CITATION: R. v. Filli, 2015 ONSC 3583

COURT FILE NO.: CRIMJ(F) 2285/12

DATE: 20150603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KAMAL FILLI

Defendant

S. Montefiore, for the Crown

J. Rabinovitch, for the Defendant

HEARD: June 1-2, 2015

REASONS FOR JUDGMENT ON VOIR DIRE

Woollcombe J.

INTRODUCTION

[1] The accused, Kamal Filli, is charged with one count of possession for the purpose of trafficking heroin.

[2] The case proceeded before me as a blended voir dire on the Charter issues. The accused has filed a Charter application and alleges that his arrest and subsequent search violated his ss. 8 and 9 Charter rights and that the narcotics ought be excluded under s. 24(2). The Crown argues that there were no Charter violations and that, if there were, the evidence should not be excluded under s. 24(2).

[3] I have concluded that the officer had reasonable and probable grounds for the warrantless arrest of the accused. Accordingly, there was no violation of s. 9 and the subsequent search was not in violation of s. 8. While not strictly necessary, I have also concluded that if there were violations of ss. 8 and 9, the narcotics should not be excluded under s. 24(2).

THE EVIDENCE HEARD ON THE BLENDED VOIR DIRE

[4] The only witness to testify on the voir dire was Constable Damian Savino, who has been a Peel Police officer for 12 years. As of April 2012, he had worked in the Street and Gang Unit of the Peel Police for two years. He testified that he had been involved in hundreds of drug related incidences including those he described as “hand-to-hand” and street level transactions.

[5] On April 9, 2012, Constable Savino was involved in an unrelated investigation. When he became aware that other members of his unit were engaged in an active mobile investigation, he decided to join them. Officer Wozny advised him that police were following a Honda Civic from a location known for drug trafficking. Constable Savino was provided with the license plate of the Civic and tasked to follow it and make observations. His only information about the investigation was that it was drug related, that there were two Asian males in the Civic, and that the vehicle had been in an area known for drug activities.

[6] Constable Savino began observing the Civic as it travelled westbound on Steeles Avenue. He followed it south on Highway 400, westbound on Highway 401, southbound on Highway 427, and eastbound on the Gardiner to where it exited at Jameson and proceeded north. The Civic then went east of King Street and arrived at a McDonald’s Restaurant located at the southwest corner or King and Dufferin at 5:17 pm. The McDonald’s parking lot is located west of the restaurant. The Civic was parked on the western perimeter of the lot facing west. Constable Savino parked his unmarked police vehicle in the same lot facing east, one row to the east of the Civic. The Civic was west of him and a few spots north of him. Constable Savino’s diagram of the parking lot was entered into evidence as Exhibit 1. It was the officer’s evidence that he purposely positioned his vehicle where he had a clear view of the Civic. He was about 15-20 feet away.

[7] A short time after arriving, Constable Savino observed the passenger exit from the Civic and walk into the McDonald’s Restaurant. A short time after, that individual exited the McDonalds and returned to the front passenger seat. The officer saw nothing in his hands.

[8] At 5:20 pm, Constable Savino observed an unknown Asian male on foot walk towards the Civic and approach the front passenger window. He was a heavy set man who wore a dark hooded sweater with a red lining in the hood, referred to through these proceedings as the “red-lined hoodie”. This individual was never identified by Constable Savino. The front passenger window was down and the Asian male leaned inside the Civic, with his arms on the base of the lower of the window frame, and had a conversation with the occupants. The officer could not hear that conversation. The man was there for about 30 seconds and then left and went inside the McDonald’s Restaurant. After two or three minutes, he left the McDonald’s, walked northwest, and was not seen again.

[9] Constable Savino was asked whether there was anything unusual in what he had observed. He said that he had been unable to see what the Asian man was doing with his hands in the vehicle and could not see the man’s hands. What stood out for him was the short period of time that the man spent at the window as he testified that in his experience, drug transactions are usually short.

