OSHAWA COURT FILE NO.: 13725/14
DATE: 20150728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Paul Latchmana
Bari Crackower and Carolyn Otter, for the Respondent
Harpreet Saini, for the Applicant
HEARD IN OSHAWA: July 20, 2015
REASONS
EDWARDS J.:
Overview
[1] The accused, Paul Latchmana (“Latchmana”), is charged with a number of counts of trafficking in cocaine. Counsel for Latchmana seeks an order excluding evidence obtained as a result of what is described as an illegal search and seizure of Latchmana’s residence, as a result of a search warrant issued by R. Beninger J. on June 25, 2013. The warrant, as issued, allowed for the following items to be searched at Latchmana’s residence at 86 Deacon Lane in Ajax, Ontario:
controlled substances;
weigh scales;
drug packaging;
drug precursors;
safes or lock boxes;
debt lists;
identification and documentation related to occupancy;
currency;
cellular telephones, 289-200-8540 and 289-923-8634, and any documentation related to the noted cell phones or any other cell phones located;
keys;
financial records relating to Latchmana.
[2] The search of Latchmana’s residence took place on June 27, 2013, at which time certain items were seized including various amounts of currency, eight cellular phones, marijuana, drug packaging, Ziploc containers, a white substance and a large sum of money which was seized from the front lawn of 86 Deacon Lane, an adjacent address to Latchmana’s at 88 Deacon Lane.
[3] Counsel for Latchmana takes the position that the Information to Obtain (“ITO”) relating to the search warrant contained misleading and/or incorrect information. It is also argued that there was no evidence put before the issuing justice that would link Latchmana’s residence to the alleged drug dealing, referenced in the ITO, involving Latchmana and various other individuals.
[4] In order to ensure that the trial in this matter proceeds as scheduled I have provided to counsel my decision with respect to the application to exclude evidence, and these are my more fulsome Reasons dismissing the application.
The Facts
[5] It is conceded by counsel for Latchmana that the investigating police had conducted a large drug trafficking investigation, which was known as Project Wanipitee, commencing in January 2013. This investigation involved a number of suspects who were eventually arrested, two of whom included Sahylendra Gocool and Tyler Kierans (“Gocool” and “Kierans”).
[6] As part of the investigation, the police obtained judicial authorizations in relation to a number of suspects. One of the authorizations was for a wiretap on a phone associated with Kierans. One of the intercepted telephone calls occurred on May 27, 2013 between Kierans and someone who at that point was unidentified. The conversation on all accounts was drug-related and a “deal” was agreed upon. As a result of that deal Latchmana was observed by the police meeting with Kierans, and it is conceded by Mr. Saini for the purposes of this application that a drug transaction took place between these two gentlemen.
[7] As a result of this observation of Latchmana the police conducted surveillance of him as he entered and left a residence located at 86 Deacon Lane, Ajax, Ontario (“Deacon Lane”). These observations at the Deacon Lane address occurred on a number of occasions, which it is conceded for the purposes of this application was the residence of Mr. Latchmana.
[8] The ITO consists of 115 pages broken down into 237 paragraphs. It is clear from my review of the ITO and a brief memorandum prepared by Beninger J. dated June 25, 2013, that Beninger J. clearly reviewed the ITO in its entirety, as two of the requested authorizations were denied with respect to the possible search of a 2010 Ford Flex and an address at 202 Craydon Road, alleged to have been associated to a person known as McLean.
[9] The ITO, as it relates to Latchmana, covers 10 pages of the 115 pages of the ITO. At page 94 details of surveillance involving Latchmana and Kierans on May 27, 2013 are reviewed. Surveillance of Latchmana after the transaction between himself and Kierans occurs between 11:23 a.m. and 12:08 p.m. on May 27, 2013. During that period of surveillance Latchmana is seen in the area of Kenyon Court, Whitby, until his vehicle was “misplaced” as of 12:08 p.m. in the area of Salem Road and Highway 401, Ajax, Ontario. Ultimately, it was determined that the vehicle being driven by Latchman, a black Chrysler 300 bearing licence plate BMDH 256, was a vehicle that he had rented through WTH Car Rental ULC, a company affiliated with Avis Car Rental.
