CITATION: R. v. Sol & Schlosser, 2015 ONSC 4160
COURT FILE NO.: CR-14-131
DATE: 20150626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Elizabeth Barefoot, for the Federal Crown
- and -
Matthew Sol and Jacalyn Schlosser
Deborah Lyons-Batstone for Matthew Sol, Defendant
Sophia Newbould, for Jacalyn Schlosser, Defendant
Defendants
HEARD: June 23, 24 & 25, 2015
REASONS FOR DECISION – CHARTER APPLICATIONS
Conlan J.
I. Introduction
[1] This case involves an examination of the limits on police powers to arrest and search.
[2] Mr. Matthew Sol and Ms. Jacalyn Schlosser, each with separate counsel, are being tried before me, without a jury, in Owen Sound.
[3] The trial began with the hearing of Charter Applications filed by each accused. Evidence was called on a joint voir dire on June 23 and 24, 2015.
[4] For the Crown, I heard from Detective Constable Mike Holovaci (“Holovaci”), an officer with Owen Sound Police who was present when Mr. Sol and another male party were arrested and who was present when the residence shared by the accused was searched, initially without a warrant and then with a warrant. I also heard from Detective Sergeant Mark Kielb (“Kielb”), an officer with the same police service who placed Mr. Sol under arrest and who participated in the later search, under warrant, of the residence. Finally, I heard from Detective Constable Craig Matheson (“Matheson”), an officer with the same police service who was present for the arrest of Mr. Sol and the other male party and who was present for the search of the residence, initially without a warrant and then with a warrant. Matheson was the affiant of the search warrant application for the residence.
[5] The Defence called no evidence on the voir dire. Submissions by counsel were heard at Court on June 25. I reserved my decision.
[6] The Charter Applications filed by the accused are similar. Each Application asserts that the accused’s right to be free from unreasonable search or seizure has been violated (section 8). In addition, Mr. Sol submits that his right to not be arbitrarily detained (or arrested) has been contravened (section 9). The remedy sought by Mr. Sol was originally a stay of proceedings under subsection 24(1), however, that request was abandoned at the start of the voir dire, in favour of a remedy under subsection 24(2). Ms. Schlosser seeks exclusion of evidence pursuant to subsection 24(2).
The Factual Background
[7] The undisputed facts are that Mr. Sol lived at the residence searched by the police on the date that it was searched (May 29, 2013). Mr. Sol and another male party, Ryan Casemore, had been arrested in the afternoon of May 29. The arrest took place in the parking lot of a plaza located on the west end of the City of Owen Sound. Within minutes of the arrest, Holovaci and Matheson attended at the residence shared by the two accused persons, on 4th Avenue West in Owen Sound. Ms. Schlosser answered the door. Police entered the house. Holovaci remained with Ms. Schlosser and a young boy inside the home but near the front door. Matheson did a “clearing search” of the house. Within less than ten minutes, Matheson returned to the front door area and placed Ms. Schlosser under arrest because of narcotics observed during the “clearing search” (marihuana).
[8] A search warrant was applied for and granted. The residence was searched (still on May 29).
[9] Upon his arrest, the police seized the following from the vehicle that Mr. Sol was operating: a phone, 255 grams of marihuana and 2 ounces and 14 grams of cocaine.
[10] The police seized the following from the residence: $31,825.00 in cash, about 17 pounds of marihuana, 17 marihuana plants and 2.5 ounces of cocaine.
[11] So what led up to the arrest of Mr. Sol?
[12] In a nutshell, in April 2013, Holovaci spoke with Constable Mighton (“Mighton”) of another nearby police service. Mighton mentioned suspected drug traffickers named Casemore and Szumsky. In the first half of May 2013, Holovaci and Matheson met with a confidential source (“tipster”). The tipster said that Mr. Sol supplies cocaine and marihuana to Mr. Casemore. Some further information was provided, elaborated upon below. In the third week of May 2013, Holovaci received a telephone call from the tipster. Information was provided to the effect that the drug activities of Mr. Sol, Mr. Casemore and Mr. Szumsky were ongoing. On May 28, Holovaci and Matheson met with Mighton and learned of some confidential source information that had been provided to Mighton by two of his informants. By May 29, the police had confirmed that Mr. Sol lived at the residence in question and that there was a light-coloured Honda Civic (“silver Civic”) there which was registered to Ms. Schlosser. The police believed that both accused persons lived at that residence. On May 29, Matheson observed Mr. Casemore pick up in his car a known drug offender at a location just south of the City of Owen Sound. There was a very brief encounter between Mr. Casemore and the other male in Mr. Casemore’s car, an encounter that the police believed was a drug transaction. The police began surveillance. Mr. Casemore drove his green Honda car to the parking lot near Giant Tiger on the west side of the City, and parked. Within a few minutes, the silver Civic, being operated by Mr. Sol, entered the same parking lot. It was driven to and parked very close to the Casemore car. Police moved in and arrested Mr. Sol and Mr. Casemore.
