ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-4112

DATE: 2015-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EUGEN ADRIAN SARCHIZ

Applicant Accused

Denis Allan, for the Respondent Crown

Reid Rusonik, for the Applicant Accused

HEARD: in Hamilton on May 25th, 27th, 28th and 29th, 2015

REASONS FOR JUDGMENT

LOFCHIK, J.

[1] The accused is charged with one count of unauthorized possession of a .357 calibre firearm and two counts of possession of cocaine for the purpose of trafficking.

[2] This is an application by the accused to have excluded evidence of any observations and things seized by police as a result of a search of the accused and his motor vehicle conducted incidental to an alleged unlawful arrest and in execution of a search warrant on January 20th, 2012 at 98 Foxborough Drive, Ancaster.

[3] The investigation leading to the charges against the accused Eugen Sarchiz lasted approximately half a day and began with the officer in charge, Detective Constable Matt Reed of the Hamilton Police Service Vice and Drug Office, receiving a Crime Stoppers report when commencing an afternoon shift on January 20th, 2012.

[4] In December of 2011, Detective Reed received information from a street source who he indicated is heavily entrenched in the drug subculture. He has never received information from this source in the past. The source advised that a male with a street nickname who lives with his parents in Ancaster and keeps a safe house somewhere in the neighbourhood of Fiddler’s Green was dealing cocaine at 158 Weir Street in Hamilton. The source mentioned that this person had access to a blue Saab and would cook cocaine into crack cocaine himself. This source advised that the person’s brother just got out of penitentiary for dealing “plates” of cocaine. Detective Reed knew that “plates” refers to kilos of cocaine, that the current price for a kilo of cocaine was $42,000.00-$45,000.00 and that drug dealers will use street names rather than their real names to keep their identities safe from police and others who may want to rob them.

[5] Also on January 20th, 2012, Detective Reed read a Crime Stoppers report from an anonymous tipster advising that a man named Marius was currently in possession of cocaine, that he had just been released from Penetang four months prior after being jailed for guns and crack, and that Marius lives in a townhouse complex in Ancaster with his girlfriend Kisha Keesh.

[6] Detective Reed concluded that the street name referred to by the previous source is another street name for Eugen Sarchiz and that “Marius” is Marius Sarchiz, his brother. He also concluded that Marius Sarchiz was in possession of cocaine for sale.

[7] On the same day, he checked the NICHE database regarding Eugen Sarchiz and learned the following: that he has an address of 98 Foxborough Drive in Ancaster as of January 15th, 2011. On that date, he was a witness to a robbery and provided his address to police. He checked Google Maps and learned that Foxborough Drive in Ancaster is off Fiddler’s Green Road as described by his earlier source.

[8] Detective Reed testified that the information was significant for him for the following reasons: that Eugen Sarchiz lives at 98 Foxborough Drive in Ancaster and this corroborates information received from his earlier source that the safe house of the drug dealer is near Fiddler’s Green.

[9] Sergeant Reed also checked the CPIC database regarding Eugen Sarchiz and learned the following: that Eugen Sarchiz has a birthdate of December 24th, 1982, which corresponds with the information received from his earlier source that the person being referred to had a birthdate of December 24th. He also learned that Eugen Sarchiz has a conviction for impaired driving which again was consistent with the information received from the earlier source, and that Eugen Sarchiz has a driver’s licence registered to 98 Foxborough Drive in Ancaster.

[10] This was significant to Detective Reed for the following reasons: Eugen Sarchiz lives at 98 Foxborough Drive and has a date of birth of December 24th as described by his earlier source. Similarly, Sarchiz has a conviction for impaired driving as described by his earlier source.

[11] On January 20th, 2012, Detective Reed checked the CPIC database regarding Marius Sarchiz and learned the following: Marius Sarchiz has a lengthy criminal record dating back to 1996 and of 15 convictions he has 1 conviction for trafficking cocaine, 3 convictions for possession for the purpose of trafficking and 2 convictions for firearm offences. In 2008, he was part of a wiretap investigation in which he was charged with conspiracy to traffic in cocaine, however he was not convicted. This was Project “Goldmine” as a result of which several people were convicted of trafficking offences. Marius Sarchiz was recently released from prison.