[10] Further surveillance was undertaken of Latchmana on May 29, 2013 when he was observed leaving the Deacon Lane address. The Chrysler 300, referenced in paragraph 10 above, was located in the driveway of the residence. During the surveillance of May 29, 2013, Latchmana was seen leaving the residence around 11:16 a.m. and was followed into the Toronto area. He returned to the residence at 3:25 p.m. and parked his vehicle in the driveway. Similar observations were also made on May 30, 2013.
[11] Enquiries were made by Detective Constable Tom Chambers through the Ministry of Transportation (“MTO”), to establish Latchmana’s address as registered with the MTO. That search apparently revealed an address in Pickering as opposed to the Deacon Lane residence address. As to the possible discrepancy in this regard, Chambers states in his affidavit that he believed from his experiences as a drug investigator that drug traffickers will often not disclose their proper address to the MTO in an attempt to mislead police or authorities. Fundamentally, Chambers states in his affidavit:
I further believe that Latchmana is using this residence (i.e. the Deacon Lane residence address) to store his controlled substances and proceeds from his trafficking.
[12] Surveillance was conducted on June 12, 2013, that established a possible link with an address at 3201 Lawrence Avenue in the City of Toronto. Based on intercepts and surveillance, Chambers believed that the 3201 Lawrence Avenue East, Apartment 202, address was being used by Latchmana and Sheldon Codrington as a storage location for controlled substances.
[13] Further surveillance was conducted on June 15, 2013, at which time Latchmana was observed meeting with Kierans in his vehicle bearing licence plate VMDH 256, at which time Chambers believes that Latchmana sold a quantity of cocaine. It is conceded by defence counsel, that for the purposes of this application, it can be inferred that in fact a drug transaction did occur on this occasion involving Mr. Latchmana. The observations with respect to the drug transaction occurred at 3:27 p.m. at Kierans residence. After the transaction took place, Latchmana was followed and later returned to his address at 5:57 p.m. on Deacon Lane.
[14] What is not contained in the ITO are the details of the observations made of Latchmana between 3:27 p.m. and 5:57 p.m. Those observations were amplified in the material filed with the court, which established that during this time period Latchmana was followed to a hair studio at the Harwood Plaza in Whitby. He was also seen assisting another individual, boosting the battery of the other individual’s vehicle, and then eventually returning to his residence. It is argued by defence counsel that this information was a material omission from the ITO and should have been disclosed to the court.
[15] Further observations were made of Latchmana on June 18, 2013, also involving the 3201 Lawrence Avenue location. As a result of these observations Chambers, in his affidavit stated:
I believe from interception surveillance Latchmana and Codrington are drug traffickers and I believe drug traffickers use places other than their residence to store and traffick drugs, therefore I believe this address is being used as a storage location for controlled substances. I am seeking a CDSA search warrant for this address as well.
Position of the Defence
[16] While it is conceded by the defence that inferences can be drawn from the surveillance evidence establishing that Latchmana was involved in various drug transactions, the ITO fails to establish that from the observations made there would be any reasonable basis upon which to conclude there was an nexus between the Deacon Lane residence and Latchmana’s alleged activities as a drug dealer.
Position of the Crown
[17] Crown counsel argues that there was more than adequate evidence put before the issuing justice to establish the necessary nexus between Latchmana’s alleged drug dealing activities and the Deacon Lane residence. This is supported by the various observations that were made on May 27, June 15 and June 18, 2013 as detailed above.
[18] Crown counsel relies heavily on a decision of McKelvey J. in R. v. Chin, 2015 ONSC 4323, which involved similar issues and similar arguments arising out of the identical ITO that is at issue before me.
Analysis
Was there a nexus between the applicant’s residence and the observations of Latchmana and his alleged drug dealing?