[10] As Constable Savino continued to observe the Civic, he saw the same male passenger who had exited the vehicle earlier exit again and enter the McDonald’s again. A few minutes later, he returned outside. He lit a cigarette and stood around the trunk area of the Civic. He then went around the passenger side to the front of the vehicle, where he walked back and forth near a patch of grass. At some point while he was by the front driver’s headlight, he tossed a white object with his right hand. The officer did not know what it was or where it came from. Constable Savino described it as a casual toss to the right and said that the item landed two to three feet from the passenger. The passenger remained smoking in front of the Civic for a few seconds and then re-entered the Civic.

[11] Constable Savino said that shortly after, the accused arrived in the parking lot in a Mitsubishi, which he parked one spot north of the officer facing eastbound. The accused was the sole occupant of the Mitsubishi. Constable Savino did not know him and had no information about him. A short time after, the accused exited his vehicle, attended at the Civic, and entered the Civic through the rear passenger door. He was in the Civic for only a few seconds. The officer assumed that he had a conversation, although he could not see his mouth or hear anything. The accused then exited the Civic, walked behind it and then to the front of it. With his right hand, he picked up the white object that had been tossed down by the passenger of the Civic. The accused looked at the object briefly and placed his hand into his right pocket. He returned to the Mitsubishi.

[12] Constable Savino testified that at the point at which the accused picked up the white item that had been tossed by the front of the Civic, he believed that the accused was in possession of a controlled substance and was arrestable. Constable Savino was cross-examined on whether he suspected a drug transaction at this point, or had reasonable grounds to believe that the accused was in possession of a narcotic. It was put to him that in his notes and at the preliminary inquiry, he had used the word “suspected” rather than the language of “reasonable and probable grounds for arrest”. The officer testified that he had suspected that there had been a drug transaction when the individual with the red-lined hoodie leaned on the front passenger window. He also suspected that there had been a drug transaction when he saw the accused pick up the package. But, he was clear that when he saw the accused pick up the package, he believed that this gave him reasonable grounds to arrest the accused for possession of a narcotic.

[13] Constable Savino said that after the accused returned to his car both the Mitsubishi and the Civic left the lot and he followed. The police were not able to follow both vehicles as the Civic made it through the traffic light going east on King Street at Dufferin. The Mitsubishi proceeded east on King Street and entered a parking lot located on the north east corner of King Street and Dufferin. Constable Savino followed.

[14] The accused exited the car and walked southbound and around a building at which point the officer lost sight of him. Constable Savino relayed what he had observed to his team. Subsequently, he was advised by another officer that the accused had exited what was believed to be a Caribbean restaurant, and was with another person. They returned to the Mitsubishi and left, driving north on Dufferin.

[15] Constable Savino testified that as he followed the Mitsubishi, he observed that the driver began to drive aggressively and erratically. He passed vehicles using the curb lane a few times. It was rush hour and because of the manner in which the driver was proceeding, and the congestion, the police decided to stop the vehicle and make an arrest.

[16] The Mitsubishi was stopped and Constable Savino identified himself as a police officer to the accused and indicated that he was under arrest. This occurred at 5:57 pm. Constable Savino escorted the accused out of his vehicle and he was laid down and handcuffed with his hands in the rear. The officer then assisted him to get up and they walked to the rear of the accused’s car where the officer conducted a preliminary patdown search for weapons.

[17] As they were located in a live lane of traffic, another officer suggested to Constable Savino that they move off the road. Constable Savino escorted the accused northbound. As they crossed the road, Constable Savino noticed that the accused was fidgeting with his pants from the rear and shaking his right leg. The officer kept a close eye on the accused as he held him with his right hand. After crossing the street, Constable Savino leaned the accused over the front passenger area of the officer’s vehicle. As the officer patted him down and moved down towards his legs, he noticed that the white package that he had seen earlier in the parking lot fell from the accused’s right inside pant leg to the asphalt. The officer picked it up, looked at it, and secured it.

