Court File and Parties

Court File No.: Central East - Newmarket 4911-998-13-07968-00; 4911-998-13-07969-00

Date: 2015-09-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jacob Cheung

Before: Justice William A. Gorewich

Reasons for Judgment released on: September 25, 2015

Counsel:

• A. Fava, for the Crown
• K. Schofield, for the accused Jacob Cheung

GOREWICH J.:

Charges

[1] Jacob Cheung is charged that on October 28, 2013 he did:

• traffic in methamphetamine, contrary to s. 5(1) of the CDSA;
• traffic in phencyclidine (ketamine), contrary to s. 5(1) of the CDSA;
• possess phencyclidine (ketamine) for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
• possess methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the CDSA;
• unlawfully possess cocaine, contrary to s. 4(1) of the CDSA;
• unlawfully possess cannabis (marihuana), contrary to s. 4(1) of the CDSA;
• possess the proceeds of crime, contrary to s. 354(1) of the Criminal Code, times two; and
• possess a weapon for a purpose dangerous to the public, contrary to s. 88(2) of the Criminal Code.

[2] Mr. Cheung brought a Charter application alleging breaches of ss. 8, 9, 10(a) and 10(b) of the Charter and seeks an order excluding all evidence seized from the applicant's residence and any statements made pursuant to s. 24(2) of the Charter.

The Evidence

P.C. Lai

[3] On October 28, 2013, the police commenced an investigation of a suspected drug trafficker. P.C. Lai testified that he and P.C. Masson on that day reviewed an intelligence report which referenced a person by the name of Brandon Stuart Rosati, date of birth February 19, 1993. The officer testified the report was not "super current" and thought the report might have been dated 2012. He agreed that the report might have been 10 months to a year old. P.C. Masson also agreed that the report was approximately a year old. In this case neither P.C. Masson nor P.C. Lai noted the date of the intelligence report in their respective notes and neither disputed the fact that it was so dated. The report indicated the address of the subject of the report was 2 Hagerman Boulevard in Markham. P.C. Lai was unable to testify as to whether this information emanated from a C.I., or whether it was reliable or indeed what the background of the C.I. was, if indeed the information was from a C.I. The information or tip indicated that the male was dealing cannabis from that address.

[4] P.C. Lai testified that he and his partner, P.C. Masson, went to the address to check out the information, arriving at 1:39 p.m. on October 28, 2013. At 2:03 the officer made the following observations:

• the garage door of the residence open;
• a white male emerge, dressed in a black hoodie sweatshirt and black pants;
• he was on his cell phone;
• while on the phone, he stood on the driveway and looked up and down the street;
• his hands were in his pockets at one point;
• he walked back and forth; and
• the male appeared nervous.

The officer further noticed the male leave the garage driveway and walk up the street eastbound, looking backward as he did. He looked left and right as if waiting for someone. The male walked to the end of the street. From the first observation until the male arrived at the end of the street took 5 to 7 minutes. The officer noted the male begin to make a right-hand turn on Braithwaite, to go south. He then saw him put the phone to his face again and at 2:14 p.m. the officer noticed a silver Hyundai arrive at that point, stop and pick up the person the officer believed to be Rosati.

[5] The officer followed the Hyundai in his vehicle to a Daisy Mart convenience store. He saw the passenger, Rosati, leave the Hyundai, enter the convenience store, return and resume his position in the front passenger seat. Neither P.C. Lai nor his partner noticed any hand to hand transaction en route to the convenience store or any time thereafter. The officer testified that based on all his observations that Rosati was meeting the driver of the Hyundai and described the meeting as "a drug meet." P.C. Masson testified that she did not know Brandon Rosati was a drug dealer at that time, although he could have been a year earlier.

[6] At 2:20 p.m., P.C. Lai pulled his vehicle in behind the Hyundai he referred to above, as he determined the two males had arranged this meeting for a "drug meet." P.C. Masson agreed that she saw no illegal activity vis a vis the two males when the decision was made to pull in behind the subject vehicle. She and P.C. Lai agreed that the way the police car was parked would not provide the subject vehicle a direct route out of its parking spot. She agreed the police vehicle could have pulled in beside the subject vehicle rather than behind it. P.C. Lai went to the driver's side window and Masson went to the passenger side window. While P.C. Masson was not certain the words "right now" were used by P.C. Lai, when he was at driver's side he did make a request for drugs, which she agreed was more of a demand. Both P.C.s Lai and Masson did testify that they did not have grounds to make an arrest until the drugs were produced by the occupants of the vehicle. P.C. Lai identified themselves as police officers and advised that he believed the two of them had met up to complete a drug transaction. He also advised of his belief there were drugs in the vehicle. P.C. Lai testified he asked the occupants to cooperate and show him the drugs that were in their possession "right now." P.C. Lai testified he used the words "right now" to convey the urgency of the situation and to send the message that the police were serious. Mr. Rosati testified he felt compelled to turn over the drugs. Both officers testified the stop amounted to an investigative detention, but such reason was not conveyed to the occupants of the vehicle. Mr. Rosati also testified that he and the other occupant of the vehicle were not told first by the officers they were investigating a drug transaction. They were only told to hand over the drugs. The person identified as Rosati complied and handed the officer two small baggies from his sweatshirt. The driver then handed P.C. Lai a clear zip lock baggie, the contents of which, to the officer, appeared to be ketamine. Both occupants of the vehicle were arrested for possession of controlled substance at 2:22 p.m. P.C. Lai then learned the driver's name was Jacob Cheung.

