BARRIE COURT FILE NO.: 11-218
DATE: 20120914
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. ADAM JAMES MARASCHIELLO and ALBERT CHRISTOPHER ZITO,
BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD
COUNSEL:
J. Markson, Counsel, for the Crown
L. Shemesh Counsel, for the Applicant Accused
HEARD: September 10, 11, 12 & 14, 2012
ENDORSEMENT
[ 1 ] The admission of evidence is challenged on two fronts: the warrantless search of the vehicle driven by the accused at the time or arrest; and the search of a residence with a search warrant. The Crown bears the onus on the warrantless search and the Accused bears the onus on the section 8 Charter Application. Cross-examination of the officer on all evidence bearing on these issues proceeded on consent without the necessity to obtain leave and standing was not challenged.
WARRANTLESS SEARCH
[ 2 ] On April 23 rd 2010 Adam Maraschiello and Mr. Zito were arrested for possession for the purpose of trafficking. Investigation had commenced on the basis of a tip that “Adam” ... “is trafficking cocaine”….” drives a Chev Avalanche…labelled”…and “deals cocaine from his vehicle and does meets in parking lots... “has a roommate Chris that drives around with him”.
[ 3 ] Police database records led investigators to the vehicle, to Adam Maraschiello and to a residence at 171 Wessenger Dr, Barrie, Ontario, where they took up surveillance. Over the course of two evenings DC Grant personally observed or had reported to him by others on the surveillance team numerous occasions of apparent contact between Mr. Maraschiello and/or Chris Zito and unknown third parties who either arrived at 171 Wessenger Dr, or where Mr. Maraschiello attended in his vehicle including, four times in area parking lots as suggested by the tip. These contacts were of short duration. In the parking lot contacts either an unknown third party briefly entered Mr. Maraschiello’s vehicle or Chris Zito entered the third party’s vehicle.
[ 4 ] Police experience of typical drug transaction conduct and common sense about how one might conduct commerce to avoid detection support an inference that such conduct was consistent with the allegation being investigated.
[ 5 ] After his observations of such activity at 171 Wessenger Dr and from the vehicle on April 9, 2012, DC Grant felt he had reasonable and probable grounds to arrest for possession for the purpose of trafficking but no opportunity presented itself. The observations were too stale to form reasonable and probable grounds on April 23 rd when surveillance was resumed but they formed a basis of his suspicion.
[ 6 ] During the final observation on April 23 rd at a gas station parking lot, DC Grant testifies he saw Mr. Zito get out of the vehicle being driven by Mr. Maraschiello and enter a waiting vehicle and return. Meanwhile DC Grant testifies he saw an unknown male enter the back seat of the vehicle where Mr. Maraschiello remained. He testifies he observed Mr. Maraschiello canter his body towards the back seat, that he pinched something white, and flicked it with his finger. This DC Grant interpreted as an apparent hand to hand drug transaction though he did not see Mr. Maraschiello’s hand meet the hands of the unknown male in the back seat.
[ 7 ] The accused argues that the belief that these short duration contacts were drug transactions rather than innocent meetings such as with relatives or co-workers must necessarily be based on the tip from the confidential informant. Citing Code J. who, in R v Learning 2010 ONSC 3816 , scrutinized quite detailed confidential informant information set out in paragraph 13 of the case and found it could not provide a base for reasonable and probable grounds, it is argued that the tip here cannot provide basis for reasonable and probable grounds.
[ 8 ] In the present case, while some information from the confidential informant was generic as to description of the person and vehicle and could be known and reported to police without the tip that Mr. Maraschiello was selling drugs from the truck being true, DC Grant did not rest on this information nor arrest on reasonable and probable grounds based on the tip alone. Rather, the tip led to an investigation. The investigation reasonably allowed DC Grant to believe that the confidential informant had previously provided reliable information. The investigation revealed conduct consistent with the information provided by the confidential informant. It cannot be said that the information imposed blinders or tunnel vision such that DC Grant arrested Mr. Maraschiello based on the tip. The tip merely formed one piece of a cumulative array of evidence and observation that made it reasonable for DC Grant to believe that what he was observing was series of drug transactions.