[18] The officer explained that there was an exterior white paper towel that was three to four inches wide. It contained two individually wrapped bundles in cellophane, each surrounded by elastic. An examination of the white package revealed that it contained had 34.1 g of heroin, which was contained within the two bundles. Photographs of the package were entered into evidence as Exhibits 3 and 4. It is admitted by the accused that the seized evidence was heroin and that the quantity was for the purpose of trafficking.

[19] The accused was read his right to counsel, cautioned, and transported to the police station.

THE ISSUE

[20] Section 485(1)(a) of the Criminal Code permits a peace officer to arrest, without warrant, a person

(i) who has committed an indictable office, or

(ii) who the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.

[21] Where the basis for the arrest falls within the second category, the Supreme Court of Canada has explained that for the warrantless arrest to be reasonable, the arresting officer must subjectively believe that he or she has reasonable and probable grounds for the arrest and that belief must be objectively reasonable: R. v. Storrey 1990 125 (SCC), [1990] 1 S.C.R. 241. Thus, the issue to be determined is whether Constable Savino believed he had reasonable grounds for the arrest and whether, if he did, his view was objectively reasonable.

THE POSITIONS OF THE PARTIES

The Position of the Defence

[22] The position of the accused is that Constable Savino did not believe he had reasonable and probable grounds for the arrest and that he did not, objectively, have reasonable and probable grounds. The arrest was illegal as was the search incident to the arrest. He says that under a proper s. 24(2) analysis, the heroin ought to be excluded.

[23] In terms of the arrest, counsel reviewed the various aspects of the evidence relied upon by Constable Savino. He says that there is absolutely nothing that can be inferred from the information that the officer received from Officer Wozny as it was too generic and lacking in detail to assist. He says that the officer admits that he could only speculate about whether the man with the red lined hoodie was involved in a drug transaction. Counsel invites me to have concerns about the reliability of the officer’s evidence in terms of whether he was able to see and make the observations he claims to have been able to make. In terms of those observations, he says that the officer did not attach much significance to the Civic passenger tossing the white object by the car and that really, all that the officer could rely on was the accused entering the Civic, exiting the Civic, and picking up the package. Counsel says that while the officer may rely on his experience, there is nothing about that experience that assisted him in forming grounds for the arrest. Ultimately, he says that the officer himself, when he made his notes and testified at the preliminary inquiry, only had a suspicion of drug possession and that he did not, subjectively, have reasonable and probable grounds for the arrest on the basis of his observations and experience.

[24] Under s. 24(2), counsel argues that the violation was serious and that the police could have conducted an investigative detention and chose not to. He argues that it is only because the accused was arrested that the police were able to locate the heroin. While the third Grant factor suggests admissibility, he says that the first two suggest exclusion of the evidence.

The Position of the Crown

[25] The Crown argues that the officer was not required to disabuse himself of the fact that the vehicle had been in an area known for drugs transactions. He was also entitled to rely upon his policing experience, although she agreed that there was little beyond his evidence that drug transactions usually involved very brief interactions that was relevant to his belief that he had reasonable grounds for the arrest. The Crown says that on the basis of all of Constable Savino’s observations as to what happened in the parking lot, the officer subjectively believed that he had reasonable grounds for the arrest and that this was objectively reasonable.

[26] The Crown argues that if there were Charter breaches, the heroin ought to be admitted under s. 24(2). In terms of the first prong of the Grant analysis, it is argued that the officer honestly believed that he had reasonable grounds for an arrest and that he proceeded in good faith. It is also argued that the officer could have conducted an investigative detention of the accused and that this fact attenuates the seriousness of any breach. In terms of the impact of the breach on the accused’s rights, it is argued that under an investigative detention, the police would have proceeded in the same manner and that the drugs would have been discovered. The fact that the narcotics are reliable and essential to the Crown’s case means that the third set of factors favour admission of the evidence. On balance, the Crown says that the evidence ought to be admitted.

ANALYSIS

Was there a violation of ss. 8 and 9 of the Charter?

