Court File and Parties

COURT FILE NO.: 105/15 DATE: 2016 0906

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DOMINIC MAZZA

Counsel: David S. Foulds, Agent for the Public Prosecution Service of Canada Jack Hardy, for the Defendant

HEARD: August 15, 16, 2016

Raikes J.

Overview

[1] The Applicant, Dominic Mazza, stands charged with possession for the purpose of trafficking cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[2] Mr. Mazza was arrested September 25, 2014 at approximately 8:35 p.m. in the driveway of his London home. He was followed by London police to his home from a nearby mall parking lot where police believed they had observed a drug transaction between Mr. Mazza and the target of their surveillance investigation, Robert Dorman.

[3] Immediately following his arrest, police searched Mr. Mazza’s vehicle and found a blue plastic bag containing 28 grams of cocaine, and a separate “deck” of five (5) x one gram packets of cocaine. Mr. Mazza asserts that the police lacked reasonable and probable grounds for his arrest, in particular, the arrest was not objectively justifiable. He also asserts that the search of his vehicle without a warrant was unlawful. As a consequence, the unlawful arrest and search of his vehicle contravened his s. 8 and 9 Charter rights.

[4] Mr. Mazza’s right to counsel on arrest was suspended by police. The arresting officer suspended Mr. Mazza’s right to contact counsel to prevent Mr. Dorman, whose exact whereabouts were unknown, from learning of the arrest of Mr. Mazza and destroying or moving evidence of illicit drugs. Police intended to obtain a telewarrant to search an apartment occupied by Mr. Dorman and his girlfriend.

[5] Mr. Dorman was located and arrested at approximately 11:25 p.m. by which time Mr. Mazza had been booked and was being held in the cells at the police station. The arresting officer phoned the cells area at 11:35 p.m., spoke to someone there and advised that Mr. Mazza could contact counsel. Despite that call, Mr. Mazza was not permitted to contact counsel or anyone else until he saw duty counsel at the courthouse at approximately 8:30 a.m. the following day – roughly 12 hours after his arrest and nine hours after the call to cells.

[6] Mr. Mazza asserts that the suspension of his right to counsel was unlawful and a violation of his s. 10(b) Charter rights. Alternatively, he asserts that the failure to permit him to contact counsel after the arrest of Mr. Dorman and the call to cells violated his s. 10(b) rights. The Crown asserts that the initial suspension was lawful, but accepts that a violation did occur after the call was made to cells at 11:35 p.m..

[7] Mr. Mazza applies for an order excluding the evidence of the cocaine found in Mr. Mazza’s vehicle pursuant to section 24(2) of the Charter.

Facts

[8] In early September, 2014, Constable Yovicic of the Guns and Drugs unit of the London Police Services received a tip from another officer. The source of the tip was a confidential informant (“CI”) known to the other officer.

[9] The information provided by the CI was set out in an Information to Obtain (“ITO”) sworn by Constable Yovicic on September 25, 2014 for the telewarrant to search an apartment occupied by Robert Dorman and his girlfriend, Jenny Stewart, after the arrest of Mr. Mazza. At paragraph 5.1, Constable Yovicic deposed:

“…Source One [the CI] provided police with the following information in relation to this investigation:

-Between the dates of August [redacted] 2014 and September [redacted] 2014 Source One observed powder cocaine in the unit at 311-595 Proudfoot Lane, London, Ontario. -A female by the first name of “Jenny” lives in the unit -Female has a boyfriend by the name of “Bob” -[redacted] -“Bob” drives a new black Escalade”

[10] There appears to be additional information provided by the CI which has been redacted from the ITO which was filed by both parties on this Application. Crown counsel advised that the police do not rely upon that redacted information and I should decide the Application on the evidence before me; viz. the Crown does not wish me to review the redacted portions of the ITO for consideration on this Application.

[11] Constable Yovicic testified in-chief on the voir dire that the information from the CI indicated that “Bob”, later confirmed to be Robert Dorman, was involved in the trafficking of cocaine. I note, however, that the information from the CI contained in the ITO above, which Constable Yovicic confirmed in evidence on the voir dire was the information he received, does not indicate that Mr. Dorman was trafficking in cocaine. In fact, the information from the CI says nothing about,

a. Trafficking b. The quantity of cocaine observed c. Who owned the cocaine observed d. The presence of Jenny or Bob when the cocaine was observed.

