Court File and Parties

Court File No.: St. Catharines - 2111-998-11-N4174-00

Date: 2013-02-20

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Frederick Guarino

Before: Justice D.A. Harris

Heard on: December 20, 2012

Reasons for Judgment on: February 20, 2013

Counsel:

D. Anger, for the Federal Crown

V. Singh, for the accused, Frederick Guarino

Reasons for Judgment

HARRIS J.:

The Charges

[1] Frederick Guarino is charged with possession of cocaine for the purpose of trafficking and with possession of proceeds of crime.

[2] Crown counsel elected to proceed by indictment with respect to the latter charge. Mr. Guarino elected to be tried before me in the Ontario Court of Justice.

[3] Counsel for Mr. Guarino brought an application pursuant to the Canadian Charter of Rights and Freedoms to exclude all evidence with regard to the police officers finding any cocaine and money in the possession of Mr. Guarino. This application was based on alleged infringements of Mr. Guarino's right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and of his right to not be arbitrarily detained or imprisoned as guaranteed by s. 9 of the Charter.

[4] Both counsel agreed at the outset of the trial that we should proceed on the basis of a blended trial and voir dire and we did in fact proceed on that basis.

The Evidence

[5] The only witnesses who gave evidence were Constables Gaunt and Cummings of the Niagara Regional Police Service.

[6] They testified that they had been working in plain clothes and looking for stolen motor vehicles in Niagara Falls. This involved driving around in an unmarked police car and checking licence plates on their police computer.

[7] They saw two men standing beside two vehicles parked in a driveway at 6098 Dorchester Road in Niagara Falls. These two vehicles were a Ford Focus and a GMC Jimmy. The computer check disclosed that the licence plate on the Jimmy had been reported stolen a year before. The registered owner was Joseph McFadden.

[8] By the time that they had received this information, the police officers had to turn their vehicle around and drive back to where they had seen all of this. The two men and the Jimmy were gone.

[9] The police officers then took up a position nearby where they could wait and watch for the vehicle to return. While waiting, they made further computer inquiries and learned that the house at 6098 Dorchester Road was the residence of Ronald Bird. They also learned that the Ford Focus was registered to Frank Guarino and that he had no criminal record.

[10] The Jimmy returned to the same address as before and pulled into the driveway. The police officers pulled up behind that vehicle with the police emergency lights flashing. Constable Cummings arrested the driver, who turned out to be Ronald Bird. Constable Gaunt arrested the passenger, who turned out to be Mr. Guarino.

[11] Upon being arrested for possession of stolen licence plates, Mr. Guarino exclaimed to Mr. Bird, "You're driving me around with stolen plates? Come on!"

[12] Constable Gaunt searched Mr. Guarino incidental to arrest. He testified that he did so for officer safety reasons and to find evidence.

[13] He found a plastic bag in Mr. Guarino's right front pocket. The bag contained 25.8 grams of cocaine.[1]

[14] Mr. Guarino also had a wallet. There were two sections in the wallet. There was paper money folded in each section. There was $75 in one section and $80 in the other.

[15] Mr. Guarino had one cell phone on his person. There was another cell phone in the centre cup-holder in the car.

[16] The police officers then did a computer check of the VIN on the Jimmy. That vehicle was registered to Mr. Bird.

[17] After Mr. Bird stated that he had received the licence plates from someone else, the police officers issued him six Provincial Offences Act notices. They did not charge either Mr. Bird or Mr. Guarino for possession of stolen licence plates.

The Charter Application

[18] In R. v. Collins, [1987] 1 S.C.R. 265, Lamer J. (as he then was) summarized the law regarding the burden of proof in such applications in paras. 21 through 25.

[19] The applicant bears the burden of persuading the court that his Charter rights or freedoms have been infringed or denied. He also bears the initial burden of presenting evidence. The standard of persuasion required is the civil standard of the balance of probabilities.

[20] There is however the presumption that a warrantless search is prima facie "unreasonable". As a result, once an applicant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.[2]

[21] A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable.[3]

[22] In this case, Crown counsel argued that the search was incidental to a valid arrest and therefore authorized by law.

[23] Crown counsel was correct that a police officer is authorized by law to search someone incidental to arrest. That law is settled and there is no suggestion here that this law is in any way unreasonable. Nor was there any suggestion that the manner in which the search was carried out was unreasonable.

[24] The issue here is whether Constable Gaunt had made a lawful arrest.

[25] The authority for a police officer to arrest someone without a warrant is set out in s. 495 of the Criminal Code which states:

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

[26] Both Constables Gaunt and Cummings testified that they had reasonable and probable grounds to believe that Mr. Guarino was in possession of the stolen licence plates simply because of the fact that he was a passenger in the vehicle to which the licence plates were attached.

[27] I accept that the police officers did believe this.

[28] However, this subjective belief on the part of the police officers is not enough. Their subjective belief must also be objectively reasonable.[4]

[29] Clearly their belief that the licence plates were stolen was an objectively reasonable belief. They had received information to that effect from their police computer and they were entitled to rely on this as accurate information.

