Introduction

[1] Detective Constable Sebastian Cultrera (“Officer Cultrera”) is a member of the Five District Property Crimes Division of the York Regional Police Department. He works in the street drugs investigative unit. He is an officer with 12 years’ experience under his belt. In the course of his duties, he received an anonymous tip about the accused, Gaetano Biadi. The informant told Officer Cultrera that Mr. Biadi was trafficking in cocaine in Whitchurch-Stouffville. Officer Cultrera was also was given the location of a Boston Pizza in that community. On May 8, 2012, Officer Cultrera briefed his investigative team about Mr. Biadi. Surveillance was carried out on Mr. Biadi on May 30, May 31, June 6 and June 12, 2012. This surveillance took place at Mr. Biadi’s residence, as well as several other locations in Whitchurch-Stouffville.

[2] After observing four different occurrences or “meets”, which the investigating officers said were “suggestive” of drug trafficking transactions, Mr. Biadi was arrested at around 7:00 p.m. on June 12, 2012. His car was searched and an amount of cocaine and marijuana was found on his person and in his vehicle.

[3] At the same time, Officer Cultrera was preparing an affidavit to obtain a search warrant (the “ITO”). That search warrant was obtained late that evening, and Mr. Biadi’s residence was searched. A substantial amount of cocaine, psilocybin, ecstasy (MDMA), marijuana and cash was found in Mr. Biadi’s home. He has been charged with possession of all of these substances for the purpose of trafficking, as well as possession of the proceeds of crime. Earlier charges of trafficking have been withdrawn.

[4] At the opening of the trial of this matter, Mr. Biadi re-elected to be tried by judge alone. A three day long voir dire was held at which Officer Cultrera and a number of other members of the investigative team testified. As well, Detective Miguel Torres (“Officer Torres”) also testified. Although Officer Cultrera was the lead officer on the team, Detective Torres supervised the operation, and made the decision to arrest Mr. Biadi as well as several individuals who had been to his residence on June 12.

[5] Although there was originally an application on the areas of cross examination that Mr. Biadi’s counsel wished to address respecting the ITO, the Crown agreed to most, if not all of the defence requests in that application. The remaining issues on the voir dire involved a Charter[^1] application respecting the arrest of Mr. Biadi and the consequential search after arrest, as well as an application respecting the ITO for the search warrant. Ms. Riva for the accused says that there were no reasonable and probable grounds warranting arrest and that the drugs seized on the search incidental to the arrest should be excluded from evidence at trial. As well she suggests that the ITO was both misleading and also did not make the full disclosure necessary for the Justice of the Peace to issue the search warrant. As such, she says that the search was improper and that, again, any evidence seized pursuant to the search warrant should be excluded from trial.

[6] The Crown acknowledges that if the arrest was improper, and if that evidence is excluded, then the search warrant must also fail, as an essential element of the ITO was the fact that the accused had been arrested and cocaine and marijuana was found on his person and in his vehicle. Accordingly, if the arrest is improper and the evidence excluded, the search warrant also fails.

[7] For the reasons set out below, I have determined that the officers did not have reasonable and probable grounds to arrest the accused, Mr. Biadi. As well, I have determined that, pursuant to s. 24(2) of the Charter the evidence is inadmissible at trial. As such, I need not consider the issue of the ITO or the search warrant in this matter.

History of the Investigation

[8] Although there was no evidence of when the information from the anonymous tipster was received, it appears that Officer Cultrera first became involved in this matter in late April, 2012. He understood from the tip that the accused, Mr. Biadi, had been dealing in cocaine in Whitchurch-Stouffville. The tipster also stated that Mr. Biadi either dealt cocaine from, or frequented a Boston Pizza in Whitchurch-Stouffville.

[9] Officer Cultrera did a MTO and CPIC search of Mr. Biadi. He determined that Mr. Biadi had no previous criminal record. He also determined that Mr. Biadi drove a 2000 Hyundai Tiburon, Ontario licence no. AXYB 795 and that Mr. Biadi lived at 256 Blair Road in Stouffville. He also obtained the Ontario driver’s licence photograph of Mr. Biadi.

