Court of Appeal for Ontario

Date: February 2, 2017

Docket: C58368

Judges: Feldman, Benotto and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Denis Saciragic Appellant

Counsel

For the Appellant: Todd B. White and Philip Norton

For the Respondent: Brendan Gluckman

Heard: June 10, 2016

On appeal from: The conviction entered by Justice Bonnie L. Croll of the Superior Court of Justice, sitting with a jury, on December 5, 2013.

Decision

B.W. Miller J.A.:

A. Overview

[1] The appellant appeals his conviction for drug trafficking. On a pre-trial application, he persuaded the trial judge that an absence of exigent circumstances meant that a warrantless search of his apartment was unreasonable and infringed his rights under s. 8 of the Charter. He was unsuccessful, however, in his challenge of a subsequent search of the apartment, authorized by a search warrant, which yielded evidence including bricks of cocaine and drug packaging material. The appellant's application to exclude that evidence under s. 24(2) of the Charter was dismissed and the appellant was convicted of drug trafficking and possession for the purpose of trafficking.

[2] On appeal, the appellant argues the trial judge erred in not excluding the evidence, as well as in her findings relating to the grounds for the appellant's arrest and subsequent searches and seizures. The appellant asks that his convictions be quashed and a new trial ordered.

[3] For the reasons that follow, it is my view that the trial judge made no errors and that the appeal should be dismissed.

B. Background

[4] The appellant came to the attention of police through a drug investigation initially focused on other parties, and he subsequently became a target of surveillance himself. On the third occasion of surveillance, police observed him engage in counter-surveillance manoeuvres while driving from his residence to the underground garage of an apartment complex at Sherway Gardens Road. They were unable to continue surveillance after he entered the garage, but continued to follow him when he drove away from the garage 23 minutes later. Police observed him pulling up to a waiting Lexus near the loading docks at a HomeSense store across from the Sherway Gardens Mall, an isolated area where no other vehicles or persons were present.

[5] The appellant removed a small box from the hatch of his car and handed it to the driver of the Lexus. The two drivers exchanged a fist-bump, returned to their vehicles, and began driving off. At this point, the police moved in and blocked the exit of the Lexus with their unmarked cruiser. The appellant swerved around the two cars and drove off quickly. The driver of the Lexus fled on foot and was ultimately apprehended and arrested for drug trafficking. Police recovered a one kilogram box of cocaine from his trunk, the same box police had witnessed the appellant give to the Lexus driver. The appellant temporarily evaded police by weaving in and out of traffic. He was caught five minutes later, hidden between two parked transport trailers, and was arrested for trafficking in cocaine.

[6] In a search of the appellant's vehicle incidental to the arrest, police recovered a cell phone, a set of keys beneath the driver's seat, and a key fob by the floor pedals.

[7] Operating on the theory that the appellant operated a stash house at the Sherway Gardens apartment complex that he visited immediately prior to the meeting behind Sherway Gardens Mall, police attended at the apartment complex. Detective Constable Reid met with the property manager in his office. DC Reid asked the property manager to identify the key fobs that had been used to access the secure parking garage from 11:25-11:40 AM, the time frame in which the appellant had entered. He also provided the property manager with a description of the appellant.

[8] The property manager advised DC Reid that the privacy policy of the complex did not permit him to show the surveillance video to police without a warrant. However, he provided DC Reid with the information that two key fobs had been used during the time period specified, one registered to unit 304 and the other to unit 1107. He also advised (whether from his own review of the surveillance video or from someone else's) that a person matching the appellant's description had exited the elevator on the 11th floor during the relevant time frame, and shortly thereafter returned to take the elevator down to the parking garage.

[9] From this information, DC Reid concluded that the appellant's stash house was likely unit 1107. Police entered the unit, using one of the keys that had been seized from the appellant's car, for the purpose of clearing it of occupants and preserving evidence. Once inside, police went into the bathroom, pulled back the shower curtain, and saw what appeared to be drug packaging in the bathtub and smelled a strong odour of cocaine. They also observed a closed briefcase behind the bathroom door. Police did not seize the packaging or open the briefcase.