II. The Charges and the Basic Legal Principles
[13] There is no need, at this stage, to review the essential elements of the offences, however, it is important to know something about the charges.
[14] This is a seven-count Indictment. It reads as follows [note that count 3 was withdrawn by the Crown at Court on June 23, at the start of the voir dire, and note further that amendments, on consent, were granted to the header of the Indictment (to reflect the proper spelling of Ms. Schlosser’s first name) and to counts 4 through 7 (to reflect the proper place as being the City of Owen Sound rather than the Township of Georgian Bluffs)].
Matthew Sol stands charged that, on or about the 29th day of May 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did conspire with Ryan Casemore to commit the indictable offence of trafficking a controlled substance included in Schedule I, to wit: cocaine, by coordinating, arranging and distributing cocaine to other people in the Town of Port Elgin and/or the Owen Sound area contrary to section 465(1)(c) of the Criminal Code.
AND FURTHER THAT Matthew Sol stands charged that, on or about the 29th day of May 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did conspire with Ryan Casemore to commit the indictable offence of trafficking g a controlled substance included in Schedule II, to wit cannabis, by coordinating, arranging and distributing cannabis to other people in the Town of Port Elgin and/or the Owen Sound area contrary to section 465(1)(a) of the Criminal Code.
AND FURTHER THAT Matthew Sol stands charged that on or about the 29th day of May 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did have in his possession proceeds of property, four thousand seven hundred fifty dollars ($4,750) in Canadian currency, knowing that all of the proceeds of property was obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.
AND FURTHER THAT Matthew Sol and Jacalyn Schlosser stand charged that on or about the 29th day of May, 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: cocaine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Matthew Sol and Jacalyn Schlosser stand charged that on or about the 29th day of May, 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did possess a substance included in Schedule II, to wit: cannabis, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Matthew Sol and Jacalyn Schlosser stand charged that on or about the 29th day of May 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did have in their possession proceeds of property, thirty-one thousand eight hundred twenty-five dollars ($31,825) in Canadian currency knowing that all of the proceeds of property was obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code.
AND FURTHER THAT Matthew Sol and Jacalyn Schlosser stand charged that on or about the 29th day of May, 2013 at the Township of Georgian Bluffs in the Judicial Region of Central West, did unlawfully produce a substance included in Schedule II, to wit: cannabis, contrary to section 7(1) of the Controlled Drugs and Substances Act.
Presumption of Innocence
[15] Ultimately, it is the burden of the Crown to prove, beyond a reasonable doubt, each essential element of each offence against each accused person.
[16] For each accused, the verdicts need not be the same across the counts. And the verdicts need not be the same for both accused within those charges that they face jointly.
[17] Mr. Sol and Ms. Schlosser are presumed to be innocent of each and every charge that they are facing. They have no burden of proof with respect to the merits of the charges themselves. That rests entirely with the Crown.
[18] Regarding the Charter Applications, however, the burden is on the accused, on a balance of probabilities, to establish a violation and to establish a remedy under subsection 24(2).
[19] There is a caveat, however, when it comes to a warrantless search. That is dealt with below in more detail.
III. The Issues to be Decided on the Voir Dire
[20] The first issue to decide is whether the arrest of Mr. Sol was a lawful one. Were there reasonable and probable grounds for that arrest?
[21] The second issue for determination is whether the search of the residence of the accused was a lawful one. Were there exigent circumstances justifying the initial warrantless search? Was the subsequent search with a warrant a valid one?
[22] The third and final issue for determination is whether, assuming that a violation of section 9 and/or section 8 has been found, some or all of the evidence arising therefrom ought to be excluded from the trial pursuant to subsection 24(2) of the Charter.
IV. The Positions of the Parties on the Voir Dire
The Crown
[23] First, there is a strange concession by the Crown (paragraph 36 of its Factum, clearly confirmed in a verbal exchange between me and the Crown in Court on June 24, 2015). The Crown agrees that, in determining whether the search warrant for the residence could have been granted, I ought to disregard everything that the police observed during the “clearing search”. That applies to everything from the moment that the first police officer entered the home, including all of the marihuana observed in the basement. And the concession from the Crown applies regardless of whether I find that the “clearing search” was valid or not.
[24] Of course, the said concession is bizarre because, if I found that the “clearing search” was not a violation of either accused person’s section 8 Charter right, then there would be no reason for me to exclude the fruits of that search from a consideration of whether the warrant could have been issued.
