R. v. Drakes, 2009 ONCA 560

CITATION: R. v. Drakes, 2009 ONCA 560

DATE: 20090709

DOCKET: C45586 and C45538

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ainsley Anthony Drakes

Appellant

Her Majesty the Queen

AND BETWEEN

Her Majesty the Queen

Respondent

and

Richard Brewster

Appellant

Gregory Lafontaine and Lori Ann Thomas, for the appellant Drakes

Michael W. Lacy, for the appellant Brewster

Respondent

Gillian Roberts, for the respondent

and

Heard: July 7, 2009

Ainsley Drakes and Richard Brewster

On appeal from the convictions entered on January 17, 2006, and the sentences imposed on June 13, 2006, by Justice Gloria Epstein of the Superior Court of Justice.

Appellants

By the Court:

[1] The appellants, Ainsley Anthony Drakes and Richard Brewster, were found guilty of several counts of fraud over $5000, one count of attempted fraud, and one count of laundering the proceeds of crime.

[2] The appellants were involved in a large scale, brazen and sophisticated fraud scheme. The scheme involved asking the victims for advance payment of fees in order to secure the release of huge multi-million dollar sums from the Central Bank of Nigeria. The fees were collected from the exceptionally gullible victims who, in turn, received nothing from the appellants. The scheme was operated out of a “boiler room” in a condominium unit at 10 Dean Park in Toronto.

[3] The police obtained a warrant to search the condominium and recovered a great deal of documentation that deeply implicated the appellants in the fraud scheme.

[4] At the trial, the trial judge ruled that the search of the condominium was reasonable and did not violate s. 8 of the Charter. Alternatively, she ruled that if the search were unreasonable, the evidence obtained pursuant to it should be admitted under s. 24(2) of the Charter.

[5] At the conclusion of the trial, the trial judge convicted Drakes of seven counts and Brewster of five counts in the indictment. She sentenced Drakes to five years imprisonment and Brewster to four years imprisonment.

[6] The appellants appeal their convictions and sentences.

Conviction appeals

[7] The appellants’ principal argument is that the trial judge erred in her Charter s. 8 ruling. There are three components to their argument.

[8] First, the appellants contend that the trial judge erred by concluding that the information provided to the police by the property management personnel at the condominium complex was not information over which the appellants had a reasonable expectation of privacy.

[9] In order to determine whether an individual has a reasonable expectation of privacy in particular information, a court must take a contextual approach and consider all the relevant circumstances, including “the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, and the seriousness of the crime being investigated”: see R. v. Plant (1993), 1993 70 (SCC), 84 C.C.C. (3d) 203 (S.C.C.) at p. 212.

[10] The trial judge properly instructed herself on the test from Plant. She also considered all the relevant circumstances, did not misapprehend the evidence and, in our view, made a reasonable assessment of what weight to give the applicable factors. To the extent that it could be said that the appellants had any reasonable expectation of privacy in the information at issue, it was a minimal interest at best. Accordingly, there is no basis to intervene with respect to the trial judge’s ultimate conclusion on this issue.

[11] Second, the appellants submit that the trial judge erred by concluding that s. 8 of the Charter was not engaged when the police obtained information from the building superintendents relating to the contents of unit 216 in the condominium building. They argue that this police conduct amounted to a seizure and that the building superintendents and/or the property managers who provided the information at issue to the police were ‘agents’ of the state.

[12] We disagree. The context surrounding this issue is the fact that the superintendents responded to a flood in unit 216 and then reported suspicious activity in the unit to the property managers who in turn furnished it to the police.

[13] The trial judge noted, correctly, that s. 8 will be engaged only if there is state action. The trial judge continued:

The reason for the search was the flood, something to which management and staff had an obligation to respond. There is nothing in the evidence to suggest that management initiated the search or that it was conducted differently because of police intervention.

It follows that the way in which the police had access to the information about certain items inside the unit was as a result of a normal response to the flood… Management then contacted the police, not as agents but as citizens reporting suspicious activity.

Since the process whereby information about what was in the unit involved no state action, the Charter was not engaged.

We agree with this analysis and conclusion.