[12] As it relates to Mr. Dorman, the information provided by the CI indicates only that “Bob” is “Jenny’s” boyfriend and owns a new Escalade.

[13] Soon after he received the tip from the other officer, Constable Yovicic began the investigation. He was the lead investigator.

[14] Constable Yovicic started by making a computer query of the address provided by the CI. He confirmed that unit 311 at 595 Proudfoot Lane (“unit 311”) was occupied by Jenny Stewart.

[15] On September 15, 2014, he started surveillance of unit 311. He observed a black 2007 Escalade parked near the building bearing licence plate BVR 811. He searched the licence plate and learned that the vehicle was registered to Robert Dorman of 46 Culver Ct. in London. Mr. Dorman’s mother resides at that address. I observe that the vehicle was then seven years old, not “new” as indicated by the CI.

[16] Mr. Dorman was not known to Constable Yovicic. His name had not come to Constable Yovicic’s attention in his roughly 2.5 years in the Guns and Drugs unit. Constable Yovicic did a criminal records check of Mr. Dorman through CPIC which yielded no result.

[17] Constable Yovicic also did a check of the Versadex system which is an internal police database that includes prior occurrence reports, information from street sources etc.. Mr. Dorman’s name came up in relation to an earlier occurrence report but there was nothing connecting or associating Mr. Dorman with drug activity.

[18] Constable Yovicic obtained a photograph of Mr. Dorman, likely his MTO driver’s licence photograph. He conducted further surveillance of unit 311 on September 17, 2014. He observed no activity on either September 15 or 17, 2014 and did not see Mr. Dorman on either day. In cross-examination, Constable Yovicic quite fairly conceded that nothing in the surveillance prior to September 25, 2014 suggested that Mr. Dorman was involved in illicit drug activity.

[19] On September 25, 2014, Constable Yovicic and three other members of the Guns and Drugs unit returned to conduct further surveillance of unit 311. They had no new or further information of alleged drug activity at that address or involving Mr. Dorman.

[20] Constable Yovicic drove by the apartment building and observed Mr. Dorman in the window to unit 311 which faced the street. Soon after, he observed Mr. Dorman’s vehicle leave the parking lot. The surveillance team followed in multiple vehicles. Constable Yovicic agreed in cross-examination that there was nothing suspicious about the route taken or the manner Mr. Dorman drove.

[21] Mr. Dorman drove his vehicle from 595 Proudfoot Lane to a parking lot at Westmount Mall in London, roughly a 5-10 minute drive. He parked his vehicle beside a Lexus in an area of the parking lot near two restaurants located outside and separate from the mall. Both vehicles were facing southbound.

[22] Once parked, Constable Yovicic observed Mr. Dorman get out of his vehicle and walk around the rear of the Escalade to the driver’s window of the Lexus. Mr. Dorman had a dark object in his hand which Constable Yovicic could not identify. Mr. Dorman put his hand briefly through the open driver’s door window of the Lexus. When he took his hand out, the object was no longer in his hand. Constable Yovicic did not observe any money passed to Mr. Dorman or anything coming from the Lexus to Dorman.

[23] Mr. Dorman spoke with the driver of the Lexus for a couple of minutes. He opened the passenger door of the Escalade and reached inside but Constable Yovicic could not see what he was doing in the Escalade nor did he see anything taken out of the vehicle at that point. Mr. Dorman and the driver of the Lexus spoke briefly after the passenger door of the Escalade closed. Mr. Dorman then walked back to his driver’s door and got in. Both vehicles left the parking area.

[24] The meeting in the parking lot lasted six minutes. Neither driver went into any of the nearby businesses or restaurants during the time they were observed by police. The parking lot was a public place that was still busy with activity.

[25] Constable Yovicic was the only member of the surveillance team able to observe the entire meeting in the parking lot. Detective Constable Pavoni was in a separate vehicle and was only able to see Mr. Dorman walking behind his vehicle to return to the driver’s seat and drive away.

[26] Constable Yovicic communicated by radio what he observed as the meeting unfolded so that the other members of the surveillance team knew what was happening.

[27] Constable Yovicic and Detective Constable Pavoni each testified that they believed that a drug transaction had occurred between Mr. Dorman and the driver of the Lexus in the parking lot of the mall.

