ONTARIO COURT OF JUSTICE
DATE: 2025 02 18
COURT FILE No.: 23-37100655-01/02
BETWEEN:
HIS MAJESTY THE KING
— AND —
BLAKE CORREIA and TABATHA HAMILTON
Before Justice Christa Reccord
Heard on December 19, 2024; January 13, 2025
Reasons for Judgment released on February 18, 2025
Tim McCann ........................................................................................ counsel for the Crown
Matthew Campbell-Williams..................................... counsel for accused Blake Correia
Jennifer Ho............................................................ counsel for accused Tabatha Hamilton
RECCORD, J.:
Introduction
[1] Blake Correia is charged with possession of cocaine for the purpose of trafficking, possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime. The Crown only seeks a conviction on the possession of cocaine for the purpose of trafficking count and in relation to Tabatha Hamilton, seeks only a conviction of simple possession of methamphetamine.
[2] The defence allege breaches of Mr. Correia’s and Ms. Hamilton’s section 8 and 9 rights under the Canadian Charter of Rights and Freedoms. They seek to exclude the evidence seized pursuant to section 24(2) of the Charter. The parties agree that the Charter application is dispositive of this matter.
[3] For the reasons that follow, I find that there were breaches of Mr. Correia’s and Ms. Hamilton’s section 8 and 9 Charter rights and I am excluding the evidence pursuant to section 24(2) of the Charter.
Factual Narrative
[4] Detective Constable Eric Trottier and Detective Constable Mark O’Dacre from the Ontario Provincial Police Renfrew Community Street Crime Unit (SCU) testified during the blended trial and Charter voir dire.
[5] Their testimony revealed that the SCU had received information from the Crime Unit that there were two individuals not from the city of Pembroke possibly involved in illicit drug trafficking. Detective Trottier testified that he was provided with the name of “Blake” and the street name “H”.
[6] Based on this information, the SCU conducted surveillance on June 21, 2023 at various addresses of interest to see if they could locate the individuals purported to be involved in drug trafficking. They located an individual known to Detective Trottier as “Blake” from prior investigations at 80 Hunter Street, Pembroke. From that point on the team conducted surveillance on “Blake” (later identified as Mr. Correia), Ms. Hamilton and their youth associate.
[7] The surveillance took place over a period of approximately 8 hours. Members of the SCU followed Mr. Correia, Ms. Hamilton and their youth associate from Pembroke to Ottawa and back to Highway 17 where Ms. Hamilton’s vehicle was stopped and all three individuals were arrested. I will say more about the stops made, routes taken and particular observations later in the discussion with respect to the grounds for arrest.
[8] Mr. Correia was searched incident to arrest and a package of 4.7 ounces of cocaine was found in his groin area. The search of Ms. Hamilton’s purse revealed 12 speed pills. Other items seized from the vehicle included cell phones, two containers of baking soda, a scale with powder substance, a measuring cup and some Canadian currency.
The police did not have objectively reasonable grounds to arrest
The law
[9] This case turns on whether the police had reasonable grounds to arrest Mr. Correia and Ms. Hamilton. If those grounds are lacking, then the warrantless searches incident to arrest are not justified.
[10] Section 495 of the Criminal Code authorizes a peace officer to arrest a person if the officer has reasonable grounds to believe that the person has committed or is about to commit an indictable offence. The officer’s grounds must be both subjectively and objectively reasonable. The objective grounds are to be assessed based on the totality of circumstances and from the perspective of a reasonable person standing in the shoes of the police officer (R v Storrey, [1990] 1 SCR 241 at pp 250-251; R v Canary, 2018 ONCA 304 at paras 21-30).
[11] “Reasonable and probable grounds” is a higher standard than “reasonable suspicion” in that it requires a credibly-based probability rather than possibility of crime. However, police are not required to make out a prima facie case before making an arrest (R v Debot, [1989] 2 SCR 1140 at p 1166; R v Chehil, 2013 SCC 49 at para 27; Canary, supra, at para 23).
Evidence of Detective Trottier
[12] Detective Trottier was the officer who formed the grounds for arrest. He testified about the information he had received which led to this investigation. I heard no evidence with respect to the provenance of this information or its reliability, but this is of no importance because the Crown does not rely on that information as forming part of the basis for Detective Trottier’s grounds for arrest.
