ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 2028/12

DATE: 2014-11-27

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PATRICK PALMER

Accused

G. Vlacic, for the Crown

M. Forte, for the Accused

HEARD: September 25, 2014

tzimas, j.

R U L I N G

THE APPLICATION

[1] Mr. Palmer is charged with Conspiracy to Commit Indictable Offence, pursuant to section 465(1)(c) of the Criminal Code of Canada. The Defence seeks a pre-trial ruling to exclude evidence obtained as a result of a breach of Mr. Palmer’s rights as guaranteed by sections 8, 9 and 10(b) of the Charter.

[2] In particular, Mr. Palmer seeks to exclude his cell phone, its contents and all derivative evidence, pursuant to section 24(2) of the Charter. He respectfully submits that the cumulative effect of the conduct of the police and their callous disregard for his most fundamental rights should auger in favour of exclusion.

[3] The Crown opposes the application. She takes the position that Mr. Palmer’s Charter rights were not violated. Alternatively, if there were any breaches, they were minimally intrusive such that the administration of justice would not be brought into disrepute by the admission of the evidence extracted from Mr. Palmer’s cell phone. The trial should therefore be permitted to proceed on its merits with the benefit of the evidence obtained from Mr. Palmer’s cell phone.

[4] Mr. Palmer was charged with conspiracy to commit an indictable offence, pursuant to section 465(1)(c) of the Criminal Code of Canada on March 7, 2011, following the police’s search of his cell phone and the discovery of a video and related photographs of Mr. Palmer. Although the phone was searched pursuant to a search warrant, the phone was seized from Mr. Palmer when he was arrested on July 30, 2010 for the possession of stolen property. When Mr. Palmer was released unconditionally in the early hours of July 31, 2010, his phone was not returned. Instead, the police kept Mr. Palmer’s phone to further their investigation of suspicions of a conspiracy to commit a robbery.

[5] It is Mr. Palmer’s arrest on July 30, 2010, his unconditional release the next day, and the police’s decision to keep Mr. Palmer’s phone that give rise to this application.

[6] For the reasons that follow I conclude that the evidence obtained by the police from Mr. Palmer’s phone is inadmissible. Mr. Palmer should not have been arrested for the possession of stolen property as there were no reasonable and probable grounds. Moreover, once he was released unconditionally, the police had no basis to keep his cell phone, much less to search it. Mr. Palmer’s unlawful arrest was serious and significant. To allow the evidence obtained from the cell phone would be a serious affront to the administration of justice.

FACTUAL BACKGROUND

[7] On July 30, 2010, Constables Jeffery Parent and David Salvatore were on uniformed, community policing, bicycle patrol in Brampton. Included in their patrol area was a strip mall located at 1785 Queen Street.

[8] The constables arrived at the strip mall around noon. Constable Parent stopped to speak to a woman who had thrown some garbage on the ground; he wanted to ask her to pick up her garbage.

[9] Constable Salvatore continued to the back of the mall where he saw a group of 6 men who were well-dressed and who were standing between a red Liberty Jeep and a silver Infiniti. At least three of the men were standing near the rear passenger door of the Jeep and they appeared to be looking at or using a laptop that was located inside the Jeep.

[10] Constable Salvatore described the car door as being “ajar”. Mr. Palmer was among the three men who were looking into the Jeep. The other five men were later identified to be Michael Blazevic, Sargon Baba, Ertug Direkoglu, Daine Edie and Phillip Ferreira.

[11] Constable Salvatore’s initial encounter with the six men was clocked at 12:02 p.m. The men started to move and shift in their positions as soon as they became aware of Constable Salvatore’s presence. Some of the men started texting on their cell phones and at some point the door to the Jeep was closed. Nonetheless, they remained calm and collected.

[12] Constable Salvatore said he became very suspicious of the men’s activities as soon as he laid eyes on them. Meaning to keep his interaction non-confrontational and friendly, Constable Salvatore said to them: “Hey guys, how are you, I am just talking to you because we have liquor and drug offences and I would just like to know what is going on”. The guys responded that they were friends and that they came to the mall to eat. Constable Salvatore found the response odd. His suspicion increased when the guys said they came to that location from Mississauga and Oakville.

[13] Constable Salvatore stated that right at that point, although he did not have anything concrete to base his suspicions, he thought that something was going on, something was being planned and he believed that the guys were not being truthful with him. But Constable Salvatore also acknowledged that the men were standing around and were being co-operative.

[14] In the meantime, within a couple of minutes of Constable Salvatore’s interaction with the men, Constable Parent made his way to the back of the mall, drove his bike around the Infiniti. He too asked the guys what was going on. As he came around the Infiniti, he noticed in the back of the car a number of objects on the back seat and floor of the car. The items included a yellow and black screw-driver, black gloves, two baseball caps, a black bandana, a black tuque, and black shirts.