[25] In any event, the Crown is stuck with that concession. To her credit, Ms. Barefoot did not try to resile from that concession. The said concession is certainly to the benefit of the accused.
[26] At the urging of counsel, despite the concession by the Crown, I will rule on the validity of the “clearing search”. Perhaps that ruling has some relevance to the subsection 24(2) analysis.
[27] Ms. Barefoot submits that the arrest of Mr. Sol was a lawful one. It was not arbitrary. It was done with reasonable and probable grounds. I agree.
[28] The Crown argues that the initial “clearing search” of the residence, although warrantless, was not unreasonable in that it was done in exigent circumstances. I disagree. That search was unreasonable and in violation of the accused persons’ section 8 Charter rights. It is not enough that there could have been someone else inside the house who could have destroyed evidence. That would apply to virtually every case. There has to be some substance to the belief on the part of the police that evidence may be lost or destroyed before a search warrant can be obtained. Here, with Mr. Sol in police custody and Ms. Schlosser at the front door, the police had no reason to believe that anyone else was present (besides the young boy). Ms. Schlosser was being compliant. There is every reason to expect that she and the young boy would have vacated the house, leaving the police perfectly able to secure the dwelling by posting officers at the two exits, pending the issuance of the search warrant. Subjectively, the police believed that exigent circumstances existed. I accept that. Objectively, I find otherwise.
[29] Ms. Barefoot argues that, even without the fruits of the “clearing search”, the warrant could have reasonably been granted. I agree.
[30] The Crown argues that, even without the arrest of Mr. Sol and the search of his car and without the fruits of the “clearing search”, the warrant could have reasonably been granted. I disagree. That is inconsistent with Matheson’s evidence about the state of the investigation prior to the arrest of Mr. Sol. I very much doubt that the police would have even applied for the warrant absent the arrest of Mr. Sol.
[31] Ms. Barefoot submits that the evidence obtained by the police during the “clearing search” and upon execution of the warrant at the residence ought to be admitted under subsection 24(2) even if the “clearing search” is found to have been contrary to section 8 of the Charter. I agree.
[32] The Crown argues that all of the evidence obtained by the police upon the arrest of Mr. Sol and the search of his car, and during the “clearing search”, and upon execution of the warrant at the residence ought to be admitted under subsection 24(2) even if the Court finds that both the arrest of Mr. Sol was arbitrary and the “clearing search” was unreasonable. I disagree. Very few cases will justify the admission of evidence obtained as a result of an arbitrary arrest. None of the search of Mr. Sol’s car, the “clearing search” or the application for the warrant would have occurred but for the arrest of Mr. Sol.
Mr. Sol
[33] Ms. Lyons-Batstone, in able submissions, argued that the arrest of Mr. Sol was arbitrary and without reasonable and probable grounds. On the totality of the circumstances, I disagree. There were both subjective and objective reasonable and probable grounds for the arrest.
[34] Ms. Lyons-Batstone argues that I ought to be careful about accepting the evidence of the three police officers because of the fact that certain items are not in their notes. I disagree. In my view, the fact that the police did not note their searches of various records is understandable – those are routine and for background information only. And I accept the evidence of the police officers that the tipster information about Mr. Casemore meeting his drugs source in parking lots was not noted in order to protect the identity of the source, a concern that has now dissipated with the passage of time and changing circumstances. That is a reasonable explanation. Besides, even without that specific piece of information, my decision on the lawfulness of Mr. Sol’s arrest would have been the same. Generally speaking, I found the three police officers (Holovaci, Kielb and Matheson) to be credible and reliable witnesses.
[35] Ms. Lyons-Batstone submits that the tipster used by Holovaci and Matheson was not credible or reliable. I agree that the credibility factor is not strong.
[36] Ms. Lyons-Batstone argues that there was no material corroboration of what the tipster told Holovaci and Matheson. I disagree. Many items were in fact corroborated.
[37] Ms. Lyons-Batstone submits that the information about the incident in Walkerton in September 2010 is irrelevant. On its own, I agree that the said piece of information has very limited value. But reasonable and probable grounds for arrest must be assessed on the totality of the circumstances.
[38] Ms. Lyons-Batstone argues that the information supplied by the confidential sources used by Mighton is irrelevant to Mr. Sol. I disagree. Although Mr. Sol’s name was not used by those sources, that information was consistent with what the other tipster had said about Mr. Casemore and Mr. Szumsky and their Owen Sound compatriot.
