Court Information
Ontario Court of Justice
Date: February 23, 2015
Court File No.: Toronto 13-10002847-ao and 13-10002848-ao
Parties
Between:
Her Majesty the Queen
— And —
Danny Giamou
Before: Justice K. Caldwell
Reasons for Judgment released on: February 23, 2015
Counsel
Mr. Aaron Shachter — counsel for the Crown
Mr. Daniel McMahon — counsel for the accused Mr. Danny Giamou
Judgment
Caldwell J.:
[1] Charges
[1] Mr. Danny Giamou is charged with assaulting Mr. Justin Moriarity with the intent to resist his arrest, and possessing hydromorphone, morphine and marihuana for the purpose of trafficking.
Overview
[2] In brief, two security guards contracted by the Toronto Parking Authority ("TPA") were watching for drug deals and car break-ins on TPA property. They allegedly saw Mr. Giamou and his friend, Mr. Eleftherios Kanellis, acting suspiciously and thus stopped to investigate the two men. Mr. Giamou allegedly pushed one of the guards and was found with a large quantity of drugs when subsequently searched by the police.
The Issues
[3] Mr. Giamou denies the assault and claims that the security guards planted the drugs on him. He also argues that the security guards breached his Charter rights as they had no basis to detain, arrest or search him. He maintains that the drugs ultimately found by the police should be excluded as a result.
[4] The preliminary issue, however, is whether the Charter applies to the security guards.
Applicability of Charter to Intelligarde Security Guards
[5] The Charter does not apply to all conduct. Section 32 of the Charter holds that it applies to Parliament, the Canadian government, and the government and legislature of the provinces. Most obviously, it does not apply to dealings between private citizens.
[6] Applicability is not as clear-cut as it may appear on a simple reading of section 32, however. For example, there has been extensive legal debate about the applicability of the Charter to citizens' arrests. At first blush, one might say it is not applicable as such arrests are carried out by private citizens. The argument, however, is that in effecting an arrest a private citizen is carrying out a governmental function and thus the Charter is applicable. At least in Ontario, that issue was put to rest on appeal in R v N.S., citing the reasoning in the Supreme Court of Canada decision, R v Buhay.
[7] Buhay dealt in part with the applicability of the Charter to private security guards working at a bus depot. The Court held:
Nothing in the evidence allows a conclusion that the security guards or the agency by which they were employed can be assimilated to the government itself, nor can their activities be ascribed to those of the government. Private security guards are neither government agents nor employees, and apart from a loose framework of statutory regulation, they are not subject to government control. Their work may overlap with the government's interest in preventing and investigating crime, but it cannot be said that the security guards were acting as delegates of the government carrying out its policies or programs.
[8] Further, The Court found it significant that the guards searched the bus locker in question on their own initiative, not as a result of any direction from the police. Their work necessitated that they have frequent contact with the police but this fact did not result in "a 'standing' agency relationship" between the two parties. Further, the Manitoba Private Investigators and Security Guards Act specifically states that security guards should not present themselves at any time as individuals performing or providing services or duties of the police.
[9] The issue in this case is what impact, if any, does the fact that these lots are owned by the TPA, as opposed to a private corporation, have on the Charter applicability assessment?
[10] I find for a number of reasons that this fact does not change the outcome – the Charter still does not apply.
[11] The TPA is a self-sustaining public corporation owned by the City of Toronto. Its operations and policies are overseen and set by a Board of Directors appointed by Toronto City Council.
[12] The guards are employed by Intelligarde, which is a private security company that provides security services to a wide variety of public and private entities.
[13] The TPA has contracted Intelligarde to provide parking lot security. Their agreement stipulates that Intelligarde is an independent contractor and their employees are not TPA employees.
[14] I find that the Charter does not apply as the TPA is not governmental as that term has been interpreted in relation to section 32 of the Charter. Further, even if it was governmental, the Charter does not apply given the private nature of Intelligarde and its employees.