[10] Officer Cultrera drove by the residence at 256 Blair Road on May 1, 12 and 21, 2012. He also drove by the Boston Pizza on May 12. All of those visits were fruitless and he did not see Mr. Biadi’s vehicle or Mr. Biadi. He later found out that he had been looking for the wrong vehicle, as Mr. Biadi had switched the plates over to a 1985 Mercedes.

[11] It appeared from the evidence that Mr. Biadi lived in a basement apartment at a residence owned by his sister and brother-in-law at 256 Blair Road. There is a garage at the residence that was usually closed. Although the officers appear to have been vaguely aware that other people lived in the home, they do not appear to have confirmed who actually lived in the premises apart from Mr. Biadi. On one occasion, however, on June 6, 2012, one of the officers, Detective Constable Di Genova, observed a silver SUV drive into the garage after which the garage door closed. She radioed this information to team members; although Officer Cultrera did not recall getting this information, an officer who was with him for training purposes that day noted the radio message in his book. There was no evidence of any inquiries by any officer to confirm as to whether there were other occupants of 256 Blair Road, which is surprising given the issue of officer safety on execution of the search warrant.

[12] Officer Cultrera briefed his team on May 8, 2012 as well as his superior, Detective Miguel Torres. Full surveillance began on May 30, 2012. On that day, there were five team members surveilling Mr. Biadi. The officers observed him making a trip to the local Walmart. The visit to the Walmart appeared to be innocent, and he returned home by about 12:50 p.m.

[13] On May 30, as with subsequent dates, Mr. Biadi entered the home through a back gate to the left of the residence. It is important to note that the officers did not have a view of the actual entrance to the residence, and the most that they could observe was Mr. Biadi (and anyone else who appears to have attended there) entering or leaving through that back gate. There was never an observation of the actual entrance to the home that was used by Mr. Biadi. There was also never an observation of any person actually entering or leaving the house proper; the most that any of the officers observed were persons going in or out of that side gate.

[14] And that is what subsequently occurred on May 30, 2012. Later in the day, at about 1:15 p.m., the officers observed a red Chevrolet Silverado pickup truck drive into the laneway at 256 Blair Road. A man of approximately 30 years in age got out and entered through the side gate. He then returned to his vehicle after about 10 minutes. There was no observation of him entering the home or meeting with Mr. Biadi.

[15] When the truck left, officers followed the truck. The truck drove a convoluted route to a beer store on Williams Street in Stouffville. He changed directions on three occasions during the route, making u-turns or changing directions in someone’s laneway. Officer Cultrera said that these moves “piqued” his curiosity, as someone driving that way was usually attempting to avoid surveillance or to determine whether he was being followed. Detective Torres, who was involved in surveillance that day, radioed to his officers to be careful as the driver was attempting to employ anti-surveillance techniques, although he did not use those exact words over the radio.

[16] The driver of the red pickup truck went into the beer store and bought a 12 pack of beer and eventually went to his residence on Lloyd Street in Stouffville. A background check of the owner of that vehicle was conducted; that owner had no criminal record or known connection with the drug trade.

[17] The next day, surveillance continued beginning at around 5:00 p.m. The officers observed Mr. Biadi putting hockey gear in his car, and then he went to the arena at 120 Weldon Road in Stouffville, where he presumably played a hockey game. He came out of the arena just after 8:00 p.m. and then he went to a nearby restaurant called, appropriately, the Steakout Restaurant. He parked his car and went in.

[18] At around 8:35 p.m. he came back out. He got into the passenger seat of a grey pickup truck which had arrived in the parking lot several minutes before. They drove off, and the officers followed.

[19] The pickup truck did not stop. The officers testified that it drove in a large circle, eventually returning to the Steakout Restaurant about 17 minutes later. Mr. Biadi got out of the vehicle, and he went back into the restaurant.

