Court Information

Court: Ontario Court of Justice

Date: April 23, 2015

Court File No.: Regional Municipality of Durham 998 14 12539

Between:

Her Majesty the Queen

— AND —

Roberto Dylan Lintner-Nolivos

Before: Justice J. De Filippis

Heard on: February 5, 10 & March 3, 2015

Reasons for Judgment released on: April 23, 2015

Counsel

Ms. J. Trehearne — counsel for the Crown

Mr. P. Affleck — counsel for the Defendant

Judgment

Introduction

[1] The defendant was tried on an Information alleging that on 7 November 2013, he possessed marihuana for the purpose of trafficking, contrary to s.5(3)(a.1) of the Controlled Drugs and Substances Act, and that he possessed the proceeds of any property or thing knowing that the proceeds were obtained by the commission of an offence punishable by indictment, contrary to s.354(1)(a) of the Criminal Code.

[2] The charges arise as a result of the execution of a search warrant at 55 Tulloch Drive in the Town of Ajax. It is common ground that the police entered the residence with a valid warrant and discovered that it was divided into two units – one on the main floor and another in the basement. The defendant was found in the basement along with a quantity of marihuana and money. The defendant admits he resided in this unit with another person. Police found other drugs and people in the main floor unit.

[3] The defendant waived proof of identity, date, time, jurisdiction, the nature of the substance, and that it was possessed for the purpose of trafficking. He claims that the failure of the police to seek another warrant to search the basement violated his right to be free from unreasonable search and seizure, as set out in section 8 of the Charter of Rights and Freedoms, and applied to exclude the evidence of drugs and money, pursuant to subsection 24(2). The Crown concedes the section 8 breach and argues that the evidence should nevertheless be admitted at trial. Whether to exclude or admit the evidence is the sole issue at this trial.

[4] These reasons explain why I allow the Defence application.

The Grounds to Obtain the Search Warrant

[5] I need not review in detail the surveillance and other evidence that formed the grounds for the issuance of the search warrant as it is not contentious. It will suffice to note the following: The investigation began when the police received information from an anonymous source about possible drug trafficking at 55 Tulloch Drive. The source indicated there was routine pedestrian and vehicular traffic to the address, where individuals would attend for a short period of time. The suspect was identified as a white male with the first name 'Ryan'. Police later determined that Ryan Hanlon lived at the home.

[6] The police conducted surveillance on October 23 as well as November 1, 5, and 6, 2013. The home is a small bungalow. It is not disputed that, from the outside, it appears to be one residential unit and there is nothing to suggest it was divided into two units. There are two doors to the residence, the front door on the south side and a side door on the east side, accessed from the driveway.

[7] On the dates in question, the police observed numerous individuals arrive at the home. On all but one or two occasions, these people arrived by motor vehicle. They entered the home and departed a short time later, usually within minutes. Sometimes they entered and exited by the front door and sometimes they entered and exited by the side door. On at least one occasion, the person entered by the front door and left by the side door.

[8] The police rightly concluded that these short visits to the residence were consistent with drug trafficking. On November 6, the police conducted a traffic stop on a vehicle that had left the residence after the driver had been in the home for a few minutes. The officer could smell marihuana in the vehicle, and observed the driver's hands to be trembling. He was arrested and found to be in possession of marihuana.

[9] On November 6, 2013, police obtained a search warrant. It authorized the search of "55 Tulloch Drive, Town of Ajax, Province of Ontario". PC Boileau was the affiant. The Information to Obtain the warrant included the anonymous tip, surveillance evidence and records that show Ryan Hanlon to reside at the home.

Execution of the Search Warrant

[10] PC Boileau testified that members of the Drug Enforcement Unit entered the residence at 12:50 a.m. pursuant to the search warrant, and that he and his team followed six minutes later, through the side door. The screen door was closed but unlocked. He went to the basement, where the defendant and another male, Kevin Jolleymore, were seated on a couch. There were no drugs in plain view.