[15] Ontario Superior Court cases have held that the TPA is an entity separate from the City and that it is not performing a public duty when constructing, maintaining and operating parking lots. Combining these findings with the Supreme Court of Canada's holding in R v Godbout leads to the conclusion that the TPA is not captured within the term "government" as defined in section 32. In the Godbout decision, the Court noted that performing a "public function" is not sufficient to bring an entity within the definition of "government" for the purposes of section 32. Further:
In order for the Canadian Charter to apply to institutions other than Parliament, the provincial legislatures and the federal and provincial governments, then, an entity must truly be acting in what can accurately be described as a "governmental" -- as opposed to a merely "public" -- capacity. The factors that might serve to ground a finding that an institution is performing "governmental functions" do not readily admit of any a priori elucidation. Nevertheless, and as I stated further on in McKinney (at p. 269), "[a] public purpose test is simply inadequate" and "is simply not the test mandated by s. 32".
[16] As I noted earlier, even if the TPA did fall within the scope of section 32, there remains the issue of Intelligarde's relationship with the TPA. I find it impossible to distinguish the security guards in this case from those in the Buhay decision and it therefore follows that the Buhay decision settles this issue – the Charter does not apply to private security guards.
[17] It follows, then, that there are no Charter issues to be determined in this case. It was conceded at the outset that there were no Charter violations committed by the Toronto police officers who arrived on scene after the security guards effected an arrest as the officers were operating upon information provided to them by the guards, information which it was conceded the police had no reason to doubt.
[18] It remains, then, to determine whether the Crown has proven the charges beyond a reasonable doubt.
The Evidence
[19] Mr. Giamou testified that he and his old friend, Mr. Kanellis, saw each other around Pape Avenue and Danforth, and then stopped to chat once Mr. Kanellis pulled his electric scooter into a TPA lot on Pape.
[20] Shortly after that, two men dressed in casual clothes pulled up in a black car. They were aggressive in manner, told Mr. Giamou and his friend that they were trespassing, and then proceeded to question them about the contents of their pockets.
[21] Mr. Giamou said he was emotional and in shock by this interchange. He said the two men then proceeded to throw him over the hood of their car, handcuff and pat him down, putting their hands in his pockets. He didn't strike either of the men, but he did tell them to "lay off" and tried to free himself. Initially Mr. Giamou said that the men didn't identify themselves as security guards until after they handcuffed him but later in his testimony he said that he didn't know they were security guards until the police informed him of this fact. The police arrived quickly and upon searching him they found numerous pill bottles with drugs in them. Mr. Giamou said that he had no idea how the pill bottles ended up in his pockets but he assumed that the security guards planted them there during their initial search.
[22] Mr. Kanellis corroborates Mr. Giamou's evidence that they happened to run into each other and stopped to chat in the parking lot. Initially, Mr. Kanellis said the guards didn't identify themselves but he assumed that they were undercover police officers. Later, he said they identified themselves as "officers" and he assumed that meant "police officers". He described their mood as very aggressive. He described Mr. Giamou's mood as a little excited, and then said that Mr. Giamou began screaming that he was being arbitrarily arrested. Mr. Giamou was to his side and they were being spoken to separately. He never saw Mr. Giamou strike either man and he said that his eyes were on Mr. Giamou constantly so it couldn't have happened without him noticing. He said that the men told him to leave after they threw Mr. Giamou over the hood of the car or he would be arrested too. He left the scene and then snuck back around the block so that he could surreptitiously watch what was unfolding. He saw the men patting Mr. Giamou down over his clothing but didn't see them put their hands in Mr. Giamou's pockets.
[23] Mr. Moriarity, on the other hand, testified that Mr. Kanellis and Mr. Giamou aroused his suspicions thus he and his partner approached them to investigate them for possible drug dealing or an intention to break into cars. Both were significant issues for the TPA. They identified themselves as security for the TPA. Mr. Kanellis and Mr. Giamou said that they were just chatting, having a coffee. Mr. Moriarity countered by stating that there were no coffee shops on the parking lot. At that point, Mr. Giamou said, "fuck you, goof!" and pushed Mr. Moriarity. Mr. Moriarity then arrested Mr. Giamou who began resisting, and struck Mr. Moriarity with an elbow in the face. He began screaming, yelling, and stating that he needed to see the paramedics. Mr. Mills, his partner, essentially corroborated Mr. Moriarity's testimony.