[ 9 ] DC Grant reports he subjectively believed he had reasonable and probable grounds to arrest on a charge of possession for the purpose of trafficking.
[ 10 ] When Mr. Maraschiello drove his vehicle immediately thereafter into the adjacent carwash DC Grant decided he had opportunity to arrest.
[ 11 ] The Accused submits that the arresting officer, DC Grant, did not have reasonable and probable grounds to arrest and that having done so there were no exigent circumstances justifying search of the vehicle until a search warrant could be obtained.
[ 12 ] Taken at face value, I find that reasonable and probable grounds is emphatically made out.
[ 13 ] I specifically say “at face value” because I must assess whether I accept the evidence of DC Grant. It was put into question when, during re-examination, he asserted for the first time under oath that he had binoculars. This was very curious because the subject of opportunity to observe had been questioned both at the preliminary hearing and before me in the voire dire. The focus of the questions was distance as it might impact on ability to observe such that it would seem natural for the officer to have referred to the binoculars had they been used.
[ 14 ] His explanation was that he had not been asked about binoculars. He explained that the use of binoculars is so standard for surveillance work that he took it as a given that it would be understood he had binoculars.
[ 15 ] That use of binoculars is standard was supported by DC Taylor when he testified. It is reasonable that use of binoculars would not be noted unless something particular about their use alerts a note-maker that use of binocular was crucial. Still, the curiosity of never mentioning binoculars in testimony about distance heightened my vigilance of this officer’s credibility. I permitted new cross-examination on the issue.
[ 16 ] Two factors persuade me that his credibility remains intact.
[ 17 ] Firstly, DC Grant’s demeanour throughout his testimony was measured and fair-minded. I received no impression of the disturbing manner of police witnesses sometimes seen, of over-reaching or over-enthusiasm for the prosecution, other than the curiosity of asserting the use of binoculars for the first time in re-examination.
[ 18 ] Secondly, the binoculars became relevant primarily in relation to the testimony of DC Grant seeing Mr. Maraschiello pinching something white in one hand and flicking it. As the voire dire played out before me, that evidence also seemed to be rather late-breaking inasmuch as it was not specified in the Information to Obtain. However, it was in DC Grant’s contemporaneous notes. I am left, binoculars or not, with an assertion of what he saw, detailed in his notes and before me, but described in the Information to Obtain merely as “what appeared to be a hand to hand transaction with the rear occupant”.
[ 19 ] Even if credibility were in doubt because distance was too great for opportunity to make such an observation on the point of seeing the pinch and flick of something white, there was much remaining evidence of covert commercial activity over two evenings, viewed objectively, to form reasonable and probable grounds.
[ 20 ] I find the face value of the evidence is not displaced by reason of officer credibility. I find there was reasonable and probable grounds to arrest for possession for the purpose of trafficking.
[ 21 ] Immediately after the arrest, when both Mr. Maraschiello and Mr. Zito were out of the vehicle, DC Grant moved the vehicle out of the carwash exit.
[ 22 ] Cocaine and a sum of money were found on the person of Mr. Maraschiello.
[ 23 ] Arrangements were made to transport the accused to the police station. Then DC Grant searched the vehicle. He testified that when he decided to make the arrest it would have been his intention to search the vehicle without warrant as an incident of arrest. This is his standard practice and he has never sought a search warrant for a vehicle directly involved in an arrest situation but only where he might be seeking to search a vehicle that might be located at a location he was otherwise seeking a warrant to search.
[ 24 ] The accused argues that there were no exigent circumstances to justify warrantless search.
[ 25 ] The Applicant accused submitted that even if there were reasonable and probable grounds to believe Mr. Maraschiello was trafficking cocaine and had left the residence and returned from doing so on one occasion and then left the residence and trafficking cocaine was arrested that that does not provide a nexus with the location DC Grant sought a search warrant to search. I will address this later. It is submitted the accused persons were out of the vehicle and gone so no officer safety issues remained, that the vehicle was controlled so whatever evidence was in it would be there to be searched once a warrant was obtained and there was no hot pursuit.
