COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Merelles, 2016 ONCA 647

DATE: 20160829

DOCKET: C59948

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Alberto Merelles Appellant

Richard A. Fedorowicz, for the appellant

Ghazala Zaman, for the respondent

Heard: May 27, 2016

On appeal from the convictions entered on October 3, 2014, by Justice W. Low of the Superior Court of Justice.

Pepall J.A.:

Overview

[1] The appellant was convicted of possession of heroin for the purpose of trafficking, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime.

[2] The appellant challenged the validity of search warrants executed on three Toronto properties: his residence on Delaware Avenue, a home under renovation on Brunswick Avenue, and the garage of the home of his girlfriend’s mother on Columbine Avenue.

[3] The trial judge concluded that the appellant did not have standing to challenge the search warrants for the Brunswick and Columbine properties, as he did not have a reasonable expectation of privacy. Although the trial judge found that the appellant had standing to challenge the warrant for the appellant’s Delaware residence, she concluded that the search warrant was valid as there were reasonable grounds to believe that drugs would be located there. Accordingly, the trial judge dismissed the application to quash the search warrant for the Delaware residence.

[4] At trial, the appellant called no evidence. He was convicted and sentenced to 10 years’ imprisonment, less six months’ credit on account of pre-trial custody.

[5] On appeal, the appellant argues that the trial judge erred in: (1) concluding that the appellant did not have standing to challenge the search of the Columbine property; and (2) finding that the search warrant for the Delaware residence was valid.

[6] For the reasons that follow, I would dismiss the appeal.

Facts

[7] In August 2010, the Ontario Provincial Police received information from a confidential informant that the appellant was dealing in large amounts of heroin. The confidential informant provided information about the appellant, including his personal attributes, the location of properties frequented by him, a description of his truck and licence plate, and the kind of heroin in the appellant’s possession.

[8] The police conducted three days of surveillance on the appellant. They noted four apparent hand-to-hand drug transactions between the appellant and unknown individuals, one of which occurred at the Brunswick property and another at the Delaware residence. The appellant also appeared to engage in counter-surveillance driving techniques.

[9] The police obtained search warrants for the three properties.

[10] Police seized 189.19 grams of cocaine from the Columbine property. Police also seized 983.51 grams of heroin, 29.36 grams of cocaine, $19,850 in Canadian currency and $150 in United States currency from the appellant’s Delaware residence.

[11] Finally, police found 6.41 grams of heroin, including 20 decks of 0.15 grams each, and 1.88 grams of cocaine, on the appellant’s person.

Trial Judge’s Decision

[12] The appellant brought an application to quash the search warrants and to exclude the drugs found on execution of those warrants. The appellant filed no affidavit nor did he give any viva voce evidence.

[13] In finding that the appellant lacked standing to challenge the search warrant for the Columbine property, the trial judge relied on R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, to determine whether the appellant had a reasonable expectation of privacy.

[14] There was no evidence of the appellant having an ownership, leasehold or possessory interest in the Columbine property. The appellant only had a key to the garage. The agreed statement of facts stated that he had the key in September 2010 (the month the search was executed) and stored machinery and tools there with consent. There was no evidence of historical use or other connection with the property before September 2010. The trial judge was not prepared to draw an inference of a subjective expectation of privacy.

[15] The trial judge accepted that the appellant had a reasonable expectation of privacy in the Delaware residence, as it was his home. However, she concluded that the information obtained from the confidential informant and police surveillance created reasonable grounds to believe that drugs and related property would be located there. The confidential informant’s information was highly detailed and compelling. Further, the apparent hand-to-hand transactions were consistent with the confidential informant’s information that the appellant was trading in illicit drugs.

Issues on Appeal

[16] First, the appellant submits the trial judge erred in finding that the appellant did not have a reasonable expectation of privacy with respect to the garage at the Columbine property.

[17] Second, the appellant submits that the trial judge erred in finding that the search warrant of his Delaware residence was valid.