[7] P.C. Lai read Mr. Cheung his rights counsel, which Mr. Cheung understood. Mr. Cheung indicated he wished to call his personal lawyer. Mr. Cheung later, at the police station, was permitted to access his lawyer's name from his cell phone. The evidence of P.C. Lai reflects they arrived at the station at 3:45 p.m. and the applicant remained handcuffed in the back of the cruiser from the time of the arrest until he was transferred to the station. P.C. Lai agreed he continued to ask the accused questions after the accused had told him he wanted to speak to a lawyer stating, "I have a job to do. If he doesn't want to talk to me he doesn't have to talk to me." The officer indicated that it was not until 11:27 p.m., or about 9 hours after the arrest, that the accused spoke to his lawyer. Until the accused spoke to his lawyer P.C. Lai spoke to Mr. Cheung several times and elicited information from him. After the accused spoke to counsel the officer testified that the accused was no longer forthcoming with information.

P.C. Masson

[8] It was indicated by P.C Masson that her understanding of the reason the accused was not permitted to speak to counsel until 11:27 p.m. was because the search warrant was being prepared for entry into his residence and contacting counsel could lead to the comprising of evidence, through no fault of the lawyer.

[9] In reference to the decision to approach the vehicle, P.C. Masson indicated "There was a suspicion that there was something going on and we attended the vehicle to speak with them."

[10] P.C Masson was the affiant on the ITO. She arrived at the station at 3:45 p.m. and prepared the information and completed it at 8:38 p.m. She submitted the ITO via fax to the justice of peace at 9:08 p.m. and the authorization was returned to the police by the justice of the peace at 9:25 p.m. The police attended at 8 Germain Crescent to execute the warrant at 11:05 p.m. It was explained the reason for the delay from 9:25 until 11:05 was due to a manpower shortage. There were not enough officers available to assist with the execution of the warrant.

[11] P.C. Masson testified she did not indicate that the information the police were relying on was about a year old. She testified that the reference in the information (ITO) to any drug dealing was couched in the present tense. She agreed that it was unfortunate she missed the timing of the "tip" in her information. She also indicated that in the information she authored the wording made it appear that Mr. Rosati was dealing drugs in the present. P.C. Masson testified that she wrote in para. 14 of her information that, after making the initial observations, they saw the subject vehicle driving to the Daisy Mart Plaza where further observations were made. She wrote further in para. 14 of the ITO that the passenger was observed to enter the Daisy Mart and shortly thereafter was seen re-entering the vehicle. When Mr. Rosati returned to the vehicle, she wrote also at para. 14 of the ITO, "P.C. Lai determined a drug transaction between Rosati and the unknown Asian male driver had been completed." There was no hand to hand transaction observed. She testified that prior to the drugs being produced there were no grounds to make an arrest. The officer agreed that the reason they approached the car was to speak to the occupants, for an investigative detention, but that was never communicated to the occupants of the vehicle.

[12] P.C. Masson included at para. 19 of the ITO that statements given by the accused were obtained unlawfully. She testified that she made that disclosure to inform the justice of the peace of all the information she had. I note for the purposes of the trial the entire content of para. 19 was excised but, notwithstanding, the justice of the peace had this information in the ITO upon which he made a decision. P.C. Masson testified that the applicant gave information to P.C Lai after being questioned by him, prior to the accused having had the opportunity of speaking with counsel, but after he had been given his rights to counsel. She testified that the applicant gave information to P.C. Lai "in wanting to be cooperative." She also testified that she included that phrase, "in wanting to be cooperative" in para. 19 of the ITO because that was the information given to her by P.C. Lai. She testified that she included in the ITO that the applicant provided "this information to the police not yet having spoken to counsel." As noted above, the applicant was not permitted to speak to counsel until about 9 hours after the arrest, as the police operated on the theory that by allowing the applicant to speak to counsel prior to the execution of the warrant that evidence could be compromised. The evidence reflects that it took P.C. Masson about 6 hours to prepare the ITO. During that period the applicant was in a cell and was intermittently questioned by police. She testified that this was her first time preparing an ITO. She testified "I had no idea what I was doing" in explaining why the ITO took so long to prepare. Information was obtained by the police as a result of questioning the applicant about his address, what drugs and other items, including a BB gun, they would find at his house, prior to him speaking to counsel.

