COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reid, 2016 ONCA 944

DATE: 20161215

DOCKET: C59985

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Troy Reid

Appellant

Andrew Stastny, for the appellant

Lucas Price, for the respondent

Heard: May 9, 2016

On appeal from the convictions entered by Justice Ramez Khawly of the Ontario Court of Justice on December 8, 2014.

Epstein J.A.:

A. Overview

[1] In the early hours of May 24, 2014, police officers entered a small apartment unit. There, they discovered the appellant, Troy Reid, with approximately 38 grams of crack cocaine. Mr. Reid was convicted of possession of cocaine for the purpose of trafficking and two counts of breach of recognizance, one based on his possession of drugs and the other based on his being in violation of his curfew.

[2] At trial, Mr. Reid challenged the admissibility of the drugs, arguing that the evidence was discovered in breach of his rights under ss. 7, 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.[^1] The trial judge found no Charter breaches and went on to conclude that if he had found a Charter breach, he would not have excluded the evidence under s. 24(2) of the Charter. The trial judge convicted Mr. Reid of all three counts and sentenced him to 21.5 months in jail.

[3] Mr. Reid appeals from conviction only. He submits that the trial judge erred in law by failing to find that: (i) he had standing to assert a claim under s. 8; (ii) his arrest and detention violated his rights under s. 9; (iii) his ss. 10(a) and 10(b) rights were violated; and (iv) the evidence obtained in connection with the breach of his Charter rights should be excluded under s. 24(2). He asks that all evidence flowing from the unlawful entry into the dwelling and his unlawful detention and arrest be excluded, and that acquittals be entered on all charges.

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

B. Facts

[5] Just before midnight on May 23, 2014, the police received a 911 call about an assault in progress. Sergeant Robin Dey arrived at the scene to find a distraught female who said her ex-boyfriend, Troy Reid, had assaulted her. The woman indicated to Sergeant Dey that Mr. Reid was inside a rooming house at 51 Mutual Street, and that he was in possession of drugs and in breach of his curfew.

[6] Sergeant Dey went to 51 Mutual Street to investigate. Officers Hinchcliffe and O’Donnell arrived to assist. A man in the lobby of the building told them that there was a black man on the second floor dealing drugs and directed them to unit 202. The man in the lobby added that “it was crazy up there”, as people were coming in and out of the unit constantly.

[7] The three police officers went to the second floor. There was conflicting evidence at trial as to what happened next, but the trial judge accepted Sergeant Dey’s testimony that he heard a woman inside the apartment, knocked on the door and requested that the door be opened. Sergeant Dey had a brief conversation with the woman, later identified as Catherine Coleman. She told Sergeant Dey that she needed time to get dressed. Sergeant Dey could hear people shuffling around inside the apartment. Ms. Coleman then attempted to open the door but it was jammed by fabric on the floor that had bunched up under the door. Sergeant Dey pushed on the door to help Ms. Coleman open it while she pulled it from inside the apartment.

[8] Finally, the door was opened wide enough to enable Sergeant Dey to make his way into the apartment. While part way through the door, Sergeant Dey asked Ms. Coleman and a Caucasian man who was also in the apartment if they lived there. They answered that they did not live in the apartment and did not know who did. They also advised the police that no one else was in the unit.

[9] Sergeant Dey testified that, at that point, he suspected that this was an “apartment takeover” situation and became concerned for the well-being for the true resident of apartment 202.[^2]

[10] Sergeant Dey then noticed a closed door in the unit. Based on safety concerns, he opened the door. Inside was a very small bathroom, with only enough room for a toilet. Mr. Reid was sitting on the toilet. Sergeant Dey told Mr. Reid to stand up and pull up his pants. Sergeant Dey put his hand on the small of Mr. Reid’s back, effectively guiding him out of the bathroom. As Mr. Reid moved out of the bathroom, Sergeant Dey looked in the toilet and saw a cellophane bag in the water. The bag contained what was later determined to be approximately 38 grams of crack cocaine.

[11] Sergeant Dey told Officer Hinchcliffe to arrest Mr. Reid for possession of cocaine for the purposes of trafficking. Mr. Reid was arrested and read his rights to counsel.

C. Reasons for Conviction

[12] The trial judge, following the leading authority of R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, held that Mr. Reid had no reasonable expectation of privacy in Ms. Coleman’s apartment and therefore no standing to assert a s. 8 Charter breach. The trial judge held that Ms. Coleman had tailored her evidence to create the impression that Mr. Reid’s connection to her apartment was greater than it actually was and that she lacked credibility. The trial judge noted a number of issues with Ms. Coleman’s evidence. For example, Ms. Coleman waffled in her evidence concerning Mr. Reid’s contribution to the rent. The trial judge also found that Ms. Coleman’s apartment was small and appeared to be set up for one person. He also noted that there was only one key to the unit. Moreover, Mr. Reid maintained other residences and his bail conditions included a requirement that he live with his surety, not with Ms. Coleman.

