COURT FILE NO.: CJ 7473
DATE: 2013-07-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Aristotelis Panagos
Respondent
Lisa Mathews & Iona Jaffe, for the Crown
Tyler MacDonald, for the Respondent
HEARD: June 26, 27 and 28, 2013
THE HONOURABLE MR. JUSTICE P.B. HAMBLY
reasons for judgment
Introduction
[1] This is an application to exclude evidence from a trial.
[2] Aristotle Panagos (Panagos) and Joseph Kovacs (Kovacs) are charged jointly with possession of methamphetamine and possession of heroin for the purpose of trafficking on October 13, 2011. On the same indictment, Kovacs is charged alone with possession of cocaine for the purpose of trafficking on the same day. They are scheduled to be tried by a court composed of a judge and jury commencing February 14, 2014.
[3] On October 13, 2011 at about 11:00 p.m., the Waterloo Regional Police stopped a vehicle in Kitchener, which Kovacs was driving and in which Panagos was a passenger in the front seat. They arrested Kovacs and Panagos. They searched the vehicle. In the backseat of the vehicle they found in packages 828 grams of crystal methamphetamine, 1 gram of heroin and 28 grams of cocaine. They located five cell phones in the vehicle. They seized a satchel from the front seat of the vehicle. They took the vehicle to the police station. While at the police station they searched the satchel. In it were identification papers of Panagos and a digital scale. Panagos brings an application to have the items seized from the vehicle excluded from evidence at trial. He submits that his arrest violated his right not to be arbitrarily detained guaranteed by section 9 of the Charter. Since he was unlawfully arrested, the search could not be justified as being incident to his arrest. The search violated his right to be secure against unreasonable search guaranteed by section 8 of the Charter. The evidence should be excluded pursuant to section 24 (2) of the Charter. Kovacs did not participate in the application.
The Facts
[4] Sgt. Harrington (Harrington) of the Waterloo Regional Police was in charge of a project called Operation Grand Slam. The object of the project was the investigation of drug trafficking by members of what the police allege was a criminal organization called the Luminati Brotherhood. Its focus was on Denton Emonts (Emonts), who was the president of this organization. It was Harrington who ordered police officers, acting under his direction, to stop the vehicle, arrest Kovacs and Panagos and search the vehicle. He was called by the crown as a witness on the application.
[5] He testified that he believed that Panagos was in possession of crystal methamphetamine for the purpose of trafficking. He stated that he believed that he had reasonable and probable grounds to arrest him for this offence. An undercover officer, now known to be Dave Morrison (Morrison), became friends with Emonts while he was in custody on another matter. The crown obtained an authorization to intercept private communications including text messages to which Morrison consented, which was in effect from February 20, 2010 to September 7, 2010. The crown obtained a further authorization on September 7, 2010 to intercept the private communications of named parties, including Panagos and Emonts for 60 days. Harrington stated that his belief that he had reasonable probable grounds to direct the arrest of Panagos was based on the contents of the intercepted communications, the observations of the team of surveillance officers who reported to him, information provided to him by the undercover officer, information provided by a confidential informant, and the criminal record of Panagos. It was his view that he had reasonable probable grounds to arrest Panagos for possession of crystal methamphetamine for the purpose of trafficking, on the basis of the intercepted communications and the surveillance evidence alone.
[6] Harrington testified that from his own experience investigating drug offences and from what he learned from Morrison that Emonts and others in the drug sub culture to whom Emonts spoke used code words to disguise the drugs to which they referred. Kathy or ice meant crystal methamphetamine; Harold meant heroin and E or Stacy meant ecstasy and paper meant money.
