Court File and Parties

Court File No.: Central East - Newmarket 12-01524 Date: 2014-07-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jamie Marino

Before: Justice P.N. Bourque

Judgment

Released on July 25, 2014

Counsel:

• V. Fedorchuk, for the Crown
• P. Lam, for the accused Jamie Marino

BOURQUE J.:

Overview

[1] The defendant is charged with two counts of possession of cocaine for the purpose of trafficking. The charges arise from observations of the defendant's home on February 16, 2012 and the subsequent search of the home on February 17, 2012. The defendant admits that for the purposes of this trial, that if I should rule the search of his home lawful, then there is sufficient evidence of quantity and other circumstantial evidence that I can find that the defendant was in possession of 216 grams of cocaine, and that possession was for the purpose of trafficking as per section 5(2) of the Controlled Drugs and Substances Act ("CDSA").

[2] The defendant alleges that the entry into his home by the police in the early morning hours of February 17, 2012, was pursuant to a search warrant which should not have been issued (lacking reasonable grounds), and therefore was a warrantless search, and the results of the search (Exhibit 2) should not be admitted into evidence.

[3] The defendant has launched a Garofoli application. I have allowed the defendant to cross-examine the affiant (Contino) on several paragraphs of the Affidavit. The Garofoli application and the trial proceeded in a blended fashion. As the nature of the trial progressed, I will consider all of the Crown evidence in my assessment of the Garofoli Application.

Crown Evidence

David Contino

[4] . . . is a Detective Constable with York Regional Police and has been an officer since 2002. As a result of a Crime Stoppers tip received, the officer began an investigation. As part of the investigation, surveillance by many York Regional Police officers was undertaken of the home of the defendant at 23 Oban Avenue, Vaughan, Ontario. After an evening of investigation on February 16, 2012, the officer prepared and swore an Information to Obtain ("ITO") and obtained a warrant to search the home at 23 Oban Avenue.

[5] The following was his evidence of the investigation. He received a Crime Stoppers tip, the details of which are set out in paragraph 2 under the heading "Background of Investigation" of the ITO sworn February 17, 2012.

[6] The officer indicated that he confirmed the following information about the defendant:

(a) The defendant has a previous criminal record for selling cocaine (from CPIC);

(b) From a picture with the licence of the defendant, he confirmed that the defendant had a large build and short dark hair;

(c) The MTO records revealed that the defendant owned an Acura TL;

(d) From the POA records, he determined that the defendant had received a Highway Traffic Act ticket while driving an Acura TL;

(e) The officer attended the address of 23 Oban Avenue and saw an Acura TL car and Dodge pickup truck in the driveway.

[7] The officer began an observation of the house at 23 Oban Avenue at 19:30 hours on February 16, 2012 with several other officers, including Coulson and Elliott and others. The officer states that the defendant was seen by him leaving his house at 21:00. The defendant got into his Acura and drove to an address at 8 Juldan Place in Vaughan. The officer followed with other officers. He did not stop at that address but drove by and saw the defendant's vehicle in the driveway. The officer then followed the defendant back to his home.

[8] The officer at 21:05 saw a Dodge Durango pulling out of the defendant's driveway. From information he got from Officer Coulson, he along with other officers followed the Durango and it stopped at a nearby plaza. The officers went up to the vehicle and there was a driver and passenger. Officer Contino dealt with the passenger who denied having any drugs on his person, but stated that he did not know if there were drugs in the car. Officer Contino states that he was informed by Officer Elliott that they found a quantity of cocaine in a cigarette package in the centre console. With regard to this information, and the further information that the driver admitted that he had purchased the cocaine from the defendant, the officer stated that he "possibly" got that information from the other officers at the scene. He did not have the source of this information in his notes.

[9] The officer returned to the station and had conversations with other officers and drafted the ITO. In paragraph 34 of the Affidavit, there is a reference to a visit at 10:01 by a black sedan. The officer states he got that from Officer Coulson but does not have that reference in his notes.