[27] In R. v. Amare 2014 ONSC 5225, Justice Hill outlined the following useful set of considerations for determining whether the police breached s. 9 of the Charter in arresting a person:

(1) an arbitrary arrest includes an unlawful arrest: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 55, 57

(2) an arrest will be unlawful, and arbitrary, if the arresting officer does not have reasonable and probable grounds to believe that the subject has committed, is committing, or is about to commit a criminal offence: Criminal Code, s. 495(1)

(3) although it has been observed that "the onus is on the Crown to show that the objective facts" rise to the level supporting a lawful detention (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 45), it has generally been recognized that the onus is on the accused to demonstrate that his detention was unlawful: R. v. Nartey, 2013 ONCA 215, at para. 14

(4) not only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-3, 83; R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1

(5) in other words, the 'reasonable grounds to believe' standard "consists of compelling and credible information that provides an objective basis", objectively discernible facts, for drawing inferences as to the existence of factual circumstances: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 117

(6) the fact "that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable": R. v. Biccum, 2012 ABCA 80, at para. 21; see also R. v. Luong, 2010 BCCA 158, at para. 19; Chehil, at para. 47

(7) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach -- it is necessarily a qualitative standard upon which reasonable people can differ in some cases: R. v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, at paras. 29, 62, 69; MacKenzie, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116

(8) that said, reasonable grounds is about "probabilities" (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (R. v. Debot (1986), 1989 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213), nor at the low threshold of mere suspicion or possibility (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Baron (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47

(9) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers "always be correct, but that they always be reasonable" United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012)

(10) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera, at para. 14; R. v. Spence, 2011 BCCA 280, at para. 31; R. v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); R. v. Jacobson (2006), 2006 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)

(11) in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable: R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at p. 203 -- the officer is not required "to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations": Chehil, at paras. 34, 67

(12) an officer's training and experience may provide "an objective experiential...basis" for grounds of belief: Chehil, at para. 47; MacKenzie, at paras. 62-4, 73

(13) a court reviewing the existence of reasonable grounds concerns itself "only with the circumstances known to the officers": R. v. Wong, 2011 BCCA 13, at para. 19 (leave to appeal denied [2011] S.C.C.A. No. 90) (emphasis in original)

(14) provided that the officer who directs that an arrest take place has reasonable and probable grounds, officers acting under his or her direction are deemed to be acting on those grounds: Debot (S.C.C.), at pp. 206, 214.

[28] In conducting my analysis of the issues on the voir dire, I have applied these legal principles.

[29] It is my view that at the officer was a credible witness who was able to see what happened in the parking lot and made careful observations about which he testified. He explained how he was positioned and was careful in his evidence to explain what he could and could not see or observe. Although it was suggested to the officer under cross-examination that he may have had trouble observing what happened from his vantage point, it seemed to me that by the end of counsel’s submissions, there was very little, factually, in dispute about Constable Savino’s observations. What is at issue is whether the officer believed that he had reasonable and probable grounds for the arrest and whether, if he did, his belief was objectively reasonable.

[30] I now consider the basis for the officer’s subjective belief that he had reasonable grounds for the arrest.

[31] The officer said that he was aware that the Civic had been followed from an area known for drug transactions and that he considered this in determining that he had grounds to arrest. He did not really explain, nor was he asked, how this fact figured into his overall view. I am not convinced that there is much that can be inferred from the fact that the vehicle came from an area known for drug transactions. I agree with the Crown that this fact did not need to be excised from the officer’s mind, and that it was something that he was entitled to be aware of as he made his observations. From the evidence before me, it is not clear that this fact had any real impact on the officer’s decision that he had reasonable grounds to arrest. I conclude that it was something that informed him about the reason for his involvement in the surveillance. Beyond this, he placed insignificant weight on this fact when reaching his conclusion that there were reasonable grounds for the arrest.