[28] Constable Yovicic testified that he came to that conclusion based on his experience as a police officer who investigates and has received extensive training on drug activity including drug purchases. He noted:

a. The meeting was very brief; b. It was in a public place which is consistent with many drug deals; c. Neither driver went into any of the businesses or restaurants; d. Mr. Dorman appeared to pass an object, which Constable Yovicic believed contained illicit drugs, to the driver of the Lexus. He had that belief because of the information he had that Mr. Dorman was involved in drugs and the passing of drugs; and, e. It was a hand-to-hand transaction which is common method for drug transactions.

[29] Constable Yovicic agreed in cross-examination that he “suspected” it [the object] was cocaine, but there was nothing from his physical observation from which he could know that it was cocaine or any other illicit drug.

[30] Detective Constable Pavoni was part of the surveillance team and was the officer who arrested Mr. Mazza. He had no involvement in the investigation prior to September 25, 2014. He had only returned from holidays two days earlier. He did not witness the meeting between Mr. Dorman and the driver of the Lexus except as above. He relied on Constable Yovicic’s radio account of what he observed.

[31] Detective Constable Pavoni testified that on September 25, 2014, he was aware of a Crime Stopper’s tip that Mr. Dorman was dealing drugs. In cross-examination, he agreed that the tip was more than a year old by September, 2014, was from an anonymous source whose reliability could not be verified, and he was unaware of any follow up investigation of that tip. He did not communicate that tip to Constable Yovicic.

[32] The surveillance team decided to follow the Lexus as it left the parking lot. The vehicle, driven by Mr. Mazza, drove approximately five kilometers where Mr. Mazza pulled into the driveway of his home on Longworth Road in London. This took approximately 5-10 minutes.

[33] In cross-examination, Constable Yovicic agreed that while following the Lexus, he decided that they would “detain” the driver of the Lexus “for further investigation” as a result of his observation of what he believed had been a drug transaction. Notwithstanding that he intended to detain for further investigation, he communicated to the other members of the surveillance team that the driver of the Lexus was arrestable for possession for the purpose of trafficking cocaine.

[34] Constable Yovicic agreed in cross-examination that the decision that Mr. Mazza was arrestable was based on,

a. Information from the CI who saw cocaine in the apartment at unit 311 when Mr. Dorman was present (which is not what was communicated by the CI); b. Mr. Dorman was associated with that address; and, c. The one transaction he observed when an object was passed that he could not see what it was.

[35] Detective Constable Pavoni testified that he received direction from Constable Yovicic, who was the lead investigator, to arrest the driver of the Lexus. He had no information as to the identity of the driver. Nevertheless, he felt that he had reasonable and probable grounds to arrest the driver of the Lexus based on what he believed was a drug transaction observed by Constable Yovicic.

[36] Detective Constable Pavoni testified that he based his belief that they had reasonable and probable grounds to arrest Mr. Mazza on the following:

a. They had a Crime Stopper tip and information from a CI that Mr. Dorman was trafficking in cocaine; b. Mr. Dorman went to a populated parking area which locations are popular for drug transactions; c. The short duration the meeting and there were no other persons present as are typical of a drug transaction; d. Neither driver went into the businesses in or near the mall which he interpreted as displaying a specific purpose for the transaction; e. The manner by which they conducted the transaction was the same way he had purchased drugs while undercover; and, f. The information received from Constable Yovicic of his observations in the parking lot.

[37] Detective Constable Pavoni parked his vehicle behind the Lexus. He exited his vehicle and approached Mr. Mazza who was still seated in the Lexus. He immediately advised Mr. Mazza that he was under arrest for possession for the purpose of trafficking cocaine. He asked Mr. Pavoni to exit the vehicle and hand-cuffed him.

[38] The Lexus was searched by Constable Jeff Brown, another member of the surveillance team. Constable Brown observed a package in a cup holder of the centre console that held a blue coloured Ziploc bag containing cocaine. He opened the arm rest of the centre console and found a small bag with five small packages inside. The packages were pieces of a real estate magazine, cut and folded over containing cocaine. These packages are sometimes referred to as a “deck” in the drug trade.

[39] Constable Brown did not testify on the voir dire. Defence counsel agreed that Constable Brown’s “will-say” statement would form part of the evidence on the voir dire. The above search findings come from that statement.

[40] Both Constable Yovicic and Detective Constable Pavoni testified that they had no knowledge of and had had no contact with Mr. Mazza prior to his arrest on September. They agreed that he has no prior criminal record and was not known to them by reputation as someone involved in the drug trade.