[12] The significance of this information was to verify that Marius Sarchiz has a history of selling cocaine and that he knows who to go to to get cocaine. The detective believed that Marius Sarchiz had access to cocaine as described by the Crime Stoppers source who knew that Marius was recently released from prison.

[13] On January 20th, 2012, Detective Reed checked the NICHE database regarding the address of Marius Sarchiz and learned that he lists an address of 1172 Old Mohawk Road, Unit 4, where he lives with his girlfriend, Akeisha Davidson.

[14] Detective Reed considered this important for the following reasons: it corroborates information from Source B that Marius Sarchiz lives in Ancaster in a townhouse with Akeisha.

[15] On January 20th, 2012, members of the Vice and Drug Unit from the Hamilton Police set up surveillance at 98 Foxborough Drive in Ancaster with the belief that Eugen Sarchiz or Marius Sarchiz would be out making deals on a Friday night.

[16] The surveillance showed the applicant leaving the house six times. Once he left the house with his mother and the police did not follow believing it not to be drug related. Twice they were unable to follow him in heavy traffic. During each of these trips the accused was gone for over an hour. The other three trips were the basis for the arrest. Surveillance of these trips revealed the following:

a. A male they believe to be Marius Sarchiz was dropped off by a male who is likely his father. Soon after, this Eugen Sarchiz left in a blue Saab with license plate BLRR 018. He made a short stop at a variety store where a male jumped into the passenger seat. About two minutes later, the male left and Eugen drove home.

b. A short time later, Eugen Sarchiz left again in the same Saab and stopped on Robina Street in Ancaster not far from his house where he was met by a second male who left a vehicle and jumped into the passenger seat of the Saab. After a few minutes, the male left and Eugen Sarchiz drove directly home to 98 Foxborough Drive. There was no evidence that in either instance the departing male was seen carrying anything or that the police were able to observe any activity that went on inside the vehicle.

c. A short time later, Eugen Sarchiz left again in the same Saab and drove to an industrial complex in Ancaster which police believed did not have any businesses open at night. He met with a male who exited from one of the buildings.

d. Police believed that Marius Sarchiz remained at the house while all the deals were happening, and that Eugen Sarchiz was the runner. Police however subsequently learned that at the relevant time, Marius Sarchiz was in police custody having been taken into custody for breach of probation.

[17] All of the police officers testified that they had been involved in drug investigations before and that in their experience the type of activity involving the accused’s stop at the variety store and on the street in Ancaster was indicative of drug trafficking activity. It was also their evidence that drug traffickers do not usually deal from their residence or let their address be known for fear of being robbed.

[18] With respect to all the stops that allegedly involved drug dealing activity, the observing officers could not see what took place in the accused’s vehicle because of the vehicle’s tinted windows.

[19] Police affected the arrest at the industrial complex in Ancaster while the other male was still in the vehicle. Upon carrying out a search incidental to the arrest they found the accused in possession of over a quarter ounce of cocaine and money.

[20] On an Information to Obtain Search Warrant, Detective Reed set out his belief that Eugen Sarchiz was a cocaine dealer based on the observations set out above and the fact that he was arrested with over a quarter ounce of cocaine. He set out his belief that Eugen Sarchiz and Marius Sarchiz were in possession of cocaine for the purpose of trafficking and that they had cocaine, money, scales and drug packaging located in the residence at 98 Foxborough Drive, Ancaster, Ontario.

[21] Based on the above information, a search warrant was granted with respect to 98 Foxborough Drive where police carried out a search pursuant to the warrant and found Eugen Sarchiz in possession in his bedroom of an additional quantity of 9 ounces of cocaine and a loaded .357 Smith & Wesson revolver, an operable restricted firearm within the definition of Section 84 of the Criminal Code of Canada with readily accessible ammunition suitable for use with this firearm.