[32] The officer testified that he also relied on his observations of what had happened in the parking lot. While no individual observation viewed in isolation provided reasonable grounds for the arrest, my view is that viewed as a whole, they did. The observation of the passenger of the Civic exiting the car, going into the McDonald’s, and returning after a couple of minutes does not seem to me to have much significance. The arrival of the Asian man with the red-lined hoodie and his brief conversation on the passenger side of the vehicle is also relatively innocuous. Very little that can be inferred from this interaction, viewed in isolation. The next significant event was the exit from the Civic of the passenger and his second attendance in the McDonald’s. Again, there is little to infer from this. The passenger then walked around the car and to its front while he smoked a cigarette. It was his action in tossing a small white package by the front of the car that was significant. While the officer did not view it as significant as it occurred, its importance became apparent moments later.

[33] Shortly after the package was dropped, Constable Savino watched the arrival of the accused in the Mitsubishi. He parked, exited the car, and walked to the passenger side rear door of the Civic. He entered the Civic. He was there for only a few seconds before exiting, walking around the back of the car, and then proceeding to the front of the Civic where he picked up the white package that had just been tossed to the ground. He looked at it, put it into his pocket, and returned to his car. At this point, Constable Savino believed he had reasonable grounds to arrest the accused for possession of a narcotic.

[34] The only additional factor upon which Constable Savino said he relied was his experience as an officer. The law clearly permits an officer to rely on his experience with drug dealing when assessing whether he has reasonable and probable grounds for arrest (See: R. v. Brown 2012 ONCA 225 at para. 13). There is little evidence as to what aspects of the officer’s experience were relevant and assisted him in concluding that he had reasonable grounds to arrest. The only specific, relevant experience that he identified was his experience that drug transactions are very dynamic, fluid, and typically occur quickly so that those involved are not exposed for any length of time. I find that given his experience, the officer was permitted to consider the fact that the occupants of the Civic had very brief interactions with both the Asian man with the red-lined hoodie, and with the accused, in rapid succession. While this factor, alone, could never have given rise to reasonable grounds for arrest, it was one relevant factor for the officer to consider in these circumstances.

[35] The officer’s somewhat confused evidence as to whether, at the point at which the accused picked up the package, he suspected that there had been a drug transaction, or had reasonable grounds to arrest. This confusion seems to arise from the officer’s less than precise use of language. Viewed as a whole, I take from his evidence that he suspected that he had seen a drug transaction when he saw the Asian male with the red-lined hoodie at the Civic. He suspected that the accused was involved in a drug transaction when he was in the back of the Civic for the short period and then picked up the package. But, when the officer witnessed the accused pick up the white package that had just been dropped, beyond suspecting that there had been a drug transaction, he believed he had reasonable grounds to arrest on the basis that the accused was in possession of a controlled substance. I am satisfied from the evidence of Constable Savino, viewed as a whole, that he subjectively believed that he had reasonable grounds to make the arrest.

[36] It is my view that Constable Savino’s conclusion that he had reasonable and probable grounds for the arrest was, viewed objectively, reasonable. Almost immediately after the white package had been deliberately left proximate the Civic where the occupants of the Civic could watch it, the accused arrived in the parking lot. He proceeded immediately to the Civic, strongly suggesting that this was a pre-organized meeting and not a chance encounter. The accused had a very short interaction with those in the Civic. When he left the car, he proceeded immediately and deliberately to the front of the Civic to pick up the small white package that had been left in front of the Civic only minutes before by Civic passenger. I find that his actions in immediately picking up the package can only have been as a result of the conversation that took place in the Civic. There can be no other explanation for him choosing to proceed around the back of the Civic, and then to the front of the Civic, in a direction away from his own car, in order to retrieve the package. On the basis of the movements of the Civic passenger in dropping the package and the accused in retrieving it, a reasonable person could conclude that the accused’s purpose in attending at the parking lot was to obtain from the passenger of the Civic, albeit indirectly, the white package.

