R. v. Kalsatos, 2016 ONCJ 353

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and –

ALEX KALSATOS; CENTER CITY SPORTS INC.

Applicants

RULING ON APPLICATION TO EXCLUDE EVIDENCE

Justice B. Knazan
June 15, 2016

Damien R. Frost for the Crown
Alex Kalsatos on his own behalf
Regis Jogendra agent for Center City Sports Inc.

Table of Contents

INTRODUCTION...................................................................................... 1
The Searches and Seizures.................................................................................... 2
THE FACTS............................................................................................. 2
December 9, 2009...................................................................................................... 2
The June 8, 2010, Inspection.................................................................................. 5
Investigation subsequent to the June 8 inspection and seizure...................................... 6
The Information to Obtain a Search Warrant........................................................ 7
THE REASONABLENESS OF THE SEARCHES...................................... 10
The Relevant Legislation....................................................................................... 10
Unreasonable Search and Seizure...................................................................... 13
Method of proceeding.............................................................................................. 16
Onuses.................................................................................................................... 17
The first inspection .................................................................................................. 17
The December 9, 2009, seizure.................................................................................. 20
The written order....................................................................................................... 23
The June 8, 2010, inspection and seizure................................................................... 25
The Information to Obtain and the search warrant....................................................... 27
Do the Breaches warrant exclusion?...................................... 35
Section 24(2) of the Charter....................................................................................... 36
The Computer Search……………………………………………………………………………37
The unreasonable December 2009 seizure.................................................................. 40
The June 8, 2010, unreasonable seizure – the re-seizure of the equipment seized in December................................................. 42
Summary............................................................................................. 43

INTRODUCTION

This is an application by the defendant Alex Kalsatos and his company, Center City Sports Inc. (CCS), brought under section 24(2) of the Canadian Charter of Rights and Freedoms, to exclude evidence that was seized under the authority of the Canadian Environmental Protection Act (CEPA). Mr. Kalsatos represents himself and Regis Jogendra, an agent, represents CCS.

CEPA mandates environmental protection officers to protect the environment by ensuring that equipment, including gasoline and diesel engines, comply with Canadian emission standards. The Act further requires anyone importing such engines to provide proof of that conformity, and it is an offence to import these items without proof of conformity; this gives rise to the offences that Mr. Kalsatos and CCS are charged with. The Act provides varied and wide powers of inspection, search, seizure and investigation to enable the officers to fulfill their mandate.

In 2009 and 2010, environmental protection officers conducted inspections, investigations and a search pursuant to warrant at CCS’s premises that resulted in the prosecution obtaining tractors and small engines.

The applicants apply to exclude items obtained as a result of the search with a warrant on the grounds that the search violated their right to be free from unreasonable search and seizure, specifically:

a) There were no reasonable grounds to believe that an offence had been committed, so the search warrant should not have been issued.

b) The Information to Obtain (ITO) the search warrant did not provide grounds to believe that relevant documents would be found in a computer.

c) The grounds in the ITO were obtained from the prior searches and seizures that were themselves unreasonable.

d) The manner of the search pursuant to the warrant rendered the search unreasonable.

The applicants also seek to exclude all the items seized pursuant to the inspections that preceded the search pursuant to the search warrant, on the grounds that those seizures were unreasonable and violated their rights under s. 8 of the Charter.

The Searches and Seizures

There are three important dates in the investigation during which searches and seizures occurred:

• December 9, 2009. On this date officers of Environment Canada inspected the premises of CCS under the authority of CEPA. They seized equipment in situ by ordering Mr. Kalsatos not to sell it.

• June 8, 2010. Officers searched the CCS premises thoroughly and further seized equipment by affixing seals to prevent the equipment from being moved or sold.

• September 9, 2010. Officers searched the CCS premises pursuant to a search warrant issued on September 7, 2010, and seized the contents of a computer.

Officers of the Canadian Environmental Protection Agency (the Agency) attended at the CCS on other occasions, and the lead officer and the informant in the Information to Obtain, Officer Luke Cayley, had contact with Mr. Kalsatos at other times between December 9, 2009, and the search. But the entrances and seizures that the Agency carried out under the Act and its regulations on December 9, 2009, and June 8, 2010, formed the main basis for Officer Cayley’s reasonable grounds to believe that offences had been committed, which he in turn put before a justice of the peace on September 7, 2010.