[15] Like Constable Salvatore, Constable Parent stated that he engaged with the guys in a friendly and non-confrontational manner. Also like Constable Salvatore, he felt that there was something very suspicious and peculiar with the group. The guys told him that they were going to lunch but that did not make sense to Constable Parent because the entrance to the restaurant was at the front of the mall and the men did not seem to be going anywhere in any hurry.

[16] Constable Parent also testified that he found the explanation that the men were friends to be suspicious because their ages ranged between the mid-to-late twenties and mid-thirties. The age range appeared to be too broad to suggest that the guys were friends. The differences in their ethnic backgrounds and the particular mix also struck Constable Parent as odd; he said that it was “rare to see that kind of mix of individuals”.

[17] Given what he saw in the back of the Infiniti, Constable Parent said that he became very concerned for his and Constable Salvatore’s safety. That said, rather than remain silent, he asked the guys if they were planning a robbery.

[18] Constable Parent then told Constable Salvatore about the items that he saw in the Infiniti. That information only heightened Constable Salvatore’s suspicions. At 12:03 p.m. Constable Parent called for a cruiser as he felt that they would need access to a computer to run searches on the men. Constable Mohammed arrived in a marked cruiser. He parked his cruiser in a position that was perpendicular to the Infiniti. He was given a number of identity cards to run identity searches.

[19] At some point one of the men, Mr. Edie, asked Constable Parent what was going on. Constable Parent told him that they were just doing their job and asked the guys to bear with them.

[20] At around 12:15 p.m. Constable Hagiman and Sargent Reynolds arrived in separate marked cruisers, and they parked their cruisers in perpendicular positions closer to the Jeep.

[21] In the meantime, Constable Salvatore went over to the Jeep and noticed an unsealed Jack Daniels bottle. He asked Mr. Blazevik if the Jeep belonged to him. Mr. Blazevik told him that he was the driver but that the car was a rental. At that point, Constable Salvatore said that he had no reason to disbelieve Mr. Blazevik. Mr. Palmer volunteered the information that the Infiniti belonged to him. Constable Salvatore said that Mr. Palmer appeared too enthusiastic and keen to distance himself from the Jeep; he said that Mr. Palmer’s reaction only heightened Constable Salvatore’s suspicions.

[22] Constable Salvatore took a closer look into the Jeep and in addition to the opened Jack Daniels’ bottle, he saw four zip-ties, three of which were twined, a sealed roll of duct tape, new-looking gloves, the computer lap-top and a whisky container box.

[23] Constable Salvatore went back to Constable Mohammed and asked him about his searches. Constable Mohammed told him that the Jeep Liberty was reported stolen. On that information, Constable Salvatore explained that he made the immediate decision to arrest all six men for the possession of stolen property.

[24] Specifically with respect to Mr. Palmer, both Constables Parent and Salvatore testified that Mr. Palmer was courteous and co-operative. Constable Parent described Mr. Palmer as somebody who was dressed casually. He was wearing jeans and he looked taller and heavier than himself. When he first saw Mr. Palmer he said that Mr. Palmer was within an arm’s length reach of the rear passenger door of the Jeep Liberty. Constable Salvatore gave conflicting evidence on Mr. Palmer’s precise position in relation to the Jeep rear passenger door but he was consistent that Mr. Palmer was looking into the Jeep through the rear passenger door.

[25] A few minutes later, when Constable Parent was speaking to Mr. Edie, Mr. Palmer came over and joined the conversation. Mr. Palmer volunteered the information that he had the keys to the Infiniti. He went over to the side passenger door of the Infiniti and obtained the ownership and insurance information. Constable Parent said that he thanked him for the information but told him that he did not need the information. When Constable Parent asked him about the clothes in the Infiniti, Mr. Palmer told him that they belonged to Mr. Edie. Mr. Palmer also told him that the items in the car were not ‘break and enter tools’ and that the other guys were his friends.

[26] Constable Parent did not have any other exchanges with Mr. Palmer. He did however search Mr. Palmer’s Inifiniti and found the items noted above.

[27] Constable Salvatore said that he first saw Mr. Palmer standing near the Liberty Jeep to the right of Mr. Baba and looking at the computer by the door. He said that Mr. Palmer was hunched over looking at what seemed to be a laptop. It did not appear that any part of Mr. Palmer’s body was touching the vehicle.