[41] Once Mr. Mazza was arrested and secure, Detective Constable Pavoni read Mr. Mazza his rights, including his right to counsel. He explained to Mr. Mazza what the right to counsel meant and was satisfied that Mr. Mazza understood that communication.

[42] It is undisputed that Mr. Mazza expressed a desire to contact legal counsel when his right to counsel was given to him. He also expressed a desire to call his wife.

[43] Although Detective Constable Pavoni indicated that the decision to suspend Mr. Mazza’s right to counsel was his decision, Constable Yovicic testified that the surveillance team discussed the suspension of the right to counsel and it was a “team decision”.

[44] With the cocaine found in the Lexus, Constable Yovicic decided to seek a telewarrant to search unit 311. Mr. Dorman’s whereabouts were unknown. He was last seen leaving the parking lot at the mall.

[45] Detective Constable Pavoni informed Mr. Mazza that his right to counsel was suspended until Mr. Dorman was arrested. At that point, the surveillance team knew that a telewarrant would be sought but could not know whether it would be granted.

[46] Detective Constable Pavoni testified in-chief that the decision to suspend Mr. Mazza’s right to counsel was to prevent Mr. Dorman from destroying or moving evidence, viz. the drugs. In cross-examination, he added officer safety as a concern or rationale for the decision – which Crown counsel fairly characterized as a “throw-away line”. In cross-examination, defence counsel put two questions from the preliminary hearing transcript to the witness where he was asked about the reason for the suspension of the right to counsel. In both instances, he referred only to the preservation of evidence. There was no evidence of guns or other weapons or violence associated with Mr. Dorman.

[47] Mr. Mazza was placed in the custody of a uniformed officer, Constable Wheeler, for transport to the police station for booking at approximately 8:35 p.m., within minutes of his arrest. Officer Wheeler also informed Mr. Mazza of his right to counsel and again, Mr. Mazza expressed a desire to call legal counsel. Constable Wheeler had no recollection that he was told that Mr. Mazza’s right to counsel had been suspended.

[48] Mr. Mazza was transported to the police holding cells on Dundas St. in London, a trip of approximately 20 minutes. He was booked by the sergeant in charge of the cells. He was again told of his right to counsel and shown a list of local defence counsel. He indicated that he wished to call counsel but was informed again that his right to counsel was suspended.

[49] The surveillance team returned to the police station where Constable Yovicic prepared the ITO for the warrant to search unit 311. Shortly after 11 p.m., the surveillance team learned that Mr. Dorman’s vehicle had been spotted by police in the downtown area. At approximately 11:25 p.m., Mr. Dorman was stopped and arrested by police including Detective Constable Pavoni.

[50] Detective Constable Pavoni testified that he called the cells unit and spoke to someone, either the sergeant in charge or a cadet, and advised that Mr. Mazza’s suspension of the right to contact counsel was lifted. He returned to the police station but did nothing more to follow up to ensure that Mr. Mazza was given the opportunity to speak with legal counsel. Constable Yovicic likewise did nothing to follow up to ensure Mr. Mazza was given the opportunity to contact counsel.

[51] Mr. Mazza deposed an affidavit in support of this application on which the Crown was offered but declined cross-examination. He deposed that he was given no opportunity to speak with counsel or anyone outside of the police from the time of his arrest until approximately 8:30 a.m. on September 26, 2014 when he saw duty counsel at the courthouse.

[52] No one from the London Police cells unit testified. No explanation was offered for the failure to avail and facilitate Mr. Mazza’s communication with legal counsel after 11:25 p.m. on September 25, 2014.

[53] It is undisputed that no steps were taken by police to investigate further the charge against Mr. Mazza during the period of the suspension of his right to counsel; viz. no one sought to question him.

Application

I will briefly summarize the positions taken by the Applicant and Crown.

Applicant’s Position

[54] The Applicant seeks to exclude the evidence of the cocaine found in his vehicle when searched by police following his arrest on September 25, 2014. He argues that the arrest was unlawful and, accordingly, the search was unlawful. Further, police violated his right to counsel by improperly and illegally suspending that constitutional right. In aggregate, police violated his s. 8, 9 and 10(b) Charter rights. He argues that each of those violations falls at the serious end of the spectrum, and certainly do when considered cumulatively. The impact of each violation upon the accused is profound. Society’s interest in an adjudication on the merits is insufficient to balance the seriousness of the Charter breaches and the impacts on him.