Issue #1: Standing to Challenge the Search of the Columbine Property

[18] The right to be secure from unreasonable search and seizure under s. 8 of the Charter protects a reasonable expectation of privacy: see Edwards, at para. 30. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. A non-exhaustive list of factors to be considered includes (Edwards, at para. 45):

1. presence at the time of the search;
2. possession or control of the property or place searched;
3. ownership of the property or place searched;
4. historical use of the property or item;
5. the ability to regulate access, including the right to admit or exclude others from the place;
6. the existence of a subjective expectation of privacy; and
7. the objective reasonableness of the expectation.

[19] The burden is on the appellant to establish a reasonable expectation of privacy: R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at para. 47.

[20] The appellant did not testify. The agreed statement of facts only addressed the Columbine property, stating that: (1) the appellant’s girlfriend lived at the residence with her mother; (2) in September 2010, the appellant had a key to the garage and was permitted to store tools and machinery there; and (3) the appellant only had a key to the garage, not the rest of the house. The appellant admitted that the drugs found in the garage were his.

[21] In my view, the trial judge did not err in concluding that the appellant had no standing with respect to the Columbine property. While the appellant had a key, there was no evidence that the appellant regulated access to the garage. Nor was there any evidence of historical use of the property – only that he used it in September 2010. The appellant was not present at the time of the search and he did not possess, control or own the garage. Although one could infer that he could admit people to the garage, there was no evidence to suggest that he could exclude entry. There was no evidence about others in possession of a key. There was also no evidence of any subjective expectation of privacy or evidence supporting an inference of a subjective expectation of privacy. As in Edwards, the appellant was “no more than a privileged guest”.

[22] I also reject the appellant’s argument that a garage in these circumstances is akin to a rental locker. There was no evidence that the appellant rented the garage space or that he had exclusive access to it. From the evidence before the trial judge, the appellant was simply permitted to use the garage to store tools. The totality of the circumstances did not give rise to a reasonable expectation of privacy.

[23] The trial judge was correct in concluding that the appellant did not have standing to challenge the search warrant for the Columbine property.

Issue #2: Validity of the Search of the Delaware Residence

[24] Second, as mentioned, the appellant submits that the trial judge erred in concluding that the search warrant for the appellant’s home was valid. The appellant submits that the trial judge erred in: (1) treating the confidential informant as a proven source; (2) treating the confidential informant’s expectation of monetary compensation as an enhancement of his credibility; and (3) concluding that the police investigation confirmed the appellant’s connection with the Delaware residence.

[25] A warrant is presumed to be valid: see R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 14. In reviewing the sufficiency of a search warrant, the test is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: see R. v. Araujo, 2010 SCC 65, [2000] 2 S.C.R. 992, at para. 54; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[26] Evidence of a tip from an informant by itself is insufficient. When assessing the reliability of a tip from a confidential informant, the court is to consider the totality of the circumstances. The court must look to a variety of factors including: (1) the degree of detail of the tip (including the time, place, participants involved, and nature of the alleged activity); (2) the informant’s source of knowledge (whether it is first-hand or obtained from others); and (3) indicia of the informant’s reliability such as past performance or confirmation from other investigative sources: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at para. 68.

[27] Turning to the appellant’s submissions, I accept that the confidential informant had only provided information on one previous occasion that resulted in charges as opposed to a conviction, and that the trial judge’s comments on monetary compensation were misplaced. That said, the information provided by the informant was detailed and first-hand and there was no information given in the past to the police that turned out to be unreliable.

[28] Furthermore, the police investigation and surveillance established a strong link between the appellant and the Delaware residence and included the observation of an apparent hand-to-hand transaction in the residence’s well-lit garage. The appellant then was observed to have left the premises and to have participated in another apparent hand-to-hand transaction. The police surveillance observations amplified, and were consistent with, the rest of the information provided by the informant.

[29] In my view, there was ample evidence for the trial judge to conclude that there were reasonable and probable grounds for the issuance of the search warrant for the Delaware residence.

[30] Given my conclusions, there is no need for a s. 24(2) Charter analysis.

Disposition

[31] For these reasons, I would dismiss the appeal.

Released:

“SEP” “S.E. Pepall J.A.”

“AUG 29 2016” “I agree M. Tulloch J.A.”

“I agree M.L. Benotto J.A.”