Police swabbing of the external door handle of the accused’s vehicle constitutes a search within s. 8 of the Charter

R. v. Wong 2017 BCSC 306 – the accused were charged with seven offences arising from the discovery of a methamphetamine lab and a loaded firearm; the two accused were the occupants of the house and had been under investigation by the police for several months before the execution of the search warrant. Police employed various investigative methods, including a tracking warrant, a transmission data recorder warrant and assistance order, a DNA warrant, warrantless video surveillance (more on this later), and warrantless searches and seizures involving seizure of garbage and swabbing of motor vehicles on various occasions.

The accused’s garbage was collected from the garbage bin left by the accused for garbage pickup in the back lane of the residence on two occasions. On another occasion, the accused was observed by the police removing a black garbage bag from the trunk of his vehicle, a white Toyota Echo, and deposit the bag in a dumpster located at the rear of a Fido store. Tests revealed trace particles of cocaine and methamphetamine on the knot of the garbage bag in one case, and trace particles of heroin, cocaine and methamphetamine on the bag and on the flex vent pipe in the other. The court found no Charter breach in relation to the garbage seizures (cited R. v. Patrick, 2009 SCC 17, and R. v. Edwards [1996] 1 S.C.R. 128, etc.).

The police swabbed the driver’s side door handle and trunk latch on Wong’s vehicle and further swabs from the same areas were again obtained some 12 days later. The swabs were tested by an ion scanner and trace particles of cocaine were detected. Neither the defence nor the Crown provided the Court with any case law specifically considering whether swabbing the handles/latches of a motor vehicle amounts to a search or seizure within the meaning of s. 8 of the Charter. The vehicle was parked in a public location, but defence submitted that Wong had a reasonable expectation of privacy in the information that could be extrapolated from this form of testing activity; and, parking a vehicle in a public location did not constitute abandonment of the owner’s privacy interest in such information.

In the court’s view, it would be objectively reasonable for Wong to have privacy expectations in the information that might be obtained through the swabbing of his vehicle. Undoubtedly, the parking of the vehicle in a public place meant it was subject to visual examination by anyone who passed by, including the police. If such visual examination revealed evidence that could be secured without physically touching the vehicle, for example through photography, any expectation of privacy would not be objectively reasonable. If, on the other hand, the evidence was not visible to the naked eye and could not be obtained except through physical contact with the vehicle, such trespass militated in favour of requiring consent or, in the absence of consent, a judicial authorization permitting same. Said the court, this conclusion is perhaps reinforced when one considers that the evidence secured through such swabbing might well include DNA of the vehicle’s owner-operator and the potential to thereby expose biographical information of a potentially intimate and personal nature. The court concluded that the warrantless swabbing by the police of Wong’s vehicle amounted to unreasonable search and seizure within the meaning of s. 8 of the Charter.

Now, returning to issue of the warrantless video surveillance, the ITO reported observations obtained from video camera recordings of activities occurring in the rear driveway and backyard area of the residence. The activities essentially comprised of Wong removing objects from his vehicle and carrying objects into the garage or carrying objects from the garage into the residence through its rear door entry. At various times, the objects included plastic bags, a canvas bag, a sack, plastic buckets, and garbage bags. Within these paragraphs, the affiant also expressed opinions and conclusions that Wong was transporting or transferring chemical precursors and other materials into the house to be used in the making of methamphetamine.

The ITO was silent as to the manner in which the video camera was installed and operated, but viva voce evidence provided that the camera was installed on a power line approximately 2 feet south of a utility pole nearest the corner of a street and the alleyway behind the accused’s residence. The wire on which the camera was installed was approximately 20 feet above street level and installation was done using a bucket truck parked on the alley side of the utility pole. The camera was small and shielded; it had no microphone or audio capability, and it had a fixed focal lens without zoom. The camera was angled so that it would record a view of the backyard, the garage, a tent garage, and the rear of the house, all from the perspective of the rear corner of the yard in the alleyway.  Later, police installed a network video recorder approximately two blocks away on other private property, with the consent of its owners; from that point forward, the video feed from the camera was recorded on the network recorder 24 hours a day until the equipment’s removal. Every 24 hours, the video recording was exported from the network recorder to a hard drive and then provided to the lead investigator on the file appropriately labelled with date, time, and location.

The uncontested evidence from the surveyor was that while the utility pole was not actually located on the property, the westerly face of the pole was leaning in such a way that it crossed over the airspace above the property line at approximately at a height of approximately 9 metres (29 feet). It was clear from the survey, however, that the eastern half of the pole and thus any wires attached to the alley-side of the pole did not cross the property line at any time. The court said that evidence of Wong moving back and forth between vehicle, house and garage, would have been plainly visible to any person observing the scene from the alleyway, but the question in this case was whether the warrantless installation and operation of a camera, recording activities on the property which were otherwise plainly visible from the alleyway, violated any reasonable expectation of privacy of a sort protected by s. 8 of the Charter

In the court’s view, three weeks of covert 24-hour video surveillance by the police, while creating a permanent electronic record of activities in the backyard of a private residence is precisely the type of investigative technique that s. 487.01 of the Criminal Code was designed to address. The failure of the police to obtain a general warrant authorizing such surveillance resulted in a violation of an individual’s rights under s. 8 of the Charter. Other courts have not found Charter violations in similar cases, so it may have been that since any unauthorized surreptitious video surveillance is a “pernicious threat to privacy”, it’s all the more so where the state is creating “a permanent electronic recording of one’s presence in a given location”.

 

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