[30] The issue is whether they had objectively reasonable grounds to believe that Mr. Guarino was in possession of those licence plates.

[31] Section 4(3) of the Criminal Code sets out the following with respect to possession:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[32] There is nothing in the evidence to suggest that any of the conditions set out in s. 4(3)(a) existed here or that either police officer could have reasonably believed that any of them existed here. Mr. Guarino was simply the passenger in a motor vehicle bearing the stolen licence plates. That provides no basis for concluding that he had them in his personal possession or that he knowingly had them in someone else's possession.

[33] With respect to s. 4(3)(b), in R. v. Terrence, [1983] 1 S.C.R. 357, the Supreme Court of Canada made it clear that a measure of control on the part of the person deemed to be in possession is a constituent and essential element of possession. The knowledge and consent required cannot exist without some measure of control over the subject-matter.

[34] In that case, the Court found that evidence that Terrence was a passenger in a car driven by a friend of his and that the car had in fact been stolen earlier that night, was not sufficient to prove that Terrence had the requisite knowledge, consent and control. It was therefore not sufficient to support a conviction.

[35] I recognize that the standard of proof beyond a reasonable doubt was much higher at the conclusion of the trial in Terrence than is the standard of belief on reasonable and probable grounds that applied here. Even so, police officers are supposed to know the requisite elements of an offence. Hence they should have known that knowledge, consent and control all had to be present before Mr. Guarino could be in possession of the stolen licence plates. They should have known that his mere presence in the motor vehicle did not necessarily put him in possession of the motor vehicle let alone in possession of licence plates which had been stolen a year before.

[36] I stress the difference between a recently stolen motor vehicle and licence plates stolen months earlier because I can see where one might reasonably believe that a passenger should at least notice that a vehicle is new and question where it came from. On the other hand, someone getting into a vehicle as a passenger is not likely to notice different licence plates let alone ones that might have been there for several months.

[37] I appreciate that the police officers did not know who Mr. Guarino was when they arrested him. They did not know that he was not the owner of the vehicle. They did not know that he was the owner of the Ford Focus. However, they did not know any of this because they did not ask any questions of anyone until after they had arrested everyone who had been in the vehicle. Their lack of knowledge prior to making the arrest does nothing to legitimize that arrest.[5]

Admission or Exclusion of Evidence

[38] Counsel for Mr. Guarino asked that the evidence be excluded pursuant to s. 24(2) of the Charter.

[39] That section reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[40] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32[6] sets out the following at para. 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the appellant (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[41] In R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.) at para. 20, Duncan J. summarized in point form what he considered to be the important points set out by the Supreme Court of Canada as follows:

The new approach is more flexible than the Collins/Stillman, [1997] 1 S.C.R. 607, approach. There are no presumptions of admission or exclusion.

The purpose is to maintain the good repute of the administration of justice by both maintaining the rule of law and upholding Charter rights.

The focus is both long term and prospective, not on the immediate reaction to admission or exclusion in a particular case.

The focus is also societal and systemic. It is not to punish the police or compensate the accused in any particular case but to further the long term interests of society and the justice system.

The court must consider all of the circumstances which involves an assessment and balancing of 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) the societal interest in adjudication on the merits.

The seriousness of Charter-infringing conduct can be graded on a spectrum from trivial to blatant and flagrant.

The impact of the police conduct on the appellant's Charter-protected interests is examined from the perspective of the accused. The degree of intrusiveness of the unconstitutional action of government agents ranges from impact which might be described as fleeting, transient or technical to profoundly intrusive.

Society's interest in adjudication on the merits will almost always favour admission of the evidence. However the gravity of the charge should not be permitted to overwhelm the other factors.

[42] So I must consider all of the circumstances and assess and balance each of the three factors enumerated in Grant, supra.

First Factor: Seriousness of Charter-Infringing Conduct

[43] With respect to the first factor, the Charter breach here was a serious one. The police officers had no objectively reasonable basis to arrest Mr. Guarino. His detention was arbitrary and the ensuing search was unreasonable.

[44] The seriousness of this Charter-infringing conduct favours exclusion of the evidence.

Second Factor: Impact on Charter-Protected Interests

[45] Moving on to the second factor, I must consider the extent to which the breaches actually undermined the interests protected by the infringed rights.

[46] Based on the evidence that I heard, the arrest and the ensuing search were both minimally intrusive both in terms of what took place and the evidence obtained.

[47] I qualify that statement because I really heard very little about the arrest or the search. Crown counsel, in his submissions, referred to a frisk search or pat down search. There was no real evidence to that effect however. On the other hand, counsel for Mr. Guarino appeared to accept that characterization of the search and made no suggestion that there was anything outrageous in the nature of the arrest or the search other than the fact that they occurred. Accordingly, I am proceeding on the basis that the arrest here was a straightforward one and the search was of the usual frisk/pat down variety, and, as I stated above, the arrest and the ensuing search were both minimally intrusive. I do make the observation that an innocent passenger in a motor vehicle who was subjected to such treatment by a police officer might see this differently.

Third Factor: Society's Interest in Adjudication on the Merits

[48] As for the third factor, the offences are, on their face, serious, though not the most serious ones. Still, the societal interest in having a trial on the merits would usually favour admission.

