ONTARIO COURT OF JUSTICE
CITATION: R. v. Sureskumar, 2021 ONCJ 448
DATE: 2021 08 25
COURT FILE No.: Toronto 4817 998 19-75002113
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SHANE SURESKUMAR
Before Justice F. Bhabha
Heard on June 11th, 2021
Written Reasons for Charter Rulings (s. 7, 8, 10(b)) and Garofoli Applications
Released on August 25th, 2021
Renna Weinberg ................................................................................... counsel for the Crown
Tonya Kent .................................................... counsel for the defendant Shane Sureskumar
BHABHA, J.:
Background
[1] The trial in this matter began in November 2020. Four days were initially set for this matter because there were no Charter applications anticipated. The defence also gave notice well into the trial that a Garofoli would be brought. As a result, these applications were heard mid-trial in June of 2021. Mr. Sureskumar chose not to testify on these applications.
[2] Shortly after the applications were heard, the Court advised counsel orally that the Charter applications were dismissed and that the Court would provide Reasons in due course. The trial has concluded, and Judgment will be rendered orally today. What follows are the Court’s reasons on the Charter and the Garofoli applications.
[3] Up until Mr. Sureskumar’s arrest on May 2nd, 2019 he was a part-time bank teller at the Bank of Montreal (“BMO”/“the bank”).
[4] He is charged with Identity Theft relating to an elderly bank customer, Amado Castillo, arising from an incident on March 26th, 2019 when he accessed Mr. Amado’s client profile on the bank’s computer system. The Crown alleges he had no legitimate business purpose; he accessed the account to obtain and then provide Mr. Castillo’s identity information to at least one co-conspirator in preparation for the fraudulent wire transfer that occurred approximately two weeks later.
[5] In addition to the identity theft charge, Mr. Sureskumar is also charged with two additional counts in relation to the wire transfer: one count of attempted fraud over $5000 and one count of fraud over $5000 arising from incidents that are alleged to have taken place on April 11th and April 12th respectively.
[6] The bank conducted its own thorough investigation of Mr. Sureskumar. The fruits of that investigation were provided to the police and became the basis for his arrest on May 2nd, 2019.
[7] On his arrest on May 2nd, 2019, the police seized two items from Mr. Sureskumar: a wallet retrieved from his car and a cell phone he had with him.
[8] The wallet contained a yellow sticky note on which the credit card data of a number of BMO customers was hand-written. The police obtained a search warrant to search the cell phone. There the police discovered an image of the same yellow sticky note found in Mr. Sureskumar’s wallet. The credit card data on the yellow sticky note forms the basis for the last count on the four-count Information.
[9] The defendant’s Charter application under sections 7, 8 and 10(b) seeks to exclude the evidence seized from the defendant upon his arrest: the yellow sticky note found in the wallet. As such these applications relate primarily to count 4.
[10] The defendant also challenges the warrant the police obtained to search his cell phone. That challenge relates to count 4 exclusively.
The Circumstances of the Arrest:
Was the wallet seized pursuant to a Search Incident to Arrest? The s. 8 application
[11] On the evidence, Mr. Sureskumar was summoned to the bank on May 2nd, 2019 once the bank had concluded its internal investigation and come to the conclusion that the fraudulent wire transaction was not solely a fraud perpetrated by a person or persons unconnected or external to the bank. The police were made aware by the bank’s investigators that Mr. Sureskumar would be at the Elmsthorpe branch.
[12] Detective Tsering, Detective Constable Mildenberger and Detective Constable Cartwright, who were the police officers involved in Mr. Sureskumar’s arrest all testified that they saw Mr. Sureskumar arrive in his car and that he parked it in a small lot behind the bank. They waited for him to exit the bank and arrested him as he was approaching his car. An image of the parking lot where the arrest took place was marked as Exhibit 21 on the application. It revealed that there were only 7 parking spots for BMO customers.