[20] Several of the officers followed the truck from the restaurant. He apparently drove in a suspicious manner as had the pickup truck from the previous day. He stopped at one point for a minute or so on a straight stretch of road where vehicles were easily observable in either direction. He went into a Pioneer gas station; however, he just drove through the gas station without stopping or buying gas or going into the convenience store. One of the officers who testified, Detective Constable Ricky Ho, who observed this, suggested he had either stopped to use the drugs he had purchased or was again employing anti-surveillance techniques. The team ran the licence plate; they found the vehicle to be registered to a company in Montreal.

[21] On June 6, 2012, there was again surveillance on Mr. Biadi between around noon and 3:00 p.m. A white pickup truck showed up and dropped an unidentified person off at the home. Mr. Biadi arrived home after 1:00 p.m. and he was observed to take a box out of the back seat of his car, put something in a knap sack in the trunk and then take the box and the knap sack into the home. The only person to find this suspicious was Officer Ho, who said that drug dealers often keep their drugs in the trunk of their vehicles to avoid theft or Highway Traffic Act[^2] searches. No other officer thought this to be suspicious behavior. Nothing further was observed that day other than the silver SUV entering the garage as noted above.

[22] The next day slated for surveillance of Mr. Biadi was June 12, 2012. It was a long day for the team. At around 5:20 p.m., on her way to her station, Officer Di Genova noticed Mr. Biadi going westbound on Hoover Park in Stouffville. She alerted the team. They observed Mr. Biadi going into the parking lot of a No Frills plaza at Weldon Road. He did not go to the store. At about 5:25 p.m., he went to a section of the parking lot where a black Hyundai was waiting. He drove up to the Hyundai, driver’s side window to the Hyundai driver’s side window. The team observed Mr. Biadi speaking with the occupant of that vehicle who was a woman of about 30 years old; one of the officers said at the Preliminary Inquiry that it resembled a romantic encounter. If it was, it was quite brief as the interaction took only five minutes.

[23] The officers ran the plates of the Hyundai. They did not follow the vehicle. The vehicle was owned by Melissa Newton and her mother, Gloria Newton. The driver that day was identified as Melissa Newton. Neither had any arrests or drug history or involvement. Surprisingly, Detective Torres testified that he knew her as a clerk at the beer store in Markham; he said he knew her well enough to know that it was not a romantic encounter, but he did not know her well enough to testify as to her drug use.[^3] It was his view that Mr. Biadi was not at the No Frills to shop but rather to complete a drug transaction.

[24] Mr. Biadi returned to his home after his short interaction with Melissa Newton. At around 6:40 p.m. two men arrived at 256 Blair Road. They were driving a Lincoln Navigator. The driver remained in the vehicle and the passenger went through the side gate of the Biadi residence. After about five minutes, the passenger re-appeared and returned to the vehicle and they left.

[25] Detective Torres instructed his team to arrest these individuals when they were a safe distance from the home. At around 7:00 p.m., the team initiated a traffic stop, and Detective Torres dealt with the passenger. He found a bag of marijuana in the pants pocket of the passenger of the vehicle. Both the driver and the passenger were charged with possession of a controlled substance.

[26] Detective Torres was the only detective in this particular division, and it was his decision as to when an arrest would be made. After the arrest of the persons in the Navigator, he determined that Mr. Biadi was “arrestable” for possession for the purpose of trafficking. Soon after this decision was made, Mr. Biadi left his residence and at 7:37 p.m., Officer Ho initiated a traffic stop on Lori Avenue in Stouffville. Mr. Biadi was arrested for trafficking in a controlled substance and he was searched. Officer Ho found two packets (“decks”) of cocaine on his person. Officer Ho instructed the trainee who was with him, Detective Constable Chan, to search Mr. Biadi’s vehicle. Officer Chan found five more decks of cocaine, as well as a bag of marijuana in the trunk of the vehicle.

