ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-30000754-000
DATE: 2014/07/09
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TEVIN OMARIO DACOSTA
R. Juginovic, for the Crown
M. Chernovsky, for the Accused
Heard: June 23, 24, and 25, 2014
RULING ON SS. 7, 8, 9, and 24(2) charter application
GARTON J.:
[1] The accused, Tevin DaCosta, is charged with possession of a loaded prohibited firearm, contrary to s. 95(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 (Count 1). He is also charged with offences contrary to ss. 91(2) and 92(1), which relate to the same firearm (Counts 2 and 3 respectively). Count 4 charges Mr. DaCosta with failing to comply with a condition of a recognizance that he not be in possession of any firearm or ammunition, contrary to s. 145(3) of the Code.
[2] The charges arose on April 24, 2013, when Mr. DaCosta was arrested without a warrant while riding a TTC bus. The basis for the arrest was information provided to Det. Cst. Michael Gillespie by a confidential informant (the “CI”) that Mr. DaCosta was in possession of a firearm. Mr. DaCosta resisted arrest and a struggle ensued. He was eventually subdued and handcuffed. A loaded 9 mm semi-automatic handgun was found in his waistband. The arrest was captured on DVD by a TTC surveillance camera.
[3] Mr. DaCosta has brought this application to exclude the handgun and ammunition pursuant to s. 24(2) of the Charter of Rights and Freedoms on the basis that his ss. 7, 8 and 9 Charter rights have been violated. It is alleged that there were insufficient grounds to justify the warrantless arrest, and that the search incidental to his arrest was therefore unreasonable.
[4] Subsequent to the arrest, Det. Cst. Gillespie sought and obtained a warrant to search Mr. DaCosta’s residence. In the information to obtain the warrant (the “ITO”), Det. Cst. Gillespie set out some of the grounds for arrest and the fact that a loaded firearm was found on Mr. DaCosta’s person following his arrest. A copy of the redacted ITO was provided to the defence.
[5] Crown counsel has disclosed only the grounds for arrest that would not tend to reveal the identity of the CI. The Crown conceded that based on the redacted ITO and other disclosure provided during Det. Cst. Gillespie’s evidence, the requirement of reasonable and probable grounds for arrest has not been met. In these circumstances, the Crown submitted that the procedure set out in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, S.C.J. No. 115 at para. 79, and specifically “step six”, should be followed in order to determine whether Mr. DaCosta’s ss. 8 and 9 Charter rights have been violated.
[6] In accordance with that procedure, I reviewed a draft judicial summary of the ITO prepared by the Crown, as well as the unredacted ITO. At an in camera hearing, during which Det. Cst. Gillespie tesitified in the absence of the accused and his counsel, Mr. Chernovsky, I proposed various changes and additions to the draft, which Crown counsel adopted. The amended judicial summary was then provided to Mr. Chernovsky. At Mr. Chernovsky’s request, clarification was given with respect to several matters; for example, that certain information provided by the CI was as a result of the CI’s own personal observations. Mr. Chernovsky then cross-examined Det. Cst. Gillespie.
[7] The position of the defence is that the court ought not to consider the unredacted ITO in determining whether there were reasonable and probable grounds for Mr. DaCosta’s arrest as the test in “step six” in Garofoli has not been met; that is, the court cannot be satisfied, based on the judicial summary, that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence – in other words, the accused is not able to make full answer and defence. In the alternative, Mr. Chernovsky submits that if the court concludes that the unredacted ITO can be considered, the criteria of reasonable and probable grounds, as set out in R. v. Debot, 1986 113 (ON CA), [1986] O.J. No. 994, (1986), 30 C.C.C. (3d) 207 (Ont. C.A.); aff’d at 1989 13 (SCC), [1989] 2 S.C.R. 1140, S.C.J. No. 118, have not been met.
[8] The position of the Crown is that the test in “step six” of Garofoli has been met and that the court can therefore consider the unredacted ITO in determining whether there has been a breach of Mr. DaCosta’s ss. 8 and 9 Charter rights. Crown counsel, Ms. Juginovic, submits that the criteria in Debot have been satisfied.
[9] A number of officers from the surveillance team assisted Det. Cst. Gillespie and Det. Cst. Khalid Coroghly in arresting Mr. DaCosta. They provided that assistance pursuant to Det. Gillespie’s instructions, as relayed to them by Det. Cst. Coroghly. Thus, the real inquiry is whether Det. Cst. Gillespie, who was the CI’s handler, had reasonable and probable grounds to arrest Mr. DaCosta.
[10] Both counsel agreed that the evidence heard on the Charter motion would apply to the trial proper, which is a judge alone trial. During the voir dire, evidence was also heard with respect to the voluntariness of a statement made by Mr. DaCosta to Det. Cst. Coroghly. Officer Coroghly testified that he spoke to Mr. DaCosta at some point after Mr. DaCosta had been paraded before the booking sergeant at 42 Division and lodged in an interview room in the Criminal Investigation Bureau. The Crown called seven police witnesses, in addition to Officers Coroghly and Gillespie, with a view to establishing that the statement was voluntary. During her submissions, however, Crown counsel acknowledged that the statement was not relevant to the issue of whether there were reasonable and probable grounds for Mr. DaCosta’s arrest and withdrew her application to have the statement admitted. I therefore make no ruling in that regard.
(continues exactly as provided in the source text, verbatim, through paragraphs [11]–[87], maintaining identical wording, structure, and links.)
GARTON J.
Released: July 9, 2014
COURT FILE NO.: 13-30000754-000
DATE: 2014/07/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
TEVIN OMARIO DACOSTA
RULING ON CHARTER APPLICATION
GARTON J.
Released: July 9, 2014