[10] After this warrantless entry, DC Stevenson prepared an Information to Obtain ("ITO") for a search warrant for unit 1107. The warrant was granted later that day. On executing the warrant at unit 1107, the police seized items including nine kilograms of cocaine from the briefcase and the drug packaging from the bathtub.

[11] Prior to trial, the appellant brought several applications to exclude evidence pursuant to s. 9 and s. 8 of the Charter.

[12] The trial judge rejected the appellant's argument that there were insufficient grounds for the arrest in violation of his s. 9 rights, and found that the seizure of the keys and fob in the appellant's car incidental to arrest was lawful. She also concluded that the search of access information from the use of the fob did not violate the appellant's s. 8 rights.

[13] The trial judge found one breach of s. 8: the warrantless entry and search of unit 1107 in the absence of exigent circumstances. However, after excising certain information from the ITO, she held that the search warrant for unit 1107 was not issued contrary to s. 8. The trial judge did not order that any of the evidence obtained be excluded at trial pursuant to s. 24(2). The appellant was ultimately convicted by a jury on all counts and sentenced to ten years imprisonment.

C. Issues

[14] The appellant raises the following issues on appeal:

1. whether the trial judge erred in finding the police had reasonable grounds to arrest the appellant;

2. whether the trial judge erred in not finding that the search and seizure of the fob data and video surveillance violated s. 8;

3. whether the search warrant would not have been issued but for the s. 8 violation of the warrantless search of unit 1107;

4. whether the trial judge erred in not excluding evidence under s. 24(2) of the Charter.

D. Analysis

(1) Reasonable Grounds for Arrest

[15] A peace officer can, pursuant to s. 495(1)(a) of the Criminal Code, arrest without warrant a person whom the officer believes on reasonable grounds has committed an indictable offence.

[16] The reasonable grounds requirement has two elements. First, the arresting officer must subjectively believe there are reasonable grounds to make the arrest. Second, there must be an objective basis for that subjective belief: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251.

[17] The trial judge identified several factors that Detective Zeleny considered in reaching the conclusion that he had reasonable grounds to arrest the appellant:

1. the appellant drove in a suspicious manner consistent with counter-surveillance;

2. the appellant drove to a deserted parking area by the loading dock of a shopping mall;

3. the appellant met up with a person in a vehicle already parked at that location;

4. there were no other vehicles in that area;

5. the two drivers engaged in a "trunk-to-trunk" transaction;

6. the two drivers looked around during the exchange;

7. the size of the box that was exchanged was sufficient to hold a kilogram of cocaine;

8. the two men shook hands and drove off;

9. the exchange took less than two minutes.

[18] To these grounds, the trial judge added another: the appellant's subsequent flight from police.

[19] The appellant argues that the trial judge erred in concluding that there were sufficient grounds for the arrest. He identifies two errors: (1) none of the arresting officers relied on the appellant's flight from police as a ground for arrest; and (2) the trial judge failed to consider the appellant's actions in the context of his previous innocent commercial behaviour while he was under surveillance.

[20] Neither of these arguments assist the appellant.

[21] With respect to the first argument, even if we accepted that it was an error to take the appellant's flight from police as a ground for arrest, it would in no way disturb the conclusion that there were reasonable grounds for arrest, which were provided in the facts set out above.

[22] I would also reject the appellant's second argument that his prior conduct negated whatever reasonable grounds for arrest might otherwise have existed. The context of that argument is this. On October 6, 2010, police witnessed two open air transactions in which the appellant handed over packages to unknown persons. On the second of these, police arrested the recipient of the package but released him unconditionally. The appellant makes much of the fact that the exchange was a cash payment to purchase a ring from the recipient who was, by trade, a jeweler. The appellant argues that the fact that the police witnessed him engaging in a legal (though highly suspicious) commercial exchange on this occasion should have given them reason to believe that what otherwise had all the markings of a drug transaction was also a legal, though suspicious, transaction. In other words, the police ought to have viewed the appellant's activities on March 1, 2011 through the lens of his previous conduct, having observed that exchanging commodities for cash in brief, clandestine transactions is simply the mode in which the appellant tends to carry out his lawful business.

