ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-90000719
DATE: 20131211
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DENIS SACIRAGIC
Applicant
B. Puddington, for the Respondent
K. Wells and J. Frost, for the Applicant
HEARD: November 18, 19, 20, 21, 22, 2013
Croll J.
Ruling on Charter Application
Introduction
[1] The Applicant Denis Saciragic is charged with one count of trafficking cocaine and two counts of possession for the purpose of trafficking cocaine.
[2] Mr. Saciragic was arrested on March 1, 2011 after a transaction in which one kilogram of cocaine was exchanged. Following the arrest, the police executed a search warrant at a condominium unit connected to Mr. Saciragic and seized nine kilograms of cocaine.
[3] Mr. Saciragic submits that there has been a series of violations of the Canadian Charter of Rights and Freedoms, and seeks to exclude all evidence seized pursuant to his arrest and pursuant to the search of the condominium unit. In particular, he submits the following:
a) That his arrest was unlawful and violates s. 9 of the Charter, as it was based on mere suspicion and speculation;
b) That the seizure of his car keys and the fob found in his car after his arrest violates s. 8 of the Charter, as the seizure was completely unrelated to the trafficking offence for which he was arrested;
c) That the warrantless seizure of access information from the fob violates s. 8 of the Charter;
d) That the warrantless search of the condominium unit violates s. 8 of the Charter; and
e) That the subsequently obtained search warrant was issued contrary to s. 8 of the Charter and relied on information illegally obtained as a result of the prior warrantless entry.
[4] With the consent of the Crown, Mr. Saciragic was granted leave to cross-examine the affiant of the Information to Obtain the search warrant, DC Brendan Stevenson.
Factual background
[5] On March 1, 2011, members of the Toronto Drug Squad were detailed to conduct surveillance on Mr. Saciragic. His name had come up in relation to a “person of interest” in another, larger and distinct investigation. He had been surveilled on two prior occasions: October 6, 2010 and November 2, 2010.
[6] The surveillance team met for a briefing at 7 a.m. on March 1, 2011. At the briefing were Officers Bell, Benoit, Goulah, Reid, Rozario, Bacchus and Bowmaster. Detective Zeleny was the supervisor for the team that day.
[7] Just after 11 a.m., Mr. Saciragic was observed leaving his house located at 567 Dundas Street West in Mississauga driving a blue Volkswagen Golf. He was followed by the surveillance team, and it appeared to the surveilling officers that Mr. Saciragic was conducting a “heat check” or counter-surveillance as he was driving in order to look for surveillance. For example, according to DC Bowmaster, Mr. Saciragic drove through a network of mall roads, executed unusual U-turns, sat in a parking lot and watched other cars, stopped in the middle of various intersections and drove past the entrance to the underground parking garage at 225-235 Sherway Gardens Road before making a U-turn to enter it.
[8] Mr. Saciragic drove into the underground parking garage at 225-235 Sherway Gardens Road at around 11:25 a.m. He was not observed while in the garage, but he was again followed when he left some 23 minutes later at approximately 11:48 a.m., until he was briefly lost. At approximately 11:55 a.m., Mr. Saciragic’s car was seen in the parking lot of a Subway sandwich restaurant in the area. Mr. Saciragic then was seen leaving the restaurant at approximately noon, and driving toward a Homesense store in a strip mall plaza across from the Sherway Gardens mall. He drove through various parking lots in the plaza, then northbound along a laneway on the east side of the Homesense store. Mr. Saciragic was then observed to drive to, and park at, a remote part of the building, near the loading docks. He did not drive to and park at the area where customers would ordinarily park for access to the Homesense store.
[9] At that time, DC Bowmaster was the only member of the surveillance team who could directly see Mr. Saciragic. His evidence was that Mr. Saciragic parked the Volkswagen Golf beside a black Lexus that was already in the parking lot. According to DC Bowmaster, an unknown man left the Lexus, and Mr. Saciragic left his car, went to the rear hatch area, opened the hatch and removed a small, white box. It was DC Bowmaster’s evidence that Mr. Saciragic gave the box to the other man, who placed it in the trunk of the Lexus. He saw the men then shake hands or “fist pump”, and get into their respective cars and begin to drive away, in tandem. This information was conveyed over the police radio, and upon hearing the observations of DC Bowmaster, Detective Zeleny ordered a takedown of both men.