[28] When Constable Salvatore asked Mr. Palmer for his identification, Mr. Palmer gave him his driver’s license. He also told Constable Salvatore that the Infiniti belonged to him. As noted above, Constable Salvatore found it odd that Mr. Palmer was so keen to tell him that he owned the Infiniti. Constable Salvatore also noted that Mr. Palmer was very co-operative. He also noted that Mr. Palmer was texting on his phone.

[29] Constable Salvatore’s next interaction with Mr. Palmer was at 12:19 p.m. when he arrested Mr. Palmer. Constable Salvatore said that he arrested Mr. Palmer, he placed him on the curbside and then went back to arrest Mr. Fereira. Constable Salvatore said that he told Mr. Palmer that he was under arrest for stolen property. He also told Mr. Palmer that the Jeep was stolen. He proceeded to search Mr. Palmer as an incident of his arrest. He said that he wanted to check if Mr. Palmer was carrying any weapons or whether he had keys to the Jeep.

[30] It was not until five minutes following Mr. Palmer’s arrest that Constable Palmer said that he read Mr. Palmer his rights. Mr. Palmer’s response was to repeat to Constable Salvatore that he was the owner of the Infiniti. He said that in response to the question as to whether he wanted to call a lawyer. Constable Salvatore denied that what Mr. Palmer was really asking him was why was he being arrested. He also denied that Mr. Palmer was confused about the situation. Rather, Constable Salvatore described Mr. Palmer as being “alarmed”.

[31] Constable Salvatore then turned Mr. Palmer over to Constable Mohammed. This occurred at 12:40 p.m. following which Constable Mohammed said that he re-read to Mr. Palmer his rights and caution. Constable Mohammed said that Mr. Palmer understood the questions and was clear that he did not want to call a lawyer.

[32] Constable Salvatore then returned and searched the Infiniti. He admitted that the search of the Infiniti was not an incident of the arrest for a stolen car but that it related to Constable Salvatore’s broader suspicions about something else going on. He said that he believed that there were exigent circumstances to search the Infiniti. He also said that he wanted to be sure that there was no indication that anyone was hurt, that there was no blood in the Infiniti, or that somebody was about to be hurt. He went as far as to express worries about the possibility that somebody might be in the trunk of the Infiniti.

[33] Constable Mohammed’s recollection of the incident was very cursory. He did however recall that when he first read Mr. Palmer his rights, Mr. Palmer did not request to call a lawyer. He also recalled that when he spoke to Mr. Palmer later in the day in the cells, Mr. Palmer requested a lawyer and Mr. Mohammed made the call. More specifically, Constable Mohammed contacted counsel at 4:27 p.m. and counsel returned the call and spoke to Mr. Palmer at 4:50 p.m.

[34] Mr. Palmer was released unconditionally at around 2:35 a.m. on July 31, 2010. Detective Hawkins, who interviewed Mr. Palmer testified that based on all of the interviews, there were insufficient grounds to proceed with charges of conspiracy, robbery, use of firearms or possession of stolen property against Mr. Palmer. He also testified that the decision to retain Mr. Palmer’s cell phone was his and it was based on a suspicion that there was a conspiracy to commit a robbery. Detective Hawkins was clear that he kept the phone to allow for his investigation to continue.

[35] On the subject of reasonable and probable grounds to arrest Mr. Palmer for the possession of stolen property, Constable Parent stated that in his view there were no reasonable and probable grounds that Mr. Palmer was in possession of stolen goods. The suspicions were focused on something else going on.

[36] That said, Constable Parent also confirmed that Mr. Palmer was never arrested in relation to any conspiracy to commit a crime. When asked how he formed the knowledge and belief that Mr. Palmer would have exercised control over the Jeep, Constable Parent said that the only indicator was Mr. Palmer standing next to the Jeep. He also said that in his own mind, although a search incident to Mr. Palmer’s arrest would have had to be connected to the possession of the stolen vehicle, he was not looking for evidence in relation to the stolen jeep; rather he was looking for evidence relating to the items that were found in the Infiniti.

[37] Constable Salvatore, whose decision it was to arrest all six men at the back of the strip mall, maintained his view that he had reasonable and probable grounds to arrest Mr. Palmer for possession of stolen property. He said that Mr Palmer had constructive possession, and that the suspicions were the result of the cumulative evidence. That evidence consisted of Mr. Palmer looking into a vehicle that was stolen and that he was standing in a group and close to Mr. Blazevik who knew that the Jeep was stolen.

FINAL DISPOSITION

[96] In light of my analysis and findings, the evidence seized from Mr. Palmer’s cell phone and any derivative evidence subsequently obtained is excluded.

Tzimas, J.

Released: November 27, 2014

COURT FILE NO.: CRIMJ(P) 2028/12
DATE: 2014-11-27

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
PATRICK PALMER

R U L I N G

TZIMAS, J.

Released: November 27, 2014