[27] In the meantime, and as the lead officer, Officer Cultrera was tasked with completing the ITO for the search warrant on Mr. Biadi’s residence. Officer Cultrera completed the search warrant and sent it to the tele-warrant unit at around 11:55 p.m. The Crown acknowledged that there were several inaccuracies in the ITO including statements that the officers observed several individuals going into Mr. Biadi’s residence, when all that was observed was their entry through the back gate to the left of the residence. As well, the search warrant recited Mr. Biadi’s arrest and the drugs seized on the arrest of Mr. Biadi, something that occurred as the ITO was being drafted.

[28] The search warrant was returned by Justice of the Peace Norton by around 12:30 a.m. on June 13, 2012. There was an error which had to be corrected; the corrected search warrant was returned about 20 minutes later. Once received, the search warrant was executed by several officers of the team. There was no forced entry; the officers knocked on the door and the door was answered by Mr. Biadi’s sister and brother-in-law, who were the owners of the home. They were not charged and Mr. Biadi’s residence was searched.[^4] A sizeable amount of illegal drugs were seized, including over 40 grams of cocaine, psilocybin, ecstasy (MDMA) and marijuana. As well, cash was seized.

Analysis

[29] The voir dire in this matter was both respecting the arrest of Mr. Biadi as well as the search warrant. Ms. Riva attacks both; she states that Mr. Biadi’s rights under s. 9 of the Charter were infringed as there were no reasonable and probable grounds to arrest Mr. Biadi. As well, she attacks the ITO completed by Officer Cultrera and states that there are significant misrepresentations and omissions which invalidate the search warrant on review. Her client’s position is that all of the evidence seized through both the arrest and the search warrant be excluded.

[30] The issues raised and considered by me therefore include the following:

(a) Was the arrest of Mr. Biadi an arbitrary detention contrary to s. 9 of the Charter?

(b) If so, should the evidence seized on arrest be excluded under s. 24(2) of the Charter?

[31] Originally, in cross examination, Ms. Riva raised the issue of whether the nature and extent of the search of Mr. Biadi’s vehicle was warranted as an incident of arrest. I understood in submissions that she had abandoned this argument; she agrees that if the arrest was valid, the search of the vehicle, including the trunk, was a proper incident of the arrest of Mr. Biadi.

[32] Crown counsel acknowledged that, in the event that the arrest was improper and the evidence from the arrest excluded, the search warrant could not stand. Accordingly, if the answers to questions (a) and (b) above are positive and result in exclusion of the evidence, the inquiry stopped there. As noted above, it did stop there and I did not need to consider the search warrant issues.

Mr. Biadi’s Arrest

[33] Mr. Biadi was arrested without a warrant and on the directions of Detective Torres. A police officer may only arrest without a warrant in the event that he or she has “reasonable grounds” to believe that an indictable offence has been committed.[^5] The lack of reasonable and probable grounds will give rise to a presumption that there has been an arbitrary detention contrary to s. 9 of the Charter, which reads as follows:

Everyone has the right not to be arbitrarily detained or imprisoned.

[34] Counsel for the accused argues that this section was breached by the members of Officer Cultrera’s team. She states that the four “transactions” which were relied upon by Detective Torres in ordering Mr. Biadi’s arrest were insufficient to establish reasonable and probable grounds. She says that there were no hand to hand transactions observed and that there was no evidence that any of the individuals who came to Mr. Biadi’s residence even met with Mr. Biadi or entered the home as no officers actually observed anyone doing anything other than entering the side gate of the residence. She says this is especially concerning in light of the unreliability of the anonymous tip giving rise to the investigation, as well as the lack of any criminal record or known involvement in the drug trade by Mr. Biadi or any of the individuals identified as having met with Mr. Biadi during the investigation.