[11] PC Boileau conceded that when he first entered the basement, he might have asked the two males which of them was Ryan Hanlon and was told that that person lived upstairs. He acknowledged that the males might further have stated that "Ryan" was their landlord. PC Beline testified that he could not recall any conversation between PC Boileau and the defendant about his tenancy status.

[12] PC Boileau testified that when he came in the side door of the residence, he observed no clear delineation of two units in the residence. He did not recall seeing a door between the common laundry area and the basement unit, nor did he recall seeing a door between the main floor kitchen and the stairs leading to the basement. He added that he did not recall opening any doors upon entering the residence. He acknowledged that the basement appeared to contain a fully functioning kitchen. Sometime later, he went upstairs and saw a second kitchen. He confirmed photo evidence that there appeared to be a door with a deadbolt between the kitchen on the main floor and the stairs leading to the basement. He also acknowledged that the photos appeared to depict another door between the common basement area and the laundry unit. He agreed that one could go in the front door and out the side door of the residence without attending in the basement.

[13] Sgt. Soffie testified that he entered the residence through the front door and remained on the main floor throughout the execution of the search warrant. He added that Ryan Hanlon opened the front door. Another officer took control of Mr. Hanlon while Sgt. Soffie arrested a women who was also inside. Her name is Lisa Baudo. While waiting for the drug unit to clear the residence, he had casual conversation with Ms. Baudo. He learned that the house is owned by her boyfriend, Ryan Hanlon and that the basement was a rented, self-contained unit. Based on this conversation and his own observations, Sgt. Soffie realized that the house was divided into two units. He came to this conclusion some time between 1:00 a.m. and 1:27 a.m.

[14] Sgt. Soffie testified that he spoke to PC Boileau between 1:27 a.m. and 1:36 a.m. about whether the house was divided into two units. He said they decided that a second search warrant was unnecessary because the one in hand authorized a search of the entire house and surveillance had shown drug activity at both the front and side doors of that residence. P.C. Boileau denied having this conversation with Sgt. Soffie. At 1:36 a.m., the search of the house had not begun.

[15] PC Boileau testified that he believed the house was one residence in which many people lived and shared common recreational space. PC Beline, testified he was not aware there were two units. He explained that it appeared the house was just a "whole bunch of rooms being used", like a "rooming house" where people come and go.

[16] The police found 670 grams of marihuana in the right or east bedroom of the basement, as well as $3,120 in Canadian currency. Plastic baggies, a digital scale, a bong and a grinder were found in the common area of the basement. Other drugs were seized from the main floor. These items were found between 2:10 a.m. and 2:34 a.m. The defendant admitted the room in which the marihuana was found was his when P.C. Boileau offered to obtain proper clothing for him before transported to the police station.[1]

The Charter Breach

[17] It is not disputed that the police obtained a valid warrant to search 55 Tulloch Drive, Ajax and that before entering it they did not know it contained two residential units. It is also agreed that the defendant had a reasonable expectation of privacy in his basement apartment.

[18] The Crown submits that before the conversation Sgt. Soffie says that he with PC Boileau, the police were not fixed with the knowledge that the house was divided into two units. This is because at that point, PC Boileau would have come upstairs from the basement and become aware of a second functioning kitchen in the residence. Further, at that point, the police knew that the target, Ryan Hanlon, occupied the upper floor of the residence, and therefore ought to have obtained a warrant to search the lower unit of the home. Before this conversation, PC Boileau and PC Beline did not know there was a functioning kitchen upstairs or that Sgt. Soffie had had a conversation with Ms. Baudo about the division of the house into two units. Indeed, PC Boileau and PC Beline had not noticed doors suggestive of a division into two units, likely because those doors were open at the time they entered the residence. Assuming the defendant told PC Boileau that the house was divided into separate units, which the Crown submits has not been established, PC Boileau did not have to believe this, having regard to the surveillance evidence. The Crown also points out that Sgt. Soffie had no reason to know, having not been to the basement, that there was a separate functioning kitchen in the basement and that he did not have to accept Ms. Baudo's word that the house was divided into two units, when police had made observations of common usage of the front and side doors.