[ 26 ] It is submitted The Crown is not relying on exigent circumstances. Rather, it is argued that search of the vehicle in which the conduct constituting the alleged offence had been recently observed to occur and where the accused Mr. Maraschiello had been observed reaching down into the back seat rather than comply, as Mr. Zito did, with police demand to put his hands up during the arrest, was an incident of the arrest as permitted by the common law.
[ 27 ] The burden is on the Crown to demonstrate, on a balance of probabilities, that the search was reasonable. R. v. Collins , 1987 84 (SCC) , [1987] 1 S.C.R. 265. A search is reasonable where it is authorized by law, if the law itself is reasonable, and if the manner in which the search was conducted is reasonable. The common law basis of police powers has been derived from the nature and scope of police duty. At common law the principal duties of police officers are the preservation of the peace, the prevention of crime and the protection of life and property.” R. v. Dedman , 1985 41 (SCC) , [1985] 2 S.C.R. 2. I,
[ 28 ] The accused argues that DC Grant was proceeding with ideological belief he could search for evidence, that he had no concern for safety once the accused was out of the car as demonstrated by the passage of time before the search was conducted.
[ 29 ] The crown relies on R. v Caslake 1998 838 (SCC) , [1998] 1 SCR 51; [1998] S.C.J. No 3
C. The Scope of Search Incident to Arrest
15 Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts' responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals' right to privacy. The scope of search incident to arrest can refer to many different aspects of the search. It can refer to the items seized during the search. In Stillman, Cory J. for a majority of this Court held, at para. 42, that bodily samples could not be taken as incident to arrest, as a search so invasive is an "affront to human dignity". It can also refer to the place to be searched. The appellant argues that the power of search incident to arrest does not extend to automobiles. I would reject this position . Automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles referred to above.
16 Scope can also refer to temporal limits on the power of search, which are at the core of the case at bar. The appellant suggests that the delay between the search and the arrest (six hours in this case) was too long to make the search "incident" to the arrest. In my opinion, the Court should be reluctant to set a strict limit on the amount of time that can elapse between the time of search and the time of arrest.
17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual's interest in privacy. See the Law Reform Commission of Canada, Report 24, Search and Seizure (1984), at p. 36. (For a more in-depth discussion, also see Working Paper 30, Police Powers -- Search and Seizure in Criminal Law Enforcement (1983), at p. 160.) This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.
18 This position has been taken by a number of lower courts, and particularly well articulated by Doherty J.A. In Lim (No. 2), supra, at p. 146, he stated:
I begin with a determination of whether the search was truly an incident of the arrest. If it is not, the common law power to search as an incident of arrest cannot be relied upon. . . .
In considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search.
Similarly, in R. v. Belnavis (1996), 107 C.C.C. (3d) 195, at p. 213, Doherty J.A. held that an arrest for outstanding traffic fines did not authorize the search of the trunk of a vehicle, stating "[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest." This decision was affirmed by this Court ( [1997] 3 S.C.R. 341 ), although Cory J., who wrote for the majority, did not address this issue.
19 As L'Heureux-Dubé J. stated in Cloutier , the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one.
20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a "valid objective" served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.
21 In my view, it would be contrary to the spirit of the Charter's s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer's belief that he or she has a legitimate reason to search is reasonable in the circumstances.
22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).
23 As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.
24 The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.
25 In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.
Was the Search in this Case Truly Incidental to the Arrest?
26 The police arrested the appellant because they believed that he was either buying or selling the nine-pound bag of marijuana which Natural Resource Officer Kamann found. In this case, the appellant was arrested in his car, which had been observed at the place where the marijuana was discovered. Had Constable Boyle searched the car, even hours later, for the purpose of finding evidence which could be used at the appellant's trial on the charge of possessing marijuana for purpose of trafficking, this would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search of the vehicle. However, by his own testimony, this is not why he searched. Rather, the sole reason for the search was to comply with an RCMP policy requiring that the contents of an impounded car be inventoried. This is not within the bounds of the legitimate purposes of search incident to arrest.