[39] Ms. Lyons-Batstone submits that the police should have followed through with their investigative plan and took advantage of other techniques, such as tracking warrants and surveillance. I disagree. The events of May 29, 2013 were not expected. They were fortuitous for the police. They were unlucky for Mr. Sol. They led to reasonable and probable grounds for an arrest. It was unnecessary for the police to go back to the drawing board.
[40] Ms. Lyons-Batstone argues that what happened at the Stone Tree apartments is what really triggered the arrest of Mr. Sol. In part, I agree. But, again, the arrest was based on the totality of the circumstances, including the source information, what happened between Mr. Casemore and the known drug offender at Stone Tree and what happened at Giant Tiger.
[41] Ms. Lyons-Batstone submits that, because the police did not have reasonable and probable grounds to arrest Mr. Casemore at Stone Tree, the same conclusion ought to be drawn for the situation at Giant Tiger, vis-à- vis Mr. Sol. I disagree. The police had no other information about the interactions of Mr. Casemore and Mr. Robertson (the known drug offender). They had plenty of current information about Mr. Casemore and Mr. Sol.
[42] Ms. Lyons-Batstone argues that what happened at Giant Tiger was fleeting and absent visible contact between Mr. Sol and Mr. Casemore. I agree. But it was incriminating and the final piece in the puzzle.
[43] Ms. Lyons-Batstone submits that the case of Regina v. Powell, 2013 ONSC 4169 is particularly relevant. I agree. But, unlike the Justice in that case, I do not conclude on the facts before me that the tipster information was “untested, relatively unspecific, and raised many questions”; nor do I conclude that the tipster information was nothing more than “conclusory statements” (paragraph 33). The tipster information in our case was detailed, compelling and corroborated to some degree. Further, unlike the Justice in the case cited, I do not conclude on the facts before me that the activities of Mr. Sol on the arrest date were not “incriminating” (paragraph 34). They were. Even ignoring what Mr. Sol did regarding the trunk and passenger seat of his car (not witnessed by Kielb, the arresting officer), Mr. Sol’s conduct, within minutes of Mr. Casemore arriving, in pulling in to the very large parking lot and just coincidentally stopping within a few feet of Mr. Casemore and then remaining in his car, in the context of everything else, was indeed incriminating.
[44] Kielb said it best in cross-examination by Ms. Lyons-Batstone. If those two cars were being driven by persons other than Mr. Sol and Mr. Casemore, then what happened at Giant Tiger may have been consistent with perfectly innocent behaviour. But these persons were not unknown to the police.
[45] Ms. Lyons-Batstone took me to the following specific passage at page 8 of the decision of the Court of Appeal for Ontario in R. v. Duguay, Murphy and Sevigny, 1985 112:
In my view, on the facts as found by the trial judge, the arrest or detention was arbitrary, being for quite an improper purpose -- namely, to assist in the investigation. This conclusion does not minimize the significance or importance of an experienced detective's "hunch" or intuition. Such "hunch" must, however, have some reasonable basis. It cannot be used as a defence and explanation, without examination, for irrational and high-handed actions.
[46] In our case, I do not find that the police acted in a high-handed or irrational manner. I do not find that they acted on a mere hunch or intuition. They acted on reasonable and probable grounds to arrest Mr. Sol.
[47] Ms. Lyons-Batstone argues that, if I find that the arrest of Mr. Sol was unlawful, I ought to exclude all of the evidence obtained by the police from the time that Mr. Sol was placed under arrest until the time that the police completed their search, under warrant, of the residence. I agree.
[48] Finally, in a formidable presentation, Ms. Lyons-Batstone concluded her remarks by reiterating that the police arrested Mr. Sol on a mere hunch. I disagree. It was considerably more than that.
Ms. Schlosser
[49] Ms. Newbould submits that the “clearing search” was a violation of both of the accused persons’ section 8 Charter rights. I agree.
[50] Ms. Newbould argues that the breach was egregious. I disagree. Mr. Sol was not even there. Ms. Schlosser’s liberty was unconstrained. She did not object to the search. She did not ask the police to leave. The police subjectively thought, although wrongly, that exigent circumstances existed. The police do not have a practice of conducting such searches (I accept Matheson’s evidence on that point). The search lasted a mere few minutes and was for a legitimate purpose – persons and not evidence. Nothing was disturbed. Nothing was seized. Drawers were not opened. Nothing was unlocked. Virtually nothing was even touched.
[51] Ms. Newbould submits that the police acted in bad faith. I disagree. They mistakenly thought that they had the authority to do what they did.