[49] I have to note here however that if I were to determine the case on its merits, I would dismiss the proceeds charge outright and with respect to the drug charge I would find Mr. Guarino not guilty of possession for the purpose of trafficking but guilty of the lesser and included offence of simple possession. I will say more about this shortly but at this stage I note that the societal interest in the trial of a single count of simple possession of cocaine is obviously less.

[50] I must also consider the fact that the evidence which Mr. Guarino seeks to have excluded, is reliable. It was cocaine and it was in his pocket. It was there whether the Charter infringement occurred or not.

[51] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.

Balancing the Factors

[52] As is often the case in any s. 24(2) analysis, the final decision is a difficult one. A good argument can certainly be made for inclusion of the evidence.

[53] I note however the comments of Duncan J. at para. 34 in Beattie, supra where he stated that:

Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.

[54] In R. v. Mehta, [2012] O.J. No. 5587 (Ont. C.J.), Lipson J. wrote at para. 21 that:

Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of s. 24(2) is to further the long term interests of society and the justice system.

[55] I recognize that this is the overriding purpose of s. 24(2). It is not to punish the police or compensate the accused.

[56] However, I wish to make it clear that I cannot and will not condone the process that was employed here. The police officers chose not to ask a few basic questions that might have cleared things up quickly. Who are you? Whose car is this? What can you tell me about the licence plates? Once those questions were in fact asked and answered it was evident that there was no basis to charge Mr. Guarino with possession of stolen licence plates. The police officers even decided not to charge Mr. Bird with that offence but proceeded only with Provincial Offences Act charges. Instead of going this route, however, the police officers chose to arrest, search, implicate in unrelated but more serious offences, and only then finally ask the questions that would have made it clear that there was no basis for an arrest in the first place.

[57] I conclude then that the long term interests of the administration of justice are better served by exclusion in this case.

Inevitable Discovery Argument

[58] Crown counsel argued that the cocaine would have been discovered in any event. He based this argument on the premise that had Constable Gaunt not arrested Mr. Guarino, he would have detained him for investigative purposes and then searched him incidental to that detention.

[59] I will leave it to another case to determine whether such a search would be reasonable. I do not have to do so here because Constable Gaunt chose not to proceed in that fashion. He chose instead to arrest Mr. Guarino and to curtail his liberty in a very serious way. Constable Gaunt and Crown counsel now have to live with the consequences of that decision.

Disposition

[60] The evidence with regard to the police officers finding the cocaine and the money in the possession of Mr. Guarino is excluded.

[61] That being the case, there is no evidence that Mr. Guarino committed the offences before me and both charges are dismissed.

Analysis of Crown's Case on the Merits

[62] Before concluding these reasons however, I wish to flesh out certain comments I made earlier with respect to the strength of the Crown's case.

[63] It was not enough for the Crown to prove that Mr. Guarino possessed the cocaine and the money. The Crown also had to prove that he possessed the cocaine for the purpose of trafficking and that the money was the proceeds of such trafficking.

[64] The evidence in this case fell far short of that.

[65] I accept that, but for my ruling, there would have been evidence Mr. Guarino possessed a large quantity of cocaine. I heard no reliable evidence however to indicate that possession of such a quantity of cocaine was consistent only with trafficking and inconsistent with personal use.

[66] The police officers did say that drug traffickers sometimes used two cell phones, one for personal calls and the other for business. They did not even suggest however that only drug traffickers carried two cell phones. This factor is further weakened by the fact that the evidence did not clearly place the second cell phone in Mr. Guarino's possession. One police officer suggested that it was in the centre cup-holder in the Jimmy.

[67] The police officers also suggested that drug traffickers sometimes folded drug money in a fashion similar to that done by Mr. Guarino and thereby kept it separate. Again however, they did not even suggest that other people did not sometimes fold their money and keep it separate. Common sense would dictate otherwise. Nor did either police officer testify that $75 or $80 was an amount that could be consistent with the price of a commonly sold quantity of cocaine.

[68] Based on information gleaned by me over the years, the evidence here would have been sufficient to raise my suspicions with regard to Mr. Guarino but it fell far short of proof beyond a reasonable doubt. As I stated above, even if I had not excluded the evidence, I would have dismissed the proceeds charge outright and with respect to the drug charge I would have found Mr. Guarino not guilty of possession for the purpose of trafficking but guilty of the lesser and included offence of simple possession.

[69] In any event, I did order that the evidence should be excluded and that both charges are dismissed.

Released: February 20, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[1] Counsel for Mr. Guarino advised the court that Mr. Guarino admitted that the substance was in fact cocaine.

[2] See also R. v. Evans, [1996] 1 S.C.R. 8, at p. 22; R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1148; R. v. Dersch, [1993] 3 S.C.R. 768 at p. 778.

[3] Ibid.

[4] See R. v. Storrey, [1990] 1 S.C.R. 241.

[5] I note also at this point that the police officers did not hear Mr. Guarino's expression of surprise upon learning that the licence plates might have been stolen until after they had arrested him.

[6] See also R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 and R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34.