[ 30 ] In the present case the vehicle was the scene of the crime. The arrest itself caused some commotion, the vehicle needed to be moved and the arrested individuals managed. The observed reaching into the back seat itself suggested that evidence relevant to the reason for arrest might be found. The delay was not long and well explained by the need to address other pressing steps.
[ 31 ] Although the officer’s mindset was described as ideological, it accords with the purposes for which search is permitted. His real reasons for searching the vehicle, unlike the articulated reasons of the officer in Caslake , were within his common law powers incident to arrest.
[ 32 ] I therefore find the Crown has satisfied its onus. The evidence will be admitted.
CHARTER APPLICATION S.8 AND S.24(2)
[ 33 ] Applications seeking to exclude evidence obtained by search warrant of a place based on the insufficiency of grounds in the Information to Obtain have come to be known as Garafoli Applications based on R. v Garafoli (1990) 60 C.C.C. (3d) 161 (S.C.C.).
[ 34 ] Here, the grounds argued included that the Information to Obtain contained the assertion that the target location was the residence of Mr. Maraschiello which is not provable and inconsistent with contemporaneous evidence.
[ 35 ] Upon this ground I raised the question of standing but neither party pursued a position that the Accused did not have standing to contest the search warrant.
[ 36 ] The hearing had a certain fluidity such that topics taking a considerable proportion of the evidentiary phase were less emphasized during argument. I intend to focus on those issues which counsel emphasized in submissions.
[ 37 ] For instance, one factual assertion vehemently challenged in the evidentiary stage was in paragraph 16 where the accused argues that the juxtaposition of the fact of a traffic stop in 2009 in which Mr. Maraschiello was driving the vehicle, to the fact that RMS, the police database, gave Mr. Maraschiello’s address as 171 Wessenger Dr, was intended to mislead the Justice of the Peace by suggesting that Mr. Maraschiello verbally or through his documents had indicated 171 Wessenger Dr was his residence.
[ 38 ] After much evidence I conclude that the current state of the database at the time DC Grant swore the Information to Obtain did support the assertion that 171 Wessenger Dr was a current residential address for Mr. Maraschiello. More than that, it had led police to conduct surveillance at that location and observe on April 9 and 23, 2010 that Mr. Maraschiello was in and out of that residence. As well, DC Taylor observed the vehicle in that driveway on a third occasion.
[ 39 ] The Information to Obtain did set out another address that was on Mr. Maraschiello’s driver’s licence with the affiant’s opinion that this was a “suspected former address”. Having laid this basis DC Grant thereafter refers to the location as Adam Maraschiello’s residence.
[ 40 ] The database could have been incorrect. The actual documents for the 2009 stop suggest a different address in 2009 that DC Grant did not explore but neither he nor DC Taylor went to the originating documents behind the database which updates itself whenever a new occurrence causes an officer to submit new residential information. The current state of the database when DC Grant reviewed it for the purpose of the investigation did send him to 171 Wessenger Dr and he observed Mr. Maraschiello frequent that location. Although police at leisure could have sought more evidence to eliminate other addresses as being Mr. Maraschiello’s current residence, I find no negligence and certainly no intention to mislead in reporting on the Information to Obtain what the database revealed which was supported by direct observation of Mr. Maraschiello at the location.
[ 41 ] I do not intend to excise the residence information recorded in the Information to Obtain.
[ 42 ] The accused argued insufficiency in the Information to Obtain both on the basis of facial validity and sub-facial validity based on issues explore in the cross examination of the affiant at preliminary hearing and in the voire dire before me.
[ 43 ] The value of the confidential informant information was challenged as too generic, descriptions of Mr. Maraschiello and his vehicle being available, drug transactions at unspecified dates and unspecified quantities.
[ 44 ] There was no “step six” Garafoli request to rely on redacted portions of the Information to Obtain to address either the dates of the drug transaction the confidential informant asserts so as to show the information is current, nor the nature of the criminal record of the confidential informant so as to inform the issuing Justice of the Peace whether there were crimes of dishonesty of which DC Grant candidly testified there could be one such so characterized.