[37] The package was small, three to four inches across. This was not, as described by the officer, a typical “hand to hand” drug transaction. I have no evidence as to whether the way in which the accused obtained the heroin in this case was common or unusual. However, I find that a reasonable person would conclude from the officer’s observations of the Civic passenger and the accused, as well as from the size of the package, and from quick, covert way in which the exchange took place, that there were narcotics in the package that the accused deliberately took into his possession when he picked up the package, looked at it and then put it into his pocket.

[38] On the basis of my analysis, the arrest of the accused did not violate his s. 9 Charter right. As the arrest was Charter compliant, so too was the search that followed the arrest and there was no s. 8 violation.

The s. 24(2) Analysis

[39] As I have found that the warrantless arrest was based on the officer’s subjectively held reasonable and probable grounds and that this was objectively reasonable, there is, strictly speaking, no need to go on and conduct an analysis under s. 24(2) of the Charter. In the event that I am wrong, however, and the arrest and subsequent search were in violation of ss. 8 and 9, I will proceed to consider whether the heroin should be admitted into evidence.

[40] The Supreme Court of Canada in R. v. Grant 2009 SCC 32 explained that when considering an application to exclude evidenced under s. 24(2), the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society's interest in the adjudication of the case on its merits.

[41] At the first stage of the analysis, the court is to consider the nature of the police conduct that infringed the Charter. The critical issue is whether the admission of the evidence would bring the administration into disrepute by sending a message that the courts “effectively condone the state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”: Grant at para 72. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding the evidence linked to that conduct.

[42] It is my view that Constable Savino acted in good faith in his belief that he had reasonable grounds for the arrest. The officer clearly understood that he could not arrest on the basis of suspicion and he articulated and demarcated and justified the point at which, in his mind, the investigation moved from one of suspicion to one of reasonable grounds for an arrest. If he missed the mark, it was not by much as counsel conceded that there was an appropriate basis for an investigative detention. There was nothing intentional or deliberate on the part of officer that led to the violation. My finding of good faith reduces the need for the court to dissociate itself from the state conduct that resulted in the breach. I find that the police conduct in this case is towards the less serious end of the continuum discussed in Grant at para. 74.

[43] The second line of inquiry calls for an analysis of the impact of the breach on the Charter protected interests of the accused. The accused was arrested and placed in handcuffed by police on a busy city street during rush hour. The police action was intrusive of the accused’s liberty and privacy interests.

[44] At the same time, the Crown points out that the impact of Constable Savino’s conduct on the accused is lessened because even if the officer lacked the grounds to arrest, he did have grounds for an investigative detention. The existence of a basis to detain does lessen the impact of an improper arrest: Brown at para 28; R. v. Stevenson 2014 ONCA 842 at paras. 70-71. I find that had Constable Savino conducted an investigative detention, he would have been entitled to conduct the pat down search for weapons, which is what he testified to having done. It seems to me that there is every likelihood that the heroin would have dropped from the accused’s pant legs in such circumstances.

[45] In the end, I find that while the existence of a basis for an investigative detention reduces the impact of the breaches, this factor still favours exclusion of the evidence: Stevenson at para. 72.

[46] The third line of inquiry asks whether the admission of justice would be better served by the admission or exclusion of the evidence. That the heroin seized is entirely reliable and essential to the Crown’s case favours its admission.

[47] Having weighed and balanced all of the relevant factors, I find that a reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence would not bring the administration of justice into disrepute. Constable Savino’s conduct was in good faith and while the effect of the conduct on the accused was significant, it was attenuated by the fact that an investigative detention could have been conducted. The evidence is reliable and essential to the prosecution’s case. Accordingly, if there were Charter breaches, I would admit the evidence of the narcotics under s. 24(2).

Woollcombe J.

Released: June 3, 2015

CITATION: R. v. Filli, 2015 ONSC 3583

COURT FILE NO.: CRIMJ(F) 2285/12

DATE: 20150603

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KAMAL FILLI

REASONS FOR JUDGMENT ON VOIR DIRE

Woollcombe J.

Released: June 3, 2015