[13] Detective Trottier indicated that he relied on the following factors in forming his grounds to arrest the accused for possession for the purpose of trafficking:
a) In December 2022, Detective Trottier conducted surveillance during a drug investigation with an OPP Guns and Gangs unit out of Ottawa. During that surveillance, he made observations of Mr. Correia and his youth associate at a separate residence in Pembroke that was known to him for illicit drug trafficking. He testified that they had obtained a ride from an individual in Pembroke, travelled to Ottawa making short duration stops at areas known to officers to be associated with illicit drugs, then returned back to Pembroke. In cross-examination, Detective Trottier testified that that surveillance took place over a period of approximately 8 hours and that no enforcement action had been taken at that time.
b) Mr. Correia, Ms. Hamilton and their youth associate were located in the morning of June 21, 2023 at 80 Hunter Street in Pembroke, in the area of Unit 2, which the officer described as an address known to police as being part of the drug subculture and the location of an overdose death.
c) Ms. Hamilton was known to Detective Trottier as a person associated with the drug subculture in Pembroke.
d) The three individuals travelled by motor vehicle to Ottawa via Highway 17, but took a circuitous route through Renfrew, making no stops, which the officer described as a being consistent with a “heat check,” that is, an attempt to evade or detect police surveillance.
e) Once in Ottawa, Mr. Correia and his youth associate were observed exiting the vehicle on Bullman Street. Mr. Correia then is observed exiting 8 Bullman Street and getting into a car with a Quebec licence plate. Mr. Correia was in that vehicle for approximately one minute. He then went back into 8 Bullman Street. Detective Trottier said that this residence was not of any particular significance but described the area as being one associated with illicit drugs.
f) After Mr. Correia and the youth associate left 8 Bullman, Ms. Hamilton drove them to the area of Catherine Street, Ottawa and parked. They remained in the car for approximately 30 minutes.
g) After leaving Catherine Street, they returned to the area of Pinehurst Avenue and Bullman Street. Two other individuals exited 8 Bullman Street and walked towards Ms. Hamilton’s car. Everyone, including the two other individuals, got into the car, which was then followed to a garage on Somerset Street, not too far from Bullman Street. At the garage, the youth associate got into a second car. Both cars then returned to 8 Bullman Street.
h) Ms. Hamilton, Mr. Correia and the youth associate then went to a building on the outskirts of Chinatown in Ottawa. They attended an address, but the surveillance team was unable to see exactly where they were. They remained at this address between 20 minutes and an hour.
i) When they left this address, they travelled back through Ottawa towards Highway 17. At some point, the vehicle did a U-turn of sorts through a convenience store area. Detective Trottier described the U-turn as a possible “heat check.”
[14] Detective Trottier testified that in his experience the short meeting in the car with the Quebec plate outside of 8 Bullman Street and then the travel to and time spent waiting on Catherine Street indicated that an order or payment was made for a substance. The departure from that address was consistent with waiting for the substance to be weighed or measured. The return to that area and then attending a second location, in his experience, was consistent with the point in the chain where they obtained the substance.
[15] It is unclear to me from the evidence whether the second location referred to by Detective Trottier is the garage on Somerset Street or the building on the outskirts of Chinatown.
[16] The officer further testified that based on the totality of the factors listed above, his experience and the fact that they had not stopped at any commercial businesses in the city of Ottawa, he formed grounds to believe that Mr. Correia, Ms. Hamilton and the youth associate had travelled from Pembroke to Ottawa to pick up drugs and return to Pembroke.
[17] In cross-examination, Constable Trottier conceded that the there had been stops at commercial businesses, including stops at the Tim Horton’s in Cobden, the garage on Somerset Street, and a Quickie Mart in Ottawa.
[18] With respect to his experience, Detective Trottier testified that he had been a police officer since December 2017. At the time of the arrest, he had been with the SCU for approximately one year. When he joined that unit, Detective Trottier completed some courses on recruitment of confidential informers and a three-week surveillance course. During his first year in the SCU he would have used his surveillance skills almost daily, or at least multiple times a week. He has also been involved in investigations where he was strictly part of a surveillance team.
[19] Detective Trottier acknowledged in cross-examination that in his experience a hand-to-hand transaction is usually quicker than ten minutes. When defence counsel put to him that traffickers do not normally hang out with their customers, the officer said that it could depend on whether the parties are known to one another.
[20] He further acknowledged in cross-examination that he did not see any money or drugs during surveillance.