Crown Position

[55] The Crown asserts that the arrest of Mr. Mazza was lawful in that police had the requisite subjective and objective grounds to arrest. The search was incidental to arrest to preserve evidence and, as such, was also lawful. However, if I find that the arrest was unlawful, then the Crown concedes the search would be unlawful since it was a warrantless search not incidental to a valid arrest.

[56] With respect to the suspension of the right to counsel, the Crown asserts that there is a recognized exception which permits the suspension of the right to counsel which was engaged in these circumstances. The Crown concedes that the right to counsel was violated after Detective Constable Pavoni called the cells at 11:25 p.m., but submits that that violation falls at the lower end of the spectrum for seriousness. The violation had no adverse impact on the Applicant vis-à-vis the charge before the court. Society’s interest in an adjudication on the merits favours the admission of the evidence

[57] Finally, if I find that police lacked reasonable and probable grounds for an arrest of Mr. Mazza and the search of his vehicle is thereby unlawful, the Crown concedes that the cumulative effect of those violations with the s. 10(b) violation would be at the serious end of the spectrum and the impacts would be substantial. In those circumstances, Society’s interest in an adjudication could not outweigh the other two Grant factors and the evidence of the cocaine found should be excluded.

Analysis

[58] This Application raises the following issues:

1. Was the arrest of Mr. Mazza lawful?
2. Was the search of Mr. Mazza’s vehicle lawful?
3. Did police have the right to suspend Mr. Mazza’s right to counsel upon his arrest in these circumstances?
4. Did police violate Mr. Mazza’s right to counsel?
5. If Mr. Mazza’s Charter rights were violated, should the evidence of the cocaine found in Mr. Mazza’s vehicle be excluded under s. 24(2) of the Charter having regard to the factors in R. v. Grant?

Arrest

[59] S. 9 of the Charter states: “Everyone has the right not to be arbitrarily detained or imprisoned.”

[60] Mr. Mazza was arrested without a warrant. An arrest without a warrant is governed by s. 495(1) of the Criminal Code, R.S.C. 1985, c. C-46 which states:

“A peace officer may arrest without warrant (a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence…”

[61] In R. v. Storrey, [1990] 1 S.C.R. 241, Justice Cory for a unanimous court outlined the rationale underlying the requirement for reasonable and probable grounds for an arrest at para 14 as follows:

“…Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excess of a police state…In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have …reasonable and probable grounds upon which they base an arrest.”

[62] At para 17, Cory J. set out the applicable test for an arrest made without a warrant. He wrote:

“In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justified from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.”

[63] Defence counsel concedes that both Constable Yovicic and Detective Constable Pavoni had an honestly held belief that they had reasonable grounds to arrest Mr. Mazza. I agree, although I note that in coming to that belief, both officers were under the misimpression that the information from the CI implicated Mr. Dorman in drug activity; it did not go that far. Nevertheless, the subjective element of the test is satisfied.

[64] The issue in this case is whether on an objective measure of a reasonable person standing in the shoes of the officers, they had reasonable grounds to believe that Mr. Mazza had committed, was committing or was about to commit an offence. At para 83 in R. v. Amare, 2014 ONSC 4119, Justice C. Hill sets out the governing principles to be considered where an arrest is alleged to have breached a person’s s. 9 Charter rights. That summary has recently been cited with approval by the Ontario Court of Appeal in R. v. Poirier, 2016 ONCA 582 at para 65.

[65] Having regard to the principles stated in R. v. Amare, supra, I am not satisfied on an objective reasonable person standard that the police had objective facts sufficient to justify an arrest of Mr. Massa in the circumstances of this case. I come to this conclusion for the following reasons:

1. police had no information as to the identity of the driver of the Lexus;
2. police had no information concerning Mr. Mazza prior to his arrest;
3. the information provided to police by the CI did not indicate that Mr. Dorman, the target of their surveillance, was trafficking in cocaine;
4. the information provided by the CI did not place Mr. Dorman in the presence of cocaine at all;
5. nothing in the prior investigation, including surveillance, suggested or implicated Mr. Dorman in the trafficking of illicit drugs;
6. there was nothing in Mr. Dorman’s conduct leading up to the meeting in the parking lot from which police could infer that he was involved in drug activity;
7. the only officer to observe the meeting between Mr. Dorman and the driver of the Lexus observed a dark object that he could not identify;
8. police did not observe Mr. Dorman receiving anything from Mr. Mazza in exchange for the object.