[13] P.C. Masson acknowledged in her testimony that she referred to 8 Germain Crescent as a place "anticipated to be a safe house" at paras. 26 and 27 in the ITO. She testified that she understood the term "safe house" to mean the place which was to be searched is being utilized as a place to keep the bulk (meaning drugs). She agreed that while this term was contained in the ITO and was obviously placed before the justice of the peace, it was an error to include it. She testified the error was made because she cut and pasted that part of the ITO. She agreed 8 Germain looked like a regular family residence and there was nothing to indicate it was a safe house. She agreed there was no police surveillance to substantiate the assertion it was even anticipated a safe house in the ITO.

Brandon Rosati

[14] Brandon Rosati testified. As noted, he was the original subject of the surveillance and was in the Cheung vehicle when the police approached. He testified he bought methamphetamine and ketamine from the applicant en route to the Daisy Mart. He testified the "police drove up behind and blocked the vehicle in and then they came up and opened the door and I don't remember what was said, but they basically like – this – I think it was, "We know you have drugs. Where are they?" And I just kind of complied." He testified that they were not told the police were investigating a drug transaction, only "We know you have drugs, give us the drugs." He went on to say he "cooperated with what they asked me to do...to allow them to search me, to answer questions when they asked me questions." He testified he felt compelled to comply.

[15] He testified he was given his right to counsel immediately after the arrest. He declined to speak to a lawyer at that time.

[16] He testified, "I handed over the drugs, and when the officers suggested something I just kind of like, assumed it was the best idea." He said he gave the officers the drugs he had in his pocket because he was told to do so by the police.

[17] Mr. Rosati later testified that two weeks prior to the time of this incident he had been hospitalized for stimulant induced psychosis. He testified that his state of mind at the time of the incident was compromised. He agreed with the proposition that his ability to recall who was buying or who was selling that day was unclear. He agreed with the proposition that he has paranoid delusions and is unable to perceive reality properly. He agreed that his ability to recall what happened between him and the applicant that day was compromised by this stimulant induced psychosis.

[18] The search warrant was ultimately executed at the family home of Mr. Cheung at 8 Germain Crescent and the following were seized: 836g of methamphetamine; 3.5 grams of cocaine; 2 grams of marihuana; 2935 Canadian dollars, 12 vials, a black Berretta pellet gun; and clear baggies, clothing and containers.

Position of the Applicant

[19] The applicant submits his s. 9 Charter rights were violated for the following reasons: on the day in question the police were investigating a tip from 2012; there was no information about whether that information was provided by a confidential informant or an anonymous source; the initial tip stated that a male party named Garret was dealing cannabis from 2 Hagerman Crescent; the initial intelligence was incorrect and the male party's name was Brandon Rosati; an unknown Asian male picked up Brandon Rosati; nothing was known about the unknown Asian party; no hand to hand transaction was observed and the evidence does not show this to be a quick meet consistent with drug trafficking.

[20] The applicant submits that Mr. Rosati looked nervous as he possibly was waiting for someone. The question is asked as to whether this is a nervous person or a drug trafficker. Mr. Cheung did pick up Mr. Rosati and all conduct observed is innocuous. They went to a store, where Rosati went in to make a purchase, he returned to the vehicle and the police then detained them as they were blocked in by the police vehicle. It is submitted they were not free to leave. The police demanded they produce the drugs "right now" even though P.C Lai knew he had no grounds to arrest the occupants of the vehicle. He knew the only the way he could make an arrest was if the parties produced controlled substances. In this case, it is submitted the only justifiable basis for the arrest was after Rosati and Cheung produced the drugs to the officers. It is submitted that the police cannot base their grounds to arrest following a deliberate and intentional breach of the applicant's s. 9 Charter rights. Thus it is submitted that the applicant was arbitrarily detained in violation of his s. 9 Charter rights, and in these circumstances was denied the option to refuse the officer's command, as both occupants of the vehicle were compelled to comply.

[21] On the facts of this case, it is submitted that the applicant cannot be said to have consented to a search of his vehicle, as he was not provided an opportunity to speak to counsel.

[22] The applicant submits s. 450(1) of the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must be justifiable from an objective point of view. Thus a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. The applicant cites R. v. Storrey, [1990] 1 S.C.R. 241 at para. 17 (SCC) in support of this submission. It is submitted the officers in this case cannot base their grounds to arrest following a deliberate breach of the applicant's s. 9 Charter rights.

[23] The applicant submits that all evidence located in the applicant's vehicle be excluded pursuant to s. 24(2) of the Charter.

[24] The applicant submits his s. 8 Charter rights were violated with respect to the ITO which authorized the search of his home. The basis of this submission is that the affiant, P.C. Masson, relied on information obtained in violation of the applicant's Charter rights, mischaracterized material facts to the issuing justice of the peace rendering the information completely devoid of reasonable and probable grounds. The applicant seeks excision of all unconstitutionally obtained evidence from the ITO, with respect to 8 Germain Crescent.