[35] For there to be a finding of reasonable and probable grounds, I must review the issue both subjectively and objectively. I must determine whether the police officer who decided to arrest the Defendant, in this case Detective Torres, believed that he had reasonable and probable grounds to make the arrest. I must also determine, however, that there are objective reasonable and probable grounds to make the arrest: would a reasonable person standing in the shoes of Detective Torres believe at that time that there were reasonable and probable grounds to make the arrest?[^6]

[36] The determination involves reviewing what information was available to Detective Torres when he made the decision to arrest the accused. He is entitled to take into account all of the information available to him at the time of his decision to arrest Mr. Biadi; he is entitled to disregard only what he has good reason to determine is unreliable.[^7] There must, however, be more than a “hunch” or “subjective suspicion.”[^8]

[37] At the time of the arrest of Mr. Biadi, Detective Torres had the following information available to him on which to base his decision to arrest Mr. Biadi:

(a) He had an anonymous tip which indicated that Mr. Biadi was selling cocaine, perhaps out of a Boston Pizza in Whitchurch-Stouffville;

(b) Mr. Biadi did not have a criminal record or any record of being involved in the drug trade;

(c) Mr. Biadi resided at 256 Blair Road in Stouffville and he drove a 1985 Mercedes. According to Detective Torres, he did not know whether anyone else lived at that address, but at least one officer observed a vehicle other than that of Mr. Biadi driving into the garage of the residence and radioed this to other officers, including, presumably, the lead investigator, Officer Cultrera;

(d) On May 30, 2012, an individual in a red pickup truck made a short stop at 256 Blair Road. The officers saw him enter the side gate of the home, but did not observe him meeting with Mr. Biadi or actually entering the home. After a short visit of less than 10 minutes, this individual left the home, and drove to his next destination in a manner which could indicate that he was concerned about being followed from the residence. The owner of that truck was determined not to have any criminal record or known involvement in the drug trade.

(e) On May 31, 2012, Mr. Biadi got into a pickup truck in a restaurant parking lot. He and the driver went for a drive of less than 20 minutes without stops in a large circle beginning and ending at the restaurant. There was no hand to hand transaction observed. The driver of this pickup truck is unknown, but his driving after this interaction was again consistent with someone who did not want to be followed;

(f) On June 12, 2012, Mr. Biadi met an individual in the parking lot of a local No Frills store. The meeting was driver’s window to driver’s window with a 30 year old female which last about five minutes. The female was identified and also had no criminal record or involvement in the drug trade. Mr. Biadi did not go into the store in that mall, but returned home.

(g) Later that day a Lincoln Navigator with two individuals drove up to 256 Blair Road. The driver remained in that vehicle and the passenger went through the side gate. Again, there was no observation of this passenger meeting with Mr. Biadi or entering the residence. After about 5 minutes, the passenger came back out of the gate. When the vehicle was a “safe” distance away, the officers stopped the vehicle and arrested both driver and passenger for possession of a controlled substance. The passenger was found to be in possession of a bag of about 15 grams of marijuana.

[38] It was common ground that Detective Torres ordered the arrest of the latter two individuals. It was only after that arrest and the drugs found on the person of the passenger of the Navigator that Detective Torres determined that he had reasonable and probable grounds to arrest Mr. Biadi for trafficking and possession for the purpose of trafficking in a controlled substance.

[39] In argument, the Crown now concedes that the anonymous tip which launched this investigation was inherently unreliable. The reasons for this are unclear, but Mr. Dickson agreed that the reference to the anonymous tip could be expunged from the ITO under which the search warrant was obtained. The tip appears to be evidence respecting which there is “good reason to determine is unreliable.”[^9]

[40] It was the position of Detective Torres and the Crown that the totality of the evidence from the investigation provides reasonable and probable grounds to arrest the accused. In particular, he cites the fact that there were four short meetings which were consistent with drug transactions. He cites the evasive driving of at least two of the individuals after the meetings which indicates anti-surveillance techniques and a concern of being followed. He says that, although no one saw anyone enter the premises or actually meet with Mr. Biadi at 245 Blair Road, the officers could infer that there was a meet with Mr. Biadi at that residence. He testified that combined with the tip, and the subsequent meetings, the conclusion that these were drug related transactions was inescapable.

