Court of Appeal for Ontario
Date: 2024-01-23 Docket: C70520
Feldman, Miller and Coroza JJ.A.
BETWEEN
His Majesty the King Respondent
and
Dishon Harvey Appellant
Counsel: Jeffery Couse, for the appellant Andrew Cappell, for the respondent
Heard: November 28, 2023
On appeal from the conviction entered by Justice Lynn Robinson of the Ontario Court of Justice on February 22, 2022.
B.W. Miller J.A.:
[1] The appellant was convicted of various firearms offences. He was arrested together with Jessica Gaspari, in a rental vehicle he was driving, on the grounds that the two were in possession of narcotics. On arrest, he reached for a satchel in the vehicle found to contain ammunition. A search of the vehicle incident to arrest produced a sawed-off shotgun with its serial number removed. Neither Ms. Gaspari nor the appellant was found to be in possession of narcotics.
[2] On appeal, the appellant argued that the trial judge erred in finding that the arresting officer had reasonable and probable grounds to arrest him for drug trafficking, and in finding that the appellant’s rights under s. 9 of the Canadian Charter of Rights and Freedoms had thereby not been infringed. He argued that the shotgun and ammunition ought to have been excluded from evidence under s. 24(2) of the Charter, and that he ought to have been acquitted of all charges.
[3] For the reasons that follow, I would dismiss the appeal.
Factual overview
[4] The case against the appellant was circumstantial. To assess the arguments advanced on appeal, it is necessary to summarize the facts as found by the trial judge, supplemented in part by the evidence led by the Crown at trial. The defence led no evidence.
(1) The initial surveillance
[5] The Niagara Regional Police Service received a tip from a confidential informant that Patrick Zapata was engaged in drug trafficking in Niagara Falls. They conducted surveillance on Mr. Zapata on September 8, 2020 and observed him take a taxi from his home to the Marriott Hotel on Fallsview, which was about a five minute drive away. Approximately twenty minutes later, Zapata exited the Marriott with an unidentified woman and the two took a seven minute taxi ride from the Marriott to the Villager Motel, known to the police to be frequented by drug users. Mr. Zapata exited the taxi, met up with an unknown man, and the two men entered the motel. The unknown woman exited the taxi nearly half an hour later and Mr. Zapata met her outside the motel after a few minutes. They then walked to the Alpine Hotel, also known to be frequented by drug users, stayed for approximately 10 minutes, and then returned by taxi to the Marriott. Sergeant Sills, who was one of the officers conducting the surveillance, concluded that the two were likely engaged in drug trafficking. The police concluded that Mr. Zapata was using the Marriott as a stash house to store his drugs away from his home.
(2) Events at the Marriott
[6] On September 9, 2020, Mr. Zapata rented a room at the Marriott. He allowed a woman named Cassandra Gaston to use the room. He had unsuccessfully attempted to extend the stay, but his credit card had been declined, and the hotel would not accept cash payment for the room.
[7] On September 10, 2020, Constable Zsoldos approached the manager of the Marriott. The manager confirmed that Mr. Zapata had rented a room there and agreed to notify Constable Zsoldos if Mr. Zapata either checked out or extended his stay.
[8] Mr. Zapata and Ms. Gaston failed to check out on the morning of September 10, 2022 and hotel staff accordingly attended. Entering the room, the manager found a woman, who was later identified as Ms. Gaston, passed out. Mr. Zapata was not there. The manager believed that the woman had overdosed and, at 12:40 p.m., called Constable Zsoldos to notify him. Constable Zsoldos told him to call 911. While the manager was in the room, another woman, later identified as Ms. Gaspari, attempted to enter the room. She was not permitted to enter. The manager then placed another call to Constable Zsoldos at 12:56 p.m., telling him about the woman who tried to enter the hotel room.
[9] Constable Fortuna was dispatched following the 911 call and attended the hotel room with emergency medical services. He arrived at 12:59 p.m. Ms. Gaston revived and told him that she had been using fentanyl in the room the previous night and had overdosed.
[10] Sergeant Sills subsequently arrived at the Marriott, at 1:02 pm, went to the manager’s office, and viewed the security video footage of Ms. Gaspari attempting to enter the hotel room, as well as other security footage from the hotel. Sergeant Sills thought she might be the same woman whom he had observed with Mr. Zapata two days earlier during surveillance. Because Sergeant Sills did not see Ms. Gaspari entering the hotel on any of the hotel security footage, he concluded that she had stayed overnight at the hotel, in the room with Mr. Zapata and Ms. Gaston. He assumed that she had gone to the room to retrieve whatever luggage she had. Sergeant Sills proceeded to the room and spoke in the doorway with Constable Fortuna, who told him about Ms. Gaston’s overdose. Sergeant Sills then returned to the hotel lobby to look for Ms. Gaspari.