[25] In support of this submission the applicant cites R. v. Philpott, [2002] O.J. No. 4872 at para. 48 (SCJ), where Quinn J. stated:

Primarily, what a reviewing court is looking for are deficiencies in the "information to obtain" relating to the facts: the overstating of facts; the misstating of facts; or the failure to state material facts. Any one of these deficiencies may lead to a finding that the warrant is invalid.

[26] Reference has been made to R. v. Garofoli, [1990] S.C.J. No. 115 at 56 (SCC) which indicated that the reviewing judge does not substitute his or her view for that of the authorizing judge.

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[27] The applicant submitted that this case is similar on its facts to R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (CA). In that case the police, in obtaining warrants, relied almost exclusively on information received from a confidential informant about drug activity at the restaurant and that drugs were stored at this house. The investigation of the accused's house undertaken before the execution of the warrant was not sufficient to corroborate the information provided by the CI. The court held the ITO lacked sufficient information to form reasonable and probable grounds.

[28] To further this point the applicant made reference to R. v. Li, 2013 ONCA 81, [2013] O.J. No. 564 para. 97 (CA) where the court reiterated that the reviewing judge must exclude erroneous information as well as any information obtained by Charter infringement.

[29] The applicant pointed out concrete examples of what the affiant did not disclose to the justice of the peace. She did not inform the justice of the peace the tip was 10 to 12 months old; she did frame in the ITO that the drug dealing referred to in the tip was in the present tense; the address referred to in relation to the subject of the initial observation was 2 Hagerman Crescent; and she stated in the ITO that the information relied upon indicated the subject is dealing in cannabis marihuana. The applicant submits there was no evidence to suggest that any drugs would be located at the applicant's (Mr. Cheung's) address, as there was no surveillance at 8 Germain to corroborate the assertion it was even anticipated to be a safe house.

[30] The applicant submits that the errors and omissions in this matter were not minor or technical in nature, nor were they made in good faith.

Position of the Respondent

[31] The respondent submits that the officers did fail to advise the applicant of his s. 10(b) Charter rights during the investigative detention. However the respondent submits the reason for the investigative detention was made apparent by the police, and thus did not violate the applicant's s. 10(a) Charter rights. The respondent submits that even if there was a violation of the applicant's s. 10(a) rights, it was minor and technical, and was made apparent by the officer's question.

[32] The respondent submits the delay in providing the applicant access to counsel was proper, as the police believed they were entitled to wait until the search warrant was executed before such access to counsel was granted. The respondent submits the police were not acting in bad faith.

[33] The respondent submits that even without the utterances made by the applicant, there were sufficient grounds to support the reasonableness of the warrant.

[34] The respondent submits the evidence seized as a result of the execution of the search warrant be admitted, and not excluded after a Grant analysis.

[35] In particular the respondent submits that the police can hold people for investigative purposes if there are reasonable grounds to suspect in all the circumstances the individual is connected to a particular crime and that detention is necessary. The respondent submits the detention should be brief in duration and does not impose an obligation on the detained person to answer questions. The respondent cites R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 para. 45 in support of this submission where at para. 5 the Court notes:

...police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

At para. 45 the Court continued:

...the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police.

[36] The respondent reviewed the facts and submitted that the police had sufficient grounds to detain the applicant in this case, for investigative purposes. Reference has already been made to the intelligence report and the observations made by the police. The submission by the respondent is that just because the intelligence report is dated, about a year old, and the person therein named turned out to be a different person than was ultimately arrested should not preclude questioning by the police. The respondent further submits this was not simply a situation where the police stopped someone who was behaving in a nervous manner; they did so on the basis of background information. The person they were surveilling did fit the description of the person who was ultimately stopped and who was the passenger in the vehicle. The intelligence report reflected Mr. Rosati was dealing from the house and the manner of how he was acting was sufficient for the police to stop him and investigate. The respondent submits there was not a breach of s. 9 and thus no arbitrary detention.

[37] The respondent has conceded a s. 10(b) violation as the investigating officer failed to advise the applicant of his right to counsel upon the initial detention. The rights were given immediately after the arrest, but access to counsel was not provided until some 9 hours later. The respondent has not led any utterances or statements in evidence. The respondent submits the officers were acting in good faith when they delayed in providing the applicant with an opportunity to speak to counsel until after the execution of the warrant. Reference was made to R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, paras. 76-77. The case does support that submission, but also goes on to say that during this delay it would completely defeat the purpose of s. 10(b) to allow the police to elicit evidence from the accused as well as to deny the accused any calls to counsel. In para. 78 of Learning, reference is made to R. v. Gebara, [2008] O.J. No. 2154, at para. 70 (Ont.S.C.) where Ray J. stated: "Good faith would require that after denying him his right to counsel, Detective McGarry and later Sgt. Curtis would have scrupulously avoided any form of questioning. This they did not do." Para. 79 of Learning makes reference to R. v. Manninen (1987), 34 C.C.C. (3d) 385 at 392 (S.C.C.), where Lamer J. expressed the same view. Any statements made by the applicant were not introduced in evidence by the respondent in the case at bar and were excised from the ITO. Those illegally obtained statements, however, were contained in the ITO and were available to the judicial officer who granted the application. The ITO did indicate that the statements were unconstitutionally acquired.