[13] Detective Tsering effected the arrest. She recalled saying words to the effect of “Shane, you are under arrest for fraud”. She did not recall him responding but the other two officers present testified that he acknowledged that he was Shane Sureskumar. Detective Tsering asked Mr. Sureskumar for identification, but he did not have any with him. She recalled asking him where it was, and he indicated it was in his car. Detective Tsering then got the keys to the car but could not recall if the car had to be unlocked. She had no clear recollection of where within the car she located the wallet, but she recalled that it did not take long to find as it was in plain view. She did not have to look inside the glove compartment, or the back seat.
[14] Detective Tsering testified that she wanted the identification to ensure that she was arresting the right person. Although she had a good description of Mr. Sureskumar and had also reviewed the bank’s surveillance tapes that captured his image, she had never met him before.
[15] Detective Tsering testified that after she retrieved the wallet, she opened it briefly to confirm Mr. Sureskumar’s identity. She then gave the wallet to another officer who placed the wallet in the pocket of the jacket Mr. Sureskumar was wearing. She testified that she did not leave the wallet in the car because she thought that Mr. Sureskumar might want it since he was being placed under arrest and his car would remain in the parking lot.
[16] Once back at the station when Mr. Sureskumar was being booked and his personal effects catalogued, the police went through his wallet more thoroughly. This is when the police located a yellow sticky note in the bill fold section of the wallet. See Exhibit 9.
[17] Upon further investigation it was discovered that the handwritten note recorded the credit card numbers of several BMO bank customers. Bank records show that Mr. Sureskumar served these customers at the Dufferin Street branch on January 23rd, 2019.
[18] The Crown also led evidence through the bank’s investigator, Joana Szramek that Mr. Sureskumar accessed these same client’s accounts the following day on January 24th, 2019. Bank records show that he did not serve any of these customers on that occasion.
[19] As well, these client’s credit cards were compromised in the days following what the Crown alleges was a non-business purpose for accessing the accounts on January 24th. In particular, the credit cards were used to make unauthorized purchases at “SkipTheDishes” and “SeatGeek”, a website that sells tickets to events. By January 31st the cards were cancelled.
Position of the Parties:
Section 8 and the Garofoli Application
[20] Counsel for the applicant submits that when Detective Tsering entered Mr. Sureskumar’s car to retrieve his wallet this amounted to a warrantless search and is prima facie unreasonable.
[21] In her written application counsel for the applicant took the position that Detective Tsering was not really looking for identification but was engaged in a pretext to search the vehicle and in turn, the wallet. Yet, in oral submissions she appeared to resile from that position. She did not take the position that Detective Tsering entered the vehicle as a ruse hoping to find other evidence of fraud. She simply submitted that it was unnecessary for the officers to insist on seeing identification; that Detective Tsering should have been very confident that she was arresting the right person without looking at his driver’s licence.
[22] Ms. Kent also submitted that since the station where Mr. Sureskumar was processed was so close to the scene of the arrest, the police should have waited until they got back to the station to confirm the defendant’s identity by other means.
[23] Since Mr. Sureskumar was not arrested in his vehicle but in the vicinity of his car, Ms. Kent submitted that the retrieval of the wallet from the car cannot come within the purview of a search incident to arrest. Specifically, the applicant’s counsel asked the Court to reject the officers’ testimony about how close Mr. Sureskumar was to the car when he was arrested. In short, she submitted that the Court should conclude that Mr. Sureskumar’s rights under s. 8 were violated and the evidence (the yellow sticky note) ought therefore to be excluded.
[24] The Crown respondent submits that the cursory search of the vehicle was to retrieve Mr. Sureskumar’s wallet in order to confirm his identity which is an element of the offence. She submits that the search can be justified as a bona fide search incident to Mr. Sureskumar’s arrest.
[25] The defence has also brought a Garofoli application seeking to quash the warrant the police obtained to search Mr. Sureskumar’s cell phone. Counsel for Mr. Sureskumar submits that the yellow sticky note was obtained in violation of the defendant’s s. 8 rights, and that “without the yellow piece of paper there would have been an insufficient basis to obtain a warrant for [Mr. Sureskumar’s] cell phone.”