Intercepts, Surveillance and the Undercover Officer
April 22, 2010
[7] On April 14, 2010, Morrison recorded a conversation between him and Emonts in which Emonts is heard speaking on the phone with another person. He is arranging a meeting with this person at a Short Stop where he will give the person paper. He seems to be saying that customers are complaining to him that he is not returning their calls. He is not returning their calls because he does not have drugs to sell to them. He will give this person money who can then go out and buy drugs which he can supply to Emonts who can then satisfy his customers by selling drugs to them. A discussion follows between Emonts and Morrison in which they appear to be discussing the street value of ecstasy. Immediately after this telephone conversation Emonts is followed to a Short Stop where he meets with Panagos. On April 19th there is a conversation between Emonts and Morrison in which Morrison requests a “test”. On April 21st there is a conversation between Emonts and Morrison in which Emonts says that his “boy” has 3,000 and is “double stacked". On April 22nd at 10:45 a.m. Panagos was observed to attend the building where Emonts lives and stay for 15 minutes. About 10 minutes later Emonts meets with Morrison and provides him with "a blue one and orange one". Emonts says that his supplier has 50,000 of each.
April 29, 2010
[8] On April 29, 2010, Morrison arranged to purchase 500 ecstasy pills from Emonts. At 5:59 p.m., Panagos was observed entering the building where Emonts lives. At 7:36 p.m. Morrison attended the same location and purchased 500 ecstasy pills from Emonts.
September 15, 2010
[9] On September 15, 2010, Emonts arranged to sell Morrison an ounce of heroin for $1,400. Emonts was to leave the heroin at his Puslinch residence in the glove box of a boat. At 3:15 p.m. Morrison attended the Puslinch property, retrieved the heroin from the glove box and left money in the glove box. At 4:25 p.m. text messages were exchanged between Emonts and Panagos in which Emonts gave Panagos directions as to how to get to the “farm”. Emonts sent a text message to Panagos in this exchange in which he stated simply "the boat glove box".
September 20, 2010
[10] September 19, 2010 text messages between Emonts and Panagos were intercepted in which they were arranging a meeting on the following day in the evening at the Holiday Inn. On September 20th at 10:59 a.m. Emonts sent Richard Kuntz a text message in which he requested “paper” because he needed to “reup”. On September 20, 2010 Morrison sent Emonts a text message at 3:23 p.m. in which he stated “Hey bro anymore of the blue or orange pill still around. Guess with school back in guys are lookin for them.” Emonts replied at 3:24 p.m. that he has 125 of them “But I'm meeting up with my boy later and I will find out if there's more”. In a conversation at 8:50 p.m. Emonts and Panagos discuss that they suspect the police are conducting surveillance of them. Emonts states "you know what I'm going to go put all this all this over … Somebody else's place just in case”. Panagos responds “yeah okay”. They decide not to meet because of what they suspect is police surveillance. At 11:58 p.m. Emonts speaks on the phone with Tanya Larouche, in which he discusses the cancellation of his meeting with Panagos because they thought that they were being followed by the police. He tells Tanya that he thought about coming to her house and dropping off $9,000. The suspicions of Emonts were well founded. The police did in fact have them under surveillance.
September 28, 2010
[11] On September 28, 2010 Panagos and Emonts exchanged text messages between 2:16 and 2:42 p.m. in which they agree to meet at a coffee shop at Victoria and Lackner. At 3:39 p.m. the surveillance team observed them meeting at the coffee shop at Victoria and Lackner.
October 3-12, 2010
[12] There are text messages between Panagos and Emonts between October 3rd and October 8, 2010 in which they discuss Panagos supplying Emonts with Stacy. A text message from Emonts to Panagos on October 8th at 4:16 p.m. states: “Ya np, but bring the rest so I can leave it with nick in case it picks up this weekend ok. And that 2 that was under from stacy if u have it.” On October 8th Kovacs and Panagos are speaking in a telephone conversation at 6:18 p.m. Kovacs says to Panagos “Bro we’ll be walkin down the red carpet in no time fuck”. On October 12, 2010 in a conversation between Panagos and Emonts, Panagos warns Emonts "cause these guys you know the market closes”. Emonts seems to be discussing how he is trying to raise between $7,000 and $11,000. Panagos says "tomorrow better man". Panagos says to Emonts “But yeah ‘cause remember what ‘member Ca Cathy’s comin’ around that’s what I’m I’m waitin’ on you so I can get Cathy”. Emonts appears to be reaching out to customers to supply him with money which he can give to Panagos to buy crystal methamphetamine.
