is an important aspect of
    the totality of the circumstances. I note that the law on the role of
    third-party consent to police entries into shared residential spaces is
    unsettled:
R. v. Reeves
, 2018 SCC 56, 427 D.L.R. (4th) 579, at paras.
    19-26. In
Reeves
, Karakatsanis J., writing for the majority, declined to
    decide whether police entry into a shared home with the consent of one resident
    would violate the
Charter
. Karakatsanis J. considered the validity of
    third-party consent to turn over a computer. She concluded that a co-residents
    consent could not eliminate the accuseds reasonable expectation of privacy in
    the shared computer.

[71]

Karakatsanis J. left open the possibility that a
    co-resident could consent to police entry into shared residential spaces. She
    recognized that police entry into a shared home involves competing
    considerations: para. 23. On the one hand, privacy in the home is of central
    importance. On the other hand, other residents may have valid interests in
    consenting to police entry, especially if the other residents are victims of
    crime: para. 24. The issue before this court is analogous to the issue left
    undecided in
Reeves
, and involves similar but not identical competing considerations.

[72]

The role of third-party consent in the
    analytical approach to police entries into shared residential spaces is
    similarly unclear. In this courts decision in
R. v. Reeves
, 2017 ONCA
    365, 350 C.C.C. (3d) 1, at para. 49, Laforme J.A., writing for the court,
    concluded that consent by a co-resident to police entry is relevant as part of
    determining whether the police have intruded upon a reasonable expectation of
    privacy held by the accused. Laforme J.A. concluded that the inquiry is
    two-staged: (a) would the accused reasonably expect that his or her co-resident
    would have the power to consent to police entry into a common space, and (b) if
    so, did the co-resident actually consent? In Laforme J.A.s view, if the
    accused had the relevant reasonable expectation, and the co-resident actually
    consented, the accuseds reasonable expectation of privacy would be negated,
    and there would be no search in s. 8 terms.

[73]

Other courts have preferred to consider the
    second question  actual consent  on the issue of whether the search was
    authorized by law, rather than as negating the accuseds reasonable expectation
    of privacy:
R. v. Clarke
, 2017 BCCA 453, 357 C.C.C. (3d) 237, leave to
    appeal refused, [2018] S.C.C.A. No. 65;
R. v. R.M.J.T.
, 2014 MBCA 36, 311
    C.C.C. (3d) 185.
[2]

[74]

For the purposes of this case, it is unnecessary
    to decide whether the actual consent of condominium management is taken into
    account in assessing the appellants reasonable expectation of privacy, or
    whether the police entries were authorized by law. Both before this court and
    the application judge, the appellants primary argument was not that the
    condominium board could never consent to police entries into common areas.
    Instead, they argued that there are limits to the boards ability to consent,
    that only the board, and not property management, could give valid consent, and
    that the consent given in this case was invalid for various reasons.

[75]

I will proceed on the basis that the possibility
    of consent affects the appellants reasonable expectation of privacy, while any
    actual consent provides legal authorization for the search, as this is
    effectively how it was discussed by the parties.

i.

Subject Matter of the Search

[76]

The question to be answered when determining the
    subject matter of the search is what the police were really after:
R. v.
    Marakah
, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 15. In my view, the
    subject matter of the search here was information about the appellants
    residency and their comings and goings. I agree with the respondent that what
    the police were really after in the preliminary hallway entries was basic
    information such as the fact of residency in the building and the unit number
    of a suspect. This is information that would be available to the police and in
    public view if, for example, the police followed someone home to a detached
    house. A persons physical address is not personal information that attracts
Charter
protection:
R. v. Saciragic
, 2017 ONCA 91. The police also wanted to
    determine the direction that the suspects units faced, so they could conduct
    surveillance inside or outside the building without detection.

[77]

After these basic facts had been established,
    the police were interested in obtaining information about the appellants
    comings and goings  whether they were at home (when the police checked to see
    if their cars were parked in the garage), who they visited and who visited
    them, what they were carrying, and how long they stayed during these visits.
    Although any individual observation made from the physical surveillance might
    be characterized as mundane, the surveillance observations together and over
    time produced more invasive information about what happened in and around the
    appellants homes.

ii.

Reasonable Expectation of Privacy

a)

The Garage Entries Do Not Engage s. 8 of
    the
Charter

[78]

The bulk of the police entries at both Joe
    Shuster Way and Western Battery Road were into the parking garages. As this
    court held in
R. v. Drakes
, 2009 ONCA 560, 252 O.A.C. 200, leave to
    appeal refused, [2009] S.C.C.A. No. 381, none of the appellants had a
    reasonable expectation of privacy with respect to the parking garages.

[79]

In
Drakes
, this court upheld the
    finding of Epstein J. (as she then was) that condominium unit owners did not
    have a reasonable expectation of privacy with respect to the use of a spot in
    the underground parking garage. It reasoned that the unit owners shared the
    parking garage with 440 other units and had limited control over it, and that
    management consented to the police gaining access (at para. 18). In short, to
    put it in terms of the factors set out in
Spencer
, unit owners could
    not have an objectively reasonable expectation of privacy in a garage shared
    with so many other owners and over which they had very little control.

[80]

Similarly, the parking garages in both Joe
    Shuster Way and Western Battery Road were large, and the appellants had limited
    control over them. The Western Battery Road garage had a visitors section that
    was accessible to the general public. As explained below, the police obtained
    consent before all prolonged surveillance in the Joe Shuster Way garage. While
    there is insufficient evidence of consent in relation to Western Battery Road,
    such consent was not necessary as the police generally entered the visitors
    section to determine whether a targets car was parked in the garage or not,
    which they were entitled to do as any visitor could do. The appellants had no
    reasonable expectation of privacy regarding observations made from a space
    accessible to the general public. Even if the appellants had a subjective
    expectation of privacy in the garage, that expectation was not objectively
    reasonable.

b)

Hallway Entries Engage s. 8 of the
Charter

[81]

The hallways are a different story. Under the
White
framework, in my view, the appellants had a reasonable expectation of privacy
    in the hallways of their respective buildings, although it was at the low end
    of the spectrum.
White
establishes 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.

[82]

Once inside an access-controlled condominium
    building, residents are entitled to expect a degree of privacy greater than what,
    for instance, they would expect when approaching the building from the outside.
    This results from the fact that anyone can view the building from the outside,
    but there is some level of control over who enters the building.

[83]

The level of expectation of privacy inside a
    condominium building will vary. The level of expectation of privacy is
    dependent on the likelihood that someone might enter a certain area of the
    building, and whether a person might reasonably expect a certain area to be
    subject to camera surveillance.