[10] After drafting and submitting the ITO, the officer obtained a Telewarrant and at 02:05, the officer attended with others to execute the search warrant.

[11] The officer was the Exhibit officer and stated that he received cocaine from an officer who had found it in a purple box in the basement and he found cocaine and other drugs in a backpack, along with scales, and baggies.

[12] The items seized were sent for analysis and were analysed as containing cocaine (Exhibit 2).

Courtney Coulson

[13] . . . is a York Regional Police officer and was part of the team that investigated the defendant. He attended at 23 Oban Avenue and took up a static watch position. He was advised by Contino that the defendant (this officer had also seen the MTO picture) had gotten into a silver Acura and this officer followed in his car to 8 Juldan Place in Vaughan. The officer was watching in his car from 40 or 50 meters away. He saw a tall, white male, dressed in black, come from the house and go up to the driver's side of the car and leaned into the driver's window for about 5 seconds and then pull back. He then saw the defendant stand beside the car chatting for about 9 minutes. The Acura reverses from the driveway and drives directly back to 23 Oban.

[14] The officer takes up surveillance about 50 meters away and is facing the front of the house. At 21:05, a dark coloured Dodge Durango pulls into the driveway. The lights are turned off and the car is running. A person gets out of the passenger side and goes up to the front door, which is opened before he gets to it. There is some conversation with a person inside the house and about 30 seconds later, the person returns to the Dodge Durango and it leaves the driveway.

[15] The other officers leave to follow the Durango and Coulson stays. At 22:01 he sees a dark coloured sedan pull into the driveway and parks behind the Acura. A driver gets out and goes to the front door which opens before he gets to the door. The officer cannot see into the house. About 30 seconds later the driver returns to the car and pulls out of the drive. The officer radioed this information to officer Contino, and remains at the scene until relieved by officer Elliott at 23:30.

[16] The officer returns to 23 Oban Avenue at 02:05 (February 17, 2012) with a warrant and a team of officers. An officer knocked and then another officer struck the door with a battering instrument a few times and the officer entered behind officer Elliott. The officer stated he was wearing a police vest with "police" written across the front and the back. As he went in, he saw the defendant moving quickly downstairs. He came to the bottom and saw Elliott taking down the defendant and he assisted in putting him under arrest and giving him rights to counsel. He stated that the defendant had some blood on his face. He stated the defendant wished to call his lawyer and he facilitated getting his lawyer's number from his phone.

[17] The officer was cross-examined and queried about his powers of observation. I believe he explained adequately his observations and why from his vantage point he could make some observations but not others.

Julian Elliott

[18] . . . is a York Regional Police officer of some 15 years' experience. He was assigned to assist in the investigation. He attended to assist in surveillance at 23 Oban Avenue. He was told over the radio to follow the Dodge Durango and he did so to a plaza at Highway 7 and Weston Road.

[19] He went up to the driver's side of the vehicle and he arrested the driver. He searched the car and discovered a quantity of a white substance he believed was cocaine, contained in a small plastic bag in a cigarette package. He does not recall anything spoken to him by the driver including anything to do with where the person purchased any drugs. He does not know if he transported the drugs back to the station and he did not participate in the packaging of them for sending to the Centre for Forensic Science.

[20] He was the first officer to enter the residence. He states there was some light in the house when they went in. He states that they rang the door bell and announced their presence in a loud voice twice and then Boyd used a ram to batter the door. He announced their presence upon entry and he saw the defendant moving downstairs to the basement. The officer followed and he saw the defendant reaching for something and was going to close a door. The officer pushed the defendant to the ground and arrested him. He believes that Coulson was following him and assisted in the arrest.