[38] The respondent submits that notwithstanding the excision of the statements and utterances that could be said to be materially misleading, there were still sufficient grounds articulated in the ITO to support the issuance of a search warrant for the applicant's home. The respondent submits that the statement made by Brandon Rosati that the applicant sold him drugs, that the applicant resides at 8 Germain Crescent and that the applicant had a larger quantity of ketamine in his possession were properly available for use by the police in the preparation of the ITO.

[39] The respondent submits that P.C. Masson having disclosed in the ITO that the statements of the applicant were made without counsel indicates she was acting in good faith and was honest and frank with the justice of the peace.

[40] The respondent submits that the reference in the ITO to 8 Germain is that the residence is only anticipated to be a safe house, rather than a bald assertion that it is safe house.

[41] The respondent submits that the information relied upon by the police was not on the basis of a tip, but on the basis of information provided to them by Mr. Rosati. The tip in the intelligence report led the police to Mr. Rosati. Mr. Rosati led the police to the applicant. The respondent submits the police discovered the applicant by investigating the original tip, which had nothing to do with the applicant. Reference was made to R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787 paras. 44-45 where the Court of Appeal ruled that in some cases the tip provides the incentive to investigate and the accuracy of the tip is less important to the ITO. Therefore, the submission is that it is not important whether Rosati trafficked in 2012 or 2013. What was important was Rosati's behaviour while waiting to be picked up by the applicant in combination with the tip, which enabled the police to form a reasonable suspicion that a drug transaction had occurred in the respondent's submission.

[42] The respondent submits that the case at bar can be distinguished from Rocha, supra. In that case the information in the ITO was based on a tip. In this case, the respondent submits that the investigation started out with a tip relating to Mr. Rosati. In the process of that investigation the police discovered the applicant. The respondent cites R. v. Nguyen 2011 ONCA 465 para. 45 where the Court of Appeal articulated the proposition that:

...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 tipsters' information provided background -- albeit important background -- but was not fundamental to the granting of the application.

Issues and Findings

[43] The issues to be addressed have been well set out above. Were the applicant's s. 8, s. 10(a) and s. 9 Charter rights violated?

[44] I find there was a detention of the applicant in his vehicle. I further find there was no basis for the detention in the circumstances described, which led to the finding of evidence in the vehicle and later at 8 Germain Crescent, the home of the applicant. The applicant's vehicle was blocked in on the evidence of both P.C.'s Lai and Masson, and further the officers assumed position on either side of the vehicle, one at the driver's door and the other at the passenger door.

[45] Did the officers have reasonable grounds to detain the occupants of the vehicle? In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 34, the Supreme Court states:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[46] I find the officers had made no observations that would suggest that a drug transaction occurred. The officer testified he had a suspicion that a drug transaction had taken place. The evidence is clear; the police saw Mr. Rosati exit a house; he appeared nervous. He was observed to walk along a street and put a phone to his face. He was then observed being picked up by a male driving a vehicle which drove to the Daisy Mart. The evidence of Mr. Rosati talking on the phone and the other behavior observed is neutral in my view, even in view of the intelligence the police had.

[47] I have considered the totality of the circumstances and, after reviewing the evidence of P.C.s Lai and Masson, I find there was no criminal behaviour, at least in the police observations, between Mr. Rosati and the applicant, notwithstanding the information in the dated intelligence they had. In R. v. Duguay, Murphy and Sevigny (1985), 18 C.C.C. (3d) 289 (CA), the Court expressed the opinion that whether or not the unlawful arrest will constitute an arbitrary detention depends on the particular facts of the case and the view taken by the court with respect to the departure from the reasonable and probable grounds and the honesty of and the basis for the belief in the existence of reasonable and probable grounds on the part of the officer.

[48] I find, based on the evidence of the police, the police had no grounds to park behind the vehicle, make the demand for drugs "right now", after which drugs were produced, and thereafter make an arrest. The police did not even advise the occupants of the vehicle that this was an investigative detention, nor were rights given prior to making the demand for drugs. In my view it is not the object of s. 9 of the Charter to prevent citizens from going about their day to day activities.