[84]

Some areas of condominium buildings are
    routinely accessed by all condominium residents, such as the parking garage or
    elevator lobby.  The level of expectation of privacy in those areas is low,
    albeit remaining greater than would be expected outside of the building.  The
    level of expectation of privacy increases the closer the area comes to a
    persons residence, such as the end of a particular hallway of a particular
    floor of the building. Even in those less-frequented areas the level of
    expectation of privacy is low, but not as low as in the more commonly used
    areas.

[85]

A resident or occupants reasonable expectations
    surrounding camera surveillance in a condominium building depend on whether the
    cameras are visible, and whether the resident has been informed by the
    condominium management as to the location of any security cameras installed in
    the building.  If there is no visible camera, and if the resident has been told
    that there are no security cameras, then residents are entitled to expect their
    movements are not subject to camera surveillance.

[86]

The only time that condominium residents should
    expect complete privacy is when they are inside their unit with the door
    closed. As soon as they open their door, or exit their unit, it is reasonable
    to expect that they may be observed, with that level of expectation increasing
    the closer they get to the main areas of the building or to any security
    cameras.

[87]

On balance, the factors listed above establish a
    low, but reasonable expectation of privacy in these common areas. The buildings
    had strict security features designed to exclude outsiders, and the condominium
    rules at Joe Shuster Way barred non-owners and non-occupants from accessing the
    common areas unless accompanied by an owner or occupant. It was thus reasonable
    for the appellants to believe that the buildings security systems would
    operate to exclude the police from entering the common areas of the building
    multiple times without permission. At the Joe Shuster Way building, security
    cameras are installed in the lobby, the ramp to the parking garage, at the
    elevator lobby, and in the elevators  but not in the hallways outside units.
    The appellants had some limited reasonable expectation of privacy in those
    areas.

[88]

This case is distinguishable from cases such as
R.
    v. Laurin
(1997), 113 C.C.C. (3d) 519 (Ont. C.A.), and
R. v. Thomsen
,
    [2005] O.J. No. 6303 (S.C.), affd 2007 ONCA 878, where the court found no
    reasonable expectation of privacy in the hallways of multi-unit buildings.
    Notably, in
Thomsen
, the police were responding to a complaint made by
    the buildings management about the smell of marijuana in the hallways, so had
    been expressly invited to the premises by management. In
Laurin
, the
    building was accessible to the general public, unlike the buildings here.

[89]

However, the appellants reasonable expectation
    of privacy in these areas was low. Both condominium buildings in this case were
    much larger than the ten-unit building in
White
. Each had over 300
    units. The police observations in this case  the subject matter of the search
     were also narrower. Unlike in
White
, the officers did not make or
    attempt to make any observations about things happening within the units or
    enter private areas such as storage lockers.

[90]

Further, given the context in which the
    condominium operated, the appellants would have reasonably expected that the
    board, and by extension, property management, could consent to police entry.

[91]

The condominium corporation has a statutory duty
    to administer the common elements and to manage the property of the corporation
    on behalf of the owners:
Condominium
Act, 1998, S.O. 1998, c. 19, ss.
    17(1), 17(2). The board is elected by the owners to manage these affairs in
    their best interests: ss. 27-28. This statutory duty can be understood as
    conferring a responsibility and authority on the board to act as the decision
    maker for the owners as a collective.

[92]

The condominium board and, by extension,
    property management, were entrusted with security of the building and the residents.

The appellants would have reasonably expected that
    the property manager could consent to police entry into the building and its hallways
    and, in fact, would be likely to consent to police entry if informed of the
    possibility of criminal activity within the building.

[93]

I emphasize that the authority of the
    condominium board and property management to regulate access to the building is
    just that: an authority to regulate access. As I will discuss in the context of
    the warrantless camera installations, the authority to consent to police entry
    does not translate into an authority to consent to more intrusive police
    investigative measures, such as entry into a particular condominium unit.

[94]

Accordingly, the appellants expectation of
    privacy with respect to the common areas is further reduced given the
    possibility that property management could consent to police entry. The
    appellants had a reasonable expectation of privacy, albeit on the low end of
    the spectrum.

iii.

Consent of Property Management to Authorize
    Entries

[95]

As outlined above, the possibility of consent of
    the condominium board or management to allow police entry further attenuated
    the appellants low reasonable expectation of privacy.

[96]

As I will explain, property management at Joe
    Shuster Way validly consented to the police entries, and as a result, the
    entries were authorized by law. There was insufficient evidence to conclude
    that the police had consent to enter Western Battery Road, and accordingly,
    those entries were not authorized by law.

a)

Property Management Validly Consented at Joe Shuster Way

[97]

In written submissions, the appellant Tang on
    behalf of the appellants submitted that the validity of the consent in this
    case should be determined by the factors set out in
R. v. Wills
(1992),
    7 O.R. (3d) 337 (C.A.), namely:

·

There was a consent, express or implied;

·

The giver of the consent had the authority to
    give the consent in question;

·

The consent was voluntary and was not the
    product of police oppression, coercion or other external conduct which negated
    the freedom to choose whether or not to allow the police to pursue the course
    of conduct requested;

·

The giver of the consent was aware of the nature
    of the police conduct to which he or she was being asked to consent;

·

The giver of the consent was aware of his or her
    right to refuse to permit the police to engage in the conduct requested; and

·

The giver of the consent was aware of the
    potential consequences of giving the consent.

[98]

The consent provided at Joe Shuster Way was
    valid on all of these factors. I have addressed above why the board had the
    authority to provide consent to police entry. The property manager, Mr.
    Chudnofsky, likewise had the authority to provide consent. The condominium
    board entrusted him with management of the property, including its security.

[99]

There was extensive evidence in front of the
    application judge about the circumstances surrounding Mr. Chudnofskys consent.
    The evidence was that the police obtained Mr. Chudnofskys consent to access 38
    Joe Shuster Way on December 2, 2013, a day prior to the first entry into the
    garage, and more than a month prior to the first entry into the hallways or
    stairwells.

[100]

While the appellants submit that Mr. Chudnofsky was coerced to
    participate in the investigation, this was contrary to his own evidence, which
    evidence the application judge was entitled to accept. The application judge
    found as a fact that Mr. Chudnofsky was aware of his right to refuse to give
    consent. Regarding the nature of the police conduct, Mr. Chudnofsky was aware
    that the police required access to both the garage and the building, and thus
    granted them a key fob and access code that could be used at both the garage entrance
    and the front lobby door.

[101]

As for awareness of the potential consequences,
Wills
clarifies that what matters is whether the person giving consent understands
    whether she is a target or merely an innocent bystander whose help is
    requested by the police: at para. 71. Here, Mr. Chudnofsky clearly understood
    that both he and nearly all the residents of the building were innocent
    bystanders, and the police required their help. While the police had
    deliberately misstated the nature of the investigation to him in order not to
    compromise the investigation, his evidence was that the specific crime under
    investigation did not matter to him. In the circumstances of this case, the
    provision of inaccurate information about the offence under investigation did
    not affect the validity of the property managers consent.