[26] If the section 8 application is successful, then the Court would need to review the Information to Obtain (“the ITO”) in order to assess whether the warrant could have been granted without reference to the yellow sticky note from the wallet. If it is unsuccessful, the Court will still need to review the ITO in order to assess whether it was deceptive or misleading and the impact of excising any misleading or deceptive content.
[27] Defence counsel submits that the ITO was misleading in that it left the impression that the wallet was found on Mr. Sureskumar’s person when in fact it was found in his car. She imputes an improper motive to the affiant. That the affiant was concealing the origin of the sticky note knowing that she had obtained it unlawfully. She maintains that if the issuing justice was made aware of where the yellow sticky note originated that the warrant would not have been granted.
[28] The Crown submits that the ITO was not deliberately deceptive and that at worst the ITO could be described as “sloppy”. However, she submits that even if reference to the sticky note found in Mr. Sureskumar’s wallet were totally excised from the ITO that the warrant would still have been obtained. She submits that given the what was known about the fraudulent wire transfer, it was reasonable for the police to believe that Mr. Sureskumar kept some sensitive bank information relating to that fraud on his cell phone.
Section 10(b)
[29] The applicant submits that the police ought to have granted Mr. Sureskumar his right to contact counsel at the scene of the arrest, not at the station which was less than a mile away. Counsel for Mr. Sureskumar submits that in delaying his consultation with a lawyer his section 10(b) rights were violated.
[30] The Crown submits that it was impractical to afford Mr. Sureskumar his right to counsel in the parking lot or worse, in his car.
[31] Firstly, the officers could not maintain control over Mr. Sureskumar and at the same time guarantee that his consultation would be private and that they would not overhear what is meant to be a private and confidential conversation.
[32] Secondly, placing Mr. Sureskumar in his vehicle was not a safe or sensible option.
[33] Lastly, the Crown submits that the station was less than a mile away and that there was no delay in getting Mr. Sureskumar to the station where he was able to make several calls: first to his brother and then to two different counsel.
Analysis and Findings:
Section 8
[34] Firstly, I cannot and do not fault Detective Tsering for wanting to confirm Mr. Sureskumar’s identity before transporting him to the station. While other avenues may have been available to her, it was not an unreasonable step to take in the circumstances of this case where identity theft was an allegation. I note that the detective had never met Mr. Sureskumar before and had only see his image on the bank’s surveillance footage.
[35] Even if a suspect or arrestee has identified himself verbally, the police are entitled to disbelieve him and to take steps to confirm the identity of the person. The context of the allegations is important to bear in mind. The police were investigating an alleged offence of dishonesty involving the use of multiple fraudulent identification documents.
[36] The central issue is whether the search for the wallet which was in Mr. Sureskumar’s car was truly incidental to his arrest. For the reasons set out in this Ruling, I find that it was.
[37] The seminal case on the issue of search incident to arrest is the Supreme Court of Canada decision in R. v. Caslake.[^1]
[38] The preconditions for a valid search incident to arrest are that:
the arrest be lawful,
the search must be truly incidental to the arrest, and
the search must be conducted in a reasonable manner and not in abusive fashion
[39] The defence does not take issue with the lawfulness of the arrest or the manner of the search. In any event, I find that the arrest was lawful and that it was conducted in a reasonable manner. It was cursory, and not abusive.
[40] There is no evidence that once Detective Tsering located the wallet that she continued to search the rest of the car. She looked briefly in the wallet to confirm identification but did not search the rest of the wallet.
[41] The three recognized purposes that justify a search incident to arrest are:
to ensure the safety of the police and the public
to protect evidence from destruction
to discover evidence of the offence for use at trial
[42] The authority to search incident to arrest does not require exigent circumstances. The common law permits warrantless searches incident to arrest to discover evidence of the offence for which the person was arrested even if there are no exigent circumstances.[^2]
[43] The power to search incident to arrest is not limited to a search of the accused’s person. Provided the search incident to arrest is temporally and a spatially connected to the arrest, the power to conduct such a search extends to anything in the accused’s possession or immediate surroundings.[^3]
[44] In this case the temporal connection is not disputed. However, the spatial connection is.