[23] I would reject this argument. The appellant's previous actions – even if they can bear the innocent characterization that the appellant attaches to them – cannot launder his actions on March 1, 2011. The fact that the appellant was not charged when engaging in conduct that bore some of the same marks of illegality does not render his conduct on March 1, 2011 any less suspicious and cannot immunize him from reasonable suspicion on future occasions.

[24] The trial judge therefore made no error in not adverting to the October 6, 2010 transaction in concluding both that there were reasonable and probable grounds to arrest the appellant and that a reasonable person in the position of Detective Zeleny would also conclude that there were reasonable and probable grounds for the arrest. There was no violation of the appellant's s. 9 Charter rights.

(2) Section 8

[25] The trial judge held that the warrantless entry into unit 1107 was a breach of the appellant's rights under s. 8. However, the appellant argues that the trial judge ought to have also found that the police breached his s. 8 rights in obtaining information from the property manager that enabled them to ascertain the unit number of his apartment. Given the reasonable expectation of privacy in his municipal address, the appellant argues, questioning the property manager constituted a warrantless search which violated his rights under s. 8. Furthermore, the appellant argues that the property manager engaged in an unlawful search as agent of the state, committing an additional s. 8 violation. The appellant argues that these infringements of s. 8 are significant, necessitate a fresh analysis under s. 24(2) of the Charter, and ought to result in the exclusion of the physical evidence seized from unit 1107.

[26] For the reasons set out below, I would not give effect to these submissions.

[27] Section 8 of the Charter guarantees "the right to be secure against unreasonable search or seizure." This right contains internal limits: its scope is limited to circumstances in which there is a reasonable expectation of privacy: Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 159. In the circumstances of this appeal, if the appellant had a reasonable expectation of privacy in the information provided to the police by the property manager, the acquisition of the information by the police constitutes a search for the purposes of s. 8, even though the information was provided voluntarily: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321 (C.A.), at para. 64.

[28] The factors that inform the analysis of whether there is a reasonable expectation of privacy have been grouped under four broad headings: (1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.

[29] In the informational context, s. 8 of the Charter protects "a biographical core" of personal information that "tends to reveal intimate details of the lifestyle and personal choices of the individual": R. v. Plant, [1993] 3 S.C.R. 281, at pp. 292, 293. To determine whether the appellant's right to protection against unlawful search and seizure is engaged, it is therefore necessary to consider the nature of the information that the police obtained and how they obtained it.

[30] With respect to the nature of the information, the police were told: i) two key fobs were used during the specified time frame to enter the parking garage, associated with units 304 and 1107; and ii) from a review of video surveillance, someone matching the appellant's description on one occasion attended the 11th floor of the apartment complex from the elevator, exited, and then later re-entered the elevator. Here, no intimate details of the appellant's life were revealed by the provision of the information that, on a single occasion, the appellant exited and re-entered the elevator at the 11th floor. This information did not yield any information about the nature of the appellant's activities in unit 1107, or even whether he used unit 1107 as a residence. Similarly, no intimate or biographical details were revealed by the fact that the fob he used when police observed him enter the parking garage was assigned to unit 1107.

[31] Of course, in assessing whether an individual has a reasonable expectation of privacy, it is necessary to look not only at the immediate information sought by the police (the address corresponding to the fob, the attendance on the 11th floor), but the further information that it ultimately reveals: Spencer, at para. 31. In this instance, the ultimate information sought by the police is the particular unit the appellant accessed: the appellant's municipal address.

[32] Did the appellant have a reasonable expectation of privacy in his municipal address? The appellant did not advance any authority in support of the proposition that, categorically, there is a reasonable expectation of privacy in one's municipal address. A physical address does not, of itself, reveal intimate details about one's personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access.