[49] Was the applicant advised that he was being detained for a drug related offence? The respondent submits that P.C Lai advised the applicant when he approached the vehicle and demanded that he hand over the drugs. Given the facts above, this argument is at best tenuous and troublesome. I find that as a result of the evidence of both officers who attended the vehicle, the occupants were not informed they were being detained or even investigated because they were suspected of participating in a drug transaction. The facts, as they unfolded, would not in my view provide the police any reason to believe a drug transaction had taken place as the police saw no illegal behaviour. What the police did amounted to a fishing expedition and compromised the legitimacy of the detention. Thus it follows, on these facts, by not advising the occupants as to why they were detained prior to demanding the drugs, in my view the police violated the applicant's s. 10(a) Charter rights. Section 10(a) of the Charter reads:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

[50] I find the approach by the police, based on the dated intelligence, the surveillance of the Mr. Rosati, the vehicle that picked him up, the trip to the Daisy Mart, and the evidence of how the police conducted themselves at the vehicle does not amount to a proper detention. The police did not advise the occupants of the vehicle the reason why they approached the vehicle and blocked it in. They made what appeared to be an urgent demand, without advising the occupants it was an investigative detention, and without giving them their rights to counsel. This in my view does not conform to the requirements under s. 10(a). This breach is very much connected to the s. 9 Charter breach.

[51] The respondent conceded that there was a s. 10(b) violation. However, the respondent submits that the violation was in good faith. Reference has been made to the Learning decision, supra, where at para. 69 the court held that the implementation duties are qualified vis a vis an accused person's to right to counsel in circumstances where the qualification (delay) are linked to an urgent and dangerous circumstance as in the facts in Learning which involved firearms. Thus, in those circumstances the delay would not be held to be unconstitutional. In the case at bar, I find the officer did not exercise good faith, given the 9 hour delay between the rights being given and the access to counsel, as I find the circumstances were not urgent and dangerous, notwithstanding the reference to a Beretta pellet gun. I find the preparation of the ITO took an inordinately long time, about 6 hours. Even allowing that amount of time for the ITO to be prepared, submission of the ITO to the justice of the peace for review and its return, and ultimately the execution of the warrant, the process should not have taken 9 hours. I have heard in this matter about the inexperience of the affiant and the shortage of police personnel to carry out the warrant execution. I ask at what cost? Is the citizen to bear the brunt of this delay because the affiant is learning how to compose an ITO, or because of personnel shortages? I think not. In any event, and even more importantly, the applicant should not have been questioned by the police during this elongated time frame. The officer was aware of that. P.C Lai testified:

In terms of questioning him, you know, I read him – or read to him his rights to counsel and caution twice. And he could have chosen not to answer any of my questions, but you know, I have a job to do. He doesn't want to talk to me he doesn't have to talk to me.

[52] I therefore find that there was not good faith on the part of the police. The officer agrees that comments made by the applicant were in response to questions asked by him and were made in the time frame between the giving of rights and the execution of the warrant. The applicant's s. 10(b) rights were violated, as was conceded by the respondent.

[53] In respect of s. 8 there are two aspects to be discussed. The first is the discovery of the drugs in the subject vehicle. The second is the discovery of drugs and other items at 8 Germain Crescent on the execution of the warrant. In relation to the search of the Cheung vehicle, I have already found there was s. 9 Charter violation and the occupants of the vehicle were arbitrarily detained. I find the applicant (and the passenger) were compelled to comply with the officer's demand that they produce the drugs "right now". The proposition that the applicant could have refused to comply with that demand is artificial in these circumstances, in my view, and would not reflect reality. I find the occupants of the vehicle were compelled to comply; they could not drive away as the subject vehicle was blocked by the police vehicle. There was not, in the case at bar, even a brief conversation as there was in R. v. Johnson 2013 ONCA 177 (CA). In that case the court found a brief conversation with the appellant would have allowed the police to make a brief assessment of the situation. In the case at bar there was the approach by the police and an immediate demand for drugs. This immediate demand and the situation described above, in my view did not allow the occupants of the vehicle to make an informed decision as to whether or not to produce the drugs. These factors impact on the validity of the search of the occupants of the vehicle. I find there were three Charter violations (ss. 9, 10(a), 10(b)) prior to the drugs being produced, which resulted in the fourth Charter violation at the vehicle, the first s. 8 Charter violation.

[54] The second aspect of the s. 8 Charter issue relates the ITO, but also relates to the initial Charter violations outlined above. In dealing with the ITO prepared by P.C. Masson there are a number of items that are in dispute. It is a given that the unlawfully obtained statements given by the applicant were excised from the ITO at trial, and were not introduced in evidence. Those inadmissible statements, however, were included in the ITO which was reviewed by the justice of the peace. The justice of the peace was privy to evidence that was unlawfully obtained and which was material. The respondent submits that the affiant had a duty to make full, frank and fair disclosure in the ITO and not omit material facts as was articulated in Nguyen, supra, para. 48. Does this obligation extend to illegally obtained evidence which would not be admitted at trial? The inclusion of unconstitutionally obtained evidence should not be included in an ITO, particularly where the warrant is for the search of a residence, where there is a high expectation of privacy. I find P.C Masson made errors in the content of the ITO, such errors being the currency of the tip, the description of 8 Germain Crescent being an anticipated safe house and the inclusion of unconstitutionally obtained evidence from the applicant. I find she made these errors as a result of her inexperience, but nevertheless without prudence. I find as well it took her an extraordinarily long time to prepare the ITO because of her inexperience. The errors were numerous; there were misstatements, and inaccurate information along with the illegally obtained evidence contained in the ITO. At para. 97 of R. v. Li, 2013 ONCA 81, [2013] O.J. No. 564, Watt J.A. writing for the Court stated:

On the review, the reviewing judge must exclude erroneous information, as well as any information that has been obtained by Charter infringement.