Analysis
[21] Defence did not take any issue with Detective Trottier’s credibility. He testified in a straightforward and forthright manner. It is common ground that Detective Trottier possessed the requisite subjective grounds for arrest. The only issue to be determined is whether those grounds were objectively reasonable.
[22] Do the factors relied on by Detective Trottier viewed through the lens of an officer with his training and experience and viewed in totality amount to objectively reasonable grounds to believe that Mr. Correia and Ms. Hamilton possessed drugs for the purpose of trafficking? In my view, they do not.
[23] With respect to Detective Trottier’s prior observations of Mr. Correia over a period of eight hours in December 2022, there is very little detail as to what those observations were, apart from a general statement that the behaviour was similar to that observed on June 21, 2023. This behaviour occurred six months prior to the June 2023 investigation and did not lead to any enforcement action. I find that very little weight can be placed on these prior observations given the lack of detail, their staleness and the lack of any enforcement action related to them.
[24] With respect to Detective Trottier’s assertion that the address of 80 Hunter Street in Pembroke is associated with the drug subculture, it also falls short. There are very few details about the address’s connection to drug subculture other than a generic statement that there were occurrences of suspicious activity and an overdose death, the date of which the officer could not recall. The officer was not aware who was living there at the time of the investigation. There was no indication as to whether the purported suspicious activity was drug related and no information was provided with respect to any drug investigations, Controlled Drugs and Substances Act search warrants or charges related to that address. I would not say that this factor has no value, however, its value is limited.
[25] With respect to the two ‘heat checks,” I accept the officer’s evidence that the circuitous route through Renfrew could be consistent with an attempt to evade surveillance. The officer, having done a year of surveillance, is well placed to draw that inference and he is not required to rule out every other possible exculpatory explanation (R v Chehil, 2013 SCC 49 at para 34). This is a factor that can be considered in reviewing the totality of the circumstances.
[26] The second possible heat check was the U-turn near the convenience store when the car was en route back to Pembroke. The officer was equivocal in his evidence about this U-turn. While he stated that this U-turn appeared to be a heat check, he immediately conceded that the accused could have been lost. As a result, I find that it is of limited use in the analysis.
[27] With respect to Ms. Hamilton’s purported connection to the drug subculture, once again, very few details were provided about what that connection was other than a generic statement that she was involved in several different occurrences that were drug related. In cross-examination, Detective Trottier confirmed that Ms. Hamilton had not been charged in relation to those occurrences. No other details were provided with respect to the types of occurrences or the dates of those occurrences. This lack of detail limits the value of this information.
[28] Moreover, in cross-examination, the officer confirmed that he was aware that Ms. Hamilton was known to be a taxi driver employed by a legitimate taxi company in Pembroke. In my view, this evidence detracts from the officer’s grounds to arrest Ms. Hamilton.
[29] Then there are the surveillance observations made of the various stops in Ottawa. As noted above, Detective Trottier asserted that the pattern of the stops made in Ottawa were consistent with an order or payment of drugs being made, with the buyer waiting for the order to be ready and then picking up at a second location. He also noted that the area of 8 Bullman Street was an area known to be involved in illicit drug trafficking. Those observations in combination with his assertion that the accused did not go to any commercial businesses contributed to his grounds.
[30] In cross-examination, Detective Trottier conceded that the accused did attend at commercial businesses including the garage and at least one stop at a convenience store. He clarified that when he said there were no stops at commercial businesses, he meant clothing, leisure and entertainment businesses. No explanation was given as to why it was significant that the individuals had not stopped at businesses. As a result, this information is of little value.
[31] With respect to the area of 8 Bullman Street being associated with drug trafficking, Detective Trottier testified that the particular address of 8 Bullman Street was not of significance, but rather the area was. There was no detail provided as to how big the area was or why it was an area that was involved in drug trafficking. The evidence with respect to this is thin and it is of little value. See R v Brown, 2012 ONCA 225 at para 18 and R v Hariraj, 2014 ONSC 6875 at para 110.
[32] As to the pattern of stops made being consistent with individuals traveling to Ottawa to pick up drugs to bring back to Pembroke, I must consider whether the officer’s experience is such that the inference he draws is objectively reasonable. With respect, I am unable to conclude that is the case.
[33] Detective Trottier had been in the SCU for about a year at the time of this investigation. He testified that he used his surveillance skills routinely. Officer O’Dacre testified that the SCU conducted both property crime and drug investigations.
[34] There was no detailed evidence about how many of Detective Trottier’s investigations were drug investigations and how much surveillance was drug related. Detective Trottier offered no explanation as to why the pattern of behaviour observed was consistent with a drug trafficking transaction.