October 13, 2010
[13] Conversations are intercepted between Emonts and Harold Hann on October 13, 2010 between 1:09 p.m. and 6:14 p.m. in which Harold Hann says “Hey bro, already got peeps on the go with this. Let's get moving. These guys will want a unlimited supply of this.” Emonts says to Harold Hann “Buddy just left to get it now and won't be back till nine or so …” They discuss a price of between $1,400 and $1,800 per ounce depending on the amount and depending on whether it's the bulk price or the street price. Emonts says to Harold Hann in a conversation between 1:18 and 1:28 p.m. “ … I just I just paid buddy fuckin’ that guy if I put if I put some of my own money down on this so um he’s just gotta’ go he’s gotta go to Toronto and come back n’ shit so.” Later there is this exchange:
Hann: all right then that's great man so le let me get on the go fuckin’ and and get get get the word around that that I’m gonna a cup few peoples.
Emonts: all right yeah see if you can get any COD ‘cause uh if I can move it faster I can get it cheaper to so.”
Hann: Oh fuck wicked wicked wicked.
At 1:42 p.m. Emonts and Paul McNamara exchanged text messages in which Emonts says “can you work with Kathy at 14”. McNamara responds no and Emonts responds K. At about 4:00 p.m. a conversation between Emonts and an unknown male is intercepted in which Emonts states “… I'm supposed to be getting a whole bunch in later today. I don't know if you can do anything with it for 13”. The unknown male seems to respond that he cannot and that he only wants 3 ounces.
[14] The surveillance team which reports to Harrington followed Kovacs and Panagos from Kitchener in a car driven by Kovacs to Toronto. They stopped at 10 Kings Plate Crescent at about 7:00 p.m. Both men appeared to enter the residence and then to exit the residence and get back in the car. They then proceed to an underground parking garage in Scarborough. A man gets in the car for a brief period and exits the car at 9:45 p.m. They then start driving back to Kitchener. At about 10:00 p.m. Panagos, from the vehicle, sends a text message to Emonts. The following exchange takes place:
Panagos: can u get Harold check out he’s new
Emonts: Tmrw ya
Panagos: what time and the earlier the better need feed for so they can keep them or let it go
Emonts: K noon same place.
This conversation and the conversations intercepted between October 3rd and 12th are clear evidence that Pangos and Kovacs have in the vehicle, which Kovacs is driving back to Kitchener, substantial quantities of both heroin and crystal methamphetamine and that Panagos intends to supply these drugs to drug dealers for release into Kitchener.
[15] The surveillance team followed the vehicle back into Kitchener. Harrington directed the emergency response team which was standing by to stop the vehicle in Kitchener. He directed that Kovacs and Panagos be arrested and that the vehicle be searched. He stated that he would have preferred to wait until he intended to terminate the operation on October 20th before arresting Kovacs and Panagos. However, he felt quite sure that Kovacs and Panagos were bringing back to Kitchener a substantial amount of crystal methamphetamine. He felt that it was his duty to seize the drugs to prevent them from being released into the community. Harrington was at the scene when the vehicle was stopped. When Harrington began to explain what happened at the scene his evidence was interrupted by Mr. MacDonald who said that the manner of the search was not in issue. I did hear that there was a disturbance which resulted in the windows of the vehicle being broken and that it was raining heavily.
Confidential Informant
[16] Constable J. Bonikowsky was a member of the investigation team for Operation Grand Slam that reported to Harrington. He swore an affidavit on October 20, 2010 in support of a search warrant in relation to the investigation. Harrington was aware of the information in Bonikowsky’s affidavit when he directed the emergency response team to stop the vehicle which was being driven by Kovacs. Bonikowsky identified an informant in the affidavit to whom he referred as C1. With respect to C1, he stated the following:
He has been providing information to Bonikowsky since October, 2009.
Information that he has provided has led to criminal investigations in which the information was corroborated.
He has a lengthy criminal record including property and drug offences. He is a drug user. He is knowledgeable about the drug culture including specific drugs.
He has assisted the police for "charge consideration".
[17] Regarding Panagos he provided the following information:
He is a white male, Greek and resembles Sylvester Stallone.