[19] The Crown submits that it was only when Sgt. Soffie and PC Boileau spoke that they ought to have realized that the house was divided into two units. The Crown concedes a section 8 breach at this time.

Should the Evidence Be Excluded?

[20] Subsection 24(2) of the Charter provides that "where ... 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".

[21] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada summarized the proper approach to s. 24(2), as follows:

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 accused (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. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

Seriousness of the Breach

[22] In the present case, the first branch of Grant is the only contentious one. The police came to realize that what they had reasonably believed was one home contained two residential units; the main floor occupied by the target, Ryan Hanlon, and the basement apartment rented by the defendant. The police decided to search both because the warrant specified one municipal address. This was a considered decision. The Crown points to three factors that mitigate its concession of the Charter breach and support admission of the evidence.

[23] First, the Crown points out that there was no reason for the police to know, when they first entered the residence, that the residence was divided into two units. This observation is correct but does not resolve the issue. The question is whether the police should have sought permission to search the basement apartment by applying for a second warrant.[2]

[24] Second, the Crown states that although "at some point the police ought to have realized that the residence was divided into two units…there is no evidence that the police ultimately concluded that the residence was divided into two units". PC Boileau and PC Beline explained why they did not conclude there were two separate units in the house. It is argued that since Sgt. Soffie had not been downstairs, and in the absence of evidence that PC Boileau told Sgt. Soffie of the functioning kitchen downstairs, Sgt. Soffie had no reason to doubt PC Boileau's assertion, as affiant, that the police were entitled to search the whole house. This lack of understanding informs the ultimate decision of the police that the warrant was applicable to the whole house, which the Crown submits the police made in good faith on the basis of the circumstances as it was understood to them. Thus, while the police ought to have known that the house was divided into two units, the evidence suggests that the police did not know this.

[25] The execution of a search warrant is a dynamic event and the police will initially be focussed on securing the premises so that they, and the occupants, are safe. They will also be concerned about preventing the destruction of any evidence. They do not have the luxury of time, as I now do, to calmly assess the situation. Their conduct, including mistakes made, must be measured having regard to this context. That said, I cannot, in this case, accept the distinction raised by the Crown that the police ought to have known there were two residences but, in fact, did not know. PC Boileau did not recall observing many of the indicia of separate units. That may be due to the dynamic environment I have alluded to. However, Sgt. Soffie is clear that he became aware that the house contained two residences and that he discussed this fact with PC Boileau. I have confidence in his evidence and accept his version of events.

[26] R. v. Morris, 2008 ONCJ 276 is instructive. At para 36, the court said:

There is a separate issue as to whether the police, once having been issued the warrant, infringed the defendant's s. 8 rights by searching his apartment once they knew or had reason to believe that it constituted a distinct unit from that - the residence of John Deane - targeted in the warrant they requested. This, of course, begs the question of whether the police ever had this knowledge or belief. The defendant testified that, upon his apprehension, he advised D.C. Barnes that he lived on the "upper floor" at 27 Redwood. Barnes' recall is that the defendant only indicated that he resided at 27 Redwood. Given the inconsistencies in the defendant's evidence as to events following his detention I have no hesitation in preferring that tendered by Barnes. In so concluding, I do not make any finding as to the defendant's honesty. My concern, rather, is the reliability of his perceptions and recall of the events of that evening. He was, I find, clearly anxious and disturbed by his arrest, did not make or keep notes (unlike Barnes) and his memory of the incidents surrounding his detention has an unreliably elastic quality. I find that at least to the point where Det. Johnston entered the foyer at 27 Redwood, the police had no reason to believe that the building contained separate units and, therefore, no reason to narrow the scope of their authorized search.

[27] As Morris illustrates, police awareness of new information about the place to be searched can be significant. I would add that what is even more noteworthy is when they became aware of the new facts. The Defence argues that the critical detail is that Sgt. Soffie believed, before police searched the basement, that it was a separate unit. I agree. The amplified record establishes that before conducting the search, the police knew that the target of the search warrant, Ryan Hanlon, did not occupy the basement apartment, but lived in the separate main floor unit.

