Guns and drugs conviction survives Charter challenge

Law360 Canada (October 28, 2024, 1:15 PM EDT) --

John L. Hill

A confidential informant alerted the Toronto Police Service that Dennis Mensah was trafficking in fentanyl. Police obtained a warrant to track Mensah and two cellphones associated with him. The investigation linked Mensah to a condominium unit in Toronto and a specific unit number.

With the surveillance information, police attended the condo building and met with the senior property administrator. Through that contact, police obtained a copy of the unit’s owner, Rashawn Salmon, and access to CCTV footage from the building’s elevators and elevator vestibule. This newly obtained information informed the granting of a new search warrant that resulted in a search of Salmon’s condo unit and the finding of a box that once contained a Glock handgun, a 50-round over-capacity magazine loaded with 35 rounds, $7,859 in cash, cellphones and the keys to a Kia automobile. The police extended the search to the parking garage. In the Kia, police found a loaded Glock, fentanyl, carfentanil, cocaine, a cutting agent, scales and a spoon.

Salmon, Mensah and another man were arrested and charged with possession of drugs for the purpose of trafficking and possession of a prohibited weapon and ammunition. Salmon was eventually found guilty and was sentenced to six and a half years in prison, less than 13 months credit for time spent in pretrial custody.

Salmon and his co-accused sought to have the incriminating evidence ruled inadmissible by bringing a Charter challenge, arguing that there had been a breach of s. 8 of the Charter and an unreasonable search and seizure. That Charter challenge was lost with the motions judge finding that the information provided by the confidential informant was credible and corroborated and that the information and video recording obtained from the building manager did not violate the accused’s reasonable expectation of privacy. Further, the building employee had the authority to release the information.

Following his conviction, Salmon appealed, arguing that the motions judge had erred in law in admitting evidence that was improperly obtained. Specifically, Salmon argued that the CCTV information should have been excised from the Information to Obtain the search warrant since it breached his privacy rights. Further, the search warrant of the condo was obtained in the absence of reasonable grounds to believe evidence would be found there. The search of the Kia was done without a warrant, and the car was unlawfully seized. The appeal court’s decision is set out in R. v. Salmon, 2024 ONCA 697.

In dealing with the privacy issue, the Ontario Court of Appeal interpreted the decision in R. v. Yu, 2019 ONCA 942, as saying that property management is entrusted with the security of the building and its residents. Who is entitled to deliver CCTV footage is not dependent on the title of the employee. It was open to the trial judge to decide that the administrator, in this case, was qualified to cooperate with police and provide the information that was turned over.

Salmon argued the trial judge erred in that there was nothing to implicate him with the storage of drugs just because a drug dealer visited him. However, the Crown contended there was evidence of drug storage in that the video shows Mensah arriving with a package delivered to Salmon’s unit right after a drug deal had gone down. The appeal court held that there was evidence that the authorizing justice accepted that supported the conclusion that evidence of drug trafficking could be found inside Salmon’s unit (R. v. Cusick, 2019 ONCA 524).

The reviewing judge’s decision was supported by legally sufficient reasons. Reasons are insufficient only after being read as a whole, and in the context of the whole record, they frustrate appellate review (R. v. Sheppard, 2002 SCC 26).

The seizure of the Kia and its warrantless search was justified. It was based on what the police found in their lawful search of the condo unit — an empty box for a Glock firearm and a partially loaded, oversized ammunition drum magazine — that they reasonably believed the missing firearm might be inside the appellant’s automobile. Two sets of keys to the car were found in the appellant’s condo, and the vehicle was in the parking space allocated to the unit. In their search of the condo unit, the police were authorized under s. 489(1)(c) of the Criminal Code to seize anything they believed on reasonable grounds would afford evidence regarding an offence. And, under s.11(8) of the Controlled Drugs and Substances Act, “in addition to the things mentioned in the warrant,” they were permitted to seize “anything that the peace officer [believed] on reasonable grounds [had] been obtained by or used in the commission of an offence or that [would] afford evidence in respect of an offence” (R. v. Iraheta, 2020 ONCA 766).

Since no violation of the Charter was found, the appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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