[ 45 ] The accused cites R v. Learning, supra, to support the principle that corroboration by police merely of the innocent readily available generic information is not sufficient. It is argued there must be corroboration of the tip in its details of culpability. Code J. states:
92 In evaluating whether a tip from a confidential informer can rise to the level of reasonable and probable grounds, justifying an arrest or a search, the leading authority remains Martin J.A.'s decision, speaking for the Ontario Court of Appeal in R. v. Debot, supra at pp. 218-219:
Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary "reasonable ground to believe", to justify the granting of a search warrant: see, for example, R. v. Nepp (1927), 48 C.C.C. 275 at pp. 276-7 (Man. C.A.); Illinois v. Gates (1983), 462 U.S. 213. Such information may also provide the necessary reasonable and probable grounds to justify an arrest without warrant: see Draper v. U.S. (1959), 358 U.S. 307. It would seem to be entirely logical and reasonable that such information can also provide the necessary "reasonable ground to believe", to justify a warrantless search, where a warrantless search is authorized by law. On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged: see R. v. Noble, [1984] O.J. No. 3395 , supra , at p. 161 . Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.
93 Martin J.A.'s approach to this issue has been followed repeatedly by the Supreme Court of Canada in a number of different contexts. See: R. v. Debot, supra ; R. v. Greffe (1990), 55 C.C.C. (3d) 161 (S.C.C.); R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.).
94 The informer's tip in the case at bar, in the heavily edited form in which it was disclosed to the defence and proved on the voir dire , does not rise to the level of reasonable and probable grounds. It is classically "a mere conclusory statement" or "mere statement by the informant [D.C. Connor] that he or she was told by a reliable informer that a certain person [Jared Learning] is carrying on a criminal activity [possession of a handgun]", to paraphrase Martin J.A. in Debot, supra . The edited tip is simply a bald assertion that "located in the basement of the house ... at 10 Tartan Avenue, Toronto ... [there is] a handgun in the possession of Jared Learning". It contains no detail, it does not disclose the informer's means of knowledge, it is uncorroborated and it discloses no past history of reliability.
[ 46 ] There is some weakness in the absence of dates which would go to currency and volumes which would go to purpose of possession. There is no mention of transactions from a location other than the vehicle.
[ 47 ] However, the tip is of personal dealings not hearsay. The tipster has previously provided reliable information. The contact with the tipster is current. By subsequent tip he corrects the vehicle description which is corroborated by investigation, his physical description is corroborated by investigation and Mr. Maraschiello has a roommate named Chris that drives around with him. This last assertion appears to be corroborated by the fact that Mr. Zito’s name is Chris, that both Mr. Maraschiello and Mr. Zito are seen at 171 Wessenger Dr and that on April 23 rd Mr. Zito is observed driving around with Mr. Maraschiello and both appear to be conducting drug transactions in the parking lot where they were arrested together.
[ 48 ] I find that by the standards set forth in the cited authority, the tip here does “rise to the level of reasonable and probable grounds, justifying an arrest or a search” when viewed in the context of the subsequent investigation. It falls much more in the category that Code J. distinguishes from the case before him lacking in such support.
[ 49 ] Since I have ruled that the evidence obtained at the time of the arrest is admissible, the “grounds to believe thing to be seized will afford evidence of the offence” arises by the nature of the alleged crime and the affiant’s experience, adequately stated, that it can be expected to find cocaine, packaging, digital scales, debt lists and currency.
[ 50 ] In one respect however further care is necessary. To meet facial validity the information must demonstrate “grounds to believe that things to be seized are at the place to be searched”.
[ 51 ] The Applicant accused argues that there is no nexus to the 171 Wessenger Dr location. For reasons mentioned earlier I reject the argument that the is insufficient evidence that associates Mr. Maraschiello with 171 Wessenger Dr. The argued point is that there is insufficient support for the assertion that any of the drug trafficking supply, tools or revenue would be at that location.