[21] He stated that the defendant had a cut to his mouth area which was showing blood. He did not see a pool of blood on the floor. He also stated that he looked in the laundry room and found a back pack which contained a scale, some baggies and a bag with a white powdery substance the officer believed was cocaine. The officer did not have in his notes the colour of the back pack but he thought it was green. He was shown pictures in Exhibit 3 (which show a black and red backpack) and stated that the back pack was probably black and red. He cannot explain why he thought it was green.

Jim Kalonomos

[22] . . . is a York Regional Police officer and the supervisor. He received the Crime Stoppers tip, read it and then gave it to Officer Contino. He does not remember any details of the tip. He was supervising the operation. He states he went to 23 Oban Avenue and saw the Dodge Durango (he said that he owned one himself) in the driveway and when it left 23 Oban, he stated that he followed and was in attendance when the occupants of the Durango were arrested. He did not participate in the arrest, did not speak to the persons in the truck, and did not search for nor receive any evidence. He stated that he was on the periphery and he was informed over the radio that there was cocaine seized from the truck and he says that he received information that "one of the occupants stated that they got the drugs from "Marino's residence"".

[23] In cross-examination, the officer admitted that the reference to an occupant saying the drugs were bought at the defendant's was not in his notes, but he states that he has a recollection of receiving the information from one of the officers on scene but cannot remember who he received it from.

[24] He states that he was present on the entry and he went upstairs but did not locate any evidence. He stated that he saw the defendant at the scene and he noticed the presence of blood on his face.

Lincoln Boyd

[25] . . . has been a York Regional Police officer since 2005 but was on the drug squad for 10 days before this incident. He was travelling with Officer Elliott who was his coach officer. He states that he attended at the plaza with Officer Elliott with regard to the arrest of the two persons in the Dodge Durango. He states that he did not get close to the arrest and did not hear any conversation between any officers and the arrested persons. He did not speak to the arrested persons.

[26] He stated that he was part of the entry and wielded the ram which broke down the door. He was the third person in and when he got to the basement, the defendant was on the floor and was being arrested by officers Elliott and Coulson. He states that he was given a knapsack by Elliott and gave it to Officer Contino. He also gave the $160.00 in cash to Contino. His name was on some of the drug certificates but he does not know why.

Neil Dixon

[27] . . . is a York Regional Police officer and was part of the team that evening. He testified that he did not make any observations at 23 Oban Avenue nor at 8 Juldan Place earlier that evening. He followed the Dodge Durango and was with other officers when two persons were arrested from the Durango. He stated however that he was some 50 to 60 meters away from the vehicle. He never heard any words spoken from the scene of the arrest, nor did he have any dealings with the occupants or any pieces of evidence from that scene.

[28] He describes going into the home during the dynamic entry and he went upstairs where he found a woman and two children in the children's bedroom. He did not make any arrests nor did he seize any property. He states that while he does not remember specific light sources in the home, he was able to see things in the house. He assumes that the lights were turned on by other police officers as the entry progressed. He also states that he saw the defendant after his arrest as he was being escorted out of the house and he saw blood on his face although he cannot describe it in any fashion.

The Information to Obtain

[29] Appendix "A" of the ITO is 12 pages long. It contains 74 paragraphs, with paragraphs 1 through 28 consisting of an "Introduction", a "Prologue", "Involved Persons and Places", and "Overview of Investigation". The remaining paragraphs (numbered 1 through 46) consisted of the following: "Background of Investigation", "Grounds to believe that the offence has been committed", "Grounds to believe that the Items to be seized will afford Evidence of Offence", "Grounds to Believe that the Items are at the Location to be Searched", "Conclusion" and "Night Grounds".

[30] The "Introduction" contains the officer's credentials and the sources of information. The prologue contains a statement of the headings in this ITO.

[31] "Involved Persons and Places" sets out the personal information of the defendant including his motor vehicles and his address, 23 Oban Avenue.