[19] During the course of Mr. Saini’s submissions, heavy reliance was placed on the Ontario Court of Appeal decision in R. v. Rocha, 2012 ONCA 707, where the court agreed that the ITO at issue was not sufficient to justify granting a warrant to search the respondent’s home. In that regard, the Court of Appeal, at paragraph 26, stated:
I do, however, agree with the trial judge that the ITO was not sufficient to justify granting a warrant to search the respondent’s home. Unlike the restaurant, the information in the informer’s tip was not compelling. It was a mere conclusory statement that drugs were stored at the house. While it was apparent that the informer had personally observed drug transactions in the restaurant, the source of the informer’s information about the house is completely unknown. Given the weaknesses and the credibility of the informer an independent confirmation, the totality of circumstances could not support granting the warrant.
[20] It is argued by Mr. Saini that the statements made by Chambers in his affidavit linking the drug dealing activities of Latchmana to his residence are nothing more than conclusory statements without any evidentiary backup.
[21] The difficulty with the argument made by counsel for the applicant in this regard relates to the fact that the order sought by the police was not restricted simply to a controlled substance, but also included various items that would be associated with drug dealing in general such as weigh scales, debt lists, drug packaging, drug precursors, safes, lock boxes, identification, currency, cell phones and financial records.
[22] While the evidence supplied by Chambers in his affidavit with respect to various drug transactions at a stash house (the location on Lawrence Avenue) was undoubtedly stronger than the evidence with respect to Latchmana’s residence, I agree with the comments of McKelvey J. which I adopt as being equally applicable to Mr. Latchmana at paragraph 35 of his Reasons in R. v. Chin, supra, that there was a reasonable basis to believe that there would be some evidence of the drug activity found at Latchmana’s residence.
[23] Under the circumstances I am satisfied that there was in fact a sufficient nexus established to Latchmana’s residence at Deacon Lane, which would support a reasonable basis to believe that there was evidence of Latchmana’s drug activities to be found in his residence.
Section 24 Analysis
[24] If I am wrong in my conclusion that there was insufficient evidence establishing a nexus to Latchmana’s residence in the drug dealing activities revealed otherwise than at his residence, I nonetheless deal with the issue of whether or not the evidence should otherwise be admitted.
[25] Dealing first of all with respect to the large quantum of currency that was found in the front of an adjourning residence to Mr. Latchmana’s residence, I agree with the submissions of Crown counsel that Mr. Latchmana cannot assert a reasonable expectation of privacy in those monies that he intentionally discarded. The evidence in that regard would suggest that Mr. Latchmana was seen throwing something out of his bedroom window when the police executed the search warrant. The something that was observed being thrown out of the window turned out to be the large quantum of currency that was seized on the next door neighbour’s lawn. The analysis of the Court of Appeal in R. v. Nesbeth, 2008 ONCA 579, [2008] O.J. No. 3086, supports the position of the Crown in that regard. As in Nesbeth, supra, Latchmana gave up the ability to regulate access to the money when he threw it away. At that point in time, when Mr. Latchmana threw the money out of his window, he was attempting to divest himself of possession and control. As such, in my view a section 24 analysis with respect to the currency thrown out the window is not necessary.
[26] With respect to the items that were actually seized in Latchmana’s residence, assuming that there had been a breach of Latchmana’s Charter-protected interests given that the search occurred at Mr. Latchmana’s residence, I am satisfied that on this aspect of the Grant test there has been a serious intrusion into a place where he had a high expectation of privacy and, as such, the Charter breach favours exclusion.
[27] Dealing with society’s interest in the adjudication of the case on its merits, in my view there is nothing in the ITO that would lead me to the conclusion that there was any attempt on the part of Chambers to mislead the court and that society would, therefore, have a greater interest in admitting the evidence with respect to potential drug dealing than to exclude that evidence.
[28] If I had come to the conclusion that the ITO was misleading or that the statements made by Chambers were simply conclusory without any sufficient nexus to his residence, I would have concluded that the seriousness of the Charter infringing conduct in that regard was at the lower end of the seriousness, such that I would not consider the Charter infringing conduct as being very egregious.
[29] Weighing all of the Grant factors, were I to have considered that there had been a breach of Latchmana’s section 8 Charter rights, then I would have concluded that the evidence would nonetheless have been admitted.
[30] The applicant’s motion to exclude evidence is therefore denied.
Justice M.L. Edwards
Released: July 28, 2015