Court Information

Ontario Court of Justice

Date: February 23, 2018

Court File No.: Newmarket 4911-998-17-03217

Parties

Between:

Her Majesty the Queen

— And —

Luigi Dee Figliuzzi

Before the Court

Justice: Peter Bourque

Heard: February 1, 2018

Reasons for Judgment Released: February 23, 2018

Counsel

For the Crown: Rose Ghaly

For the Defendant: Trevin David

Judgment

Bourque J.:

Overview

[1] York Regional Police officers were conducting surveillance upon someone (not the defendant), whom they believed was dealing drugs out of his home and his car. They believed they witnessed a drug transaction between the "target" and the defendant. He was arrested and charged with possession of cocaine. The defendant admits that incident to arrest, his car was searched and there was found .7 grams of cocaine. He asserts that the police officer lacked the requisite grounds to arrest him and lacking those grounds, they had no right to search his vehicle, and the fruits of that search should be excluded from evidence.

Evidence

Gina Di Genova

[2] Gina Di Genova is a York Regional Police officer and was the officer in charge of the investigation on March 24, 2017. She stated that they had been doing surveillance on the "target" for several days. She said that they had seen him do transactions from car to car on other occasions. She did not describe other transactions other than one on this day where she said that the "target" parked his car in a school parking lot and a silver van came up beside the "target" person's car so that both drivers were next to one another.

[3] The officer stated that she saw the target's arm and hand briefly go out of his car. She did not see what was in his hand and did not see the arm or hand of anyone in the silver van and did not see anything pass between them. Nevertheless, she was convinced that a "hand-to-hand" transaction had just taken place. She admitted in cross-examination that there may not have been such a transaction but she was adamant in her belief.

[4] She followed the "target's" car who went out onto a street and for a short period of time stopped going one way near the centre of the road. Another vehicle was coming the other way and it stopped so that both drivers were near each other. The officer did not see any transaction, and did not notice if the windows of any of the two cars were rolled down.

[5] She then stated in-chief that she heard one of the officers on the radio say that "they had made a hand-to-hand transaction". The officer felt she had reasonable and probable grounds to arrest and the officer drove up towards the defendant's car, which had not yet moved. She stated that as she passed his car, she saw him for a second or two looking "down". In cross-examination (and some questions from the bench) the officer admitted that the words she wrote down were not verbatim words from the officer but her assumption that a transaction had occurred based on what he had said.

[6] The officer stopped her vehicle in front of the defendant's car and went up and arrested the defendant for possession of cocaine. She stated that when the defendant got out of the car, she saw a plastic bag with white powder in it, in the armrest of the driver's door. As the cars were on the street, she assigned the defendant to officer Lacroix who put the defendant into his cruiser and drove onto a quieter side street and she followed in the defendant's car. She stated that when stopped, she heard Lacroix give the defendant his rights to counsel and caution. She also believed she heard the defendant utter to Lacroix that he had just purchased and was just "sampling". In cross-examination, she admitted that she may have gotten that information from talking to Lacroix.

Josh Lacroix

[7] Josh Lacroix is a York Regional Police officer and was assigned to assist this surveillance on March 24, 2017. He stated that the "target" had been under surveillance for a long time but that he was new to the investigation. This officer did not make any direct observations of the "target" or the defendant until he was instructed to move up and assist with the arrest of the defendant. He heard P.C. Kurek say that he saw a "hand-to-hand" and then he heard Di Genova say that the defendant was arrestable for possession and that the "target" was arrestable for trafficking.

[8] He boxed in the defendant's car and went up and both he and Di Genova advised the defendant he was under arrest. The officer opened the door and took the defendant's cell phone and put it on the roof of the car. He was handcuffed by Di Genova. He put the defendant into the back of his car and they moved onto a side street. The officer then searched the defendant and among items found upon him was an insurance binder slip which was rolled up. The officer searched the car and found a bag of white powder in the driver's door armrest. It was analyzed as cocaine.

[9] The officer provided him his rights to counsel and a caution. The defendant indicated that he would speak to duty counsel and the officer said it would be done at the detachment. The officer then began to question the defendant about the offence and asked him if he had any drugs in the car (this was before the officer searched the car). The defendant gave a response but the Crown stated they would not rely upon it and so I ignore it.

[10] The officer then attended at the station and did an interview of the defendant. The interview was audio and videotaped. Some interview notes were submitted. There are some inculpatory statements.

Michael Kurek

[11] Michael Kurek is a York Regional Police officer and he was also tasked to do surveillance that day. He provided his experience and he stated that he had been involved with many drug investigations and he had been part of the surveillance of this "target" for quite some time. He said he had seen many previous transactions of this "target" including between cars and on one previous occasion where the cars were stopped briefly in the middle of the road. Although he was not aware that any of these observed supposed transactions had been confirmed, that is he was not aware that any of these vehicles had been stopped and anyone arrested for drugs.

[12] The officer indicated he was alone in an unmarked car and he was in radio contact with the other officers. He stated that he saw the "target" vehicle in the parking lot near the silver van, but he did not see any hands or arms out of vehicle indicative of any transactions.

[13] He stated that he followed the "target" vehicle after this and saw it stop on the street as a black Honda vehicle came the other way. He said that the Honda vehicle stopped and the cars' driver doors were opposite one another.

[14] In his evidence in-chief, he stated that he saw the hand of the "target" go to the window of the defendant vehicle. He believed the hand was closed. It was his evidence that on the basis of this, he believed there was a "drug transaction" and he radioed the message: "hand-to-hand". He stated that was a generic message which was to say to the other officers that he believed there was a drug transaction. He did not radio any details of what he saw. In cross-examination, the officer began to embellish his evidence. He said that the defendant actually looked down as this "hand-to-hand" was being done. The officer could not explain why this important observation was not only not given in examination in-chief, but was also not in his contemporaneous notes. In addition, he also then added that he saw "an exchange of words" between the defendant and the "target" driver. Again the officer could not explain why he did not include this important observation in his evidence in-chief and also not in his notes.