[102]

The warrantless hallway entries at Joe Shuster Way conducted after
    the consent was provided did not violate s. 8 of the
Charter
. The
    appellants had a reasonable expectation of privacy in the hallways, which was
    attenuated by the ability of the board and property management to consent to
    police entry. Property management in fact consented. Accordingly, the resulting
    search was authorized by property managements consent. Section 8 of the
Charter
was not violated.

b)

Insufficient Evidence of Valid Consent at Western Battery Road

[103]

There is insufficient evidence of a valid consent by property
    management at Western Battery Road.

[104]

The best the Crown can point to is the evidence that the police
    generally sought consent as soon as they learned that a target was associated
    with an address. Accordingly, the Crown submits that the police would have
    obtained consent prior to the first entry into the building on January 20,
    2014.

[105]

The application judge did not make any factual findings on whether
    property management gave consent at Western Battery Road. Even if property
    management did consent in some form, there is insufficient information before
    the court to show whether the six
Wills
criteria were satisfied. There
    is no evidence from the property manager or board on the circumstances
    surrounding the giving of consent.

[106]

As the onus is on the Crown to establish these criteria on a balance
    of probabilities (
Wills
, at para. 69), it follows that the Crown cannot
    rely on consent to authorize the warrantless hallway entries at Western Battery
    Road.

[107]

Before this court, the Crown did not rely on any other statutory or
    common law authority to show the warrantless entries were authorized by law.
    Accordingly, the search was not authorized by law and violated s. 8.

[108]

Before turning to the question of remedy, I note that there were
    very few warrantless hallway entries at Western Battery Road. The scope of the
    s. 8 breach is therefore quite limited.

(iii)

Remedies Sought in Relation to the Warrantless
    Entries

[109]

The appellants argue that the general warrant that authorized
    further covert entries, and the installation of cameras, searches of
    residences, and the installation of audio and video probes should be quashed, and
    that the evidence obtained from the searches that affected them should be excluded
    under s. 24(2) of the
Charter.
This argument rests on their allegation
    of multiple
Charter
breaches, including both the warrantless hallway entries
    and the warrantless installation of covert cameras. I do not understand the
    appellants to be seeking exclusion of observations made on warrantless entries
    pre-authorization, but for the sake of completeness, I will address this as
    well. As these arguments rely on the
Charter
breaches considered in
    concert, I will address them after considering the warrantless camera
    installation. Before turning to the issue of the cameras, I note that the warrantless
    entries at Western Battery Road had no impact on any of the appellants
    convictions.

III.

Warrantless Cameras

[110]

The appellants argue, first, that there was a failure to make full,
    fair, and frank disclosure in the ITO for the February general warrant, and
    that as a result, the general warrants that authorized the installation of
    hidden cameras should be set aside and the resulting video evidence should be
    excluded, pursuant to ss. 8 and 24(2) of the
Charter
. The appellants
    also make a separate but related argument, that the warrantless camera
    installations themselves infringed s. 8 of the
Charter
, and as a
    result, both the pre-warrant and post-warrant footage from those cameras should
    be excluded, pursuant to s. 24(2) of the
Charter
.

[111]

As with the warrantless entries, I will deal first with the question
    of the issuance of the warrant.

(i)

Material Non-Disclosure Regarding Hallway Cameras

[112]

The appellants complain that the affiant failed to make full, fair,
    and frank disclosure in the affidavit he swore to obtain the February general
    warrant because he failed to disclose that three cameras had already been
    installed in the target condominium buildings, with the consent of property
    management. The police were seeking authorization to install hidden cameras and
    so, the appellants say, the fact that hidden cameras had already been installed
    should have been disclosed. In his subsequent affidavit, sworn to obtain the
    April general warrant, the affiant did disclose the earlier camera
    installations based on consent from condominium management.

[113]

The appellants

argue that the failure
    to disclose the three cameras installed on consent was material because had the
    existence of the cameras been disclosed, the issuing judge would have found
    that authorizing further cameras was not justified under the best interests of
    the administration of justice requirement for general warrants. The appellants
    submit that authorizing further cameras was not in the best interests of the
    administration of justice because the cameras interfered with the privacy of
    other residents and the existing cameras had not generated any useful evidence.
    The appellants submit that the issuing judge would not have authorized the
    continued use of the cameras or would have imposed stricter minimization conditions,
    had full information been provided.

[114]

Respectfully, I disagree.

i.

Failure to Make Full and Frank Disclosure

[115]

I defer to the findings of the application judge that the affiants
    failure to mention that there were cameras already installed was a failure of
    his duty to make full, frank and fair disclosure on the application. However, I
    also agree with the application judge that this was a minor error that was made
    in good faith and that would not have impacted the issuing justices decision.
    At issue in this appeal is the camera installed at Joe Shuster Way only. The
    application judge accepted the evidence before him that the affiant did not
    know until very late that the camera had already been installed, and his
    failure to include this information in his application was a good faith error.
    The exclusion of the information about the camera was understandable in the circumstances.

ii.

Omission Not Material

[116]

I agree with the appellants that the best interests of the
    administration of justice test for the issuance of a general warrant outlined
    in s. 487.01(1)(b) of the
Criminal Code
requires the court to weigh
    the interests of law enforcement against the individuals interest in privacy:
R.
    v. Finlay and Grellette
(1985), 52 O.R. (2d) 632 (C.A.), leave to appeal
    refused, [1985] S.C.C.A. No. 46.

[117]

However, in my view, and as the application judge found, the
    interference with the privacy of other residents was minimal. The camera caught
    some other residents in the hallways outside their doors, and allowed a very
    narrow view into the doorways of some neighbouring units. This was not a
    significant interference with the privacy of the appellants neighbours and
    co-residents. Furthermore, it is exactly the kind of third-party privacy
    interest that the issuing justice already would have considered when making his
    decision to authorize the use of a hallway camera. He would have learned
    nothing new if the application had included the fact that a camera had already
    been installed. The issuing justice already included terms in his authorization
    that minimized the impact of the cameras on third-party privacy. There is no
    reason to believe these terms would have been different had he known about the
    pre-existing camera.

[118]

I also agree with the application judge that it is too speculative
    to determine that, because the camera had not produced relevant evidence at the
    time of the warrant applications, the issuing justice would have concluded that
    it was not a useful surveillance tool. The cameras did, in fact, produce
    important evidence against Mr. Mai. As the application judge noted, in any
    investigation, some warrants or wiretaps will yield little evidence while
    others yield a great deal. Some will not be productive initially but will later
    be very productive. It does not necessarily follow that just because the camera
    had not produced material evidence at the time of the application, the issuing
    justice would have concluded that it was not a useful investigative tool.