[52] Ms. Newbould argues that the evidence discovered by the police during and after the “clearing search” ought to be excluded from the trial. I disagree. The violation was not serious, as explained above. The impact on the Charter-protected interests of the accused was minimal, as explained above. The charges are very serious. The evidence is reliable and crucial to the case for the prosecution. And, last but not least, regarding the evidence obtained during the subsequent search under warrant, that evidence was not obtained in a manner that infringed the Charter, and thus, no subsection 24(2) analysis is even required. The chain was broken when the police applied for and obtained the warrant. The police would have applied for the warrant regardless of the “clearing search” (Matheson testified to that, which evidence I accept). The warrant could reasonably and likely would have been granted regardless of the “clearing search”. At its highest, the temporal link is scant; the contextual link is suspect; and the causal link is non-existent.
[53] As for the suggestion by counsel that the interaction between Ms. Schlosser and the police at the front door, even while the police were not inside the house, and even including the fact that the police knocked on the door and Ms. Schlosser answered it, be excluded from the evidence at trial, I reject that suggestion. Even if I had excluded the evidence that was obtained in a manner that violated the Charter regarding the “clearing search”, what happened before the police entered the home would not have been part of the excluded evidence. Generally, subsection 24(2) of the Charter does not operate retrospectively.
[54] The bottom line is that the Charter Applications are dismissed. All of the evidence obtained by the police, including that from the car and that from the residence (both before and after the warrant was issued) is admissible at trial.
V. Analysis of the Charter Issues
The Law
Arrest
[55] Everyone has the right not to be arbitrarily detained (or arrested) – section 9 of the Charter.
[56] There is no question that Mr. Sol was arrested by the police without a warrant.
[57] The issue is whether the warrantless arrest was a lawful one.
[58] In terms of the governing legal principles, much of the following is borrowed from my decision in R. v. Dhillon, [2014] ONSC 6287.
[59] An arresting police officer must subjectively have reasonable and probable grounds to make the arrest. In addition, those grounds must be objectively justifiable. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were reasonable and probable grounds for the arrest. What is not required is anything more than reasonable and probable grounds, and in particular, the police are not required to have a prima facie case for conviction before they can make an arrest. R. v. Storrey, 1990 125 (SCC), [1990] S.C.J. No. 12, at paragraph 17.
[60] The totality of the circumstances must be considered in examining whether there were reasonable and probable grounds for the arrest. Intuition or a good hunch on the part of the police is not enough. A lawful arrest cannot be based on speculation or a mere possibility. R. v. Malapan, [2013] A.J. No. 1484 (Q.B.), at paragraphs 38-39.
[61] Where the arrest is based in part on information supplied to the police by tipsters (whether one or more than one), the value of that information must be examined. That assessment is done in the same manner as one would examine the value of tipster information to justify a warrantless search. We look to the “three Cs” – how credible is the information from the tipster(s); how compelling is that information; and to what degree was that information corroborated?
[62] Whether dealing with the lawfulness of an arrest or the legality of a search, there is no rule or expectation that more than one informant will be required. For example, in R. v. Rocha, 2012 ONCA 707, the Court of Appeal for Ontario found that the information relied upon for the search warrant was sufficient even though it depended almost exclusively on (extremely detailed) information supplied by one confidential informer (paragraphs 4 and 25).
[63] Where the arrest is based in part on police surveillance of the accused, as here (albeit extremely brief in duration), the Court may ask itself whether the police actually observed the accused engage in any hand-to-hand transaction. Further, the Court may inquire whether person(s) and/or motor vehicle(s) that the accused came in to contact with was/were associated with criminal activity, drug trafficking or drug use. R. v. Quach, [2014] A.J. No. 116 (Prov. Ct.), at paragraphs 244-247.
Search
[64] Everyone has the right to be secure against unreasonable search or seizure – section 8 of the Charter.
[65] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.).
[66] Warrantless searches are presumptively unreasonable under section 8 of the Charter – the onus shifts to the Crown to demonstrate that the search was not unreasonable. Hunter v. Southam Inc, 1984 33 (SCC), [1984] S.C.J. No. 36.
[67] Section 11 of the Controlled Drugs and Substances Act (“CDSA”) deals with search and seizure. Subsections 11(1), (5), (6) and (7) provide as follows.
- (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that
(a) a controlled substance or precursor in respect of which this Act has been contravened,
(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,
(c) offence-related property, or
(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code
is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.
(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.
(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,
(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;
(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or
(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.
(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.
[68] Subsection 11(7) of the CDSA is relevant to the brief “clearing search” of the residence conducted by Matheson.
[69] The CDSA does not define the term “exigent circumstances”, however, some guidance may be afforded by subsection 529.3(2) of the Criminal Code. That provides as follows.
Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
[70] The context of subsection 529.3(2) of the Criminal Code is the authority of the police to enter a dwelling-house for the purpose of arresting or apprehending a person, without a warrant. Essentially, that subsection is a codification of the common law regarding police powers to enter a residence without a warrant in order to arrest someone.