He is a supplier of drugs to Emonts. He associates with persons in the Luminati Brotherhood.
The address of the place of business of Panagos.
He is the major supplier of heroin to Kitchener.
He supplies Emonts with a "nine pack" of heroin at a time.
Panagos gets his heroin from Toronto where he has a lot of contacts.
He goes to Toronto at least once per week to get drugs.
[18] Panagos has a criminal record as follows:
Youth Court
June 14, 1988 – two counts of break entering theft – open custody for three weeks and restitution in the amount of $750.
August 7, 1990 – theft over $1,000 – probation for 12 months, $250 charitable donation and restitution in the amount of $1400.
Adult Court
July 21, 1993 – theft under $1,000 – suspended sentence and one year probation.
September 15, 1993 – failing to stop at the scene of an accident and failing to comply with a recognizance – $400 fine and licence suspension for one year.
October 21, 1993 – assault – fine of $250.
April 20, 1994 – possession of stolen property over $1,000 - three months and probation for three years.
Assault and impersonation - suspended sentence and probation for two years and $500 fine or in the alternative 30 days.
April 5, 1995 – theft and escape lawful custody – 28 days intermittent and 12 months probation.
Two counts of theft under $5,000 and escape lawful custody – 45 days and probation for two years.
December 12, 1995 – trespassing at night – $500 fine or in the alternative 20 days and probation for 18 months.
January 5, 1996 – assault – $500 fine.
January 19, 1996 – failure to comply with a recognizance – $350 fine.
January 7, 1997 – Failure to comply with a probation order and theft under $5,000 – 60 days.
June 13, 1997 – assault with a weapon, two counts of theft under $5,000 and escape lawful custody – global sentence of six months with 195 days presentence custody, weapons prohibition and probation for one year.
April 3, 1998 – possession of stolen property over $5,000 and fail to comply with a recognizance – 6 months with 25 days presentence custody and probation for two years.
April 29, 1998 - theft under $5,000 and dangerous driving – three months consecutive and driving probation for one year.
January 4, 1999 - possession of drugs for the purpose of trafficking, failing to comply with probation order and fail to appear - global sentence of 12 months.
July 22, 2002 – possession of a firearm or ammunition contrary to prohibition order and discharge a firearm with intent – total sentence of three years with credit for the equivalent of three years in presentence custody.
December 10, 2004 – theft under $5,000 – four months.
February 25, 2005 – recommitted as a statutory release violator.
Analysis
[19] Relevant statutory provisions are as follows:
- (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence;
Charter
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Case Law
Grounds for Arrest
[20] In R. v. Storrey, [1990] S.C.R.241 the accused was charged with aggravated assault. Identification was in issue. The victims of the assault identified another man in a photo lineup as their assailant. Other evidence led the police to the accused. He had a remarkable resemblance to the first man identified by the victims. The police arrested him. The victims identified the accused as their assailant. The accused argued that the police violated his right under section 9 of the Charter not to be arbitrarily detained. The Supreme Court of Canada in the judgment of Justice Cory held that he was properly arrested. Justice Cory stated the following:
16 … It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. … (citations ommitted)
17 In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
[21] In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 the Supreme Court of Canada in the judgment of Justice Wilson expanded upon information which the police must have in order to arrest a person. A superior officer ordered two police officers, who were under his command, to stop a vehicle and search for drugs. The superior officer relied upon information provided by an informant and surveillance evidence. The police stopped the vehicle and searched the accused after he left the vehicle from the passenger side. They found speed in his possession. They then charged him. Justice Wilson found that the police were justified in searching the accused before they charged him, if they had reasonable and probable grounds that he had committed an offence. The police officer who was required to have the reasonable probable grounds was the officer who ordered the arrest rather than the ones who executed it. Justice Wilson stated the following:
47 The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard.
50 The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. …
53 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
Power to Search
[22] In Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 Langlois and Bedard, two Montreal police officers, stopped a vehicle driven by Cloutier for a traffic violation. They learned that there was a warrant of committal outstanding against him for unpaid traffic fines. They arrested him, “frisk” searched him and took him to the police station. Cloutier laid informations privately against the two officers for assault. He argued that the police had no power to search him and that the search constituted an assault by the two officers. The trial court acquitted the two officers. The acquittal was upheld by a Superior Court judge. A majority of the Court of Appeal allowed Cloutier's appeal and entered a verdict of guilty. The arrest was lawful. The issue was whether an arrest automatically gave the police the right to search the person arrested. The Supreme Court of Canada, in the judgment of Justice L’heureux-Dube, restored the acquittal. After an exhaustive review of the law and learned commentary, she stated the following:
49 In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him. …
53 … a search of the accused for weapons or other dangerous articles is necessary as an elementary precaution to preclude the possibility of their use against the police, the nearby public or the accused himself. Incidents of this kind are not unknown. Further, the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved. The effectiveness of the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt of a suspect beyond a reasonable doubt. The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest. These interests have been recognized since the courts first considered the power to search. (citations omitted)
59 … The exercise of this power is not however unlimited. Three propositions can be derived from the authorities and a consideration of the underlying interests.
60 1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
61 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
62 3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
[23] In R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 a police officer observed the accused’s car by the side of a highway. He located the accused some distance from the car. The accused departed the scene in his car. The officer located in the area where he had seen the accused, a bag containing 9 pounds of marijuana. The officer pursued the accused’s car, stopped the car and arrested the accused. The police towed the accused’s car to a garage. About six hours later the police searched the car. They located $1,400 in cash and two packages of a 1/4 g of cocaine. The search was done pursuant to a police policy that required that they take an inventory of the contents of a vehicle which they had seized. The police charged the accused with possession of marijuana for the purpose of trafficking and possession of cocaine. The accused argued that the search of the vehicle violated his right under section 8 of the Charter to be secure against unreasonable search or seizure. He submitted that the contents of the vehicle should be excluded from evidence under section 24(2) of the Charter. In the judgment of Chief Justice Lamer, the Supreme Court of Canada held that the search of the vehicle was an "inventory search" rather than a search incident to arrest. This violated the accused rights under section 8 of the Charter but the evidence was admissible under section 24(2) of the Charter. He referred to a number of basic principles in the law of arrest and search and seizure. He stated the following:
10 … In order to be reasonable, a search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner.
11 Ordinarily, the person alleging a violation of Charter rights bears the burden of proving that violation. However, in Hunter and Collins, supra, the Court held that a warrantless search is prima facie unreasonable. Hence, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable. ….
Chief Justice Lamer referred to the judgment of Justice L’Heureux Dube in Cloutier and stated the following:
13 … the common law power of search incident to arrest … is an exception to the ordinary requirements for a reasonable search … in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds … since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also.
17 … the search is only justifiable if the purpose of the search is related to the purpose of the arrest.
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. ….
23 … 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. …
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.
Standing and the Lack of a Privacy Interest of a Passenger in a Motor Vehicle
[24] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 the police located drugs in the apartment of the accused’s girlfriend. The issue was whether the accused had a reasonable expectation of privacy in her apartment such that section 8 of the Charter was applicable. The Supreme Court of Canada in the majority judgment of Justice Cory stated the following:
45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:
A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.
Like all Charter rights, s. 8 is a personal right. It protects people and not places. …
The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. …
As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.