[119]

As a result, if the existence of the consent camera had been
    disclosed to the issuing justice in the applications for the general warrants
    and wiretap authorizations, there is no reason to believe that this would have
    changed his decision. The subsequent warrants could still have been issued.

(ii)

Camera Installed on Consent Infringed s. 8 of the
Charter

[120]

As I will explain, in my view, the consent installation of the
    hidden hallway camera infringed the s. 8 rights of the appellants Mr. Mai and
    Mr. Saccoccia. The Crown accepts that if this is the case, some of the evidence
    against them was obtained in a manner that infringed their rights, pursuant
    to s. 24(2) of the
Charter.
However, in the circumstances of this case,
    I would not exclude this evidence.

i.

Standing

[121]

As outlined above, the appellants standing to allege a s. 8 breach
    in respect of the cameras turns on their connection with the building at issue,
    being Joe Shuster Way. I agree with the Crown that Mr. Tang and Mr. Yu have no
    standing on the issue of the cameras. No cameras were installed at Western
    Battery Road where Mr. Tang and Mr. Yu resided. While Mr. Tang and Mr. Yu
    occasionally visited Mr. Mais unit at Joe Shuster Way, the status of an
    occasional visitor is clearly insufficient:
Edwards
, at para. 47. The
    Crown concedes that Mr. Mai and Mr. Saccoccia have standing to challenge the
    warrantless camera installation at Joe Shuster Way.

ii.

Section 8 Is Engaged

a)

Mr. Mai and Mr. Saccoccia had a Reasonable Expectation of Privacy

[122]

This court accepts the appellants arguments, and the respondents
    concession, that Mr. Mai and Mr. Saccoccia had a reasonable expectation of
    privacy against surreptitious video recording in the hallways of their
    building. As discussed above, they had a low but reasonable expectation of
    privacy in the hallways of their building in relation to police entering and
    observing. They had a higher expectation of privacy against surreptitious state
    recording in the same hallways.

[123]

It is well established in Canadian law that surreptitious state
    recording is highly, if not uniquely, invasive of individual privacy. In
R.
    v. Wong
, [1990] 3 S.C.R. 36, the Supreme Court of Canada recognized that
    permitting permanent recording can diminish privacy to an extent inconsistent
    with the aims of a free and democratic society:
Wong
at p. 46. It
    stressed that permitting the state to use hidden cameras without
    authorization is fundamentally irreconcilable with acceptable state conduct:
Wong
,

at p. 47. The courts conclusions in
Wong
paralleled its warnings in
R. v. Duarte
, [1990] 1 S.C.R. 30, about the dangers of unauthorized
    audio recording by the state. Recent Superior Court of Justice decisions in
    Ontario have also accepted that a reasonable expectation of privacy exists in
    common areas of condominium buildings in respect of hidden camera recordings:
R.
    v. Hassan
, 2017 ONSC 233, and
R. v. Batac
, 2018 ONSC 546, 402 C.R.R.
    (2d) 252.

[124]

As the application judge observed, condominium residents may, on
    occasion, be subjected to video surveillance from cameras installed by the
    property management in common areas of their buildings, and these
    inconveniences are to be expected. Indeed, there were such cameras in some
    locations of the common areas of Joe Shuster Way. It does not follow that
    residents would reasonably expect to be secretly recorded by the state. Both
    the fact that the camera was hidden and that it was installed and operated by
    police distinguish it from regular security cameras. The appellants have different
    expectations of privacy in these different situations.

[125]

First,
Wong
stresses that observation by state agents
    raises different concerns than observation by other private actors: pp. 46-47,
    53. While it might be arguable that condominium residents could not reasonably
    expect that building management would be unable to share with the police video
    recordings from cameras that management had installed for its own purposes, it
    does not follow that residents would reasonably expect building management to permit
    the police to install cameras for the polices own purposes.

[126]

The installation of hidden cameras by the state is not something
    that condominium residents would reasonably expect the board to do in carrying
    out its management duties.

[127]

Condominium residents expect the board to reasonably cooperate with
    the police as part of the boards duty to manage common areas in the residents
    collective interest. This expectation does not give the board free reign to
    consent to all manner of police investigative steps in the common areas of the
    building, no matter how intrusive.

[128]

Second, as the appellants argue, the evidence before the application
    judge was that surveillance cameras installed by condominium management are
    generally visible. As the appellants submit, while residents expect to be under
    surveillance by the visible cameras installed by management, they do not expect
    to be under surveillance by hidden cameras, much less hidden cameras
    installed by the police.

[129]

Furthermore, the nature of the information the police were seeking
    engaged heightened privacy interests. As the appellants put it, the camera
    never blinks. Continuous surveillance over an extended period of time reveals
    more personal information about its subjects than do discrete and purpose-oriented
    individual entries. By the point the cameras were installed, the police had
    already determined where Mr. Mai resided, and were now pursuing information
    about who he associated with, and his living patterns in terms of when and how
    often he frequented the unit. As the application judge noted, this evidence had
    considerable probative value because it revealed the frequency of Mr. Mais
    attendance at the unit, what he was carrying with him when he came and went,
    and which persons he associated with.

iii.

Surreptitious Recording Cannot be Authorized by Boards
    Consent

[130]

In this case, the heightened privacy interests at stake lead me to
    conclude that surreptitious recordings cannot be authorized by the consent of
    the condominium board or property management. Permanent recording creates a
    risk of a different order of magnitude than visual observation by police
    officers who have the permission of the board or management to be in the common
    areas.

[131]

As discussed with respect to the warrantless entries, the board and
    property management have valid authority to cooperate with the police, and to
    consent on behalf of the building residents to allow police entry. This
    authority is not unlimited. The respondent, in its factum, agrees that property
    management has authority to cooperate with the police only to a reasonable
    extent.

[132]

It was not reasonable for the condominium board or its delegates to
    consent to surreptitious video surveillance on behalf of the residents. This is
    beyond the bounds of its authority. The board has a duty to manage common
    areas. This will sometimes involve allowing non-residents such as maintenance
    people, management, and perhaps even police, to enter common areas as needed.
    Surreptitious video surveillance by the police is different. There is a limit
    to the boards delegated authority. That limit was surpassed when the board
    purported to consent to the installation of hidden cameras on behalf of
    residents.

[133]

There is no other statutory or common law power that authorized the
    police to install hidden cameras without a warrant. The warrantless
    installation of the camera at Joe Shuster Way therefore breached s. 8 because it
    was not authorized by law.

[134]

As the application judge did not conduct a s. 24(2) analysis, it
    falls to this court to perform this task:
R. v. Ritchie
, 2018 ONCA
    918, 424 C.R.R. (2d) 13, at para. 19.

IV.