Position of the Parties

[22] It is the position of the accused that the arrest of Eugen Sarchiz on January 20th, 2012 was an illegal arrest contrary to the provisions of the Charter of Rights and Freedoms in that the police did not have reasonable and probable grounds to believe that Eugen Sarchiz was committing a criminal offence at the time of arrest.

[23] It is the Crown’s position that the above information was sufficient to create a belief on the part of the arresting officer that the police had reasonable and probable grounds for arrest and that the search carried out incidental to the arrest was a legal search and the evidence found was admissible.

[24] It is the position of the defence that as the arrest was an illegal arrest, the search carried out incidental to the arrest was a violation of the accused’s Charter rights and anything found pursuant to the search incidental to arrest should not be admissible pursuant to Section 24 (2) of the Charter. Similarly, as the search warrant was obtained based upon information obtained from the illegal arrest and illegal search, the search warrant was improperly issued and that anything found in execution of the search warrant should not be admissible pursuant to Section 24 (2) of the Charter.

[25] It is the applicant’s position that the surveillance leading to the decision to arrest him, at its highest never actually rose above a mere hunch of drug activity and therefore there were no reasonable grounds to detain, arrest and search him or his vehicle. Such arrest and search violated the accused’s rights as protected by Section 8 and 9 of the Charter of Rights and Freedoms.

[26] The critical and contentious issues to be decided are whether the arrest of the accused was unlawful and arbitrary and, if so, whether evidence obtained from the search of the accused and his motor vehicle should be excluded both as original evidence and also as informational evidence on the search warrant application which ensued.

[27] That issue turns on whether the police, at the time they arrested the accused, had reasonable and probable grounds to believe that the accused was engaged in a criminal activity, namely trafficking in cocaine.

Analysis

[28] S.495(1)(a) of the Criminal Code, permits a Peace Officer to arrest, without warrant, a person:

I) Who has committed an indictable offence; or

II) Who the police officer believes on reasonable grounds has committed or is about to commit an indictable offence.

Where the basis for the arrest falls within category (II) above, the arresting officer must subjectively have reasonable grounds on which to base the arrest. However, that on its own is no enough to make the arrest lawful. In addition, those grounds must be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude there were indeed reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p.251; R. v. Golub (1997), 117 C.C.R (3d) 193 (ONT. C.A.) at para. 20.

[29] A lawful arrest need not set out proof beyond a reasonable doubt or even the establishment of a prima facie case, but a hunch is insufficient.

R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59

[30] A search incidental to arrest is an established exception to the general rule that warrantless searches are prima facie unreasonable. Such searches do not arise as a result of a reduced expectation of privacy of the arrested individual, but rather from “a need for the law enforcement authorities to gain control of things or information that outweighs the individual’s interest in privacy”. R. v. Caslake (1998), 121 C.C.C. 3rd 97 (S.C.C.) at page 107. However, if the arrest is unlawful, the search is also unlawful. R. v. Mohammed (2004), 69 OR (3rd) 481 (C.A.) at para. 28.

[31] Where the information upon which an arrest is based originates in a source outside the police, the totality of the circumstances encompasses factors relevant to either the accuracy of the specific information provided or the reliability of the informant as a source of information to the police; (R. v. Lewis (1998), 122 C.C.C. 3rd 481 at para. 16). In this case, the allegation relates to possession of drugs. It follows that the totality of circumstances must raise a belief, on reasonable grounds, that the target had committed or was about to commit the offence of possession of drugs for the purpose of trafficking.

[32] As to the information of the informants, there was no indication as to the informants’ source of knowledge – whether it was personal or obtained from others. There was a paucity of details and specifics surrounding the assertion the accused was trafficking cocaine. The information obtained was that he was dealing cocaine at 15B Weir Street in Hamilton. The only other information provided was the general location of his residence and a description of the vehicle used. There were no details as to specific transactions such as the dates or amounts involved or in fact whether the accused was in possession of any cocaine currently. The information regarding the car was, at best, neutral.

