Court File and Parties

COURT FILE NO.: CR-15-10000288-0000 DATE: 20160620 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ALEX JAMES Applicant

Counsel: Emile Carrington, for the Crown David Burke and Lilit Izakelian, for the Applicant

HEARD: 27 May 2016, at Toronto

Reasons for Decision

(Application for Exclusion of Evidence, ss. 8 and 24(1) of the Canadian Charter of Rights and Freedoms)

MEW J.

1As a result of certain evidence given by Detective Constable Guillermo Gini during the course of trial, the applicant Alex James seeks an order granting the exclusion of heroin, crack cocaine, marijuana and a firearm seized on 13 or 14 March 2014 at Apartment 106 at 4001 Steeles Avenue West, Toronto.

2On 9 June 2016, I informed the parties that the application would be granted in part, with reasons to follow. These are my reasons.

3Alex James was living in the apartment at the time and occupied what has been referred to at the trial as “bedroom #3”. This bedroom has a walk-in closet and an en-suite bathroom.

4In an earlier ruling made in respect of a pre-trial application in this matter, I held that the seizure of firearms and drugs at the Steeles Avenue apartment had been lawful, and in particular, that a search warrant in respect of those premises had been validly obtained.

5D.C. Gini was one of the officers referred in paragraph 23 of my reasons for decision of 27 May 2016 in respect of the earlier application (reported at 2016 ONSC 3462). He and his colleagues had arrested five individuals at the apartment. As noted in paragraph 26 of my reasons, coincident with those arrests, the police had found a loaded semi-automatic handgun, a digital scale and a quantity of what appeared to be cocaine, lying on the snow not far from a window that had been used by two of the arrested individuals, who had attempted to flee from the apartment. I held, inter alia, that the warrantless entry into the apartment and the seizure of the items found in the snow was lawful.

6The arrests took place shortly after 5:00 p.m. on 13 March. The evidence indicates that it was a cold day. The temperature outside was about -15 degrees. The arrested individuals were each permitted, under police supervision, to retrieve outdoor clothes from the bedroom of Alex James, who lived at 4001 Steeles Avenue West, Apartment 106. After getting their clothes, they were transported to the 31 Division Police Station of the Toronto Police Service.

7Until D.C. Gini gave evidence at trial, the evidence given by other officers at trial had been that the apartment was placed on “freeze” waiting for a search warrant to be obtained. Officers had remained in the living/dining room area of the apartment but had not conducted any sort of search before the warrant arrived. Nor was any use made of the bathrooms in the apartment.

8When the search warrant arrived, several officers assisted with its execution. D.C. Gini volunteered to search the walk-in closet and the ensuite bathroom attached to bedroom #3. His notes indicate that he found nothing in the closet and then searched the bathroom. He lifted the toilet lid and saw two small bags tied up and floating in the water as well as a bag in the drain of the toilet. This narrative in D.C. Gini’s notes appears after an entry “0038-S/W [search warrant] executed”. A clear implication being that the search, and in particular, the retrieval of the drugs from the toilet, occurred after 00:38 on 14 March 2014.

9At the preliminary hearing, D.C. Gini, after testifying that the search warrant had arrived at 12:35 a.m., indicated that he had been tasked to search the closet and the ensuite bathroom. He then testified that he had found two small bags floating in the water and a bag in a drain at the bottom of the toilet. He identified photographs of these bags. He also said that he was concerned that there may have been something that had actually gone through or that was flushed. So he arranged to have the superintendent attend to help and he unscrewed the toilet to enable D.C. Gini to continue with his search. Nothing further was located.

10At trial, D.C. Gini told a different story.

11An incident that occurred earlier in the evening puts that change of story into context.

12When, in the late afternoon of 13 March, the applicant had been taken to his bedroom to retrieve outdoor clothing, he was accompanied by two officers, Detective Constable Mark Haljaste and D.C. Gini. The applicant advised the officers that he needed to urinate. D.C. Haljaste escorted the applicant to the ensuite bathroom. The applicant was handcuffed throughout the process. D.C. Haljaste testified that when he entered the bathroom with the applicant he offered to raise the toilet seat for the applicant. However, the applicant started urinating in the bathtub. According to both D.C. Haljaste and D.C. Gini (who was within earshot but not visually observing the applicant), Mr. James said something to the effect that it was okay, his mother did not use the bathtub and would not mind.