[14] The appellants argue that the trial judge erred by applying the wrong test for the determination of state action or agency. They point to one part of the trial judge’s reasons where, arguably, she misstated this test as set out in R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595 and R. v. M. (M.R.), (1998) 1998 770 (SCC), 129 C.C.C. (3d) 361 (S.C.C.). However, at the beginning of her analysis concerning state action, the trial judge correctly stated the applicable test as to whether an individual is acting as an agent of the police. When her reasons are read as a whole, we are satisfied that the trial judge understood the substance of the governing test and applied it properly.

[15] We note that before the building superintendents entered the condominium unit in response to the flood, they did not know that the police were conducting an investigation or had any interest in unit 216. They received no special instructions from building management with respect to their inspection of the unit, nor were they directed to deal with the police. As a result, they did not enter the unit or conduct their inspection any differently than they otherwise would have because of any police intervention. Similarly, when the property managers and staff re-entered unit 216 two days later, they did so for the purpose of checking the residue of the flood damage and, as one of the managers put it, “out of curiosity”. Again, there is no evidence that they entered and inspected the unit at the behest of or for the benefit of the police or in response to a police request or demand. In these circumstances, the trial judge was correct to conclude that the defence claims of state action had not been made out.

[16] We also observe that in R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.), a unanimous court in a judgment authored by Arbour J. confirmed that in the absence of any agency issue, police can receive and act on information received from a third party and use the information to seek the issuance of a search warrant; this is precisely what happened in this case. See also: R. v. Wiley (1993), 83 C.C.C. (3d) 1611 (S.C.C.).

[17] Third, the appellants contend that the trial judge erred by concluding that they did not have a reasonable expectation of privacy with respect to their use of a spot in an underground parking garage in the condominium building. The police used their knowledge of this information to obtain information about the unit occupied by the appellants in the building.

[18] We disagree. The trial judge referred to the “totality of circumstances” test formulated in R. v. Edwards (1996), 1996 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.), at para. 45. In our view, she correctly applied this test, noting that the appellants shared the parking garage with 440 other units, that they had limited control over it, and that management (who did have control over the garage) consented to the police gaining access to it for the purposes of their investigation. See also: R. v. Thomsen, 2007 ONCA 878, [2007] O.J. No. 4863 (C.A.) and R. v. Laurin (1997), 1997 775 (ON CA), 113 C.C.C. (3d) 519 (Ont. C.A.).

[19] For these reasons, we would dismiss the appellants’ principal ground of appeal. It follows that the Charter s. 24(2) issue does not arise.

[20] The appellants also submit that the trial judge erred by using their silence as evidence to support the convictions. They single out this passage in her reasons:

I further note the defendants did not testify. While this failure is not an independent piece of evidence, the absence of an explanation assists me in deciding which inferences to draw from the evidence.

[21] We observe that this argument applies only to the trial judge’s reasons with respect to count 2 of the indictment. The impugned comment, while ambiguous, is superfluous. The evidence on this count was simply overwhelming.

[22] Finally, the appellants contend that the verdicts on counts 4 and 5 – relating to unnamed victims – relied improperly on similar fact evidence from the other counts with respect to named victims.

[23] We do not accept this ground of appeal. These verdicts were overwhelmingly supported by the documentary evidence about the nature and extent of the fraud committed by the appellants with respect to the unnamed victims.

Sentence appeals

[24] The appellants submit that the sentences imposed by the trial judge – five years for Drakes and four years for Brewster – were outside the range for similar offences and offenders.

[25] We disagree. The trial judge’s analysis of the factors relating to the fraudulent scheme and her consideration of the circumstances of the two offenders were consistent with the leading large scale fraud sentencing decisions of this court: see for example, R. v. Dobis (2002), 2002 32815 (ON CA), 58 O.R. (3d) 536 and R. v. Bogart (2202), 2002 41073 (ON CA), 61 O.R. (3d) 75.

[26] We agree with and underline this passage from the trial judge’s reasons for sentence:

There is a real need to emphasize denunciation and general deterrence in the realm of large-scale frauds with devastating consequences for their victims. There is a real need to warn individuals currently involved in such scams, and those devising new ones, that substantial penitentiary sentences will follow this type of crime, to say nothing about the serious disgrace to them and everyone connected with them.

Disposition

[27] The conviction and sentence appeals are dismissed.

RELEASED: July 9, 2009 (“DOC”)

“D. O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.