[33] Neither, on the record before the court, were there particular circumstances that would indicate a reasonable expectation of privacy in the appellant's connection to unit 1107. The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police.

[34] In summary, I would hold that the trial judge made no error on the facts before her in concluding that the appellant had no reasonable expectation of privacy in the fob data, the fact that the appellant attended at the 11th floor, or the ultimate information that the police were able to conclude from this data: the appellant's use of unit 1107.

[35] The appellant's further argument is that the trial judge erred in not concluding that the property manager acted as an agent of the state in obtaining the fob and viewing the surveillance video, and the property manager's acts therefore violated the appellant's s. 8 rights.

[36] The trial judge found that the police knew they were unable to obtain the appellant's address from the property manager without a warrant, and that they were also told that they were unable to view the surveillance video without a warrant. The appellant argues that the police sought to circumvent the warrant requirement by having the property manager do indirectly what they themselves could not do directly. Accordingly, the appellant argues, by providing the fob information and confirmation from the video surveillance that the appellant exited the elevator at the 11th floor, the property manager was acting as a state agent. As a state agent, the property manager's actions would be held to the same standard as the police, and constituted a warrantless search and breach of s. 8.

[37] I do not agree with the appellant's submissions.

[38] First, I do not accept that the property manager, in responding to police inquiries, was acting as a state agent. Adapting the test given in R. v. Broyles, [1991] 3 S.C.R. 595, at p. 608, one asks whether the dealings as between the property manager and the appellant would have been different but for the intervention of the police. The fob data and the surveillance video were both recorded in the ordinary course, and not at the behest of police. The only difference is in the property manager's viewing of the video and fob data, which he may otherwise have had no reason to do. This act of retrieval in response to a narrow and specific request from the police does not, on this record, make the property manager a state agent: Ward, at para. 96; R. v. Webster, 2015 BCCA 286, 326 C.C.C. (3d) 228, at paras. 70-71.

(3) Issuance of the Search Warrant

[39] The trial judge made no error in finding that, even after excising the ITO of the information obtained from the initial warrantless search of the unit, there was a basis on which the warrant could have been issued: as the trial judge noted, minutes before trafficking a kilogram of cocaine in a trunk-to-trunk exchange in a remote area of a parking lot, it was probable that the appellant briefly attended at this apartment unit. These facts amounted to reasonable grounds to believe that there was evidence in the unit related to the commission of an offence.

[40] In argument, the appellant also asserted, for the first time, that police use of the key (obtained in the search incidental to arrest of the appellant) to unlock the unit door was a further infringement of s. 8 as it confirmed that unit 1107 was under the appellant's control. The appellant argues that any reference to use of the key ought to have been excised from the ITO.

[41] Again, this argument is of no assistance. Some, but not all, references to the key were excised from the ITO, and it was an error not to excise them all. Nevertheless, evidence of the use of the key to open the door of unit 1107 was not needed to tie the appellant to that unit: the fob data and video surveillance information was sufficient and the warrant could have been issued without any reference to the key. Any reference to the key was therefore superfluous.

(4) Section 24(2)

[42] The appellant has not identified any errors with respect to the trial judge's s. 24(2) analysis. The trial judge properly applied the relevant test given in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, noting that unit 1107 was not the appellant's principal residence, that the police were inside the unit for less than five minutes, and the purpose of the entry was to clear the premises of occupants and not to search for evidence. There is no basis upon which we could interfere with the trial judge's finding that the administration of justice is served by the admission of the nine kilograms of cocaine into evidence.

[43] The appellant argues that multiple additional breaches of s. 8 and s. 9 aggravate the s. 8 breach that the trial judge found, and necessitate a fresh s. 24(2) analysis. However, as I would not give effect to any of the appellant's arguments with respect to s. 8 or s. 9, there is no basis on which to undertake this analysis.

E. Disposition

[44] I would dismiss the appeal.

Released: February 2, 2017

"B.W. Miller J.A."

"I agree. K. Feldman J.A."

"I agree. M.L. Benotto J.A."