I apply that principle to the case at bar.

[55] In R. v. Philpott, [2002] O.J. No. 4872 at para 48 (SCJ), Quinn J. stated:

Primarily, what a reviewing court is looking for are deficiencies in the "information to obtain" relating to the facts: the overstating of facts; the misstating of facts; or the failure to state material facts. Any one of these deficiencies may lead to a finding that the warrant is invalid.

That principle also applies to the case at bar.

[56] Simply stated, even if I found that there was not a s. 9 or s. 10(a) violation, in my view there would still not be enough evidence for a warrant. The applicant's statement about what would be found at his home must be excised from the ITO because of the s. 10(b) violations. I must stress, however, I have found there to be s. 9, 10(a) and 10(b) violations at the subject vehicle. Without this excised information there would be no basis on which the issuing justice could conclude there was a reasonable possibility drugs would be found or even stored in the accused's residence.

[57] The ITO issues were further exacerbated by the use of the present tense of dealing drugs by the original target rather than indicating in the ITO that it was 10 to 12 months ago. That information as gleaned from the intelligence report would not taint the investigation but, in my view, was a material fact for the justice of the peace to consider. He was proceeding on a premise that was not accurate. He was also proceeding on inaccurate information that 8 Germain was an anticipated safe house. The justice of the peace could only proceed on the information in the ITO. In my view, stating it was an anticipated safe house presents a very different picture than a family home. It is noteworthy that the residence was referred to as an anticipated safe house without any surveillance to confirm that it could be anticipated to be used for storing drugs. The affiant acknowledged it was an error to refer to the residence at 8 Germain in that fashion. I agree.

[58] In respect of the evidence of Mr. Rosati, the starting point in my view is not the surveillance of him by the police but the stop. The same principles apply to him as do with the applicant. Mr. Rosati was arbitrarily stopped as he was in the same vehicle as the applicant. He, as the applicant, was not advised that the stop was an investigative detention and was not given his right to counsel until after the arrest. The police had no grounds to arrest him until after the drugs were produced. Mr. Rosati, as the applicant, was only arrested after drugs were produced on demand by the police. He felt he had no choice and was compelled to do so. The same considerations apply to Mr. Rosati as have been articulated with respect to the applicant at the car. There were s. 9, 10(a) and 10(b) Charter breaches, followed by a s. 8 breach regarding Mr. Rosati, while the police were still at the car. Mr. Rosati was dealt with in a separate proceeding.

[59] Mr. Rosati testified at this trial that he purchased drugs from the applicant while en route to the Daisy Mart. He also told the court his memory of the event was compromised. He agreed that his ability to accurately and reliably recount what happened that day between himself and the applicant was compromised by the stimulant induced psychosis. He had been hospitalized two weeks prior to the incident for stimulant induced psychosis. He told the court he could not perceive reality. He agreed that at the time, because of the drugs he was ingesting, he had suffered some form of mental break down. He testified he was giving the court his best recollection at the time of his testimony. I cannot find in the evidence that he told the officers the applicant resides at 8 Germain Crescent, and that the applicant had a larger quantity of drugs at that residence, and that it was likely he was storing larger quantities of drugs and drug paraphernalia there.

[60] As with the applicant, I find the Charter violations enumerated at the vehicle impact on the admissibility of the drugs produced in the vehicle and will be dealt with in the 24(2) analysis.

[61] With respect to his evidence proper, it is contradictory and certainly dubious in terms of his ability to accurately recollect, and I am unable to rely on it.

Grant Analysis

[62] The analysis under s. 24(2) of the Charter involves three lines of inquiry. Under s. 24(2), courts assess and balance the effect of admitting constitutionally-tainted evidence on society's confidence in the justice system, having regard to three lines of inquiry: the seriousness of the Charter-infringing state conduct; the impact of the breach on the accused's Charter-protected interests; and society's interest in the adjudication on the merits.

[63] There are a number of principles that should be articulated in consideration of the seriousness of the Charter-infringing behaviour. Cory J. in R. v. Genest, [1989] 1 S.C.R. 59 stated:

"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith

[64] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No.32 (SCC) para. 75, the court observes:

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct.