13D.C. Gini testified that he had subsequently thought about what the applicant had said while in the bathroom and considered it odd. Shortly after 5:44 p.m., and after the arrested individuals had been transported to the police station, D.C. Gini testified that he went back to the bedroom, by himself, and checked the toilet to ensure there was nothing there. He said he did this because of a concern that there may be evidence in the toilet which would be destroyed. He did not otherwise search the bathroom. Upon seeing the two small bags floating around inside the toilet water and the larger bag in the trap, D.C. Gini said that his first thought was to get the items out. He said “I removed it to save it”. He placed all of the retrieved items beside the sink. He observed that the plastic bags were already waterlogged. Although he was not certain whether cocaine and heroin would dissolve or be destroyed, he said that he could only imagine that the effect of them being waterlogged would be negative.

14D.C. Gini did not tell any of the officers at the scene what he had done. Nor did he mention that he had removed the drugs from the toilet more than six hours prior to the search warrant arriving when, after the execution of the search warrant, there was a debriefing meeting at 31 Division.

15D.C. Gini testified that he had completely forgotten about having removed the drugs from the toilet before the search warrant arrived until, a few days before he testified at trial, he viewed the entry video which was taken subsequent to the issuance of the search warrant but prior to the search of the premises. That video, which he had not previously reviewed, showed the drugs sitting on top of the sink counter at a time when, according to D.C. Gini’s own notes and to the testimony he gave at the preliminary hearing, the drugs should have still been in the toilet.

16D.C. Gini characterised as “a mistake” the lack of any indication that his notes of the discovery of the drugs in the toilet were a “late entry”. Nevertheless, in failing to make clear that he had found these drugs prior to the warrant arriving, D.C. Gini stated that he had no intent to mislead.

17D.C. Gini claimed at trial that at the preliminary hearing he had no independent recollection that he had searched the toilet before the search warrant was granted. It was only after he viewed the entry video during the course of preparing to give evidence at trial that his memory was refreshed.

18When asked, repeatedly during both his examination-in-chief and cross-examination, to give a reason for his loss of memory of what had actually happened, D.C. Gini responded that he did not know. At one stage he acknowledged that there must have been some reason that he had forgotten. He emphasised that he had worked an extremely long day (which by all accounts he had) and that he had a personal life and that there were other cases he was working on. In his words, “something may have occupied my head space for a little bit and I completely blanked when I came to this investigation, but I don’t know what [the reason] is specifically…”.

19The applicant argues that D.C. Gini’s actions violated his right to privacy and, hence, his right to be secure against unreasonable search or seizure pursuant to section 8 of the Charter. There were not, it was argued, exigent circumstances that would justify a warrantless search. And the officer had misled the court, thereby amplifying concerns about his actions and his overall credibility. The court should disassociate itself from such police behaviour.

20The Crown, while careful not to condone the deceptive elements of D.C. Gini’s actions, nevertheless argues that the principles of exigent circumstances apply to wholly justify the actions of D.C. Gini in lifting the toilet lid and removing the bags of drugs from the water inside due to a fear of destruction or diminishment of the evidence. Alternatively, the search was justifiable as an action incident to the arrest of Mr. James and the other men in his apartment. The actions of D.C. Gini evinced no intention to mislead and there was ample evidence from sources other than D.C. Gini to support the police actions.

Discussion

21D.C. Gini made a serious error by not disclosing what had actually happened sooner.

22It was clear from his demeanour during the course of giving evidence at trial that he realised the gravity of what he had done and that he greatly regretted it.

23Nevertheless, it is particularly troubling that D.C. Gini perpetuated an inaccurate account of what had occurred (or more specifically, when the search for and retrieval of the drugs in the toilet had occurred) in both his supposedly contemporaneous notes and his testimony at the preliminary hearing. I found his inability to account for how or why he had forgotten these important details unconvincing.

