COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labelle, 2016 ONCA 110

DATE: 20160208

DOCKET: C58138

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Larry Labelle

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Brian G. Puddington and Zoe Oxaal, for the respondent

Heard: January 26, 2016

On appeal from the convictions entered on April 19, 2013 and the sentence imposed on July 12, 2013 by Justice Giovanna Toscano Roccamo of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking, possession of marihuana for the purpose of trafficking, and two counts of possession of the proceeds of crime under $5,000. He was sentenced to three and one-half years’ imprisonment and a two-year period of probation. He appeals his convictions and seeks leave to appeal sentence.

[2] The appellant’s arrest was part of a broader investigation undertaken by the Ottawa Police Services Drug Unit (OPSDU) as a consequence of information received from confidential informants that Yianni Papadolias was a high-level drug dealer. The OPSDU conducted a lengthy investigation that included surveillance of Mr. Papadolias. He was observed making frequent visits to a condominium building in Ottawa. Mr. Papadolias’ employee, Merith White, resided in a unit of that building.

[3] In December 2010 and January 2011 the OPSDU entered the condominium building on three separate occasions without a warrant and without permission from building management or any condominium unit owner. On the third occasion, on January 21, 2011, an officer observed Mr. Papadolias enter Mr. White’s unit and, while positioned in a stairwell, the officer heard conversations about an impending drug transaction. The officer also noted hearing sounds from within the apartment, which he believed to be from the use of packing tape. He then observed Mr. Papadolias exit the unit carrying a white and blue box and go down the stairs. These observations were reported by radio to the OPSDU team.

[4] When Mr. Papadolias exited the condominium building, an OPSDU surveillance team observed him place the white and blue box in his vehicle and drive away. The surveillance team followed Mr. Papadolias to the parking lot of a nearby mall where he parked his vehicle, remaining in the driver’s seat. The appellant approached Mr. Papadolias’ vehicle carrying a yellow plastic bag and entered the front passenger seat. Seven minutes later, the appellant exited the vehicle without the yellow plastic bag. The appellant moved to the back of the vehicle, opened the hatch, and removed the white and blue box that Mr. Papadolias had brought from the condominium building. The appellant carried the white and blue box to a nearby van, entered the van, and drove away.

[5] The OPSDU arranged for the O.P.P. to stop the van and arrest the appellant for possession for the purposes of trafficking. The O.P.P. made the arrest and found the blue and white box in the van, which contained approximately 2.6kg of marihuana and 166g of cocaine.

[6] Following the arrest of the appellant, the OPSDU arrested Mr. Papadolias and Mr. White. They obtained a search warrant for Mr. White’s condominium unit and found 1.7kg of cocaine and 7kg of marihuana in the apartment.

[7] During Mr. White’s trial, Justice Lalonde found that Mr. White’s s. 8 Charter rights had been violated and excluded all evidence gathered in the condominium building during the OPSDU’s entries. This court upheld that decision: see R. v. White, 2013 ONSC 1823, 281 C.R.R. (2d) 329, aff’d 2015 ONCA 508, 127 O.R. (3d) 32.

[8] At trial in the present case, the appellant brought an unsuccessful Charter application to exclude the evidence found in the blue and white box, or in the alternative, stay the proceedings as an abuse of process. Defence counsel and Crown counsel agreed that they would be bound by Justice Lalonde’s findings in White and that all evidence gathered during the OPSDU’s three entries into the condominium would be excluded.

[9] The appellant advances two primary arguments on appeal. First, he submits that when the impugned evidence obtained from the observations made inside the condominium building is excluded, the police did not have reasonable and probable grounds to arrest him. Because the arrest was illegal, the search incident to arrest was also illegal. Second, the appellant submits that if there were insufficient evidence independent of the impugned evidence to establish reasonable and probable grounds, it would be an abuse of process to rely upon that impugned evidence to establish reasonable and probable grounds. Instead, that evidence should be excluded from the analysis pursuant to s. 24(1) of the Charter.

[10] With respect to the appellant’s first argument, we do not accept the submission that the police lacked reasonable and probable grounds for the arrest independent of the evidence illegally obtained at the condominium building. When considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances, and it is not appropriate to consider each fact in isolation: see R. v. Lawes, 2007 ONCA 10, 72 W.C.B. (2d) 487, at para. 4; R. v. Italiano, 2015 ONCA 179, 120 W.C.B. (2d) 19, at para. 8.

[11] We agree with the trial judge’s conclusion that, even after excluding the information gathered during the entries into the condominium building, the combined information from the informants, the totality of the investigation of Mr. Papadolias (minus the entries into the condominium building), the OPSDU’s collective observations of the appellant’s vehicle and location, and the interaction between Mr. Papadolias and the appellant, were enough to satisfy both the subjective and objective components of the test for reasonable and probable grounds for arrest.

[12] The appellant’s second argument is premised on a finding that there was insufficient evidence independent of the impugned evidence to establish reasonable and probable grounds. Given our conclusion above, it is unnecessary to consider this argument.

[13] The Crown conceded that the sentence is illegal pursuant to s. 731(1)(b) of the Criminal Code and that the probation order must be quashed.

[14] The conviction appeal is dismissed. Leave to appeal sentence is granted and the probation order is quashed.

“David Watt J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”