[41] On the subjective issue, I am satisfied that Detective Torres had an honest belief that he had reasonable and probable grounds under which he could order the arrest of Mr. Biadi. He testified that he felt that he had those grounds based upon the transactions that he had observed over the course of the investigation. He had an anonymous tip which indicated that Mr. Biadi had been selling cocaine in Whitchurch-Stouffville and he had four meets which, for a number of the officers who testified, were suspicious in nature and consistent with drug transactions. He observed evasive driving, which for several of the officers indicated counter-surveillance. He may not have known during the investigation that the tip was unreliable as now acknowledged. His testimony appears to indicate (although he did not specifically say this) that he personally knew at least one of the participants who met with Mr. Biadi and that she may have used drugs. He said that by the time that he ordered the arrest of the individuals in the Lincoln Navigator, as well as the arrest of Mr. Biadi, he had grounds to arrest Mr. Biadi. In my observations of this officer as a witness, I believe that he had that honest belief and acted in good faith.

[42] The objective grounds are more difficult to sustain. For me, the major difficulty is the late breaking acknowledgment by the Crown that the anonymous tip was inherently unreliable, and could be removed from consideration. This tip, as is often the case, was the foundation of the police investigation of Mr. Biadi. And a subsequent criminal record check indicated that Mr. Biadi had no criminal record and no known involvement in the drug trade.

[43] As such, it was as if the officers were investigating an individual who, as far as everyone knew based upon the unreliable tip and the lack of criminal record, may or may not have been involved in any criminal activity. At the beginning of the investigation, there was no objective basis to believe that Mr. Biadi was involved in the drug trade. And without such a foundation, I believe that the police officers’ duty to adequately investigate in order to determine reasonable and probable grounds for an arrest increases in scope. In other words, had the investigating officers reason to believe that Mr. Biadi had a known connection with the drug trade, the four transactions could likely be explained as drug transactions. Without a known connection in the drug trade, an objective person standing in Detective Torres’ shoes may very well have entertained other reasonable explanations for the various meetings and transactions as suggested by defence counsel.

[44] This is confirmed by R. v. Smith, supra where Jennis J. confirmed the importance of the tip as part of, in the words of both Officer Cultrera and Detective Torres, the “totality” of the investigation. At para 18, Jennis J. noted:

Applying the law to the facts before me, I find that the arrest fell short of passing the objective requirement insofar as reasonable grounds are concerned. Combining the vague information from a previously untested informant with the observation of one event which was also reasonably capable of innocent explanation is insufficient to meet the standard for objective belief of the commission of the offence subjectively believed by the officers. This information and observation certainly justified further observation and investigation but not an arrest.

[45] The Ontario Court of Appeal, in affirming this decision, referred to a short duration meeting with an unidentified person as “a neutral fact.”[^10]

[46] That case involved only one short meeting prior to arrest, rather than the present case which involved four meetings. However, the tip in the Smith case was more reliable; that tipster who was involved in the drug trade, advised about firearms and cocaine and the vehicle used by the offender. In the present case, the tip is acknowledged to be unreliable and in fact stated that Mr. Biadi was frequenting, if not dealing out of, Boston Pizza in Whitchurch-Stouffville, a fact not confirmed during the investigation. It is unclear whether the tipster mentioned Mr. Biadi’s vehicle.[^11] There were four transactions; the two transactions which involved a face to face meeting could be described as neutral as there was no hand to hand exchange. Regarding the other two meetings, the officers could not establish that there was even contact between Mr. Biadi and the putative “customers” who attended at the home. This is crucial, insofar as other people lived in the home, and the officers knew of this through Officer Di Genova’s radio message on June 6, 2012. Assuming the anonymous tip is expunged and of no weight, it could have been anyone in that home who these people were meeting, if they even met anyone.

[47] The Crown cited R. v. Bouchard[^12] regarding the issue of reasonable and probable grounds. Although that case involved reasonable grounds for the issuance of a search warrant under s. 11 of the Controlled Drugs and Substances Act,[^13] Mr. Dickson suggested that case was pertinent to the present case as far as a definition of reasonable grounds as is necessary for an arrest. However, the reasonable grounds in that case were a far cry from the present case. In Bouchard, the information from the anonymous tipster was much more detailed and reliable. Moreover, the investigating officers in Bouchard arranged buys through the accused and there were eight different possible observed drug transactions. That is not the same as in the present case, where there were four transactions, and respecting which, there was no observed hand to hand transaction between the accused and the potential buyers.