[ 52 ] The Information to Obtain states in paragraph 27 that the cocaine seized from the arrest included dime bags and money. The tools for creating dime bags of cocaine were not. The Information to Obtain asserts that the accused left 171 Wessenger Dr to complete multiple suspected drug transactions. The affiant concluded “from these observations I know Maraschiello and Zito traffic cocaine from their residence.
[ 53 ] The accused argues that the confidential informant never suggested there were drug transactions from any location nor volume of sales justifying any inference of stockpiling. The evidence of what DC Grant saw when he was conducting surveillance at the home was not in the Information to Obtain. It is argued that his conclusion based on experience is insufficient.
[ 54 ] The Applicant Accused cited R v. Wisdom [2012] O.J. No. 452 for the proposition that merely coming and going from a place before and after drug transactions was insufficient nexus. It was submitted that the tip was much more specific and the indicia of trafficking was much stronger in this recent Ontario Court of Justice case where the search warrant was quashed and the evidence excluded.
[ 55 ] In Wisdom Lipson J. found, after first rejecting the initial warrantless search where there were no exigent circumstances about which the head note states:
There were no exigent circumstances to justify the warrantless entry into the accused's apartment. While the officers' cover was compromised, there was no evidence the accused took any steps to have evidence in their apartment removed or destroyed. No one was seen leaving or entering the building and the officers could have undertaken less intrusive measures by simply guarding the door until the warrant arrived. The officers entered the unit and quickly confirmed no one was present, then remained inside the unit, having a good look around. The officers' evidence on whether drug paraphernalia was observed in plain view at that time was contradictory. The warrantless entry violated the accused's s. 8 Charter rights. The Information to Obtain contained no indicia of the confidential informant's reliability and referred to evidence obtained during the warrantless entry. After excising those portions of the ITO, all that remained was Wisdom's lengthy criminal record and the hand-to-hand transactions. That information was capable of establishing reasonable grounds to believe Wisdom was involved in trafficking. However, the ITO did not establish a sufficient nexus between Wisdom and the apartment to be searched. The police did not even have evidence Wisdom lived in the apartment prior to the search. The ITO was misleading as it claimed there were exigent circumstances and denied searching the apartment while waiting for the warrant. Furthermore, the warrant only specified the building number and not the actual unit to be searched, so was invalid. While the officers' conduct was improper, there was no basis for the accused's allegation they planted or fabricated evidence. The multiple s. 8 breaches seriously violated the accused's privacy and the officers' conduct was deliberate and reckless. While the charges were very serious and the evidence was probative and reliable, admitting the evidence in the face of these breaches would bring the administration of justice into disrepute.
[ 56 ] About the nexus required Lipson J. writes:
30 The ITO states that in 2011, the confidential source purchased crack cocaine from Wisdom. This information provided the impetus for the drug squad officers to conduct surveillance on the applicant between February 8 -10. The confidential source also provided information that Wisdom was dealing "large quantities of crack cocaine". All of the information in the ITO that may have related to the reliability of the informant was redacted by the Crown and cannot be considered by this court. The only reference to the informant's alleged reliability is found at page 20 of the ITO which states, " The confidential source has been proven reliable in this instance to the affiant as several items of information have been corroborated throughout the investigation." The redacted ITO does not disclose those items of corroborated information. Crown counsel did not ask the court to consider the unredacted version. Where the affiant relies on information obtained from a police informer, the reliability of the information must be apparent to the reviewing court to assess in light of the totality of all the circumstances : Garafoli at pp 1456-1457. The redacted version of the ITO does not contain any indicia of reliability about the confidential informant or the information offered. Therefore the assertions that the accused sold the informant crack cocaine and dealt in large quantities cannot be considered as support for the issuance of the warrant.
31 Another problematic portion relates to the alleged " quantity of unpackaged crack cocaine" found on the front seat of the Impala. This item did not test for crack cocaine and must be excised from the ITO.
32 Then there is the reference in the ITO to the bullet, the cooking utensils with cocaine residue and the digital scales all said to have been observed by D.C. Spencer during the warrantless entry. The alleged cocaine residue on the utensils did not test for cocaine. Second, as found earlier in these reasons, all of this information was obtained in the course of an unconstitutional search and cannot be used to uphold the issuance of the warrant .