Findings of Fact
[24] I find that the Crown has proven beyond a reasonable doubt that Mr. Giamou assaulted Mr. Moriarity and possessed the drugs listed in the respective trafficking charges. Mr. Giamou concedes that if I find him in possession of the drugs, then that possession was for the purpose of trafficking. The Crown, on the other hand, concedes that the Crown evidence only substantiates the offence of simple assault, not assault with the intent to resist arrest.
[25] I will deal first with the possession charges. It is accepted that the police found the drugs as the officers described in their evidence. I totally reject Mr. Giamou's evidence that he was unaware of the drugs and further absolutely reject the proposition that the drugs were planted on Mr. Giamou by the security guards. I not only reject Mr. Giamou's evidence on this point but also find that I am not left in a reasonable doubt by his evidence.
[26] The police found that Mr. Giamou was wearing two jackets. The drugs were not found in the outer jacket but instead in the pocket of the inner jacket and then back at the station in Mr. Giamou's pant pocket.
[27] Frankly, the idea that the drugs were planted on Mr. Giamou and that he had no idea of their presence defies all logic. The drugs were found in Mr. Giamou's inner jacket and then in his pant pocket that was underneath both layers of outerwear. It would be impossible for the security guards to "plant" the drugs on Mr. Giamou in those locations without his knowledge. Further, there would be absolutely no reason for them to do this given that they had no prior history whatsoever with Mr. Giamou. Finally, I do not accept that Mr. Giamou wouldn't have known of the drugs' presence given the location of the drugs. For these reasons, I reject Mr. Giamou's testimony on this point, accept that the drugs were knowingly in his possession and therefore find him guilty of the three trafficking counts.
[28] I turn now to the assault charge. I have rejected Mr. Giamou's evidence on the drug charges as I did not find his evidence credible on this point. That fact also leaves me with serious concerns about his overall credibility on other points. I reject his evidence that he did not push Mr. Moriarity and find that I am not left with a reasonable doubt by this evidence.
[29] On the other hand, I found Mr. Kanellis to be a credible and reliable witness on many points. I make this finding because he was direct about points that would not assist his friend. For example, he testified that Mr. Giamou was extremely upset, screaming and yelling. He said that he only saw the officers pat Mr. Giamou down over his clothing, not reaching inside to his inner jacket or pants. I do not accept, however, that he had his eye on Mr. Giamou at all times and thus that it would have been impossible for Mr. Giamou to have assaulted Mr. Moriarity without Mr. Kanellis seeing the assault. I make this finding as to find otherwise defies common sense. Both individuals were being questioned separately, each by a different security guard. It would be impossible for Mr. Kanellis to have kept his eyes on Mr. Giamou at all times.
[30] Further, I accept the evidence of Mr. Moriarity that Mr. Giamou pushed him in the chest. I accept this evidence in part because I find that this action on Mr. Giamou's part makes sense in light of the evidence of all of the witnesses, including the police officers and Mr. Kanellis, concerning Mr. Giamou's emotional pitch that night. He was clearly extremely upset, hostile, and angry. He was screaming that he needed medical assistance and that he was being arbitrarily arrested. I find that it makes total sense that he would have pushed the target of his upset, Mr. Moriarity, during the course of the interchange between the two men.
[31] I also find that both security guards overall were credible and reliable witnesses. I find that they may have downplayed their own emotional pitch given Mr. Kanellis' evidence that they were aggressive in tone; however, I do not find that this fact leads me to doubt their overall credibility or reliability on the issue of the assault. Further, I find that both guards were detailed and their evidence made logical sense. I also do not find it significant that the security guards testified that they did not see evidence of a drug deal between the two men yet, according to the officers, said that they thought they saw a hand-to-hand transaction. I reach this conclusion because the officer's evidence isn't definitive on this point; he simply testified that the security guards said they "thought" there was a hand-to-hand transaction. I do not find it surprising that the security guards would not have included this observation in their own notes given its very qualified nature.
[32] For these reasons, I also am convinced beyond a reasonable doubt that Mr. Giamou is guilty of the offence of simple assault.
Released: February 23, 2015
Signed: Justice K. Caldwell