[11] At 1:25 pm, officers saw Ms. Gaspari in front of the Marriott. She was observed approaching the appellant and speaking with him. The two then left the area in front of the hotel, walked across the street to the parking lot of a neighbouring motel, and got into a Dodge Charger.
[12] Meanwhile, the paramedics left the hotel room with Constable Fortuna, and brought Ms. Gaston to the ambulance parked outside. As Ms. Gaston was being loaded into the ambulance, Ms. Gaspari got out of the Charger and walked back into the Marriott. Ms. Gaspari did not interact with Ms. Gaston in any way while passing her.
[13] Sergeant Sills saw Ms. Gaspari re-entering the Marriott and concluded that she was heading back to Mr. Zapata’s room. At this point, he no longer believed she was retrieving luggage and thought she was likely going to retrieve drugs that were in the room. He testified that he believed the room had not been secured, and that she still had access to it. There was no video evidence tendered at trial depicting where Ms. Gaspari went when she was inside the hotel.
[14] While Ms. Gaspari was in the Marriott, Sergeant Sills observed the appellant. After Ms. Gaspari left the Charger, the appellant moved the Charger from one spot in the motel parking lot to another located in the back corner. After a few minutes, he moved it again to the front of the Marriott. At 1:59 p.m. he got out of the Charger and walked towards the entrance. He returned to the Charger and drove it back across the street to the motel parking lot. Sergeant Sills became suspicious as to why the appellant kept moving the vehicle.
[15] Ms. Gaspari exited the Marriott 2:05 p.m., crossed the road, and got into the Charger. Sergeant Sills observed that she did not have any luggage. He believed that if she had been staying at the hotel for a legitimate purpose, she would be taking luggage with her. And yet she wasn’t. He concluded that she had likely been waiting until the police and paramedics had left the room in order to retrieve drugs that had been left behind, and that she was probably carrying the drugs in her purse. Similarly, he believed that the appellant had been moving his car to keep it out of the sight of the police who had attended with the paramedics, and that he was acting in tandem with Ms. Gaspari to remove the drugs from the hotel.
[16] He believed he had reasonable and probable grounds to arrest Ms. Gaspari and the appellant for possession of narcotics, and communicated this to Constable Zsoldos and Constable Tartaglia, who boxed in the appellant’s car and arrested them both.
(3) The search incident to arrest
[17] Constable Zsoldos asked the appellant to step out of the Charger, which he did. He then turned and lunged back towards a satchel inside the car. He was grounded by the officers, who advised him that he was under arrest for possession of narcotics. The officers then searched the satchel and discovered two shot gun shells. They searched the trunk of the Charger where they found the shotgun. The appellant was charged with firearms offences.
The issues on appeal
[18] The appellant argued two grounds of appeal. The first is that the trial judge erred in finding there were reasonable and probable grounds to arrest the appellant and search the vehicle incident to arrest. The second is that the trial judge ought to have excluded the shotgun and ammunition from evidence under s. 24(2) of the Charter.
[19] As I would not find that the trial judge made any error in finding there were reasonable and probable grounds to arrest the appellant for possession of narcotics, it is unnecessary to address the s. 24(2) argument.
Analysis
[20] The appellant renews the argument he advanced at trial: that the arresting officer lacked reasonable and probable grounds to arrest the appellant for possession of narcotics, and therefore the arrest was arbitrary and a violation of the appellant’s s. 9 rights. Consequently, the search incidental to arrest was a violation of s. 8, and the firearm and ammunition ought to be excluded from evidence under s. 24(2). More specifically, the appellant argues that the trial judge erred in that:
(1) there was no factual basis to believe there were drugs in the hotel room when Ms. Gaspari entered the Marriott;
(2) there was no factual basis to believe that Ms. Gaspari entered the room to retrieve drugs; and
(3) there were no factual and legal bases to believe that the appellant was in possession of any drugs possessed by Ms. Gaspari.
[21] I see no error in the trial judge’s analysis.
(1) Reason to believe there were drugs in the hotel room
[22] The anchor of the appellant’s argument is Sergeant Sills’s evidence that although he believed, based on his observations on September 8, 2020 that Mr. Zapata and the woman accompanying him were trafficking in narcotics from the Marriott hotel that day, he did not yet have reasonable and probable grounds to arrest either of them.
[23] The appellant then asks the court to set the events of September 8 to one side. For, the argument goes, if Sergeant Sills lacked reasonable and probable grounds on September 8, we must focus entirely on subsequent events, and look to whether anything that transpired on September 10 was capable of raising in the mind of Sergeant Sills reasonable and probable grounds for believing that Ms. Gaspari was trafficking in narcotics. Without this belief, there can be no basis for believing that the appellant was engaging in any wrongdoing.
