Court File and Parties
COURT FILE NO.: CR-15-80-00 DATE: 2016-08-09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. MALCOLM ALPHA KING CASSELLS
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL: A. Burns, for the Crown/Responding Party D. Quayat, for the Accused/Applicant
HEARD: June 27 and 28, 2016
Endorsement re application of accused to exclude evidence obtained on warrantless searches of residence and his person
[1] The applicant Malcolm Alpha King Cassells is charged, along with his co-accused Dwayne Michael Hubbard and Lucas Murray Whetter, with one count of unlawfully possessing a controlled substance, namely cocaine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (the “CDSA”) and one count of having in his possession proceeds of property, namely Canadian currency, of a value not exceeding $5000, knowing that all or part of the proceeds of the property was obtained from the commission in Canada of the offence of unlawfully possessing a controlled substance for the purpose of trafficking, contrary to section 354(1)(a) of the Criminal Code of Canada. The offences are alleged to have been committed on or about the first day of July, 2014.
[2] The applicant has brought an application for an order pursuant to section 24(2) of the Charter of Rights and Freedoms excluding all evidence obtained in relation to him on or about July 1, 2014. The applicant was arrested in a residence on Cayuga Street in the City of Brantford which he did not occupy as an owner or resident. At the time of his arrest, the police were seeking a search warrant for the residence. The police entered the residence prior to issuance of the warrant based upon perceived exigent circumstances, namely, to seek to prevent the loss or destruction of evidence following a roadside stop of a vehicle and the arrest of three other individuals associated with the residence.
[3] A warrantless search of the applicant incident to his arrest yielded Canadian currency totalling $1,965.00 and an amount of crack cocaine.
[4] The applicant, in his Notice of Application, alleged that there was no lawful basis for his arrest and as such the arrest constituted a breach of his right under s. 9 of the Charter. He also alleged that, as there was no lawful basis for his arrest, all evidence obtained by the police, incident to that unlawful arrest, was obtained in violation of his rights under section 8 of the Charter.
[5] At the opening of the voir dire counsel for the applicant advised that he was restricting his application to the exclusion from evidence of 1) the currency and 2) the location in the residence where the applicant was found, that is, in a bathroom off the kitchen in proximity to the toilet in which the cocaine was located. The accused did not initially seek to exclude the cocaine found in the toilet.
[6] At the conclusion of the evidence counsel for the applicant gave notice of the expansion of the scope of the application to include exclusion of the cocaine from evidence. Counsel for the Crown acknowledged that the Crown would not be prejudiced by this and ultimately advised that he did not oppose the expansion of the scope of the application.
Evidence
[7] Five members of the Brantford Police Service who were involved in the surveillance operation, the roadside stop, the arrest of three occupants of the vehicle, the entry into the Cayuga Street residence and the arrest and search of the applicant, testified on the voir dire. They were Officer Jeff Cotter, Sgt. Brad Loveday, Detective Constable Daniel Bosett, Detective Nicholas Lawson and Detective Constable Raj Saini.
[8] The evidence indicated that at 6:35 PM on July 1, 2014 the Brantford Police Service initiated a surveillance operation on a residential property at 142 Cayuga Street in the City of Brantford. The police had received information from a confidential informant that a black person was dealing crack cocaine from that residence. The lead officer on the surveillance operation was Detective Constable Saini.
[9] At 7:05 PM two individuals, Dwayne Hubbert and Pauline Beaulme, were seen entering the residence and then leaving it at 7:45 PM. The police had information that these two individuals were involved in drug trafficking.
[10] At 8:24 PM a red Dodge Caliber, with two Caucasian occupants, stopped at the residence. One minute later a black male who fit the description of the individual police believed was dealing in crack cocaine exited the residence and entered the motor vehicle, which left the residence and proceeded northbound on Cayuga Street. At 8:30 PM the vehicle stopped at the 4-Star Motel where the three individuals exited the vehicle and entered a motel room. The 4-Star Motel was known to police as a site where many drug transactions had taken place.