[71] I say that subsection 529.3(2) of the Criminal Code may afford some guidance to our situation because it is clear that the definition of “exigent circumstances” in that subsection is limited in its application to that specific section and does not expressly apply to section 487.11 of the Criminal Code, which section sets out the power of the police to conduct a search of a place, without a warrant.
[72] Parliament could have made subsection 529.3(2) of the Criminal Code expressly apply to section 487.11 of the Criminal Code. It chose not to do so. It must be assumed that there was some reason for not doing so. It must be assumed that the legislators wanted to draw some distinction between the meaning of “exigent circumstances” in the context of warrantless searches of places by the police and the meaning of “exigent circumstances” in the context of warrantless intrusions in to dwelling-houses by the police in order to arrest or apprehend someone.
[73] In my view, apart from the obvious fact that subsection 529.3 of the Criminal Code deals with the power of the police to arrest, and not to search, without a warrant, the likely reason for the distinction is that section 487.11 of the Criminal Code, like section 11 of the CDSA, deals with places generally, not just dwelling-houses. Some of those other places to be searched by the police, such as an outbuilding, would not be treated with the same degree of sanctity as a dwelling-house.
[74] It is arguable, therefore, that the term “exigent circumstances” in subsection 11(7) of the CDSA and in section 487.11 of the Criminal Code ought not to be interpreted as strictly or as narrowly as that term is defined in subsection 529.3(2) of the Criminal Code.
[75] In any event, the distinction is probably less important in this case because the place that was the subject of the “clearing search” was indeed a dwelling-house.
[76] Turning now to a different issue, that is the sufficiency of the information to obtain the search warrant for the residence, as I observed in R. v. Patrick, 2014 ONSC 7169, at paragraphs 61 through 63, the application for a search warrant by the police is a delicate procedure. It is done ex parte and almost always on the basis of written materials alone. Thus, it is critically important that the applicant disclose for the reviewing Justice the material facts in a full and frank manner. Not every minute detail of the investigation needs to be outlined, however, material facts both in support of and adverse to the authorization sought must be disclosed. R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at page 1015.
[77] It is important for me to remember that this is not a hearing de novo. It is not for me to simply substitute my views for that of the issuing Justice and decide whether, on the same information presented, I would have granted the Warrant. R. v. Gyles, [2005] O.J. No. 5513 (C.A.) at paragraph 10.
[78] The question for me is whether, on the record before the issuing Justice as amplified by the evidence on the voir dire, there remains a sufficient basis upon which the issuing Justice could have granted the Warrant.
Remedy
[79] Turning now to the issue of remedy where a violation of a Charter right is found, subsection 24(2) states that “[w]here, 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”.
[80] In R. v. Newton and Molody, 2015 ONSC 1348, at paragraph 46, I summarized the required analysis under subsection 24(2) in the following way. There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute. Third and finally, an assessment of society’s interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Factual Findings and Legal Conclusions
The Arrest of Mr. Sol – section 9 of the Charter
[81] First, I must set out some more detail about the information provided to the police by the tipsters (one source for the Owen Sound Police and two sources for Mighton’s police service).
[82] According to Holovaci and Matheson, during the face-to-face meeting with them in May 2013, the tipster stated the following: Mr. Sol, Mr. Casemore and Mr. Szumsky are involved with drugs; Mr. Casemore and Mr. Szumsky traffic cocaine in the Port Elgin area; Mr. Sol supplies cocaine and marihuana to Mr. Casemore; Mr. Casemore goes to Owen Sound to get his drugs, including cocaine, from Mr. Sol; Mr. Casemore meets his source for drugs in parking lots; Mr. Sol used to work at Energizer in Walkerton; Mr. Sol used to drive a white Hyundai Tiburon; Mr. Casemore and Mr. Szumsky are from Port Elgin; Mr. Sol lives in Owen Sound; and the drug activities of the three mentioned persons have been ongoing for a couple of years, at least, and have continued up to the recent past.
[83] According to Holovaci, during the subsequent telephone call with him in May 2013, the tipster stated the following: the drug activities of the three mentioned persons were still ongoing; recently, someone known to the tipster had bought cocaine from Mr. Casemore; Casemore is associated with Mr. Sol and Mr. Szumsky.
[84] According to Matheson, on May 28, 2013, Mighton told Holovaci and Matheson that Mighton had two sources of information about Mr. Casemore and Mr. Szumsky. In May 2012, one source told Mighton that Mr. Casemore and Mr. Szumsky were trafficking cocaine in the Port Elgin area. In May 2013, a second source told Mighton that “Ryan” (believed to be Mr. Casemore) traffics cocaine in the Port Elgin area and that he goes to Owen Sound to pick up his drugs (cocaine and marihuana) in parking lots.