[10] It was DC Bowmaster’s evidence that as he put his unmarked car in front of the black Lexus, Mr. Saciragic swerved abruptly past him and began driving away very quickly. DC Bowmaster pursued and then hit the Lexus, after which time the driver left the car and ran to a nearby field. He was chased by DC Bowmaster with the help of DC Benoit, and arrested for trafficking. This man was identified as Pierre Kalata. When DC Bowmaster opened the trunk of the Lexus, the box that he had seen Mr. Kalata receive from Mr. Saciragic was in the trunk. It was not sealed and was easily opened by DC Bowmaster, who determined that it appeared to be one kilogram of cocaine.
[11] DC Bell pursued Mr. Saciragic after Detective Zeleny called the takedown. He described Mr. Saciragic as driving the Volkswagen Golf very quickly, and weaving in and out of traffic. DC Bell lost Mr. Saciragic for a short while, and then found him minutes later, in his car, between two parked transport trailers. DC Bell arrested Mr. Saciragic for trafficking in cocaine.
[12] DC Bell testified that a search of Mr. Saciragic’s car incident to arrest revealed, among other things, a cell phone on the driver’s seat, a set of keys on the floor underneath the driver’s seat, and a key fob by the floor pedals. It was his evidence that he thought that Mr. Saciragic had the phone in his hand at the time of his arrest, as he was exiting the car, and that he did not know how it came to be on the seat. In this regard, I note that at the preliminary inquiry, DC Bell’s evidence was that the phone was in the front passenger area, although at trial he stated that the front passenger area includes both the passenger and driver seats.
[13] After Mr. Saciragic’s arrest, Detective Zeleny directed DC Reid to attend at 225-235 Sherway Gardens Road to get information on possible key fob use and security video. DC Reid attended and spoke to the property manager for both buildings, Dan Vorcadic. DC Reid provided Mr. Vorcadic with a description of Mr. Saciragic and told him that he had been seen entering the underground parking in a blue Volkswagen Golf through the north side garage. DC Reid asked Mr. Vorcadic to provide information for the purposes of a criminal investigation as to any key fob use and surveillance video for the specific time frame of 11:25 a.m. to 11:40 a.m.
[14] After about 50 minutes, during which time DC Reid waited in Mr. Vorcadic’s office, Mr. Vorcadic returned and provided DC Reid with the following information:
i. two key fobs were used during that time frame (for both buildings) associated with units 304 and 1107, respectively, for 225 Sherway Gardens Road; and
ii. someone matching Mr. Saciragic’s description had attended the 11th floor of 225 Sherway Gardens Road, exited and then re-entered the elevator.
[15] DC Reid relayed this information to Detective Zeleny, who directed DC Reid to attend outside unit 1107. Shortly thereafter, DC Reid was joined by Officers Bell, Goulah and Benoit. At this time, the officers could hear a television on inside the unit.
[16] The officers were directed by Detective Zeleny to clear the unit of any occupants and to preserve evidence. DC Bell opened the front door of the unit with one of the keys that had been seized, although the police evidence is consistent that if the keys did not open the door, there would have been a forced entry.
[17] Once inside, DC Benoit used other keys from the seized key ring to open the locked door to the master bedroom and the locked door to the adjoining master bathroom. DC Bell went into that bathroom and pulled open the shower curtain in the bathtub, at which point he smelled a strong odour of cocaine. He also saw what appeared to be drug packaging in the bathtub but did not seize it. In addition, DC Bell saw a closed briefcase sitting behind the bathroom door, which he did not open.
[18] Subsequent to the entry made without a warrant, DC Stevenson prepared an Information to Obtain a search warrant for unit 1107, as well as an Information to Obtain a search warrant for Mr. Saciragic’s home at 567 Dundas Street West. These warrants were granted later that day by a justice of the Ontario Court of Justice.
[19] Upon execution of the warrant at unit 1107 at 225 Sherway Gardens Road, the police seized a number of items, including nine kilograms of packaged cocaine from the briefcase in the master bathroom and drug packaging from the bathtub in the master bathroom.
(Decision continues exactly as in the original text with Issues #1–#5, the s. 24(2) analysis, and concluding paragraphs.)
CROLL J.
Released: December 11, 2013
COURT FILE NO.: CR-12-90000719
DATE: 20131211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DENIS SACIRAGIC
Applicant
REASONS FOR RULING on Charter Application
CROLL J.
Released: December 11, 2013