[66] Constable Yovicic was the only officer able to observe the exchange in the parking lot. The other officers, including Detective Constable Pavoni had only the information communicated by Constable Yovicic including his belief that a drug transaction had occurred.

[67] The Crime Stopper tip referred to by Detective Constable Pavoni was more than a year old. By its nature, that tip is anonymous and its reliability cannot be tested. No evidence was adduced of any follow-up investigation. The police’s internal database had no information connecting Mr. Dorman to drug activity. In my view, this tip does not meaningfully or objectively add to the cumulative information known to police sufficient to justify the arrest of Mr. Mazza.

[68] On the objective facts known to police at the time of Mr. Mazza’s arrest on September 25, 2014, they had at best a “mere suspicion” or hunch that a drug transaction had taken place. I find that the facts known to police were insufficient to ground a reasonable belief that Mr. Mazza had committed or was committing a criminal offence. Accordingly, I find that the arrest was unlawful and thereby arbitrary contrary to s. 9 of the Charter.

Search and Seizure

[69] S. 8 of the Charter states: “Everyone has the right to be secure against unreasonable search or seizure.”

[70] S. 8 of the Charter protects an individual’s reasonable expectation of privacy. In order for an Applicant to assert an infringement of his s. 8 rights, the Applicant must have a reasonable expectation of privacy in the place searched or the item seized: R. v. Edwards, [1996] 1 S.C.R. 128 at para 45. The driver of an automobile enjoys a reasonable expectation of privacy in the vehicle: R. v. Belnavis, [1997] 3 S.C.R. 341 at para 19.

[71] For a search to be reasonable, it must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner: R. v. Collins, [1987] 1 S.C.R 265.

[72] A warrantless search of a place by police is presumed to be unreasonable and an infringement of s. 8 of the Charter: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at para 30. Where a search or seizure is warrantless, the burden shifts to the Crown to show on a balance of probabilities that the search or seizure was reasonable: R. v. Haas (2005), 200 C.C.C. (3d) 81 (Ont. C.A.) at para 24.

[73] To prove that a search is authorized by law, the Crown must show that the search or seizure was authorized by a specific statute or common law rules, that the substantial and procedural requirements of that rule were complied with, and that the scope of the search was in accordance with the authorizing law: R. v. Caslake, [1998] 1 S.C.R. 51 at para 12.

[74] It is well-settled that where the search and seizure is made incidental to an arrest and the arrest is itself unlawful, the search will also be invalid: R. v. Caslake, supra, at para 13.

[75] The Crown offers no alternate basis to authorize the search of Mr. Mazza’s vehicle and the seizure of the drugs found therein. Given my finding above that Mr. Mazza’s arrest was without reasonable and probable grounds, the search and seizure is unlawful and a violation of his s. 9 Charter rights.

Right to Counsel

[76] It is undisputed that Mr. Mazza’s s. 10(b) Charter rights were violated when he was not permitted to contact counsel after Detective Constable Pavoni called the cells to lift the suspension of his rights to counsel at approximately 11:25 p.m. on September 25, 2014. What remains to be determined is whether police were entitled to suspend his right to counsel between the time of his arrest and the arrest of Mr. Dorman approximately three hours later.

[77] S. 10(b) of the Charter gives every person the right to retain and instruct counsel without delay, and to be informed of the right upon arrest.

[78] In R. v. Bartle (1994), 92 C.C.C. (3d) 289 at p. 301, the Supreme Court of Canada summarized the duties engaged by s. 10(b) of the Charter as follows:

“This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(a) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel; (b) If the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise that right (except in cases of emergency or danger); and (c) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of emergency or danger).”

[79] The rationale for the rights guaranteed by s. 10(b) of the Charter are articulated by the court in R. v. Suberu, 2009 SCC 33 at para 42 as follows:

“[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees to regain their liberty, and guard against the risk of involuntary self-incrimination.”

[80] In this case, Mr. Mazza was informed of his rights to counsel at least twice and likely a third time by the sergeant in charge of the cells at the London police station. It is conceded by police that Mr. Mazza repeatedly indicated his desire to exercise his right to counsel when advised of his right to same. Clearly, the suspension of his right to counsel is a violation of the implementation duties on police arising from his section 10(b) Charter rights unless that suspension falls within the limited and exceptional circumstances that would justify interference with such an important constitutional right.