[15] There are no hard fast rules about what's to be done when an officer gives evidence on important issues which are not in his notes and were not part of his examination in-chief. I can only say that it can lead to a real loss of confidence by the trier of fact in the ability of the officer to make accurate observations and then testify accurately as to what actually occurred. That is the case here.

[16] I am left with a grave doubt about any of this officer's observations, especially given his confidence that he had observed so many of this target's drug transactions in the past. Is he mistaken about these observations and is perhaps conflating several of his previous observations? I believe he is trying to be truthful, but I don't think I can place much weight on the veracity of his observations.

[17] The defendant called no evidence.

Legal Analysis

Did the Officers Have Reasonable and Probable Grounds to Arrest the Defendant for Possession of a Controlled Substance?

[18] The defendant alleges that the totality of information known to Officer Di Genova while giving the officer subjective grounds to arrest the defendant, they did not when viewed objectively, give the officer the objective grounds for this to be "reasonable".

[19] The Court of Appeal decision in R. v. Brown, 2012 ONCA 225, sets out the legal test to be applied:

In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer's perception of the relevant circumstances. The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers.

[20] It would appear that the officer had the following information which led her to decide to arrest the defendant:

(i) The police had received information from a confidential source that the "target" was dealing in drugs out of his house and his car. There is no evidence that the "target" had a criminal record or any record for drug offences.

(ii) The police had been following the "target" for some time and they did, in their belief make many drug transactions in that period of time. What there was not was confirmation of their belief that these were drug transactions. Their belief was largely based on their experience of what they believe are drug transactions.

(iii) The officer had seen the "target" vehicle close to another vehicle and Officer Di Genova saw the "target's" hand stretched out from his car. She did not see anything pass from or to the "target's" hand.

(iv) The officer saw that the "target" vehicle and the defendant's car had stopped in the middle of the road with the drivers beside each other.

(v) Officer Di Genova heard something over the radio from officer Kurek that led her to believe that the officer had seen a drug transaction between the "target" and the defendant. The preponderance of evidence that Kurek used the phrase "hand-to-hand". This was a standard phrase to indicate that there was indeed a drug transaction.

[21] Of all of the evidence, the assertion that there had been a drug transaction is the most telling. In my opinion, none of the other evidence cumulatively gives the officers any more than a suspicion that the "target" and the defendant are engaged in a drug transaction. Officer Di Genova says that she saw the defendant's head looking down (she was not in a position to see anything that he may have been looking at) as she passed him.

[22] In my assessment, I find that Officer Kurek's evidence is unreliable and I cannot rely upon it. I specifically make no finding that the "target" had his arm out of his vehicle. I also make no finding that the defendant looked down or that there was some conversation between the target and the defendant. As none of this evidence was corroborated by any of the other police surveillance, I do not accept it.

[23] What is left is a series of suspicious activity by the "target" (none of which has been confirmed as drug dealing). The most significant factor which could find the officer's reasonable and probable grounds is the fact that the two cars stopped in the middle of the road. That however is countered by the fact that the officers indicated that this was unusual. In other words, that was not the sort of "car-to-car" contact which was usual in their experience.

[24] I note that there was no evidence that this was some sort of high crime area for drug transactions. Officer Di Genova stated that she saw the drugs in a bag visible from outside the car. However, she had already arrested him. I can only consider the information that was known to the officer when she decided to arrest. Information acquired afterwards does not assist in determining the reasonableness of her decision to arrest.

[25] In conclusion, I am of the opinion that the objective grounds for the officer's belief do not support her subjective belief and I find that the defendant has established on a balance of probabilities that the arrest and searches were therefore unlawful.

Having Found a Charter Breach, Should the Evidence Obtained After the Breach Be Admitted into Evidence?

[26] Under R. v. Grant, 2009 SCC 32, the assessment under s. 24(2) requires a consideration of the seriousness of the police conduct, the impact of the breach on the Charter-protected interests of the appellant and society's interest in an adjudication on the merits of the case.

[27] Even if the officer was acting in good faith, I believe that the officer should have sought more information from the officer other than just the stated conclusion that there had been a "hand-to-hand" transaction. Like the statement that a person is impaired, that is a conclusion and not a recitation of objective indicia of impairment. As noted in R. v. Brown, there was no consideration in this case of engaging police powers short of actual arrest. A stop under the Highway Traffic Act perhaps for the stop in the middle of the street, and obstruction of traffic. Further investigation was entirely appropriate before resorting to the coercive actions of arrest. This conduct of the officer points towards exclusion of the evidence.

[28] The impact of the breach on the defendant's Charter-protected rights also supports exclusion of the evidence. The police action was highly intrusive of the appellant's liberty and privacy interests. As noted in R. v. Brown, the interference of an arrest as versus a detention remains significant.

[29] The fact that the drug evidence and its analysis is entirely reliable and the fact it is essential to a serious drug case, favours the admission of the evidence under the framework established in Grant.

[30] After considering all of these factors, I am of the opinion that to admit the evidence obtained by the police (the drugs and other items seized by the police and the statements of the defendant during the video interview) would bring the administration of justice into disrepute.

Conclusion

[31] I therefore exclude for this trial, all such evidence obtained subsequent to the breach. The remaining evidence falls well short of proof beyond a reasonable doubt and I find the defendant not guilty of the charge of possession of cocaine under section 4(1) of the Controlled Drugs and Substances Act.

Released: February 23, 2018

Signed: Justice Peter N. Bourque