33 After excising the incorrect, misleading and unconstitutionally obtained information, what properly remains in the ITO for consideration is Wisdom's criminal record and the information concerning the alleged hand to hand transactions.
34 Mr. Wisdom has a lengthy criminal record for drug trafficking and firearm offences. He has also been convicted of the commission of an offence for a criminal organization. His most recent conviction was in February 2010 for trafficking in cocaine. Evidence of an investigative target's criminal past is often relevant and can be included to show his propensity to commit the sort of crime being investigated. This can assist in demonstrating reasonable grounds to believe that the offence under investigation has been committed and the target is involved: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.) at pp. 220-221 affirmed (1989), 52 C.C.C. (3d) 193 (S.C.C.) ; R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) at pp. 319, 324.
35 The evidence of the unconfirmed hand to hand transactions also supports the position of the Crown that there were reasonable grounds to believe that Wisdom was engaging in drug trafficking . The quantity and nature of the drug involved in these apparent hand to hand transactions are not known. In the ITO, the affiant pointed to Wisdom's behaviour of repeatedly going under the driver's seat and the use of the Impala for the purpose of conducting the hand to hand transactions. He wrote; "It is common ground for drug traffickers to hide narcotics inside their vehicle in natural voids or specially prepared hidden compartments. The affiant has been involved in investigations where this occurred." I am satisfied that the ITO established reasonable grounds to search the Impala, quite apart from any search incidental to arrest.
36 The real issue is whether there were reasonable grounds to believe that drugs and/or other evidence of drug trafficking were in the applicants' apartment . In the ITO, the affiant based his belief upon the plain-view observations of D.C. Spencer during the warrantless entry and, specifically, at paragraph 55(d) "that during the securing of 37 Durnford Road, revealed evidence in plain evidence (sic) of the preparation of powder cocaine to crack cocaine. This would indicate that Wisdom received bulk quantities of powder cocaine and makes his own crack cocaine to maximize profit". Had this important evidence been constitutionally obtained and not excised from the ITO, I am of the view that there would have been reasonable grounds to search the apartment. However, for the reasons given earlier, that evidence cannot be used to uphold the warrant.
37 The Crown submits that there is a sufficient nexus between the apartment and the hand to hand transactions to establish reasonable grounds to believe that drugs would be found in Wisdom's residence. Immediately prior to each transaction, Wisdom was seen leaving 37 Durnford. On one occasion he walked across the street to conduct a hand to hand transaction in a strip mall parking lot. On the remaining occasions, he left the building, got into the Impala and drove to a location to conduct what were believed to be hand to hand transactions. Since Wisdom had not stopped anywhere else along the way before these transactions, the Crown submits that it is reasonable to believe that he would have had the drugs on his person when he left the apartment .
38 Support for the Crown's position is found in R. v. Soto 2011 ONCA 828 (Ont. C.A.) . In that case the police had reliable information that the accused was dealing cocaine. Officers also saw Soto leave his building, get into his car and engage in two apparent hand to hand transactions. In endorsing the trial judge's decision to uphold the search warrant, MacPherson J.A. observed that this set of facts spoke to "an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows there is a good chance that there are drugs in his residence."
39 There are important features in this case which distinguish it from Soto . The most obvious is, of course, that in Soto , the officers did not engage in an unconstitutional search prior to the search warrant being issued . In Soto there was compelling and reliable information from a confidential informant that the accused was dealing "large amounts" of powder cocaine. The affiant also swore that, in his experience dealers, like the accused, need a "safe house' to store their product and that Soto's residence was that safe house. That kind of information provided strong support for a reasonable belief that drugs would be located in Soto 's residenc e but, by contrast, is not found in the ITO used in this case.