[32] "Overview of the Investigation" sets out that there has been a Crime Stoppers tip implicating the defendant, that certain aspects of the tip have been confirmed, that the defendant has a previous record for trafficking in cocaine as a result of two street buys by Toronto officers in May and June 2009. Surveillance on February 16, 2012 discloses observations of the defendant coming to and from 23 Oban Avenue in a silver Acura TL, in confirmation of the Crime Stoppers tip. The officers saw two separate transactions and after one transaction, the "buyer" was found with 1 gram of cocaine and "admitted to buying the cocaine from Jamie Marino".

[33] In "Background of Investigation", the ITO goes into more detail about all of the above. It describes the details of the crime stoppers tip, the items that can be verified, the record, and the observations at 23 Oban Avenue and the surveillance obtained from following the car of the defendant and following and stopping a Dodge Durango which after stopping for a short time at the defendant's residence was stopped by police and 1 gram of cocaine was obtained. There is no reference here to any admission by the driver that he purchased the cocaine from the defendant.

[34] In "Grounds to believe that the Offence has been Committed", the officer sets out his personal observations of the residence and vehicles and repeats the defendant going to another driveway for a short time and the attendance of the Dodge Durango and the subsequent arrest of the occupants of the Dodge Durango. The officer sets out his belief that the actions of the defendant on both occasions is consistent with a drug transaction, with confirmation of the second transaction by the finding of the cocaine in the vehicle. He does not mention any admission by the occupant of the Durango as to the person who sold him the drugs.

[35] In "grounds to believe that the items to be seized will afford evidence of offence", the officer lists the various possible infractions under the CDSA.

[36] In "Grounds to believe that the Items are at the Location to be Searched", the officer relates the events from the surveillance to the actions of known drug dealers. I note that at paragraph 34, the officer makes reference to a third attendance of an unknown vehicle at the residence of the defendant where a driver attends the front door for a brief interaction at the door and leaves. The officer opines from the above that the defendant is dealing drugs from his home. I also note that the officer in referring to the Durango vehicle, again does not again mention that an occupant has said that the defendant sold him the cocaine.

[37] In "Conclusion" the officer summarizes very briefly and again does not mention that the occupant of the Durango told them who sold them the cocaine.

Issues about the ITO

[38] The defence takes issue with paragraph 27 in the ITO: "admitted to buying the cocaine from Jamie Marino". The source of this information is not referred to in the ITO or the officer's notes.

[39] None of the officers who had dealings with the accused persons from the truck stated that this was told to them. I note that Officer Kalonomos also states that he heard this. I note however that he does not know where he heard it from and indeed made no reference to this in his notes.

[40] This clearly links the cocaine found in the truck directly to the defendant. Is the fact that the officer did not make a separate notation as to where he got this information fatal to its inclusion in the ITO, especially since none of the officers who actually dealt with the accused persons at the scene, testified that any information of this sort was imparted to them?

[41] The officer stated that when he returned to the station to prepare the ITO, he got several bits of information from other officers. He denied defence suggestions that it was made up. I also note that the close proximity to the action on the street and the preparation of the ITO would have made some of the separate notations unnecessary. If the officer was preparing this ITO several weeks or months after these events, then I think the necessity for a further reference would be greater. The officer, in his testimony (as noted above and below), admitted to making some errors (some names are spelled wrong and the defendant is referred to as "Chris" in several parts of paragraph 2). He did not try to defend the indefensible.

[42] Overall, I do not find his credibility shaken by the cross-examination. I find him a credible witness. However, none of the officers who dealt with the defendant state that this was ever told to them. I cannot find that these words were ever spoken. I do not find any bad faith on the part of the officer. He may have heard it from someone but it is clear that the words were never, in fact, spoken. I believe I should excise this reference from the ITO before coming to my final decision in this matter. In doing so, and taking into account all of the other parts of the ITO which, I believe, are scrupulous in their description of the events, I do not find that it was a conscious attempt to mislead.

[43] I also note that in several other paragraphs (noted above) where the officer summarizes his grounds for belief, he refers to the transaction where the men were arrested, but leaves out any reference to any admissions as to the source of the cocaine. This is another reason to excise the reference to this issue in paragraph 27 and also to conclude that there was no bad faith on the part of the officer swearing the ITO.