[48] Although the present case lies somewhere between these two examples, it is closer to the situation in Smith where the information from the informant was unreliable, and the various meets were capable of more than one interpretation.

[49] I therefore do not find that there were reasonable and probable grounds for the arrest of Mr. Biadi. The various meetings could be accounted for by other explanations, and all of them were, in the words of Smith neutral in nature. The lack of any reliability concerning the initial tip and Mr. Biadi’s lack of criminal record increased the obligation of the officers in their investigation to at least observe a hand to hand transaction or, where drugs were later found, a face to face meeting. This is especially so considering the fact that Mr. Biadi appears to have been a long time resident of the community who knew many people in the community, as indicated in his meeting with two acquaintances in the Walmart on May 30, 2012 and his hockey game the next day, both of which were seen as being innocent in nature.

[50] I note that two individuals who left Mr. Biadi’s residence were arrested and drugs were found on those individuals on June 12, 2012. If there were no reasonable and probable grounds to arrest Mr. Biadi by Detective Torres at that point, there could be no grounds to arrest these individuals either. It would seem to be offensive to utilize evidence seized through an arrest which lacked reasonable and probable grounds to support those grounds in a subsequent arrest. I need not go further than that as there was no evidence that those individuals obtained the drugs from Mr. Biadi; they may have very well come to Mr. Biadi’s home carrying those substances.

[51] Accordingly, I find that the arrest of Mr. Biadi lacked reasonable and probable grounds, and offended the prohibition against arbitrary arrest in s. 9 of the Charter.

Exclusion of Evidence

[52] A number of packets of cocaine were seized from Mr. Biadi’ vehicle as an incident of his arrest. Ms. Riva acknowledges that the search of Mr. Biadi’s vehicle was properly an incident of his arrest. However as I have found Mr. Biadi’s arrest to have been contrary to the Charter, I must now determine whether that evidence should be excluded at trial (and for the purpose of the search warrant) pursuant to s. 24(2) which reads as follows:

(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.

[53] The issue is whether the admission of this evidence would bring the administration of justice into disrepute; if not, it cannot be used by the Crown in order to support a conviction or, presumably, the subsequent search of Mr. Biadi’s residence.

[54] The leading case on this issue is R. v. Grant.[^14] That case requires the court to review three matters in considering the issue of whether the admission of the evidence would bring the administration of justice into disrepute:

(a) I must consider the seriousness of the Charter infringing conduct;

(b) I must then consider the impact of the breach or breaches on the Charter protected rights of the accused; and

[55] The onus is on the accused to satisfy the court, on the balance of probabilities, that admission of the evidence would bring the administration of justice into disrepute.[^15]

[56] I will deal with each of the criteria under s. 24(2) in turn.

Seriousness of Charter Infringing Conduct

[57] In the present case, I have found that the police had infringed Mr. Biadi’s rights against arbitrary arrest. I did not, however, make any findings of bad faith. In fact, in reviewing the evidence of Detective Torres, I found that subjectively, he had an honest belief that he had reasonable and probable grounds to arrest and detain Mr. Biadi and conduct the search incidental to arrest. There were no infringements of any other Charter rights as occurred in Smith, where the Defendant’s s. 10(b) rights were breached. The search incidental to the arrest was not overly extensive or improper.

[58] Set off against this is the reliance on the anonymous tip, which shows negligence, at least. As well, the failure to determine who else lived in the residence, which may have made a difference in the investigation was, again, negligent. As well, the arrest of the two individuals who visited the residence on June 12, 2012 appears to be high handed and without good excuse.

[59] I would characterize the conduct of the police regarding this particular issue in the medium range.