[45] Although the three officers’ testimony differed somewhat as to exactly how close Mr. Sureskumar was to his car, whether he was behind it or beside it, when he was arrested, I note that this was a small parking lot with only 7 spots for BMO customers. The undisputed evidence is that Mr. Sureskumar had exited the bank and was returning to his car. The officers saw him arrive and make his way to the bank. As a result, when he returned to the lot, they already knew which car he was heading towards.
[46] I am satisfied that he was close enough to the vehicle that he was in care and control of it and that Detective Tsering’s brief entry into the vehicle for the purpose of retrieving identification was justified as part of a valid search incident to his arrest. I find that the fact that the officers did not make note of the exact distance Mr. Sureskumar was from his vehicle is a detail that may not have seemed important in the overall context of the arrest.
[47] I accept Detective Tsering’s evidence that she retrieved the wallet in order to confirm Mr. Sureskumar’s identity. She did not intend to search for other evidence. Her explanation for removing the wallet from the car makes sense to me. It was a quick and efficient way to check that he was who she believed him to be.[^4]
[48] I also accept the detective’s evidence that she believed the wallet would be safer with Mr. Sureskumar than in his car. It is true that she could have asked him if he preferred to leave his wallet in the car, but the fact that she did not, does not detract from her credibility as to why she did what she did.
[49] I further find that the fact that she did not instruct the other officers to secure the wallet as evidence is telling. Instead, the wallet was placed in Mr. Sureskumar’s jacket pocket where it remained until he was booked. It was treated as his property and not evidence until the discovery of the yellow sticky note at the station. The discovery of the potential evidentiary value only came to light during the booking process and appears to have been unexpected and serendipitous.
[50] Finally, I found Justice Coroza’s decision of R. v. Singh[^5] to be particularly helpful in my analysis and findings in this issue.
[51] In that case, the police seized a pair of pants on a chair where the accused had indicated they could find his identification. They did not search the pants at the scene of the arrest for identification but took the pants to the station where they examined the pants and discovered items in his name. The accused sought to exclude the pants and their contents on the basis that his s. 8 rights were violated. In that case, the seizure and search of the pants was found to be authorized under common law as a search incident to arrest. The purpose for seizing the pants was to look for identification to confirm the accused’s identity, and this was found to be a valid objective that related to the proper administration of justice.
Section 24(2) analysis
[52] In the event I have erred in my assessment of the merits of the section 8 application, I would nevertheless admit the evidence under s. 24(2). Applying the Grant[^6] factors, including the final balancing, I find that the evidence ought to be admitted.
[53] As the Court emphasized in Grant, the focus of s. 24(2) is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The focus is on the broad impact of admission of the evidence on the long-term repute to the justice system.[^7]
Was this a serious breach?
[54] If there was a breach, I find that it was not a serious one. The search for the wallet was to retrieve identification. It was brief and the officer stopped once she found the wallet where she believed she would find the defendant’s identification. The officer acted in good faith believing that she was permitted to look for identification as part of a valid search incident to arrest.
[55] There was no evidence of a police pattern of ignoring constitutional rights in the course of the investigation. The police practice was consistent with what the common law permits and was consistent with the demands of the Charter.
[56] This factor favours admission.
What is the impact of the breach?
[57] The more serious the Charter-infringing conduct by the state, and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion.[^8]
[58] Appreciating that people enjoy a reasonable expectation of privacy in their vehicles, the impact of even a less serious breach is not insignificant. This factor tilts towards exclusion, but not overwhelmingly so.
Is there Societal interest in adjudication on the Merits?
[59] I find that given the nature of the allegations involving as they do the sanctity of and security of identity and security in the context of financial institutions, society has a deep interest in the adjudication of the case on its merits.