[33] The second component of the Officer’s belief that the accused was trafficking cocaine was the behaviour observed on the evening in question. All of the officers who testified stated they had experience in investigating drug trafficking and that the brief meetings with the unidentified males were “indicative” of a drug transaction. I accept that the officers had a subjective belief that an offence had been committed, however the issue is whether there was an objective basis to hold that belief. I am aware of the principles set out in R. v. Storrey, [1990] 1S.C.R. 241, that a prima facie case need not be made out for the grounds of an arrest. However, there must, objectively, be more than a hunch or subjective suspicion.

[34] In this instance, the information provided by the confidential informants on its own was not sufficient to satisfy the reasonable grounds standard in S.495(1)(a) to lawfully arrest the accused without a warrant. The information came from one untested source and another that was unverifiable. Neither had been confirmed in any meaningful way.

[35] With respect to the warrantless arrest, on the subjective issue I am satisfied that the officers had an honest belief that they had reasonable and probable grounds under which they could order the arrest of the accused. They testified that they felt that they had those grounds based upon the transactions they had observed over the course of the investigation. The three meets to which a number of the officers testified were suspicious in nature and consistent with drug transactions. In my observations of the officers as witnesses, I believe that they had an honest belief and acted in good faith. I accept the submission that the officers had a reasonable suspicion that the accused was dealing drugs.

[36] The objective grounds are more difficult to sustain. The major difficulty is the fact that the anonymous tips were inherently unreliable and could be removed from consideration. The tips, as often is the case, were the foundation of the police investigation of the accused. The subsequent criminal record check indicated that the accused had no criminal record and no known involvement in the drug trade. At the beginning of the investigation, there was no objective basis to believe that the accused was involved in the drug trade. Without such a foundation, the police officers’ duty to adequately investigate in order to determine reasonable and probable grounds for an arrest increases in scope. Without a known connection in the drug trade, an objective person standing in the investigators’ shoes may very well have entertained other reasonable explanations for the various meetings and transactions as suggested by defence counsel. This is confirmed by R. v. Smith 2001 ONCJ 5767 where Jennis J. confirmed the importance of the tip as part of the totality of the investigation. 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.

[37] The Ontario Court of Appeal, in affirming this decision, referred to a short duration meeting with an unidentified person as “a neutral fact.” (See R. v. Smith, 2011 ONCA 748 at para. 2). That case involved only one short meeting prior to arrest rather than the present case which involved three 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 the accused was frequenting if not dealing out of another location, a fact not confirmed during the investigation. It is unclear whether the tipster mentioned the accused’s vehicle. The present case resembles the situation in Smith where the information from the informant was unreliable and the various meets were capable of more than one interpretation.

[38] In R. v. Brown 2012 ONCA 225, [2012] O.J. No. 1569 (Ont. C.A.), the Ontario Court of Appeal affirmed the need to objectively assess the reasonableness of subjective police belief in terms of their observations:

In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer’s belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be “reasonable”, meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.

[39] Where there is a lack of reliability concerning an initial tip received from informants, this increases the obligation of officers in their investigation to make objectively reasonable observations of drug activity before making an arrest.

R. v. Dhillon [2014] O.J. No. 5082 at para 161.

[40] I therefore do not find that there were reasonable and probable grounds for the arrest of the accused. The various meetings could be accounted for by other explanations and all of them were, in the words of Smith, neutral in nature. Accordingly, I find that the arrest of the accused lacked reasonable and probable grounds and offended the prohibition against arbitrary arrest in Section 9 of the Charter and that the search of the accused person and his vehicle violated Section 8.

Lofchik, J.

Released: July 27, 2015

COURT FILE NO.: 13-4112

DATE: 2015-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

EUGEN ADRIAN SARCHIZ

REASONS FOR JUDGMENT

TRL:co

Released: July 27, 2015