[85] How credible was the information supplied by the tipster? Only moderately so, in my opinion. The tipster had never been used by the Owen Sound Police before. The tipster was unknown to Holovaci and Matheson. The tipster had provided information to at least one other police service in the past, which information led to drugs being seized and charges laid (and convictions, stated Matheson), however, the details are unknown to me (other than Matheson’s evidence that the tipster had provided information to other police in the past on more than ten occasions). The tipster, in May 2013, was motivated by financial gain. The tipster, in May 2013, had a criminal record including convictions for crimes of dishonesty.
[86] How compelling was the information supplied by the tipster? Very compelling, in my opinion. The information provided was detailed (the types of narcotics, the exchanges taking place in parking lots in Owen Sound, as examples). The information was very recent. Although the information supplied was not first-hand regarding Mr. Sol, it was not the kind of bald and generic statements that have been traditionally found by Courts to be unhelpful.
[87] Was the information supplied by the tipster corroborated by the police? In part, it was. Certainly, more corroboration could have been achieved, however, no investigation is to be measured against a standard of perfection or exhaustive completeness. If that was required, nobody would ever be arrested. The police confirmed that Mr. Sol used to live in Walkerton (which makes sense if he worked at Energizer). The police confirmed that Mr. Sol was living in Owen Sound. The police confirmed that Mr. Casemore and Mr. Szumsky were from Port Elgin. The police confirmed that, although not charged, Mr. Sol was an involved party regarding a suspected marihuana seizure in Walkerton in September 2010. The police confirmed that Mighton had two of his own sources who were also providing information that was consistent with what Holovaci and Matheson were being told by the tipster, although Mr. Sol’s name was not mentioned by Mighton’s sources.
[88] This is not a case where the police were able to corroborate everything that the tipster told them. Nor is it a case where the degree of corroboration can be said to have been overwhelming. Nor is it a case where the investigation by the police was lengthy or exhaustive. There was certainly, however, some material corroboration of the tipster’s information.
[89] In conclusion, on these facts, the credibility factor, on its own, likely works against the prosecution. The issue of how compelling the information was runs in favour of the prosecution. The issue of corroboration tips in favour of the Crown.
[90] Moving to what happened on May 29, the police observed Mr. Casemore in the company of a known drug offender. Matheson saw what he reasonably believed was a drug transaction between Mr. Casemore and that other male. It sure seems like a drug transaction to me. The known drug offender got in to Mr. Casemore’s car in the parking lot. The car drove several metres. The known drug offender then exited the car and returned to his unit at the Stone Tree apartments. The police, very shortly thereafter, observed Mr. Casemore and Mr. Sol, in separate cars, at an apparent rendezvous in the parking lot at Giant Tiger, arriving there within minutes of each other and parking within a few feet of each other (in a very large lot). It was highly suspicious to the police. It is highly suspicious to me. It would be highly suspicious to anyone.
[91] The information supplied by the tipster, together with the information provided by Mighton and his two sources and all of the observations of the police on May 29 (both at Stone Tree and at Giant Tiger) take this case well beyond a mere hunch or intuitive suspicion, speculation or a mere possibility. In the totality of the circumstances, I find that the police had reasonable and probable grounds to arrest Mr. Sol.
[92] As for the subjective component, Kielb, who arrested Mr. Sol, knew about the information from the three tipsters. That information included that Mr. Sol was trafficking cocaine by supplying it to Mr. Casemore and another male (presumably Mr. Szumsky); that Mr. Casemore was coming to Owen Sound to pick up the cocaine; that, at least once in the past, Mr. Sol and Mr. Casemore had done a drug transaction in a parking lot; and that Mr. Casemore was trafficking cocaine to others. Kielb also knew about what Matheson saw just a short time earlier (the suspected drug transaction between Mr. Casemore and the known drug offender). And Kielb knew about Mr. Casemore and Mr. Sol being parked in close proximity of each other, arriving minutes apart, at the Giant Tiger parking lot.
[93] Kielb had reasonable and probable grounds to arrest Mr. Sol. For the reasons outlined above, I conclude that Kielb’s subjective grounds to arrest Mr. Sol were objectively justifiable.
The Search of the Residence – section 8 of the Charter
[94] Holovaci and Matheson gave numerous reasons as to why they believed that the “clearing search” of the residence was necessary. In summary, they could not wait until a search warrant was granted because the arrest of Mr. Sol and Mr. Casemore took place in a public parking lot in the middle of the day, with others around; they believed that Ms. Schlosser was living at the residence; they believed that Ms. Schlosser would be concerned as to why Mr. Sol had not returned to the residence; and they, therefore, wanted to check the residence for persons in order to prevent the destruction of evidence.