[24] The appellant argues that the only saliant event of September 10 was the overdose of Ms. Gaston in the hotel room. However, the appellant argues, the bare fact that someone has consumed drugs previously, gives no reason to believe that any drugs are presently nearby: R. v. Janvier, 2007 SKCA 147, at para. 30; R. v. Thompson, 2013 ONSC 1527, at para. 166. Furthermore, the inference is available that Ms. Gaston supplied her own drugs for her own consumption. There is no connection to Mr. Zapata or to Ms. Gaspari, nor to any trafficking in narcotics. The argument concludes that Sergeant Sills therefore lacked reasonable and probable grounds to believe that there were drugs to be found in the hotel room after the overdose of Ms. Gaston.
[25] The argument is flawed. First, it must be kept in mind that the methodology in assessing whether there were reasonable and probable grounds to arrest the appellant proceeds from a holistic consideration of all of the facts: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 54-55. It is not a matter of parsing each factual occurrence seriatim to determine whether or precisely when reasonable and probable grounds arose. Accordingly, the argumentative strategy of setting aside the surveillance of September 8 is mistaken. The events of September 10 must be considered together with the surveillance and the tip from the confidential informant that Mr. Zapata had engaged in drug trafficking.
[26] Second, the appellant misconceives the import of Sergeant Sills’s statement that he lacked reasonable and probable grounds to arrest Mr. Zapata and his companion on September 8. Sergeant Sills may well have believed that if he had arrested Mr. Zapata and his companion, he would not have had sufficient evidence to support a prosecution, and that more investigation was required. But from his account at trial of what he observed on September 8, it is clear that he believed Mr. Zapata and his companion were not only trafficking narcotics but trafficking them from the Marriott Hotel. This is important context for understanding the inferences he made on September 10.
[27] On September 10, Sergeant Sills believed that Mr. Zapata was trafficking narcotics from the Marriott. After attending the Marriott, and being told that Mr. Zapata had booked a particular room, he formed the more specific belief that Mr. Zapata was storing in that particular room the drugs that he was delivering. He was then told by Constable Fortuna that there was a woman passed out in the room, and that she had told Constable Fortuna that she had been consuming fentanyl in the room over the previous few days. Sergeant Sills thus had information that tended to corroborate his belief that Mr. Zapata was using the room to store drugs.
[28] The appellant argued that the latter inference is unavailable – that the fact that Ms. Gaston had consumed fentanyl in the room is analytically inert. I disagree. Sergeant Sills was not obligated to conclude that Ms. Gaston supplied her own fentanyl. Neither was it unreasonable for him to conclude that if Mr. Zapata had provided the fentanyl to Ms. Gaston, it was some evidence that Mr. Zapata had brought fentanyl to the hotel room, that the fentanyl she consumed came from the stash he had brought for trafficking purposes, and that some quantity of it might still be there.
[29] Although that disposes with the appellants first objection, two more objections remain: that there was no reason to believe that Ms. Gaspari entered the room to retrieve drugs, and finally, no reason to believe that the appellant had knowledge and control of any drugs.
(2) Reason to believe that Ms. Gaspari entered the room to retrieve drugs
[30] Sergeant Sills testified that he did not know the identity of the woman he observed at the Marriott on September 10, until she informed him on arrest. What he believed, however, was that the woman he viewed on the security footage trying to access the hotel room at the Marriott might have been the same woman he had observed with Mr. Zapata on September 8, going out from the Marriott to two motels to sell drugs.
[31] He thought that she must have been staying at the hotel with Mr. Zapata and Ms. Gaston because he did not see any security video footage of her entering the hotel that morning. He testified that he initially thought that she must have been trying to get into the room to gather her personal effects. He then attended at the doorway to the room and spoke with Constable Fortuna.
[32] Sergeant Sills later reasoned that, given that she was required to check out of the hotel, and given that she did not seem to have any luggage with her, her connection with the room was not licit. When he saw her outside the hotel with the appellant and saw her re-enter the hotel – passing by Ms. Gaston without any acknowledgment of acquaintance – he concluded she likely had no legitimate purpose to be in the hotel. The fact that she appeared to be waiting in the car until the police and paramedics left the hotel room before re-entering the hotel strengthened the belief that she had re-entered the hotel for the purpose of returning to the room. Sergeant Sills’s belief that she had returned to the hotel to retrieve drugs was strengthened when she returned, approximately 25 minutes later, without any luggage that would suggest a legitimate stay in the hotel, and proceeded to the appellant’s car.