40 It should also be noted that in Soto , the ITO contained reliable evidence that the accused actually resided at the location to be searched. Here the ITO does not establish a sufficient nexus between Wisdom and the apartment that was to be searched. There is some evidence that Wisdom and Gonzales were in a relationship. They worked out together at a gym. They were observed entering and leaving 37 Durnford together and rode in the same car. Mr. Wisdom had a key to the apartment building. The ITO states that the tenant directory lists Ms. Gonzales as residing in apartment 303. In fact, the tenant directory did not list Ms. Gonzales' apartment number. Ms. Gonzales was once seen at the window of what officers thought was apartment 303 throwing down a plastic bag to Mr. Wisdom on February 9. From this observation, the officers believed that she resided in apartment 303. The only reliable evidence that Wisdom also lived in apartment 303 came when the officers conducted an unconstitutional search prior to the warrant being issued. The ITO did not contain information as to whether Wisdom lived with Ms. Gonzales or happened to be an occasional visitor.
41 The general governing principle for this review was expressed by Blair J.A. in R. v. Nguyen 2011 ONCA 465 at para 57 as follows:
... the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.
42 After excising the offending portions of the ITO, I am of the view there is an insufficient basis upon which the justice could have issued the warrant. This is not the kind of case involving an ITO that is flawed by minor, careless or confusing statements not intended to mislead the issuing justice. The most compelling reason found in the ITO to believe that drugs were in the applicants' apartment must have been the information from D.C. Spencer of the suspected cocaine residue, drug paraphernalia and the bullet during the course of an unconstitutional search on the part of the police prior to the issuance of the search warrant . The ITO was misleading in two crucial ways - that the warrantless entry was based on legitimate exigent circumstances and also that the officers did not engage in a search of the apartment while waiting for the warrant. Had the issuing justice known the facts as disclosed by the evidence in this application, the search warrant could not have properly issued.
43 Even if it could be said that the ITO itself provided reasonable grounds for the warrant to issue, there can, in my view, be no artificial division drawn between the unlawful entry into the apartment by the police and the subsequent search pursuant to the warrant. As put by Cory J, in Silveira at para. 140:
The two actions are so intertwined in time and in their nature that it would be unreasonable to draw an artificial line between them in order to claim that, although the initial entry was improper, the subsequent search was valid.
47 The Crown fairly concedes that the search warrant is invalid because it did not specifically authorize the police to search the applicants' apartment. Because what took place amounted to a warrantless search, it was unreasonable within the meaning of section 8 of the Charter .
[ 57 ] I have set out these reasons in Wisdom at some length to show that it cannot be asserted that it stands for the proposition that merely coming and going from a place before and after drug transaction cannot form sufficient nexus. It was submitted that the tip was much more specific and the indicia of trafficking was much stronger in Wisdom but the critical feature of that case was that the confidential informant information was found unreliable and police conduct over the line drawn by Blair J.A. in R. v. Nguyen 2011 ONCA 465 at para 57 . Lipson J. found the police conduct incapable of resurrection. The Information to Obtain “flaws were not minor, careless or confusing statements not intended to mislead”.
[ 58 ] Rather, I find the present case more like the Soto case referenced in paragraphs 38-40:
Officers also saw Soto leave his building, get into his car and engage in two apparent hand to hand transactions. In endorsing the trial judge's decision to uphold the search warrant, MacPherson J.A. observed that this set of facts spoke to "an obvious nexus among a person, drug and location, namely, if a person leaves his residence, then almost immediately engages in two drug transactions, it follows there is a good chance that there are drugs in his residence."
[ 59 ] Having found that the assertions that 171 Wessenger Dr. was Mr. Maraschiello’s residence need not be excised from the Information to Obtain, and having found that the reliability of the confidential informant was sufficiently evidenced in the Information to Obtain, and having found that the investigation corroborated the information received from the confidential informant sufficiently to place some reliance on that information, and having allowed evidence obtained upon the arrest to be included in the Information to Obtain, and having found that the reasoning in R v Wisdom does not necessarily deprive evidence of departing from a residence to engage in multiple apparent drug transactions, of being evidence of nexus I dismiss the Application under s8 and 24(2) of the Charter to exclude the evidence obtained as a result of the search conducted under the search warrant obtained on the basis of the challenged Information to Obtain.
EBERHARD J.
Date: September 14, 2012