The Impugned Evidence was Admissible under S.
    24(2)

[135]

Section 24(2) of the
Charter
provides:

Where, in proceedings under subsection (1), a
    court concludes that evidence was obtained in a manner that infringed or denied
    any rights or freedoms guaranteed by this
Charter
, the evidence shall
    be excluded if it is established that, having regard to all the circumstances,
    the admission of it in the proceedings would bring the administration of
    justice into disrepute.

[136]

Evidence, even when obtained in a manner that infringes the
Charter
,
    is
prima facie
admissible.  The onus is on the person seeking to exclude
    it to satisfy the court, on a balance of probabilities, that the admission of
    the proposed evidence could bring the administration of justice into disrepute.
    The key to the s. 24(2) analysis is the balancing of the following factors: (1)
    the seriousness of the
Charter
-infringing state conduct; (2) the impact
    of the breach on the
Charter
-protected interests of the accused; and
    (3) societys interest in the adjudication of the case on the merits:
R. v.
    Grant
, 2009 SCC 32, [2009] S.C.R. 353, at para. 71;
R. v. Harrison
,
    2009 SCC 34, [2009] 2 S.C.R. 494, at para. 2.

[137]

The Crown conceded that if, as I have found, the warrantless camera
    installation at Joe Shuster Way violated the appellants s. 8 rights, then all
    evidence from that camera was obtained in a manner that violated the
Charter
.
    There is a sufficient connection between the pre-authorization and post-authorization
    footage, since uninterrupted footage was obtained from the same camera both
    before and after the issuance of the warrant. This is a close contextual and
    temporal connection.

(i)

Effect of the Exclusion of the Evidence

[138]

The Crown further conceded that the camera evidence affects some of
    Mr. Mais convictions and all of Mr. Saccoccias convictions.

[139]

In relation to Mr. Mai, the exclusion of this evidence would impact
    his criminal organization and conspiracy convictions, as those convictions relied
    on his associations with Asian Assassinz members captured by the camera. In
    relation to Mr. Saccoccia, the excision of the camera evidence from the ITO for
    the warrant to search his unit would leave grounds insufficient to justify the
    issuance of the warrant, which would be fatal to his convictions.

[140]

The Crown does not accept, and I agree, that excision of the camera
    evidence from the various warrants in relation to Mr. Mai would undermine the
    searches that form the basis for Mr. Mais other convictions. Taking a
    deferential approach, there was sufficient other evidence upon which the
    warrants for those searches could have been issued:
Garofoli
.

[141]

The observations made on the few warrantless hallway entries at
    Western Battery Road would not have undermined any of the appellants
    convictions. Accordingly, it is not necessary to consider their admissibility.
    The fact of this additional s. 8 breach is relevant in assessing the
    admissibility of the other evidence, as outlined below.

[142]

The key evidence at issue, therefore, for the purpose of the
    analysis under s. 24(2), is: the evidence obtained from the hallway camera at
    Joe Shuster Way, both pre- and post-warrant, and the evidence obtained from the
    search of Mr. Saccoccias residence.

(ii)

The 24(2) Analysis

[143]

I will now look at the determining factors in the s. 24(2) analysis.

i.

The seriousness of the
Charter
-infringing
    state conduct

[144]

In assessing the seriousness of the breach, the court must consider
    the nature of the police conduct that infringed the
Charter
and led to
    the discovery of the evidence. The court must also consider the question of
    dissociation: Did it involve misconduct from which the court should be
    concerned to dissociate itself?  This will be the case where the departure from
Charter
standards was major in degree, or where the police knew (or
    should have known) that their conduct was not
Charter
-compliant. On the
    other hand, where the breach was of a merely technical nature or the result of
    an understandable mistake, dissociation is much less of a concern:
Harrison
,
    at para. 22.

[145]

First, regarding the cameras, the state conduct was not overly
    serious. The police sought and obtained consent from the condominium management
    to install the cameras. As the application judge noted, the police had obtained
    legal advice from the Ministry of the Attorney General that they could install
    cameras in the common areas based on consent from the property management. The
    law on this issue was a grey area at the time. This case is, in these ways,
    similar to
Wong
, where the Supreme Court admitted the evidence on the
    basis that the police had sought legal advice, and their misunderstanding of
    the law was entirely reasonable:
Wong
, at p. 59.

[146]

A second important aspect of the context here was that, in this
    case, surveillance of the various targets was highly dangerous. Some of the
    targets were armed. One target of the investigation had been tracked by gang
    members and killed while under police surveillance. In light of the advice the
    police obtained, and the fact that they did not install the cameras out of
    sheer convenience but rather to minimize the danger faced by officers, the
    state conduct was at the low end of the spectrum.

[147]

The officers also took steps to minimize the impact of the cameras
    on the privacy rights of third parties. Their placement of the cameras
    reflected that they were sensitive to this concern.

[148]

The s. 24(2) analysis is a balancing exercise. As stated above, in
    assessing the seriousness of the breach, this court must consider the nature of
    the police conduct that infringed the
Charter
and led to the discovery
    of the evidence. The state conduct in entering Western Battery Road without
    consent was not serious. At the time, the police could have reasonably
    concluded that such entries were permissible, so long as they did not attempt
    to make observations about activities within a unit. And, as I have said, there
    were very few such entries. This factor, in my view, militates in favour of
    inclusion of the evidence.

ii.

The impact of the breach on
Charter
-protected
    interests of the accused

[149]

When considering the impact of the breach on the
Charter
-protected
    interest of the accused, the court must conduct an evaluation of the extent to
    which the breach actually undermined the interests protected by the right
    infringed:
Grant
,
at
    para. 76. The seriousness of the infringement is considered from the
    perspective of the accused: Did the breach seriously compromise the interests
    underlying the right(s) infringed? Or was the breach merely transient or trivial
    in its impact? These are among the questions that fall for consideration in
    this inquiry:
Harrison
, at para 28.

[150]

The impact of the breach can range from fleeting or technical to
    profoundly intrusive. The more serious the impact, the more likely that
    admission of the evidence will indicate to the public that rights, however
    high sounding, are of little avail to the citizen, [thereby] breeding public
    cynicism and bringing the administration of justice into disrepute:
Grant
,
at para. 76.

[151]

In applying these principles to the case at bar, I find that the
    impact of the hallway camera on Mr. Mai and Mr. Saccoccias
Charter
rights was moderate. The camera revealed some personal information. With
    respect to Mr. Mai, the evidence obtained from the camera strongly suggested
    that he did not live at Joe Shuster Way but did visit his unit there
    frequently. It identified his associates. It suggested that Mr. Mai was using
    his unit as a stash house for a drug operation, rather than as a residence.
    With respect to Mr. Saccoccia, the evidence from the camera revealed his
    relationship with Mr. Mai. This information was personal, but not exceptionally
    so, as it was available for public observation. It was much less significant
    than, for instance, the personal data contained in a computer.  As discussed
    above, Mr. Mai and Mr. Saccoccias expectation of privacy in the hallway was
    diminished, as what they did there could be in the view of whoever entered the
    building and went to their hallway.