[28] The Crown's third submission is that although the police ought to have known at some point that a second warrant was required, they:

…were confused in their understanding of their legal obligation in this regard"….The police responsibly stopped the ongoing execution of a search warrant to consider whether a second warrant was required, but concluded that because the warrant authorized the search of the whole house, they were permitted to search the whole house…. While the police might have come to the wrong legal conclusion on this issue, they made a good faith effort to consider their obligations in this regard.

[29] The Defence claims the police did not act in good faith in searching the basement unit because they knew it was a separate residence, not occupied by the target of the search warrant. I do not agree. Faced with new facts, the police considered what to do and decided to continue the search. That was wrong. Moreover, this is not a situation in which the law is controversial or in a state of uncertainty. It should have been apparent to them that the existing warrant did not cover the basement. A wrong decision is not necessarily a malicious one and there is no basis to conclude there is bad faith here.

[30] The Crown argues that any police failure to seek a second warrant is mitigated by the fact that such an application would have been successful. This is an important consideration. However, it does not apply in this case.

[31] The Crown points out that since the police had previously observed activity consistent with drug trafficking out of the front and side doors of the residence, it follows that the illicit activity was being conducted out of both units. That puts it too strongly. The side door opens to a shared area. This area leads to either the basement or the upper unit. It serves the same purpose as the lobby in an apartment building. The main floor could be accessed by the front and side door, without intruding upon the privacy of those in the basement unit. On the other hand, the basement apartment could only be entered by the side door. This would not be evident to surveillance officers on the outside but it eventually became known to the officers executing the search warrant.

[32] The enhanced record – which would have to be disclosed in an application for a second warrant – presents the surveillance evidence in a different context. It shows that the drug dealing activity had to implicate those on the main floor, but not necessarily the tenants in the basement. In these circumstances, it should not be assumed that a second warrant would issue. In the absence of exigent circumstances, that decision should have been left to the judicial officer.

[33] The first branch of the section 24(2) analysis considers the seriousness of the breach. I conclude that it favours exclusion of the evidence in this case: The police were surprised to learn the house to be searched contained two residences. Given the entire investigation, this new fact did not preclude them from searching the main floor unit belonging to Ryan Hanlon. Those same considerations dictated a different result with respect to the basement apartment occupied by the defendant. The premises having been secured, and in the absence of other exigent circumstances, the police were obliged to seek judicial approval to search that unit. The success that application could not be assumed.

Impact on the Charter-protected interests of the accused

[34] The second branch of the analysis also favours exclusion of the evidence. The Crown agrees that a person has a "very high" expectation of privacy in his residence: R. v. Côté, 2011 SCC 46. The warrantless entry into the defendant's constituted a serious intrusion into his privacy.

Society's interest in adjudication on its merits

[35] The exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. In this case, police seized 670 grams of marihuana, which could be used to make 2,233 marihuana joints. In addition, police seized $3,070 in cash. The evidence is non-conscriptive and reliable. Its exclusion effectively ends the prosecution. The Defence concedes that these factors favour inclusion of the evidence on the third branch of the test. I accept this concession.

Conclusion

[36] As Grant makes clear, the decision to admit or exclude evidence obtained by means of a Charter violation is a matter of considering the seriousness of the breach, its effect on the defendant's rights, and society's interest in having a trial on the merits of the matter. This balancing task can be difficult and is often case specific. On the facts before me, I conclude that exclusion of the evidence is necessary to maintain public confidence in the justice system.

[37] My decision means the Crown cannot rely on the evidence needed to prosecute. The charges are dismissed.

Released: April 23, 2015

Signed: "Justice De Filippis"

[1] The accused does not challenge the voluntariness of this statement.

[2] In this regard, I point out that Ontario's telewarrant protocol means a justice of the peace would have been available to consider a request for a search warrant.