The Misstating of the Defendant's Name

[44] In paragraph 2(b), (c), (d) and (e), misstating the name of the defendant. On 5 occasions, the officer uses the name "Chris" instead of the name "Jamie".

[45] It does not really affect the issuance of the warrant. I found it a little confusing but clearly the issuing Justice did not let it affect his decision. It was such a clear error that I think the only explanation is that the Justice assumed that an error had been made. Is this a reflection of sloppy draftsmanship which should lead to a conclusion generally of sloppiness? I do not think so. I accept that it was done in error.

[46] The fact that the officer was using precedents to assist in drafting this ITO does not surprise me. The number of boiler plate style paragraphs attests to that. What is not boilerplate, in my opinion, is the 6 middle pages from the heading "involved persons and places" up to and including "grounds to believe that the offence has been committed". This is the substance of the allegations against this defendant and the statement of the background information and the statement of the investigation. It is the individual narrative of this matter, and while it is not without blemish, it allows the Justice to see and ultimately decide whether to issue this warrant.

The Misstatement of Time

[47] In paragraph 34, the officer drafted a sentence which was confusing as to the time that the officers saw the vehicle at the defendant's home. I do not think anything of substance turns upon this. The men in the truck were arrested at 9:25 p.m., they were not at the house at 9:25 p.m. I cannot see how this would have affected the decisions of the issuing Justice. In any event, those times were set out correctly in paragraph 2(e) of the Affidavit.

[48] The defence points to a reference in another officer's notes of a great deal of things happening (including the attendance at the house of the Durango and the arrest of the persons in the Durango) at 9:25 p.m. I do not think that is really a discrepancy and, in any event, I accept Coulson's evidence that the Durango arrived at 9:05 p.m. and left very shortly thereafter. Other officers confirm that the arrest of the occupants of the Durango happened at 9:25 p.m.

[49] The defence also points out that the officer misstated the defendant as "heavy set", and says he got that information from the driver's licence by looking at his face. There was much jousting between the officer and counsel about how he drew that conclusion. At the end of the day, the officer's conclusion was possible but he may have been wrong, but I do not think anything turns on it, and I am certainly not left with the impression that it is some sort of attempt to mislead.

[50] The defence has pointed out that there is sometimes places where the officer should have set out what they did not see, that is, that they did not see any "hand to hand" transactions, although they assert that the observations are "consistent with a drug transaction" (paragraph 13). As stated in R. v. Nguyen, ". . . In most cases, the absence of a reference to something not seen, not heard, or done, will lead to the sensible inference that whatever it is, was not seen, not heard or not done."

The Law

[51] As stated in the recent decision of the Ontario Court of Appeal in R. v. Nguyen:

23 The ultimate test is whether -- after excising any offending portions of the ITO -- there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO -- depending on the nature and severity of these faults -- may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.

24 Here, the trial judge based her conclusion that the warrant should not have issued on three factors: misleading statements contained in the ITO; inadequate examination of the reliability of the anonymous sources; and the failure to disclose certain facts that D.C. Mason did not observe. Having canvassed those issues, however, she did not ask herself whether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant. I agree with the Crown's submission that this question appears to have been lost in the trial judge's focus on the perceived misstatements and omissions. Moreover, in concluding that the impugned statements were misleading, the trial judge misapprehended and misconceived the evidence; the statements were not misleading in any material way. Finally, the purported omissions were not material in my view, or, for the most part, properly characterized as omissions in the circumstances.

