St. Catharines Court File No. 1916/13
March 4, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
NICHOLAS DEZAINDE
Applicant
Counsel:
Peter B. Wenglowski, for the Crown/respondent
J. Ronald Charlebois and Brenda V. Sandulak, for the accused/applicant
HEARD: at St. Catharines, February 24, 2014
J.W. Quinn J.:
I. INTRODUCTION
[1] The chain of events leading to this pre-trial application is not uncommon: police receive a tip that someone is trafficking in heroin from his vehicle; mobile surveillance is conducted over two days; the vehicle makes frequent brief stops, including one at the residence of a known heroin user; throughout the two days, people are seen entering and quickly exiting the vehicle; the accused is arrested roadside; he and the vehicle are searched; heroin and related items are found.
[2] Nicholas Dezainde (“the accused”) is charged with possession of heroin for the purposes of trafficking[1] and possession of property (money) knowing that it had been derived directly or indirectly from an offence punishable by indictment.[2]
[3] The accused brings this pre-trial application, arguing: (1) that there were no reasonable grounds for his warrantless arrest; (2) that the search conducted of his person and vehicle was unreasonable and illegal; and, (3) that the evidence obtained from the search should be excluded and held inadmissible at his trial.
[4] The application engages three exhaustively-litigated sections of the Canadian Charter of Rights and Freedoms (“Charter”), sections 8, 9 and 24(2), along with s. 495(1) of the Criminal Code of Canada.
[5] If police had reasonable grounds to arrest the accused without a warrant, the search would be lawful as it was incident to the arrest. However, if reasonable grounds were lacking for the arrest, the search is rendered unlawful following which consideration must be given to whether the admission into evidence of the items seized would bring the administration of justice into disrepute.
[6] In these Reasons, I will outline the evidence, summarize the evidentiary basis for a finding of reasonable grounds, review the legal principles to be applied and briefly discuss the pertinence of those principles to the application before the court.
[7] As a sociological aside, we learn that heroin use is on the rise in St. Catharines, Ontario.
(continues exactly as in the source document)
V. RESULT
[148] Despite the able submissions of Mr. Charlebois and the detailed factum of Ms. Sandulak, co-counsel for the accused, the application is dismissed.
The Honourable Mr. Justice J.W. Quinn
RELEASED: March 4, 2014
COURT FILE NO.: 1916/13
DATE: 2014/03/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
NICHOLAS DEZAINDE
Applicant
REASONS FOR JUDGMENT
J.W. Quinn J.
Released: March 4, 2014
[1] Section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended.
[2] Section 355 of the Criminal Code of Canada.
[3] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11.
[4] I do not know how Rawson “identified an address” for the accused.
[5] I infer that the accused also was unknown to the other two officers.
[6] Throughout these Reasons, I will be referring to this vehicle as, “the Ford Ranger,” “the Ranger,” “the pickup truck,” “the Ranger pickup truck” or simply “the vehicle.” I have found it impossible to select and stick to one description (such indecisiveness, hypocritically, would attract my criticism if practiced by counsel).
[7] Had corroboration for the tip rested solely on a finding that someone at 415 Bunting Road was a heroin user, I would have been reluctant to accept this user evidence (and similar evidence from the other officers). I would have required something more to support the conclusion that a heroin user resided at that residence.
[8] Had corroboration for the tip depended solely on whether a hand-to-hand transaction occurred in the front doorway of 415 Bunting Road, the application would have been allowed.
[9] As mentioned earlier, the requirement now is only for reasonable grounds.