[81] The Crown argues that the suspension of Mr. Mazza’s right to counsel falls within the exceptional circumstances recognized by the courts; in particular, police may suspend a detainee’s right to counsel for a reasonable period for police or public safety reasons or to prevent the loss or destruction of evidence.

[82] Defence counsel urges me to find that the exception recognized by the courts is more restricted and is confined by the case law to instances where there is a genuine risk to police or public safety, usually involving situations where weapons are known or reasonably suspected to be involved. He argues that the mere desire to avoid the risk of evidence being lost or destroyed where there is no known or anticipated danger is insufficient to justify the suspension of the right to counsel.

[83] I have reviewed the case authorities provided by counsel from which the following principles emerge:

1. the determination of whether a detainee’s right to counsel may be suspended is a factual, contextual determination specific to the facts before the court;
2. the fact of suspension of the right to counsel must be communicated to the detainee;
3. the suspension of the right must be only for so long as is reasonably necessary;
4. the suspension of the right will be permitted where there are reasonable grounds to believe that police or public safety may be imperilled if the right to counsel is permitted to be exercised immediately;
5. the categories of circumstances in which the right to counsel may be suspended is not closed;
6. the suspension of the right to counsel is a serious infringement of an important constitutional right and, as such, should be invoked by police only where the competing interests outweigh implementation of the right to counsel without delay;
7. in general, a suspension of the right to counsel may arise where weapons or violence are known or reasonably expected to be involved, and where there is imminent police action ongoing or anticipated connected to the detainee and/or the activity for which he/she was detained; and
8. the suspension of the right to counsel is an exceptional step and should not be used by police indiscriminately or as a matter of routine.

[84] There may well be circumstances where police would be justified in suspending a detainee’s s.10(b) Charter rights for a reasonable period of time to prevent the loss or destruction of evidence, particularly but not limited to a situation where the health and well-being of one or more members of the public is at stake; eg. a kidnapping or abduction situation. It is not necessary for me to attempt to circumscribe in this decision how and in what circumstances the risk of the loss or destruction of evidence alone will warrant a suspension of the right to counsel.

[85] I am satisfied on the whole of the evidence that police were not justified in suspending Mr. Mazza’s right to counsel between the time he was first read his rights at approximately 8:30 p.m. until Mr. Dorman was arrested and Detective Constable Pavoni called the cells at the police station to lift the suspension. In coming to that conclusion, I note that:

1. Neither Mr. Mazza nor Mr. Dorman were known or suspected of possession any weapons;
2. Neither man had a criminal record;
3. Neither man was known to or suspected of having a propensity to violent behaviour;
4. Police had no knowledge of the relationship between Mr. Mazza and Mr. Dorman – they were not known to be partners or accomplices likely to tip the other;
5. There is no evidence that either man was part of a gang or larger enterprise from which one might infer a risk of danger either to police or the public;
6. There were no exigent circumstances or interests that necessitated or outweighed the exercise of Mr. Mazza’s fundamental constitutional right to counsel without delay. [Emphasis added.]

[86] The primary concern of police at the time Mr. Mazza’s right to counsel was suspended was the risk that evidence - drugs - would be moved or destroyed by Mr. Dorman if he learned that Mr. Mazza had been arrested. I find that Detective Constable Pavoni’s evidence in cross-examination about concern for police safety as a justification was an in the moment construct. No doubt, police safety is always a concern on any investigation. This evidence appears to me to fit what the British Columbia Court of Appeal described as concerns “of a general nature” in R. v. Patterson, 2006 BCCA 24 at para 41.

[87] I am mindful of Justice Charney’s view in R. v. Rover, 2016 ONSC 4795 at para 66 that it is reasonable for police to be concerned that any drug dealer or his associates may have access to firearms. In R. v. Rover, supra, the police undertook surveillance of a house that was potentially occupied by several unknown residents at which frequent suspected drug transactions were seen to occur. In this case, police surveillance of unit 311 did not show drug activity or the likely presence of persons other than Ms. Stewart and Mr. Dorman.

[88] I do not wish to second guess police decisions where their safety is at issue. In the case before me, the decision made was unrelated to police safety.

[89] Accordingly, I find that police violated Mr. Mazza’s s. 10(b) rights to counsel from approximately 8:30 p.m. on September 25, 2016 until he saw duty counsel the next day at 8:30 a.m.. During that period, he was in custody with no access to legal counsel or anyone including his family. He was cut off from the outside world.