Impact on the Rights of the Accused

[60] I would characterize the impact on Mr. Biadi’s rights as severe. His vehicle was searched and the drugs found may result in a conviction for a serious criminal offence. He presently has no criminal record, and a conviction would affect his ability to obtain work in certain professions or enter the United States. Finally, the arrest resulted in the execution of a search warrant and a late night search of Mr. Biadi’s residence which affected his privacy rights as well as those of the individuals living in the home.

Interest in Adjudication on the Merits

[61] The issue under this heading is the balance between Society’s interest in obtaining a conviction for the offence with which Mr. Biadi is charged with as opposed to Society’s interest in preventing arbitrary arrest as in the present case. Read into this is the nature of the conduct of the police as the more egregious the conduct, the more the balance leads to prevention of that type of behaviour.

[62] Trafficking in a controlled substance is a serious offence. Amounts were seized from the vehicle at the time of arrest, and the arrest led to the search warrant, resulting in the seizure of sizeable amounts of a number of controlled substances. Drug use and the sale of controlled substances are a scourge which result in crimes of violence, addiction and other related criminal behaviour.

[63] However, this is not a weapons offence as in the Smith case. Moreover, Mr. Biadi is a first time offender. The persons with whom he may have been involved do not appear to be heavily submerged in the drug culture as none of those people identified by the police had criminal records.

[64] In my view, based on the seriousness of the offence and the other factors noted above, the balance leans towards the exclusion of the evidence. I find that the exclusion of the evidence would not call the administration of justice into disrepute.

[65] Accordingly, the evidence seized at the arrest of Mr. Biadi is to be excluded pursuant to s. 24(2) of the Charter.

Disposition

[66] Accordingly, the arrest of Mr. Biadi is found to have contravened his rights against arbitrary detention under the Charter. Under s. 24(2) of the Charter, the evidence seized on arrest is excluded from consideration in this trial.

[67] As the arrest fails, the search warrant also fails. I need not consider the issues raised in that application and the evidence seized pursuant to the search warrant is also excluded at trial.

Justice McDermot

Released: April 22, 2014

[^1]: Canadian Charter of Rights and Freedoms 1982, R.S.C. 1985, App. II, No. 44, Schedule B.

[^2]: R.S.O. 1990, c. H.8.

[^3]: Detective Torres later seemed to imply in his testimony that the driver of the Hyundai, Melissa Newton, was a drug user, but he did not give any basis for this belief other than the fact that he knew her. I gave no weight to this suggestion.

[^4]: Mr. Biadi apparently lived in a basement apartment although that detail did not come out in the voir dire.

[^5]: Criminal Code, R.S.C. 1985, c. C-46, s. 495(1).

[^6]: See R. v. Storrey, [1990] 1 S.C.R. 241.

[^7]: See Chartier v. Quebec (Attorney General) (1979), 49 C.C.C. (2d) 34 (S.C.C.) at p. 56 and R. v. Golub (1997), 117. C.C.C. (3d) 193 (Ont. C.A.) at para 21.

[^8]: See R. v. Smith, 2009 ONCJ 641 at para 17 as aff’d by 2011 ONCA 748 (C.A.).

[^9]: See Footnote 7 above.

[^10]: R. v. Smith, 2011 ONCA 748 at para 2.

[^11]: Officer Cultrera testified that he learned that Mr. Biadi had a Hyundai Tiburon from the anonymous tip; later, however, he said that he determined this fact from the MTO search. By the time the investigation began, Mr. Biadi was driving the 1985 Mercedes in which he was arrested.

[^12]: [2011] O.J. No. 3954 (S.C.J.) as aff’d by 2013 ONCA 229 (C.A.).

[^13]: S.C. 1996, c. 19.

[^14]: 2009 SCC 32, [2009] 2 S.C.R. 353

[^15]: R. v. Harper, [1994] 3 S.C.R. 343

Her Majesty the Queen v. Gaetano Biadi, 2014 ONSC 2493

Case Summary

Introduction

History of the Investigation

Analysis

Mr. Biadi’s Arrest

Exclusion of Evidence

Seriousness of Charter Infringing Conduct

Impact on the Rights of the Accused

Interest in Adjudication on the Merits

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 3