[95] This was a fluid situation. The police made a quick decision in difficult circumstances. Unfortunately, I find that the “clearing search” was unreasonable and a violation of each accused person’s section 8 Charter right.
[96] Matheson’s own candid admission in cross-examination by Ms. Schlosser’s counsel is fatal to the validity of the “clearing search”. Matheson admitted that he had no reason to suspect or expect that anyone was inside the house besides Ms. Schlosser, who answered the door.
[97] That admission leads to the inescapable conclusion that, once Ms. Schlosser was at the front door, no longer were there any grounds to suspect that evidence may be lost or destroyed. It was unnecessary to check for other persons inside. Ms. Schlosser was being cooperative. The police could have simply asked her (and the young boy) to leave and secured the front and back doors until the warrant was issued.
[98] As for the lawfulness of the subsequent search of the residence under warrant, it was unquestionably valid. Even ignoring the fruits of the “clearing search”, (i) the confidential source information, (ii) the observations of the police on May 29, 2013 and (iii) the arrest of Mr. Sol and the money and narcotics found in his motor vehicle provide more than ample grounds such that the warrant could reasonably have been granted.
Exclusion of Evidence – subsection 24(2) of the Charter
[99] As I have found no breach of Mr. Sol’s section 9 Charter right, there is no need for me to deal with subsection 24(2) in that regard. Nor is there any reason to deal with subsection 24(2) with regard to the search of the residence under warrant.
[100] Suffice it to say that, if I had found that the arrest of Mr. Sol was arbitrary, I would have had to excise from the information to obtain the search warrant the drugs and money that were found in his car, as well as the fruits of the “clearing search”, and then I would have had to decide whether what was left was sufficient such that the warrant could have been issued. Likely not. Because of Matheson’s evidence that, as of May 28, 2013, reasonable and probable grounds to arrest Mr. Sol were still in process, it is likely that the police would not have even applied for the search warrant but for the arrest of Mr. Sol and the search of his car. Thus, assuming that I am wrong about the lawfulness of Mr. Sol’s arrest, it is likely that a Court would find that the search of the home under warrant was unreasonable and, further, the accumulation of the Charter violations would probably result in the exclusion of all of the evidence under subsection 24(2).
[101] In any event, I am confident that the arrest of Mr. Sol was lawful.
[102] As for the subsection 24(2) analysis with respect to the section 8 breach that I have found regarding the “clearing search”, it is not a close call. The evidence discovered during the “clearing search” and during the search under warrant must be admitted.
[103] First, the latter evidence does not arise from the “clearing search”. The chain was broken when the police applied for and obtained the warrant. The warrant could reasonably have been granted regardless of the “clearing search”.
[104] Second, even if we undertake the Grant analysis, all three of the factors point to admission of the evidence. The violation was not serious. It was technical. The “clearing search” lasted a few minutes. The police acted in good faith. The impact on Mr. Sol was virtually nil. The impact on Ms. Schlosser was minimal. The charges are very serious and deserve, in the interests of society, to be tried on their merits. On balance, to exclude the evidence discovered during and after the “clearing search” would do much more harm to the administration of justice and public confidence in our justice system than its admission.
VI. Decision on the Pretrial Applications
[105] For all of the foregoing reasons, the Charter Applications by the accused are dismissed.
[106] The arrest of Mr. Sol was not arbitrary. It was lawful. Mr. Sol has failed to persuade me, on balance, otherwise.
[107] The “clearing search” was unreasonable and a breach of each accused person’s section 8 Charter right. It was warrantless, and the Crown has failed to persuade me that exigent circumstances existed.
[108] Nevertheless, all of the evidence discovered by the police is admissible at trial under subsection 24(2) of the Charter. On balance, the Defence has failed to persuade me that it ought to be excluded.
[109] The search of the residence under warrant was valid. The Defence has failed to persuade me, on balance, otherwise.
[110] The case is adjourned to the Assignment Court in Walkerton on September 8, 2015 at 10:00 a.m. At that time, trial dates shall be set.
[111] I thank counsel for their able assistance.
Conlan J.
Released: June 26, 2015
CITATION: R. v. Sol & Schlosser, 2015 ONSC 4160
COURT FILE NO.: CR-14-131
DATE: 20160626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Matthew Sol and Jacalyn Schlosser
Defendants
REASONS FOR DECISION – CHARTER APPLICATIONS
Conlan J.
Released: June 26, 2015