[35] In fact, he testified in cross-examination that in December 2022, a mere six months earlier, he was not educated enough to have known what the significance of those types of observations was. I glean from his testimony that in June 2023 he felt that he had sufficient experience to appreciate the significance of such observations. However, I do not have any evidence as to what experience or education he gained in those six months apart from general statements that he conducted surveillance.
[36] With respect to assessing an officer’s experience, the Supreme Court stated in Chehil, supra, at paragraph 47:
Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training.
[37] Given the limited information of value and the general nature of the observations made during surveillance, I find that I do not have enough specific evidence as to the nature and extent of Detective Trottier’s experience as a drug investigator to conclude that he is able to draw the inference he does in respect of the pattern of travel between Pembroke and Ottawa as being consistent with a drug transaction.
[38] The Crown urged me to consider the importance of the reality of what occurs in rural communities and how it is different than larger centres. He argued that in small communities, drugs are coming in from larger communities. I accept that this is a valid proposition. I also appreciate that drug trafficking is a clandestine business that is often difficult to detect and investigate. The difficulty I have, however, is that these propositions are not grounded in the evidence before me. Indeed, when the Crown asked Detective Trottier whether it was relevant to his grounds that the two individuals were not from the area (i.e., Pembroke), he testified that it was only relevant to the identification of those individuals.
[39] Given the lack of detail in respect of many of the factors relied upon by Detective Trottier, the lack of detail in respect of his drug investigation experience, as well as the lack of explanation as to why the pattern of behaviour observed was consistent with drug trafficking, I find that the officer’s grounds were not objectively reasonable in this case.
[40] As a result, there were breaches of Mr. Correia’s and Ms. Hamilton’s section 8 and 9 Charter rights. Their detentions and arrests were unlawful, as were the seizures of the cocaine, methamphetamine and other items.
Admission of the evidence would bring the administration of justice into disrepute
[41] I now must consider whether the evidence that was obtained in a manner that infringed rights guaranteed by the Charter ought to be excluded pursuant to section 24(2) of the Charter. In so doing, I am to apply the framework set out by the Supreme Court in R v Grant, 2009 SCC 32.
[42] The first consideration is the seriousness of the Charter-infringing state conduct.
[43] Defence counsel conceded that there was no bad faith on Detective Trottier’s part. I agree that the officer was acting in good faith. However, the law of warrantless arrest is well settled. Here we have no novel legal issue or unchartered legal waters; the police are expected to know what the law is (R v Le, 2019 SCC 34). As a result, this factor militates towards exclusion of the evidence.
[44] Next, I must consider the impact of the breaches on Mr. Correia and Ms. Hamilton.
[45] The Crown, in its factum, states an acknowledgement that the impact of a non-Charter compliant arrest and search is always serious.
[46] The detention and arrest took place on Highway 17, a busy and public area. The roadside searches of Mr. Correia’s and Ms. Hamilton’s persons were inherently intrusive, though there was no evidence that the searches were demeaning to their dignity. The search of the vehicle was less intrusive given the lower expectation of privacy in a vehicle.
[47] I find that the invasions of privacy and liberty are not minor or technical in nature and are therefore serious.
[48] Defence counsel asserted that Mr. Correia had also been strip searched at the station. I heard no evidence in respect of this; likely because nothing was found as a result of that search. The Crown did not refute this assertion in his submissions. If there was a strip search, that would put the impact of the breaches on Mr. Correia’s at the more serious end of the spectrum.
[49] This factor also tends towards exclusion of the evidence.
[50] Finally, I must consider society’s interest in adjudication of the case on its merits. This factor militates in favour of admission of the evidence because without this evidence, the Crown’s case would be gutted. I agree with the Crown that these are serious charges given the nature and quantity of cocaine that was intended for distribution in a rural community.
[51] When I weigh the three factors, I find that both the first and second factors weigh in favour of exclusion and that the third factor, while weighing in favour of admission, does not tip the balance in this case. As a result, I find that the admission of the seized evidence would bring the administration of justice into disrepute.
Conclusion
[52] Mr. Correia’s and Ms. Hamilton’s application is granted. Their section 8 and 9 Charter rights were violated. All items seized from them and from Ms. Hamilton’s vehicle are excluded pursuant to section 24(2) of the Charter.
Released: February 18, 2025
Signed: Justice Christa Reccord