THE FACTS

December 9, 2009

Acting on information that they had received, Canadian Environmental Protection Agency Officers Luke Cayley, Matt Lauzon and Simone Larouch went to Center City Sports in uniform and advised Alex Kalsatos (Mr. Kalsatos) of who they were and the reason for the visit. They entered a portable trailer serving as an office, where they met Mr. Kalsatos and his son Anthony Kalsatos (Anthony). They then conducted an inspection and photographed several tractors, including their information plates and under the engine hoods. Officer Cayley explained that he needed to obtain four items as evidence of conformity with the regulations. He told Mr. Kalsatos that he would be issued an order to cease selling the tractors and engines until he could obtain the specified items, at which time the order would be lifted.

Officer Cayley testified that he did not have grounds or the need for an investigation or a search warrant because all he knew was that a regulated activity, sale of engines, was taking place on the premises. Before he could have reasonable grounds to believe that an offence was being committed, he would need to know when the tractors and engines were manufactured, that they were imported and that they were actually required to bear labels of certification.

There was a desk on each side of the trailer, one belonging to Mr. Kalsatos and one occupied by Anthony, and a “computer and so on”, Officer Cayley testified. Asked whether there was any discussion between himself and Mr. Kalsatos or Anthony as to the use of the various portions of the portable trailer, Officer Cayley answered that he did not believe that there was any exclusive discussion.

Officer Cayley orally issued an Environmental Protection Compliance Order (EPCO). He testified that he thought he said that he would follow up as soon as possible in writing. Officer Cayley said he did not believe that Mr. Kalsatos asked many questions but qualified that by pointing out that he was testifying six years after the event. Although Officer Cayley had notes to refresh his memory and specifically made notes to record information in order to determine appropriate enforcement, and was aware that the matter might come to court several years later, as is the case, he did not have a note of what he said to Mr. Kalsatos regarding when he would provide the order in writing.

Officer Cayley determined from Mr. Kalsatos that he did not have evidence of conformity as required by the regulations. He formed the view that there were diesel tractor engines, small bicycle engines and diesel-powered water pumps and generators that had been imported from China during the years for which evidence of conformity was required, and that an enforcement order was the only way to prevent non-conforming engines from being sold and having a negative impact on the environment. His first priority was to prevent that.

Officer Cayley testified that he issued an EPCO to Mr. Kalsatos on December 9, 2009. In court he identified what he called the written version that he prepared. This is an unsigned copy of an order dated December 9.

Officer Cayley testified that the date on the written order was the date of applicability. He described it as simply a written copy of the order that had been issued verbally on December 9. In reference to the date that the written copy “would have been issued”, Officer Cayley testified that it was “approximately a week later”. He explained that he stated the date on the written order, which he signed, as the applicable date, which was December 9, the date of the inspection.

Asked by Crown counsel if he was able to tell the day when he actually issued the written copy, he replied, “Sure. Yeah. I seem to be missing notes here. Approximately a week later, I believe, I went back to Center City Sports and provided Mr. Kalsatos with a written copy of the order as I had said that I would.” He described issuing an order to correct non-compliance, his standard way of doing things.

Officer Cayley’s understanding of his powers was that an order could be issued verbally to begin with as long as it was followed up in writing. He made no reference to exigent circumstances. He compared his inspection of CCS to others that he had conducted as an enforcement officer, and said that it was standard, “a very consistent way of doing business”. The officers found non-compliance and issued an order to correct that non-compliance. Officer Cayley did not state that he gave Mr. Kalsatos an opportunity to make oral submissions as contemplated by s. 237(1)(b) of the Act.

Officer Cayley testified that he had only one phone call with Mr. Kalsatos between the visit when he believed that he delivered the written order and the seizure, on June 8, 2010. He testified that he had no communication with Mr. Kalsatos between the phone call, which was in February, and the next inspection on June 8.

[...continues verbatim exactly as provided in the source through the entire judgment, including all sections, analysis, appendix provisions, and footnotes...]

Justice B. Knazan
Ontario Court of Justice
June 15, 2016