[152]

This factor, in my view, militates moderately in favour of exclusion
    of the evidence.

iii.

Societys interest in the adjudication of the
    case on its merits

[153]

The third and final factor is societys interest in the adjudication
    of the case on its merits. At this stage, the court considers factors such as
    the reliability of the evidence and its importance to the Crowns case:
Harrison
,
    at para. 33. The underlying principle here is the truth-seeking function of the
    criminal trial process and whether the criminal justice system would be better
    served by admission or by exclusion, considering the seriousness of the
    offence. While these are important factors to be weighed in the balance, they
    cannot be skewed in such a way that they overwhelm the s. 24(2) analysis. To do
    this would be to deprive those charged with serious crimes the protection of
    the individual freedoms afforded to all Canadians under the
Charter
and,
    in effect, declare that in the administration of criminal law the ends justify
    the means:
Harrison
, at para. 40.

[154]

In the circumstances of this case, the evidence adduced from the
    camera was highly reliable. The evidence obtained from the search of Mr.
    Saccoccias residence is essential to all his convictions and the evidence from
    the cameras observations of Mr. Mai is necessary to support his most serious
    offences.  Therefore, the pull of this evidence in favour of admission is
    particularly strong:
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643,
    at para. 62.

[155]

Weighing all the factors, the repute of the justice system would be
    adversely affected if the evidence were to be excluded. Taken together, these
    factors militate in favour of admission.

[156]

Accordingly, the evidence obtained will be admitted pursuant to s.
    24(2).

(2)

Individual Grounds of Appeal

[157]

I turn now to the individual grounds of appeal. I will deal first
    with the individual ground of appeal relating to the appellant Mr. Tang, then
    turn to those raised by Mr. Saccoccia, and finally, Mr. Mai.

(a)

Grounds of
    appeal raised by Mr. Tang

[158]

The appellant Mr. Tang renews the argument he made before the
    application judge in
Brewster

I
, being that there was
    insufficient evidence to name him as a known person in the renewal and
    expansion warrant issued on April 15, 2014.

[159]

The application judge applied the standard for naming a known person
    that was set out by this court in
R. v. Mahal
, 2012 ONCA 673, 113 O.R.
    (3d) 209, leave to appeal refused, [2012] S.C.C.A. No. 496, and
R. v.
    Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, and was satisfied that
    there was sufficient evidence to justify naming Mr. Tang as a known person.

[160]

Mr. Tangs argument that there were insufficient grounds to name him
    as a known person turned on his request for this court to revisit its
    decisions in
Mahal
and
Beauchamp
. He acknowledged that on the
    law as set out in those decisions, there were sufficient grounds.

[161]

Mr. Tang sought, and was denied, leave to have this appeal heard by
    a five-judge panel in order to reconsider this courts decisions in
Mahal
and
Beauchamp
. Sitting as a panel of three, we are bound by those
    decisions. Accordingly, I dismiss this ground of appeal.

(b)

Grounds of appeal raised by Mr. Saccoccia

[162]

The appellant, Mr. Saccoccia, argues that the trial judge erred in
    dismissing his s. 8 application and s. 11(b) application. He also submits that
    the sentence imposed was demonstrably unfit.

(i)

Section 8 application

[163]

Mr. Saccoccias s. 8 application related to a warrant to search his
    residence that was issued on May 24, 2014. Pursuant to that warrant, police
    searched his residence and found drugs and the proceeds of crime.

[164]

Mr. Saccoccia argued before the trial judge that the warrant should
    not have been issued. His main submission was that the ITO did not reveal
    reasonable grounds to believe that an offence had been or would be committed in
    his residence. He sought exclusion of the evidence obtained from the search
    pursuant to s. 24(2) of the
Charter
.

[165]

The trial judge disagreed. She correctly identified the question
    before her on review of the warrant: whether there was credible and reliable
    evidence before the issuing judge upon which that judge, acting judicially,
    could have issued the warrant. She concluded that the ITO, taken as a whole,
    could support the issuance of the warrant. This evidence included Mr.
    Saccoccias relationship with Mr. Mai, a known drug dealer; Mr. Saccoccias history
    of visiting Mr. Mais unit, which was used exclusively as a stash house and
    which it appears only trusted associates and customers were allowed to enter;
    and Mr. Saccoccias apparent preoccupation with the security of his own
    residence.

[166]

On appeal, Mr. Saccoccia renews his argument that the ITO was simply
    insufficient. He acknowledges that reviewing judges are entitled to deference
    on appeal, and that absent an error of law, a misapprehension of the evidence,
    or a failure to consider relevant evidence, this court should not interfere:
R.
    v. Ebanks
, 2009 ONCA 851, 97 O.R. (3d) 721, at para.
22;
R. v. Grant
(1999), 132 C.C.C. (3d) 531 (Ont. C.A.), at
    para.
18.

[167]

Mr. Saccoccia has not pointed to any error of law, misapprehension
    of the evidence, or failure to consider relevant evidence on the part of the
    trial judge. I would not interfere with the trial judges conclusion on this
    issue.

(ii)

Application for a stay under s. 11(b) of the
Charter

[168]

Mr. Saccoccia sought a stay of proceedings, arguing that his right
    to be tried within a reasonable time under s. 11(b) of the
Charter
had
    been infringed.

[169]

The trial judge dismissed his application. She applied the framework
    established by the Supreme Court in
R. v. Jordan
, 2016 SCC 27, [2016]
    1 S.C.R. 631. She concluded that the total delay from the laying of the charge
    to the s. 11(b) application was 35.5 months. This exceeded the presumptive
    ceiling of 30 months. The trial judge found only one period of defence delay:
    she attributed seven months of delay to the defence based on the time it took
    for Mr. Saccoccia to retain counsel and for his counsel, once retained, to
    bring a
Rowbotham
application. Accounting for the seven months of
    defence delay brought the overall delay below the 30-month ceiling. The trial
    judge went on to find that had the delay exceeded the ceiling, the case
    qualified as exceptionally complex, and because most of the delay accrued prior
    to the release of
Jordan
, the transitional exceptional circumstances
    consideration set out in that case applied.

[170]

On appeal, the Crown concedes that the trial judge erred in her
    findings on defence delay. The Crown accepts that Mr. Saccoccias delay in
    obtaining counsel did not in fact cause any delay. I agree. As a result, it is
    unnecessary to deal with Mr. Saccoccias arguments that the court and the Crown
    had an obligation to assist him in obtaining state-funded counsel.