[65] In the same para. the court states:

In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[66] In R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 at para. 22, the court considered the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The Court asked:

Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[67] The respondent, while submitting that this detention was justified because the officers had a reasonable suspicion a drug transaction had occurred, acknowledged they did not initially turn their minds to the fact this was an investigative detention. The evidence is clear that because of this omission, at the very least the applicant's s. 10(b) Charter rights were violated. I cannot find this was a mere oversight. The officers made no observation of any illegal behaviour, prior to approaching the vehicle. They had no grounds to make an arrest until the drugs were produced. The s. 9 breach was not merely a technical breach or even an understandable mistake on the facts of this case. The police knew or ought to have known their conduct was not Charter-compliant. When assessing the seriousness of the Charter violations, I find the violations were not trivial nor were they technical. There were s. 9, 10(a) and 10(b) breaches which preceded the arrest. The production of the drugs by the applicant and his passenger was compelled, as a consequence of the unlawful stop and demand, and thus there was a s. 8 violation. The admission into evidence of the drugs produced in the circumstances herein would bring the administration of justice into disrepute. There were further violations after the arrest, the questioning of the applicant while the warrant was being prepared. As the evidence reflected, the applicant spoke to counsel 9 hours after the arrest. The information obtained by the police during the interrogation at the police station further violated the applicant's s. 10(b) Charter rights, and rendered that information inadmissible. Further, the information which the affiant included in the ITO, i.e. the applicant's address and the items that would be found at that address, was excised from the evidence heard at trial. In the same fashion, on the authority of Li, supra, that information will be excised from the ITO. I find that the s. 10(b) violation was serious, lacking in good faith and led to the inclusion of information in the ITO which then led to violation of the applicant's s. 8 Charter rights with respect to the search of his home. I find the affiant of the ITO was not prudent or careful in what she included in the ITO. I equate the lack of prudence with bad faith. These were not technical or minor violations. Without that information the justice of the peace could not have issued the warrant to search the residence of the applicant. Thus what was seized at the home of the applicant on the execution of the warrant must be excluded from evidence in this trial.

[68] The impact on the applicant's Charter-protected rights may range from fleeting and technical to profoundly intrusive, as was noted in Grant, supra. At paras. 76 and 78, the Court stated that the assessment under the heading of the impact on the applicant's Charter-protected rights:

...calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. ... The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[69] The impact on the applicant's Charter-protected rights by virtue of the numerous violations was substantial, from the original unlawful stop to the original s. 10(b) violation, where the applicant was not advised by the police why they made the demand and impacted on the applicant's Charter-protected rights. The impact of these violations, enumerated above, led to the applicant's arrest, being held in police custody for a substantial period of time, being improperly and unconstitutionally questioned during this period, and culminated in the search of his house, on the strength of an ITO that was flawed and ought not to have contained information that was ultimately placed before the justice of the peace. The applicant had a right to have a high expectation of privacy with regard to his residence. I find the search of the applicant's residence in these circumstances to be unlawful, and thus obviously impacted that high expectation of privacy. This is serious. Section 8 of the Charter is the protection of the citizen against illegal search and seizure. This right was infringed twice as revealed by the evidence. The applicant's Charter-protected rights were severely impacted by the numerous Charter violations outlined above. Under this heading as well, to admit the evidence from either of the s. 8 violations and other violations noted above would bring the administration of justice into disrepute.

[70] Under the heading of society's interest in adjudication on the merits, again principles from Grant, supra, provide insight in the assessment under this heading. At paras. 79 to 81 of Grant, the Court offered these comments:

This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law"...

The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, 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.

[71] The seriousness of the alleged offence is a valid consideration; however the Court in Grant offered two views on this aspect of the assessment. The Court stated at para. 84:

Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[72] In R. v. Harrison 2009 SCC 34 (SCC), the Court expressed the view that the judge must determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. The Court, at para. 36 said:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[73] The above principles must be read with the Charter breaches in this case in mind in order to determine whether society's interest would be best served to have the matter adjudicated on its merits. This prong of the three-pronged analysis generally favours inclusion of evidence and the hearing of the case on its merits. A simple listing of the Charter-breaching conduct of the police will, in my view, keeping in mind the principles above, address this prong. There were s. 9, 10(a) and 10(b) violations even before a proper arrest was made. There were two s. 8 Charter violations and a further s. 10(b) violation. The drafting of the ITO was flawed and included unconstitutionally obtained evidence. The approach by the officers of the applicant's vehicle without grounds and making the demand as the evidence herein reflected is questionable and mandates strict scrutiny. The officers were hunting for something and their interference with the applicant was based on a dated intelligence report and observations which, in my view, revealed no criminal or untoward behaviour. The question arises; should this behaviour be rewarded? There were multiple Charter breaches, which in my view were blatant, from the first approach and blocking in of the vehicle through to the unlawful search of the applicant's residence. I have discussed each breach in some detail above.

Conclusion

[74] Engaging the above enunciated principles from Grant and Harrison, and balancing society's interest to adjudicate the matter on its merits versus the impact on the administration of justice in not excluding the evidence, I find that not excluding the impugned evidence would bring the administration of justice into disrepute.

[75] The evidence obtained from the search of the vehicle is excluded. Any statements made by the applicant are excluded from the evidence and excised from the ITO. As well, the information in the ITO containing the applicant's address and items that would be found at the residence are excised from the ITO.

[76] Unless there is further evidence I am dismissing the charges.

Released: September 25, 2015

Signed: "Justice William A. Gorewich"