24I conclude that D.C. Gini went on a frolic of his own, which he told no one about. While it does not appear that he had a great deal of experience with searching and seizing narcotics, he had been a police officer for ten years and would have known better. He may have concluded that the timing of his discovery of the drugs in the toilet was of little consequence because a search warrant was imminent and the drugs would be found anyway (although perhaps in a more distressed state). He likely thought that no harm would be caused. Indeed, there is no suggestion that evidence was planted or manipulated by D.C. Gini, or that his actions had a nefarious purpose.

25Even giving the officer a generous benefit of the doubt, I find that he neglected (rather than simply forgot) to mention what had really happened. Indeed, the Crown, conceded that D.C. Gini’s notes may have been misleading, while maintaining that there was no intention to mislead.

26D.C. Gini maintained the same stance about what had happened until he watched the entry video and realised that his previous story about when the drugs were retrieved from the toilet was unsustainable.

27One of the ironies is that had D.C. Gini shared his concerns about the applicant’s behaviour with one of the other officers, or spoken to a superior, or perhaps even just been straight from the outset about what he had done, there may well have been a basis for the court to find that the search was incident to the arrest or that there were exigent circumstances which would have justified the retrieval of the drugs from the toilet before the search warrant was issued. See, for example, R. v Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Phoummasak, 2016 ONCA 46.

28In R. v Pino, 2016 ONCA 389, the Court of Appeal noted (at para. 24) that “[w]hen an accused challenges the “Manner” of a search, the Crown must justify the police’s conduct”. The only evidence of how the drugs in the toilet were found and seized comes from D.C. Gini. His notes and his preliminary hearing testimony are (at best) misleading. In the circumstances, particularly where I am not satisfied with the explanation for D.C. Gini’s “epiphany”, (“I don’t know”), I find that his evidence at trial is not sufficiently reliable to justify the manner of the search.

29Considerable argument was devoted to the applicant’s expectation of privacy and to the sufficiency or otherwise (in relation to establishing exigent circumstances) of D.C. Gini’s “hunch” that there might be narcotics hidden in the toilet, as a basis for his warrantless search of the toilet. However, given my unwillingness to rely on D.C. Gini’s trial evidence as justification for what happened, I am able to conclude that D.C. Gini’s actions breached the applicant’s rights under section 8 of the Charter without having analysed these arguments in detail.

30Section 24(2) of the Charter requires that where a court concludes that evidence was obtained in a manner that infringed any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute.

31In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada summarised the approach to be taken when considering the application of s. 24(2):

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a 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 (admission may send the message that the justice system condones serious misconduct), (2) the impact of the breach on the Charter–protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merit. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

The Seriousness of the Charter – Infringing Conduct

32As the Supreme Court of Canada notes in Grant, at para. 74, there is a spectrum of seriousness of state conduct resulting in Charter violations, with inadvertent or minor violations at one end of the scale and evidence obtained through a wilful or reckless disregard of Charter rights which will inevitably have a negative effect on public confidence in the rule of law, and risk bringing the administration of justice into disrepute, at the other end of the scale.

33Good faith on the part of the police will reduce the need for the court to disassociate itself from the actions of the police: Grant, at para. 75.

34Despite the apartment being subject to a “freeze” pending judicial authorisation, D.C. Gini engaged in a warrantless search of the bathroom in bedroom #3. That was a serious breach, which was aggravated by the way that D.C. Gini attempted to cover his tracks through his notes and his evidence at the preliminary hearing. The officers’ actions come close, if not quite amounting, to bad faith on his part.

35While I accept that the drugs in the toilet would have been discovered in any event, the need for the court to disassociate itself from police misconduct of the type displayed by D.C. Gini is a significant factor in the balancing exercise that the court is required to undertake.