[13] The trial judge further held that although Sergeant Dey, an experienced and senior police officer, should have obtained a warrant and searched police databases for information about Mr. Reid before he entered unit 202, there was no violation of Mr. Reid’s s. 9, 10(a) or 10(b) Charter rights arising out of his brief investigative detention when he was directed to exit the bathroom by Sergeant Dey. He held that any “detention” that occurred was for a mere instant in a fluid situation. Finally, the trial judge briefly considered s. 24(2). He indicated that he would not exclude the evidence in issue even if he had found a Charter breach.

D. Analysis

(1) The Section 8 Issue

[14] Mr. Reid argues that the trial judge erred in his application of Edwards in failing to look at the “totality of the circumstances”, including the factors set out in Edwards. Specifically, Mr. Reid argues that even after rejecting Ms. Coleman’s testimony, the trial judge was required to apply the Edwardsfactors to make a determination on standing, including the accused’s: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property; (v) ability to regulate access; (vi) subjective expectation of privacy; and (vii) objective reasonableness of the expectation. Mr. Reid further argues the trial judge erred in finding that his testimony was insufficient to establish standing without confirmatory evidence.

[15] Mr. Reid points to the uncontroverted evidence that he and Ms. Coleman were in an intimate relationship and the fact that he was able to regulate access to the apartment. Even if the apartment was “more” Ms. Coleman’s than his, he still had a subjective and objective expectation of privacy in her apartment when he was in it, with the door locked.

[16] Mr. Reid distinguishes his case from Edwards, where the Supreme Court, in concluding the accused had no standing, found that the accused could prove only one of the relevant factors. Unlike in Edwards, Mr. Reid was present in his partner’s dwelling at the time of the search and the police did not obtain Ms. Coleman’s consent to enter the dwelling.

[17] The Crown argues that there was no “palpable and overriding error” in the trial judge’s factual findings. The trial judge acknowledged that Edwards was the governing precedent and a holistic reading of his reasons demonstrates that he applied the Edwardsfactors.

[18] I see no reason to interfere with the trial judge’s conclusion that Mr. Reid lacked standing to advance an argument based on a breach of s. 8 of the Charter. Although the trial judge did not refer to the Edwardsfactors individually, counsel made extensive reference to Edwards throughout their submissions and the trial judge acknowledged the governing principles set out in Edwards in his analysis. It was open to the trial judge, based on his credibility findings, to conclude that Mr. Reid’s subjective expectation of privacy was not objectively reasonable. His evidentiary findings are entitled to deference: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10.

(2) The Sections 9, 10(a) and 10(b) Issue

[19] Mr. Reid argues that even if he has no standing to challenge the entry into the apartment, his arrest was unlawful because it occurred inside a dwelling without a Feeney warrant. Mr. Reid asserts that Sergeant Dey approached the apartment with the intention to find grounds to arrest and then search him for narcotics. Relying on R. v. Adams, 2001 CanLII 16024 (ON CA), [2001] O.J. No. 3240 (C.A.), Mr. Reid argues that a Feeney warrant is required for an arrest in any dwelling, not merely the accused’s dwelling. Mr. Reid further submits that the fact that none of the individuals in the apartment claimed possession of the unit did not alter the unlawfulness of the police entry into the unit.

[20] Mr. Reid contends that the investigative detention preceding his arrest was also illegal because it was tainted by the unlawful entry into the apartment by the police. This unlawful detention led to the discovery of the drugs in the bathroom.

[21] Finally, Mr. Reid argues that the trial judge erred in concluding that because of the fluidity of the situation, his s. 10(a) and 10(b) rights were not engaged. Once the detention crystallized, the s. 10 requirements became immediate.

[22] The Crown distinguishes the Adamscase on the basis that Mr. Reid had no reasonable expectation of privacy in the apartment toilet where the drugs were located, unlike in Adamswhere the accused’s own s. 8 rights were engaged when he was searched incident to arrest. Moreover, if some form of consent was required to enter the unit, the law of implied invitation recognized by this court in R. v. Mulligan, 2000 CanLII 5625 (ON CA), [2000] O.J. No. 59 (C.A.), satisfied such a requirement. Given the presence of what seemed like unlawful occupants, and given that Sergeant Dey was told drug dealing was taking place in the unit, it was in the interests of the property owner or lawful resident that the police be granted entry.

[23] The Crown further argues that any “investigative detention” was either proportional to the concern the police had regarding the security of the unit or, at worst, was a de minimis violation of Mr. Reid’s liberty.

[24] Finally, the Crown asserts that given the imminence of Mr. Reid’s arrest upon locating the drugs in the toilet, it was unnecessary and impractical to provide reasons for detention and rights to counsel prior to the arrest. The trial judge was correct in his conclusion that there was no breach of s. 10(a) or 10(b) arising from Mr. Reid’s detention before arrest.

[25] In my view, the facts do not support Mr. Reid’s assertion that Sergeant Dey entered the unit to arrest him. Rather, and as the trial judge found, Sergeant Dey was investigating various possible criminal acts. As such, this case is distinguishable from those cases recognizing that a Feeney warrant is required where police enter a dwelling for purposes of arresting an occupant.