[171]

The relevant period of delay for the purposes of this appeal is from
    the date the first information was laid, on May 28, 2014, to the date of Mr.
    Saccoccias conviction, on May 18, 2017.
[3]
This period exceeds the presumptive 30-month ceiling by almost six months.

[172]

In my view, the combined effect of the complexity of this matter and
    the fact that most of the delay in this case accrued prior to the release of
Jordan
,
    is that the overall delay is reasonable.

[173]

I agree with Mr. Saccoccia and the Crown that to the extent the
    trial judge attributed specific times to the complexity of the case, her
    approach was in error. I disagree with the appellants suggestion that this was
    not an exceptionally complex case.

[174]

There can be no doubt that this case involved a complex and
    large-scale investigation. The complexity and scale of the investigation
    translated into complicated legal proceedings. The legal issues raised before
    the application judge that are now the subject of the joint grounds of appeal
    were both factually and legally complex.

[175]

Mr. Saccoccia argues that his case was not that complex, because the
    joint application was the only real source of complexity. Respectfully, I
    disagree. The joint application was certainly complex, but it was not the only
    complicated feature of this case, which involved a large-scale police
    investigation and voluminous disclosure. Further, although this was a complex
    prosecution, it does not appear that the Crown or the court allowed it to
    languish in the system. Dates were set promptly. The joint application was case
    managed. As Mr. Saccoccia acknowledges, efforts were made to ensure the joint
    application proceeded as efficiently as possible, given the number of
    applicants and the volume of the evidentiary record.

[176]

Further, even were this case not sufficiently complex, most of the
    delay in this case accrued prior to the release of
Jordan
in July 2016.
    In my view, the transitional exceptional circumstances consideration applies.
    The overall delay is consistent with the parties reasonable reliance on the
    state of the law prior to the release of
Jordan
:
Jordan
, at
    para. 96.

[177]

I agree with the trial judge that the overall delay was not
    unreasonable. Accordingly, I dismiss this ground of appeal.

(iii)

Mr. Saccoccias Sentence Appeal

[178]

The trial judge sentenced Mr. Saccoccia to 33 months in custody. He
    appeals from that sentence on the basis that it is demonstrably unfit.

[179]

Before the trial judge, Mr. Saccoccias counsel (not counsel on
    appeal) submitted that a sentence in the range of two to three years would be
    appropriate. The Crown sought a global sentence of seven years in custody.

[180]

The trial judge accepted Mr. Saccoccias counsels position that he
    should receive a sentence at the low end of the range for possession of heroin
    for the purpose of trafficking, which was the most serious of the charges he
    faced. She considered the appropriate mitigating factors, including Mr.
    Saccoccias addiction, commendable efforts towards rehabilitation, strong
    family support, and lack of criminal record. She balanced those factors against
    the need for denunciation and deterrence in the sentencing of drug traffickers.

[181]

While it would have been open to the trial judge to have imposed a
    lower sentence given the unusual mitigating circumstances present in this case,
    I cannot say that the sentence she did impose was demonstrably unfit,
    particularly in light of the position taken by Mr. Saccoccias counsel before
    her.

[182]

Mr. Saccoccia tendered fresh evidence on appeal to demonstrate the
    progress he has made since he was sentenced. I do not find this fresh evidence
    to be admissible. Mr. Saccoccia had already made commendable efforts towards
    rehabilitation by the time of sentencing, and the evidence of this was before
    the sentencing judge. In my view, the fresh evidence could therefore not be
    expected to have affected the sentence imposed:
R. v. L
é
vesque,
2000 SCC 47, [2000] 2 S.C.R. 487. Even
    assuming this fresh evidence was admissible, it would not affect the outcome of
    the sentence, as the sentence imposed was not demonstrably unfit:
L
é
vesque
at para. 24.

[183]

Accordingly, leave to appeal sentence is granted, the sentence
    appeal is dismissed.

(c)

Mr. Mais Sentence Appeal

[184]

The trial judge sentenced Mr. Mai and Mr. Yu each to 13 years
    incarceration, less 19 months credit for pre-trial detention and restrictive
    bail. This was two years less than the 15 years the Crown sought, but
    significantly higher than the nine years Mr. Yu sought, and the seven years Mr.
    Mai sought.

[185]

The trial judge identified the following general aggravating factors
    for Mr. Mai, Mr. Tang, and Mr. Yu:

·

Their activities were profit-driven;

·

They were involved in possession for the purpose
    of trafficking for four months;

·

They possessed and dealt many different types of
    drugs;

·

They used a stash house as well as their own
    residences; and

·

They were sophisticated and wary of potential
    police surveillance and intercepts.

[186]

The trial judge then identified individual aggravating factors in
    relation to both Mr. Mai and Mr. Yu. He found that Mr. Yus possession of
    fentanyl was an extremely aggravating factor. The trial judge noted that
    fentanyl is 20 times more powerful than heroin and is the most deadly, illicit
    drug available, and that Mr. Yu was using it for profit. The trial judge
    emphasized that it was extremely aggravating that Mr. Mai was the
    quarterback of the stash house, meaning that he was the one who arranged to
    lease the condominium unit for the purpose of storing drugs, and he played a
    leading role in relation to its use. He also referenced the third of a kilogram
    of heroin and significant amount of cocaine and crystal meth that Mr. Mai
    possessed.

[187]

The trial judge also identified the following mitigating factors for
    Mr. Mai, Mr. Tang, and Mr. Yu:

·

None of them had any prior criminal record;

·

All had family support;

·

All were relatively young;

·

After the determination of the application
    against them, none contested findings of guilt; and

·

All were gainfully employed or pursuing
    education while on bail.

[188]

The trial judge stated that he found that a global sentence of 13
    years less credit for pre-trial detention and restrictive bail would have been
    appropriate for both Mr. Yu and Mr. Mai. However, when he broke down the
    sentence for particular counts, the sum was not 13 years but 11 years and 5
    months, the appropriate sum after subtracting the 19 months credit.

(i)

Did the sentence imposed by the trial judge need to be interpreted
    by this court for clarity?

[189]

Mr. Mai submits that the trial judge imposed an unclear sentence.
    The trial judge stated he was imposing a 13-year global sentence but the
    individual sentences for each count, when added up, only amounted to 11 years
    and 5 months. The indictment does not itemize the individual sentences imposed
    for each individual count. The appellant argues that this court should prefer
    the interpretation of the sentence that is most favourable to the defence, and
    sentence Mr. Mai to 11 years and five months, less 19 months for pre-trial
    custody and restrictive bail conditions. I reject this submission.