The Impact of the Breach on the Applicant

36While an individual has a high expectation of privacy in his or her home, that expectation would have been diminished in this case as a result of the events that had occurred earlier on the afternoon of 13 March 2014 when, as I have previously found, police officers lawfully entered the apartment to arrest Mr. James and four other individuals, seized a gun and drugs found outside the apartment in the snow, and placed the premises on a “freeze” pending issuance of a search warrant.

37In this context, the extent to which the actions of D.C. Gini actually undermined the applicant’s s. 8 interests did not amount to a serious incursion. Indeed, Mr. James might have anticipated that by electing to urinate in the bathtub rather than a toilet, one of the police officers in attendance may have twigged to the fact that there was something unusual about this and felt it appropriate to take action. On a scale ranging from fleeting and technical at one end to profoundly intrusive at the other end, the impact of the breach on the applicant’s protected interests was not great.

Society’s Interests in Adjudication on the Merits

38As noted in R. v. Grant, para. 81, the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render a trial unfair from the public perspective, thus bringing the administration of justice into disrepute. That admonition is pertinent to the circumstances of this case. It bears repeating that the evidence would have been discovered in any event.

39The charges against the applicant are serious. This is a relevant factor when considering the third branch in the Grant analysis. However, as stated at para. 84 in Grant, “…while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”.

Balancing the Factors

40In balancing the interests of truth with the integrity of the justice system, in the present case the first factor weighs sufficiently heavily that it tips the balance irretrievably in favour of exclusion of the evidence.

41Although D.C. Gini stated that he had no intent to mislead, the fact is that his notes and his evidence at the preliminary hearing were misleading. Whatever the officer’s intentions or motives, I accept the applicant’s argument that the court should disassociate itself from such police behaviour. Such police conduct undermines public confidence in the work of the police and brings the administration of justice into disrepute.

42Having regard to all of the circumstances, I am satisfied that the evidence effected by D.C. Gini’s breach of the applicant’s s. 8 Charter rights should be excluded.

43This invites consideration of what evidence should be excluded.

44A causal relationship between the breach and the impugned evidence is not necessary. If, upon a review of the entire course of events, the breach of an accused’s Charter rights and the obtaining of evidence can be said to be part of the same transaction or course of conduct, the evidence should be excluded. The connection between the breach and the obtaining of the evidence may be temporal, contextual, casual or a combination of the three: R. v. Plaha, 2004) 289 (C.A.) at para. 45.

45As I have indicated, D.C. Gini went off on a frolic of his own. Given my findings so far, at the very least the drugs found in the toilet adjacent to bedroom #3 should be excluded.

46What, though, about the other evidence obtained when the warrant was executed?

47All of the other officers executing the search warrant acted in good faith, unaware of D.C. Gini’s actions. So far as a temporal connection is concerned, the search warrant was executed five or six hours after D.C. Gini had found the drugs in the toilet. In terms of context, however, D.C. Gini’s actions were incidental to his involvement in the arrest of suspects at the premises and supervising the “freeze” of the premises pending execution of the search warrant. He acted alone, covertly and contrary to the orders of the sergeant who had directed the “freeze”. In all respects other than D.C. Gini’s actions, the police acted reasonably, respectfully and with restraint.

48Having regard to the third Grant factor, in particular, the circumstances strongly favour allowing the other evidence obtained through the good faith execution of the search warrant to be considered as part of the adjudication of the case on its merits.

49In short, I am not prepared to find that the misconduct of D.C. Gini has so tainted the other, lawful, actions of the police, that the other evidence obtained should be excluded.

Conclusion and Disposition

50The significant discrepancy between, on the one hand, the notes of D.C. Gini and his evidence at the preliminary hearing and, on the other hand, his evidence at trial concerning the discovery and seizure of the two smaller bags containing cocaine and a larger bag containing heroin, which were located in a toilet adjacent to bedroom #3, so taint what might otherwise been a lawful search and seizure of those drugs, that it would bring the administration of justice into serious disrepute if that evidence was admitted at trial.

51Accordingly, the application is granted in part, and the evidence found in the toilet/washroom adjacent to bedroom #3 at the subject premises shall be excluded.

Graeme Mew J.