[26] Because I would reject Mr. Reid’s starting premise that Sergeant Dey needed a Feeney warrant before entering the apartment, the balance of his argument that his detention and arrest were illegal because they flowed from the officer’s illegal entry into the apartment, cannot stand.

[27] In any event, I accept the trial judge’s implicit finding, in preferring Sergeant Dey’s evidence over that of Ms. Coleman’s, that the officer entered the apartment on consent. Further, I see no reason to interfere with the trial judge’s finding that Sergeant Dey, on being informed by Ms. Coleman and the other occupant that neither was the owner of the unit, sought entry based on concerns for the safety and security of the true owner. It is implicit in the trial judge’s reasoning that this concern is what motivated Sergeant Dey to proceed in entering the unit.

[28] Moreover, Sergeant Dey’s direction to Mr. Reid to leave the bathroom while placing his hand on his back, in my view, did not amount to a detention. Not every interaction between a person and the police constitutes a detention within the meaning of the Charter, even where there is an investigation ongoing: R. v. Mann,2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19. Mr. Reid may have been momentarily under the officer’s control when Sergeant Dey guided him out of the bathroom, but Mr. Reid was not subject to the type of physical or psychological restraint that amounts to a detention within the meaning of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 7.

[29] But even if Sergeant Dey’s momentary direction to Mr. Reid before his arrest amounted to a detention within the meaning of the Charter, his detention was neither arbitrary nor unreasonable. In Mann, at paras. 23-35, the Supreme Court recognized that individuals may be detained for investigative purposes if the police are acting in furtherance of their duties, which include “the preservation of the peace, the prevention of crime and the protection of life and property” and further, that the detention is justified based on a constellation of objectively discernible facts giving rise to the detaining officer’s suspicion that the suspect is criminally implicated in the activity under investigation: Mann, at para. 27.

[30] Proactive community policing, while an effective approach to crime prevention in high-crime areas, must be carried out in a manner that does not diminish individual rights and freedoms: Brown v. Durham Regional Police Force (1988), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.). When the police investigate and detain citizens, they must do so only when they believe, on reasonable grounds, that the detention is necessary, and the detention is not more intrusive to liberty than reasonably necessary to address risk: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 21. This standard does not change depending on where one lives.

[31] However, here, Sergeant Dey had reason to detain Mr. Reid. Sergeant Dey had information that Mr. Reid had committed an assault, was dealing drugs, and could be found at 51 Mutual Street. On arriving at the Mutual Street building, Sergeant Dey received additional information that a male matching Mr. Reid’s description was on the second floor dealing drugs out of unit 202. When Sergeant Dey arrived at unit 202 and received information from the occupants that neither was the rightful occupant of the unit, he became concerned for the rightful occupant’s well-being. In attempting to ascertain who was in the apartment, and for his own safety, he opened the door that turned out to be a bathroom, found a person (who turned out to be Mr. Reid) inside, and asked him to step out.

[32] In my view, this was a reasonable request, given that Sergeant Dey had just been told that there was no one else in the apartment, his concerns about an apartment takeover, and his ongoing investigation into possible drug dealing and an assault. There was no violation of s. 9 of the Charter.

[33] Moreover, Mr. Reid’s actual detention only crystallized when Sergeant Reid saw the bag of drugs in the toilet, which coincided with his immediate arrest. He was given his rights to counsel under s. 10(a) and 10(b) of the Charter at that time. In the circumstances, as the trial judge noted, given the fluidity of the situation, it was impractical to provide rights to counsel prior to the arrest. There was no violation of s. 10(a) or 10(b) of the Charter.

[34] Finally, in my view, Sergeant Dey’s decision to look in the toilet and retrieve the drugs from the toilet bowl did not constitute a “search” of Mr. Reid. A search is only subject to constitutional review where the search intrudes on a reasonable expectation of privacy. As previously noted, Mr. Reid had no privacy interest in the apartment. Further, the drugs were found without any interference with Mr. Reid’s interest over his own personal privacy. He was not searched: the toilet was searched.

(3) Exclusion of Evidence – Section 24(2) of the Charter

[35] Having concluded that Mr. Reid’s rights under the Charter were not violated in this case, I find it unnecessary to analyze the admission of the evidence under s. 24(2) of the Charter.

E. DISPOSITION

[36] Based on this analysis, I would dismiss the appeal.

Released: December 15, 2016 (KMVR)

“Gloria Epstein J.A.”

“I agree S.E. Pepall J.A.”

“I agree K.M. van Rensburg J.A.”

[^1]: While Mr. Reid argued that the evidence was discovered in breach of his rights under s. 7 of the Charter at trial, he did not appeal the trial judge’s disposition of this issue.

[^2]: Apartment-takeovers occur where tenants are forcibly displaced from their homes. Often, the apartment is subsequently used to carry out illegal activity.