A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. (citations omitted)
[25] The Supreme Court of Canada applied the principles in Edwards in relation to the search of a motor vehicle by the police in R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341. In this case the police officer stopped a motor vehicle on the 401 for speeding. In the vehicle were two women, the driver, Belnavis and a passenger, Lawrence. The officer thought that the women were acting suspiciously. He searched the vehicle and found stolen goods in garbage bags in the backseat and the trunk. He charged both women with possession of stolen property. The trial judge held that the search of the vehicle violated their section 8 rights and that the evidence should be excluded pursuant to section 24(2) of the Charter. He acquitted the accused. The Court of Appeal ordered a new trial. The Supreme Court of Canada in the majority judgment of Justice Cory dismissed the appeal. It was conceded that driver had a reasonable expectation of privacy in the vehicle. Regarding the passenger, Justice Cory stated the following:
22 The approach outlined in Edwards makes it clear that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances. All of the relevant facts surrounding a passenger's presence in the vehicle will have to be considered in order to determine whether the passenger had a reasonable expectation of privacy. In this case, although Lawrence was present at the time of the search, there are few other factors which would suggest she had an expectation of privacy in the vehicle. First, her connection to the vehicle was extremely tenuous. She did not own the vehicle, she was merely a passenger in a car driven by a friend of the owner of the vehicle. There was no evidence that she had any control over the vehicle, nor that she had used it in the past or had any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle. Lawrence did not demonstrate any ability to regulate access to the vehicle. Finally, there was no evidence that she had a subjective expectation of privacy in the vehicle. …
24 The only other manner in which Lawrence could claim a violation of her s. 8 rights is if she could demonstrate a reasonable expectation of privacy in relation to the items seized, specifically, the bags of merchandise. This she could not do. When asked about the three garbage bags in the back seat of the car, Lawrence stated only that each of the occupants of the vehicle owned one of the bags. She did not identify one of the bags as hers, or make any gesture which suggested that she claimed one bag in particular as her own. Nor was there anything on the exterior of any of the bags to indicate a connection to Lawrence. A garbage bag is very different from a suitcase with initials displayed or a kit bag with a name on it. A green garbage bag offers no hints that it has a particular owner. And a garbage bag filled with brand new clothes with price tags still affixed is both anonymous and suspicious. In short, there was nothing to indicate that she had an expectation of privacy in relation to any particular bag.
25 I find it impossible to conclude that Lawrence had any expectation of privacy, either in relation to the vehicle or in relation to the items seized. Therefore, she cannot claim a violation of her s. 8 rights. I would dismiss her appeal.
Lawrence did not have standing before the court on a Charter application.
Exclusion of Evidence under S. 24(2) of the Charter
[26] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 three police officers on foot patrol confronted the accused who was acting suspiciously. One officer asked him if he had anything that he should not have. He said that he had a small amount of marijuana and a firearm. The police arrested and searched the accused. He had in his possession some marijuana and a loaded firearm. The accused was convicted of a number of firearms offences. The evidence discovered by the police was admitted at trial. The Supreme Court of Canada held that the firearm was obtained in a manner that breached the accused’s rights under section 9 of the Charter not to be arbitrarily detained and his right to counsel under section 10(b) of the Charter. The court held that the evidence was properly admitted under section 24(2) of the Charter. The court used the facts of the case to reformulate the test for the admission of evidence under section 24(2) of the Charter. In the majority judgment of Justices McLachlin and Charron the Supreme Court of Canada held that the court should take a long term view in deciding whether to exclude evidence obtained by the police in violation of the Charter by balancing the seriousness of the breach, the impact of the breach on the Charter protected rights of the accused and society's interest in the adjudication of the case on its merits. (para. 71)
Summary of Principles of Police Powers to Arrest and Search
[27] For the police to arrest a person for an indictable offence they must both believe that the person has committed and have reasonable and probable grounds that the person has committed an indictable offence. The officer who orders the arrest must have these grounds although the officer who executes the arrest need not. The police have a right to search the person arrested without reasonable grounds that he/she may be in possession of anything that is illegal. The search must be for a valid purpose. This includes a search for weapons that may place the police in danger and for evidence. For a person to have standing before the court to challenge a search of a place as a violation of his/her rights under section 8, he/she must have a reasonable expectation of privacy in the place searched. The passenger of a vehicle by reason only that he/she is a passenger does not have a reasonable expectation of privacy in the vehicle. A court shall determine whether to exclude evidence which the police obtain in breach of the Charter by balancing the effect of admitting the evidence viewed in the long term having regard to the seriousness of the breach, the impact of the breach on the Charter protected interests of the accused and society’s interest in the adjudication of the case on its merits.