[190]

Read in context, there is no lack of clarity in the reasons for
    sentence. As the Crown submits, the trial judge clearly wrote on the indictment
    that he imposed a global sentence of 13 years minus 19 months for pre-trial
    custody and restrictive bail, leaving 11 years and five months remaining. He
    also stated this clearly on multiple occasions in the reasons for sentence. The
    apportionment of the sentences to the individual charges simply distributed the
    portion of the sentence left to be served.

(ii)

Did the trial judge misapprehend the evidence as to the quantity of
    the drugs that Mr. Mai was convicted of possessing?

[191]

The Crown concedes that the reasons for sentence reference incorrect
    quantities of drugs attributed to Mr. Mai. I accept that the trial judge did
    misapprehend the evidence regarding the quantities of cocaine and
    methamphetamine seized. I find that this misapprehension merits a modest reduction
    with regard to the sentence for possession.

[192]

The appellant submits that this error led the sentencing judge to
    impose a longer sentence than he otherwise would have. Larger quantities of
    drugs attract a greater sentence. In this case, the parties revised the
    original agreed statement of facts to reduce the quantities of drugs found in
    Mr. Mais possession. However, the trial judge only referred to the quantities
    stated in the original agreed statement of facts. The appellant says the
    differences were substantial and call for this court to reconsider the
    sentence. The Crown submits that, where the judge did err, the differences were
    so minor that they would not have had an impact on the length of sentence.

[193]

I do not accept that the trial judge misapprehended the quantity of
    heroin. While he did erroneously refer to the higher quantum of 442 grams at
    the beginning of his reasons for sentence, he later correctly found that Mr.
    Mai had approximately a third of a kilogram of heroin, which demonstrates he was
    aware of the revised 310.92 grams figure.

[194]

However, the trial judge did misapprehend the quantities of cocaine
    and methamphetamine seized, and he never referred to the correct quantities in
    his reasons for sentence. These misapprehensions were substantial  the trial
    judge sentenced the appellant for more than four times the amount of cocaine
    (828 grams instead of 189.29 grams) and nearly 14 times the amount of
    methamphetamine (43.2 grams instead of 3.1 grams) than he actually possessed.

[195]

I do not accept the Crowns argument that this would have had no
    impact on Mr. Mais sentence. The trial judge specifically stated that the
    significant amount of cocaine and methamphetamine that Mr. Mai possessed was
    an individual aggravating factor. Nor does it follow that this misapprehension
    would not have affected the trial judges determination of the appropriate
    global sentence. The totality principle is based on determining the overall
    culpability of the offender, and the quantity of drugs seized is relevant to Mr.
    Mais overall culpability:
R. v. M.
(C.A.), [1996] 1 S.C.R. 500, at
    para. 42;
R. v. Oraha
, 2014 ONCA 359, at para. 5.

[196]

In my view, a reduction of one year is appropriate for the
    misapprehension of the evidence in regard to the quantities of cocaine and methamphetamine.
    This reduction is minor because the trial judge found that the most powerful
    individual aggravating factors in regard to Mr. Mai were his leasing and
    quarterbacking of the stash house.

(iii)

Did the trial judge err in his decision that Mr. Mais sentence
    should be in parity with Mr. Yus sentence?

[197]

The appellant also submits that the trial judge erred in deciding
    that Mr. Mais sentence should be in parity with Mr. Yus sentence because Mr.
    Yus culpability was higher than Mr. Mais. Mr. Yu possessed significantly
    larger quantities of drugs, and also possessed fentanyl, which Mr. Mai did not
    possess. Mr. Yu was also associated with a stash house that contained firearms
    that Mr. Mai was not connected with. The parity principle does not necessarily
    require identical offences. The appellant submits that Mr. Mai should have
    received a lesser sentence than Mr. Yu, given Mr. Yus greater culpability.

[198]

The trial judge was entitled to find that that Mr. Mai and Mr. Yu
    had equal degrees of culpability. While Mr. Yu was more culpable than Mr. Mai
    regarding the nature and quantity of drugs, this is only one factor in the
    total circumstances determining culpability. The sentencing judge had
    emphasized that Mr. Mais culpability was increased because he was a
    manufacturer as well as a trafficker, and because he was the quarterback of
    the stash house at Joe Shuster Way.

(iv)

Did the trial judge err by imposing a consecutive sentence for the
    count of conspiracy to traffic a controlled substance?

[199]

The appellant submits that the trial judge likely made a mistake
    when he imposed a consecutive sentence for the count of conspiracy to traffic a
    controlled substance, given the comments made by the court when addressing
    whether that charge should be stayed in light of the conviction for trafficking
    for the benefit of a criminal organization.

[200]

The Crown did not ask for a consecutive sentence on this charge. The
    trial judge stated during oral submissions that he intended to impose a
    concurrent sentence. In light of this, Mr. Mais counsel did not further
    address the issue. The appellant submits that it was unfair to impose the
    sentence without giving Mr. Mais counsel an opportunity to make submissions on
    its propriety.

[201]

I agree with the Crown that the apportionment of a consecutive
    sentence to the conspiracy to traffic count would not have impacted the global
    sentence. The trial judge advised the parties multiple times that his approach
    was to first determine the appropriate global sentence in light of the totality
    principle and then apply it to the various counts. The total sentence of 13
    years less credit was a fit sentence on the totality of the circumstances,
    regardless of how it was apportioned, and whether the sentence for one charge
    was concurrent or not.

(v)

Conclusion on Sentence Appeal

[202]

In all the circumstances, leave to appeal the sentence is granted.
    The sentence appeal is allowed. Mr. Mais sentence is reduced by one year.

F.

DISPOSITION

[203]

For these reasons, the appeal is dismissed, apart from Mr. Mais
    appeal from sentence, which is allowed to the extent that Mr. Mais sentence is
    reduced by one year.

Released: M.T. December 2, 2019

M.
    Tulloch J.A.

I
    agree. K. van Rensburg J.A.

I agree.
    Harvison Young J.A.

[1]

The sole exception is that the application
    judge concluded that one applicant, Tony Huang, should not have been named as a
    known person in the wiretap authorization. The application judge found that
    this violated Mr. Huangs s. 8 rights, and that any intercepts obtained in
    relation to him ought to be excluded under s. 24(2) of the
Charter
.

[2]

Although these cases involve consent by a
co-resident
to police entry into a shared
home
, in my view, the analytical approach
    to the role of third-party consent applies equally here.

[3]
Mr.
Saccoccia had submitted that the
Jordan
ceiling
    should apply for the entire period his matter was pending, until his sentencing
    in September 2017. After this appeal was argued, this court released its
    decision in
R. v. Charley
, 2019 ONCA 726. In that decision, Doherty
    J.A., writing for the court, clarified that the
Jordan
ceilings do not
    apply to sentencing delay. Sentencing delay should be considered separately.
    The sentencing delay alone in this case does not raise any s. 11(b) concerns
    based on the approach set out in
Charley
.