[33] Sergeant Sills testified that he thought the room had not been secured. He, at least, had not ordered it to be secured, and had not stationed an officer outside. The appellant argues, however, that this claim is specious. If Sergeant Sills had really believed there could still be drugs in the room – drugs that had not been visible to Constable Fortuna when he did a quick sweep of the room – why had he not secured it and instead left any possible drugs to be discovered by the cleaning staff?
[34] Sergeant Sills was not asked this question on cross-examination, and the trial judge did not make any findings in this regard. The police were engaged in a dynamic investigation and had still not located the primary target, Mr. Zapata. In the absence of Mr. Zapata, the room was not the primary focus of the investigation. The trial judge did not find that the failure to secure the room gave her any reason to doubt the evidence of Sergeant Sills.
[35] In any event, the question before the trial judge was not whether there was an innocent explanation as to what Ms. Gaspari was doing in the hotel for nearly half an hour. Nor was it the probability that there were still drugs in the room rented to Mr. Zapata or how Ms. Gaspari could have gotten into the room. The question was whether (i) the belief that Ms. Gaspari might have been the same woman who had been observed with Mr. Zapata in a suspected drug trafficking operation from the Marriott, (ii) her failed attempt to enter the hotel room when Ms. Gaston was being attended to, (iii) her retreat to the Charger until Constable Fortuna and the paramedics left the room, and (iv) her re-entrance into the hotel and re-emergence 25 minutes later, gave rise to reasonable and probable grounds to believe she was in possession of narcotics. The trial judge found, relying in part on Sergeant Sills’s extensive experience in drug investigations, that it did. On appellate review, we are not in a better position than the trial judge to evaluate the facts, and I would defer to her findings in this regard.
[36] This disposes of the second objection.
(3) Reasonable grounds to believe that the appellant was in possession of drugs
[37] The appellant’s first two grounds of attack on the trial judge’s reasons fail. There were grounds to believe that there were drugs in the hotel, and grounds to believe Ms. Gaspari had gone back into the hotel to retrieve them. Ultimately, Sergeant Sills’s beliefs were proven to be mistaken. This does not undermine the reasonableness of the beliefs: R. v. Gerson-Foster, 2019 ONCA 405, 437 C.R.R. (2d) 193, at paras. 78-79.
[38] The ultimate question is whether there were reasonable and probable grounds to arrest the appellant for drug possession.
[39] The appellant was not a person of interest in the police investigation. The police – aside from Constable Fortuna who had responded to the 911 call – were at the Marriott to investigate the suspected drug trafficking of Mr. Zapata. They believed that Ms. Gaspari was working together with Mr. Zapata. That belief, as explained above, was reasonable.
[40] The appellant only entered the picture when Ms. Gaspari approached him outside the hotel and they walked together to his car, got in, and remained there until the police and paramedics had cleared away from the hotel room. Once Ms. Gaspari left the car to return to the hotel, the appellant moved the car around the parking lot, reparked, waited, drove to the entrance of the Marriot, got out, got back in, and parked again. The police found this activity unusual and without apparent reason, other than seeking to avoid observation by the police. Based on his apparent familiarity with Ms. Gaspari, his waiting in the vehicle with Ms. Gaspari until the police and paramedics had left the room, and the appellant’s suspected counter-surveillance while waiting a further 25 minutes for Ms. Gaspari to return, Sergeant Sills concluded that the appellant was not providing a mere taxi service. Rather, he was operating in tandem with Ms. Gaspari in moving drugs from the hotel. The trial judge found that Sergeant Sills had reasonable and probable grounds to arrest him together with Ms. Gaspari for possession of narcotics.
[41] The appellant argues that the trial judge erred in law in finding that the appellant was presumed, as driver of the car, to be in possession and control of anything in the car. I agree. There is no legal presumption that a person who is driving a car has knowledge of what is in the car, let alone control of it. However, in this case the error is immaterial. Sergeant Sills’s belief that the appellant was committing an offence was based on his observations of Ms. Gaspari and the appellant’s conduct in the context of a drug investigation into Mr. Zapata. This led to the reasonable belief that the appellant was working in tandem with Ms. Gaspari to transport drugs from the hotel, not any presumption arising from his control of the vehicle. It was the belief in the existence of this joint operation that grounded the belief that the appellant would have knowledge and control of drugs carried by Ms. Gaspari. That belief was reasonable.
[42] Given the forgoing, it is unnecessary to consider the trial judge’s s. 24(2) analysis. In any event, I see no error in it.
DISPOSITION
[43] I would dismiss the appeal.
Released: January 23, 2024 “K.F.” “B.W. Miller J.A.” “I agree. K. Feldman J.A.” “I agree. Coroza J.A.”