25 In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]

[52] The ITO contains the following information (after my removal of the reference to the statement of the occupant of the Durango in paragraph 27) which is pertinent to the decision to issue the warrant:

(a) The defendant had a previous criminal record including the offence of trafficking in a narcotic. The previous offence in 2010 shows that at the time of that offence, the defendant was residing at his present address (23 Oban Avenue, Vaughan);

(b) A Crime Stoppers tip revealed that the defendant was trafficking in drugs from his home at 23 Oban Avenue, Vaughan, Ontario. The tip was verified in the description of the car, the defendant and the residence in the home. The subsequent surveillance was consistent with the sale of drugs as described by the tipster;

(c) The surveillance on February 16, 2012 revealed the defendant drove to another house where he had dealings with a man who reached inside the defendant's car. I note that there was no visual description of a hand to hand transaction. This was correctly described in the ITO;

(d) A Dodge Durango Truck came up to the residence and a man got out of the passenger side and went up to the house and the door opened before the man reached the door, which indicates that the man was expected. There was some interaction at the door but the ITO does not describe a hand to hand transaction and indeed the defendant is not identified at the door, but in the constant surveillance of the house, it is not untoward to assume that the defendant was in the house. The passenger returns to the Durango and then it leaves. Upon the stopping, a search of the vehicle several moments later (with no other stops), there is cocaine discovered in the car;

(e) Later that evening, another sedan comes to the drive and the driver goes to the door (it is again opened before the person gets to the door) and then returns to his car momentarily;

(f) I am specifically excluding the words "and admitted to buying the cocaine from Jamie Marino." I also put very little weight upon the information from the Crime Stoppers tip. While several aspects of its veracity were verified, that fact that the tip was anonymous makes it impossible for an issuing justice to weigh the credibility of the person providing the information. As stated in R. v. Nguyen:

In these particular circumstances, therefore, the tipsters' information served more as a reasonable incentive to commence the investigation which, itself, generated the evidence underpinning the application for the ITO. The tipster's information provided background - albeit important background - but was not fundamental to the granting of the application." In other words it was the subsequent investigation by the police which in my opinion was the information upon which the issuing Justice would need to provide the basis for the authorization.

[53] Ultimately, with the above information, and taking into account the seriousness of an intrusion into a person's home at night, does that information give a Justice "sufficient basis upon which to issue the warrant", that is there evidence capable of satisfying the twin standards of probable cause and investigative necessity.

[54] I believe that in its totality, there existed in this ITO reasonable and probable grounds to believe that a specified crime has been committed and this proposed search will afford information of the crime. I find the information would give a justice a sufficient basis upon which to issue the warrant.

[55] I therefore find that there has been no breach of the defendant's section 8 rights.

[56] If I am incorrect in not finding a breach, I would still not exclude the evidence under section 24(2), if a breach were so found.

[57] The actions of the police were actions of errors and I do not find any intentional attempt to mislead. The errors are explicable, and in any event were not repeated in the ITO. I found the affiant to be a credible and honest witness. I also find that in the circumstances of the speed in which these tasks are carried out, the failure to proofread to perfection is anything other than human frailty. The fact that officers got a warrant and in its execution did not commit any further breaches would be further indication of their intention to respect the rights of the defendant.

[58] I agree that the Charter protect interests of the defendant are significant and on a possible breach, any intrusion into ones home at night (especially with a spouse and young children present) strikes at the heart of the interests that the Charter seeks to protect. A breach would therefore favour exclusion.

[59] The evidence obtained is after analysis, very reliable evidence and was obtained without any extensive damage to the defendant's home. The crime is a serious one and the quantities are large.

[60] In sum total, taking into account all of these factors, I believe that if there was a breach, the effect upon the administration of justice would favour its admission.

Conclusion

[61] I have dismissed the application of the defendant to exclude the evidence obtained by the execution of a search warrant at the home of the defendant at 23 Oban Avenue, Vaughan, Ontario, on February 17, 2012. The defendant, accepting that all other elements of the offence having been proven, I find the defendant guilty of the offence of possession of cocaine for the purpose of trafficking contrary to sec 5(2) of the CDSA.

Signed: "Justice P.N. Bourque"

Released: July 25, 2014