Application of Grant factors

[90] I turn to whether the evidence of the cocaine found in Mr. Mazza’s vehicle should be excluded pursuant to s. 24(2) of the Charter. The test is whether the administration of justice would be brought into disrepute by the admission of the evidence obtained contrary to the Charter.

[91] In R. v. Grant, 2009 SCC 32 at paragraph 71, the Supreme Court of Canada, set out the factors which must be considered in the determination of the admissibility of the impugned evidence as follows:

“[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing State conduct (admission may send the message the justice system condones serious State misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.…”

[92] I will address each factor in turn but note that the facts relevant to each factor cannot be compartmentalized as exclusive to only one factor or another.

Seriousness of the Charter-Infringing State Conduct

[93] The unlawful arrest of Mr. Mazza, the search of his vehicle without a warrant and the violation of his right to counsel upon arrest cumulatively lie at the serious end of the spectrum of Charter violations. All of the violations arise from the same “transaction”, and are temporally and contextually connected.

[94] I am satisfied that the officers involved acted in good faith; they believed that they had reasonable and probable grounds to arrest, and the right to search Mr. Mazza’s vehicle incidental to that arrest. Although mistaken, I do not regard the conduct of police in the arrest and search as constituting a deliberate disregard of Mr. Mazza’s s. 8 and 9 rights.

[95] As for the suspension of Mr. Mazza’s right to counsel, the decision to suspend that right was again a mistake in judgment and not a deliberate attempt to violate his constitutional rights. However, I am concerned that there was no follow up by either Constable Yovicic or Detective Constable Pavoni to ensure that Mr. Mazza was afforded the opportunity to speak with counsel. The suspension of the right to counsel is a significant intrusion on the arrestee’s constitutional rights. When the suspension is lifted, adequate care must be shown to ensure those rights are reinstated. The officers involved in this case had the time and opportunity to do so but did not.

[96] The violations in this case are more than minor or technical in nature. They strike at the core of the rights protected by the Charter. These violations of s. 8, 9 and 10(b) favour exclusion of the drugs seized from Mr. Mazza’s vehicle.

Impact on Charter Protected Interests of Accused

[97] Again, the violations cumulatively lie at the more profound end of the spectrum for impacts. Mr. Mazza was deprived of his liberty, his privacy interests in his vehicle were invaded, and he was unable to obtain any legal advice as to the process or the means by which he could regain his liberty. These impacts are significant.

[98] Police did not seek to question or elicit information from Mr. Mazza after his arrest and the suspension of his right to counsel. That police did not compound the violation of his right to counsel by such conduct does not mitigate the seriousness of the breaches that did occur.

[99] This factor favours exclusion of the drugs found during the search of Mr. Mazza’s car.

Society’s Interest in an Adjudication on the Merits

[100] This factor engages a consideration of the truth-seeking function of the criminal trial process. Society generally expects that a criminal allegation will be adjudicated on its merits; that reliable evidence will be admitted for that purpose.

[101] The cocaine found in Mr. Mazza’s vehicle is real, not conscripted evidence. Police had nothing to do with the presence of that illicit drug in that vehicle. That evidence is essential to the Crown’s case against Mr. Mazza; without that evidence, the prosecution will fail. As such, Society’s interest in an adjudication of the merits favours admission of this evidence despite the manner of its acquisition.

Balancing of Factors

[102] In R. v. Dunkley, 2016 ONCA 597, Hourigan J.A. for the court, at para 63 reiterated that the third factor in Grant cannot outweigh the other two factors if those factors both favour a finding of inadmissibility. See also R. v. McGuffie, 2016 ONCA 365 at para 63.

[103] In this case, the seriousness of the Charter-infringing conduct and the impacts on the accused’s rights favour a finding that the evidence of the cocaine be excluded. I find that that the administration of justice would be brought into disrepute by the admission of the cocaine in these circumstances.

Disposition

In light of my findings above, the evidence of the cocaine found in Mr. Mazza’s vehicle on September 25, 2014 is hereby excluded at trial in this matter pursuant to s. 24(2) of the Charter.

“Original signed by Justice R. Raikes” The Honourable Justice R. Raikes

Released: September 6, 2016

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DOMINIC MAZZA REASONS FOR JUDGMENT Justice R. Raikes

Released: September 6, 2016