[60] While the charges are not offences of violence, they can hardly be characterized as trivial. The defendant is alleged to have played a central and pivotal role in a large-scale fraudulent transaction at the financial institution where he was employed in a position of trust. The charges are serious. The fact that the bank was able to retrieve the funds and make the complainant whole does not alter the seriousness of the allegations.
[61] This factor favours admission.
[62] Balancing the assessment of these three lines of inquiry, I find that considering all of the circumstances, the admission of the evidence would not bring the administration into disrepute.
The Garofoli Application
[63] The leading case on the standard of review where a warrant is challenged is the namesake case: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. The Supreme Court of Canada explained the standard of review when reviewing prior judicial authorizations, at para. 56:
The reviewing judge does not substitute his or her view for that if the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In the 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. (Emphasis added)
[64] Appendix “A” of the ITO explained that the phone would be analyzed for various items including bank records and identity data related to the main complainant, Amado Castillo as well as other BMO customers.
[65] As well, paragraph 15 of the ITO stated that the officer was seeking six items, including:
a) electronic records of identity data and financial data belonging to BMO clients Mr. Castillo and the three others found on the sticky note that was found in Mr. Sureskumar’s wallet (Emphasis added)
b) electronic records of banking transactions conducted on compromised accounts
c) evidence of identity of the person(s) involved in the personation of Mr. Castillo and the production of the forged identifications used
d) records of communications between Shane and any person(s) involved in the planning and execution of the offences
e) evidence of the whereabouts of cash obtained through the offences
f) electronic records of any other identity data belonging to Bank of Montreal clients (Emphasis added)
[66] Leaving aside whether the impression left in the ITO that the wallet was found on Mr. Sureskumar’s person was deliberately deceptive or merely misleading, I find that even if the references to the sticky note were to be totally excised from the ITO, there was still more than a sufficient basis to obtain the warrant to search Mr. Sureskumar’s cell phone. I have no doubt that it would still have been issued.
[67] The police had good reason to believe that a search of the phone would afford evidence of the offence for use at trial, for example, data relating to the complainant Mr. Castillo in the allegations regarding the wire fraud.
[68] For all of these reasons, I conclude that there was an ample basis for the issuance of the warrant.
[69] The Garofoli application is therefore denied.
Section 10(b)
[70] Mr. Sureskumar complains that his right to counsel was delayed until he arrived at the police station which was very close by.
[71] I find that the applicant has failed to establish a Charter breach on this basis.
[72] This was an application wholly without merit. It was entirely impractical and unfeasible to allow Mr. Sureskumar to attempt to contact counsel from the scene of his arrest.
[73] As noted, the station was a very short distance away and having him consult with a lawyer in an interview room afforded him the privacy he needed and also allowed the officers to maintain control over him in a secure setting. Allowing him to access his car to consult with counsel was not a practical or tactically sound option.
[74] As well, it bears noting that when Mr. Sureskumar was arrested, he did not immediately have a specific lawyer in mind. It took three (3) phone calls at the station to implement his s.10(b) rights. He first spoke with his brother in effort to locate a lawyer. He then spoke to duty counsel, and finally he had a consultation with a private lawyer.
[75] For all of the reasons noted, I find no fault whatsoever with the implementation of Mr. Sureskumar’s section 10(b) rights. The delay in providing Mr. Sureskumar access to a lawyer was reasonable in all of the circumstances.
[76] The application is therefore dismissed.
Released: August 25th, 2021
Signed: “Justice Bhabha”
[^1]: 1998 838 (SCC), [1998] 1 S.C.R. 51 [^2]: See Caslake, supra at para. 20 [^3]: See Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C. R 158 at paras 53, 61 [^4]: See Gottschalk v. Hutton, 1921 376 (Alta. CA) [^5]: [2015] O.J. No 5426 (Ont. S.C.J.) [^6]: 2009 SCC 32, 2009 2 S.C.R. 353 [^7]: [^8]: See R. v. McGuffie, 2016 ONCA 365, at para. 63