Application of the Law to the Facts
[28] The conversations recorded by Morrison on April 14, 19 and 21, 2010 leading up to the meeting between Morrison and Panagos on April 22, 2010 is evidence of Panagos supplying Morrison with two pills of ecstasy as samples of what Panagos could supply him in larger quantities. The purchase by Morrison on April, 29, 2010 of 500 ecstasy pills from Emonts after Panagos was observed leaving the building where Emonts lived and where Morrison purchased the pills is evidence along with the earlier recorded conversations in April of Panagos supplying Emonts with the ecstasy pills that Emonts sold to Morrison.
[29] Arrangements were made between Emonts and Morrison for Morrison to purchase from Emonts on September 15, 2010 an ounce of heroin by retrieving it from the glove box of a boat owned by Emonts located at his farm in Puslinch. Text messages were exchanged between Emonts and Panagos in which Emonts gave directions to Panagos as to how to get to his farm with one text message simply stating "the boat glove box”. This is evidence of Panagos supplying Emonts with the heroin which Morrison purchased.
[30] The conversations recorded between October 3rd and 12th involving Panagos, Emonts and Kovacs are evidence of Panagos and Kovacs planning a trip to Toronto to purchase crystal methamphetamine and other drugs for the purpose of supplying Emonts. The police followed Kovacs and Panagos to Toronto and back to Kitchener on October 13th in a vehicle driven by Kovacs. The police observed them stop twice in Toronto and interact with other people. The conversations recorded before they left (Cathy’s comin) and while they were traveling (Harold check out he’s new) are evidence of their purchasing crystal methamphetamine, heroin and other drugs in Toronto, placing them in the vehicle and bringing the drugs back to Kitchener for the purpose of supplying Emonts.
[31] Recorded conversations, text messages and the surveillance evidence provided Harrington with strong evidence that Kovacs and Panagos were in possession of crystal methamphetamine, heroin and other drugs for the purpose of trafficking them to Emonts. This evidence alone gave Harrington overwhelming grounds to arrest Panagos. The evidence from the informer and the criminal record of Panagos simply supplements this evidence. The search of the vehicle was done incident to the arrest. The police had ample evidence that there were drugs in the vehicle. However, they had the right to search the vehicle incident to the arrest for evidence on the basis of the principles set out in Cloutier and Caslake.
[32] Mr. McDonald submits that the police stopped the vehicle in the "hope of finding drugs". I disagree. The evidence is to the contrary. The police were very confident with ample grounds that there was crystal methamphetamine, heroin and other drugs in the vehicle. Even if what Mr. MacDonald says were so, the police had ample grounds to arrest Panagos on the basis of the recorded conversations, the information from the informer and his criminal record. There is no evidence that Panagos had any connection to the vehicle other than his being a passenger. He had no privacy interest in the vehicle. The police had the right to search the vehicle with a view to obtaining the evidence on the authority of Edwards, Belnavis and Caslake. The search of the satchel in which identification papers belonging to Panagos and a digital scale were found was not an inventory search as explained in Caslake. This was part of the search of the vehicle. It was done at the police station for convenience.
[33] If it could be held, that notwithstanding all the evidence that police had gathered that Panagos was involved in the trafficking of crystal methamphetamine, heroin and other drugs that the police had only a suspicion that the vehicle in which he was traveling contained drugs, then their stopping the vehicle and the arrest of Panagos violated his right under section 9 of the Charter not to be arbitrarily detained. The subsequent search of the vehicle would violate his right to be secure against unreasonable search or seizure under section 8 of the Charter. In these circumstances, I would admit the evidence at the trial under section 24 (2) of the Charter. Given all the evidence that the police had against Panagos the breach of his rights would not be serious. It would not have any effect on his Charter protected rights. Crystal methamphetamine is an extremely destructive and highly addictive drug. It can have a corrosive effect on the community. The police investigation was very professional and competent. Substantial public resources have been spent on this investigation. The public rightly expects to be protected by the police and the courts. The exclusion of the evidence rather than its admission would bring the administration of justice into disrepute.
Result
[34] The application is dismissed.
Justice P.B. Hambly
Released: July 18, 2013
COURT FILE NO.: CJ 7473
DATE: 2013-07-18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Aristotelis Panagos
REASONS FOR JUDGMENT
P.B. Hambly J.
Released: July 18, 2013