[11] The three individuals were then seen exiting the motel room, getting back into the vehicle and driving to a Smart Mart convenience store, arriving at 8:34 PM. The black male was seen entering and then exiting the store and re-entering the rear seat of the vehicle. A blonde female was observed approaching the vehicle on foot and entering the rear seat of the vehicle. 30 seconds later she walked away from the vehicle. The vehicle then departed the parking lot of the convenience store and appeared to be heading back to 142 Cayuga Street.
[12] Detective Constable Saini determined that there were reasonable and probable grounds for arresting the occupants of the Dodge Caliber in connection with drug trafficking, based upon the observed brief stops at the motel and the convenience store and the blonde female briefly entering and leaving the vehicle, which were indicative of drug transactions taking place. Detective Constable Saini requested members of the surveillance team to stop the vehicle, which was carried out on Cayuga Street, west of the Murray Avenue, being 3 to 4 blocks from the residence at 142 Cayuga Street, or 350 metres. The vehicle stop was carried out utilizing two unmarked police cruisers. Officer Nagy of the canine unit attended the scene and a search of the vehicle with the assistance of the police dog revealed 3.5 g of cocaine located in the driver side door. Hydromorphone pills were found on two persons in the vehicle, Lucas Whetter and Christine Pierce. 0.7 g. of cocaine was also found on Ms. Pierce.
[13] A number of marked police cruisers were summoned to the scene to take control of the three occupants of the vehicle who had been arrested and to transport them to the police station.
[14] At 9:05 PM, being 25 minutes after the Dodge Caliber was stopped, Sgt. Loveday made the decision to attend at 142 Cayuga Street to freeze the residence while a warrant was being applied for to search the residence. Sgt. Loveday, Detective Constable Saini, Detective Lawson and Officer Cotter attended at the residence with the intent to take control of it and clear it of any persons in order to preserve any evidence in the residence and to ensure that no one was in the residence who might be discarding or destroying evidence. Detective Constable Saini acknowledged that the police did not have reason to believe anyone was in the residence, but due to the fact that no surveillance had remained on the residence as the Dodge Caliber was being followed, they were concerned that the residents might return to the residence.
[15] The police officers knocked on the front and side doors announcing their presence but did not elicit any response or any indication that anyone was in the residence, other than observing a television set playing through an uncovered window. The officers went around to the back of the residence, banged on the rear basement door seven times without any response and entered the residence through the unlocked door. Sgt. Loveday, in consultation with Detective Constable Seini, had made the decision, earlier at the car stop, to enter the residence rather than to place officers on the perimeter to await the issued search warrant. He acknowledged that they had no particularized intelligence that anyone was in the residence.
[16] Constable Lawson remained at the front of the residence while Sgt. Loveday, Detective Constable Saini, and Officer Cotter entered the residence. As they moved from the basement to the main level they yelled “police” without eliciting any response. A quantity of marijuana was found on the kitchen table. The police team did not stop to measure the quantity of marijuana.
[17] Sgt. Loveday opened what he thought was a pantry off the kitchen but which turned out to be a bathroom and came upon a male, being the applicant Malcolm Cassells, sitting on the toilet. The male was fully clothed but with his pants 3/4 up when Sgt. Loveday first observed him. He could not see if the male was using the bathroom facilities. Sgt. Loveday was not expecting to encounter anyone in the room, jumped back and shut the door. The two other officers entered the room and brought the applicant out of the bathroom into the kitchen. Detective Constable Seini testified that when he initially looked into the bathroom when summoned by Sgt. Loveday he observed the applicant seated on the lid of the toilet, the lid being down. Detective Constable Seini arrested and handcuffed the applicant immediately upon being brought out of the bathroom into the kitchen for possession of a controlled substance for the purpose of trafficking. A search of the applicant revealed him to be in possession of $1,965.00 in Cdn. Currency. Detective Constable Seini stated that the applicant was arrested because he was found in a residence where police believed drug dealing was taking place. Anyone found in the residence would have been arrested at that time. He acknowledged that prior to the arrest there was nothing connecting the applicant to anything found in the residence. Sgt. Loveday acknowledged that the cocaine found in the toilet did not form part of the reasonable and probable grounds for the arrest of the applicant.
[18] The applicant was verbally given his rights to counsel and caution.
[19] After the applicant was arrested Detective Constable Seini went back into the bathroom, lifted the toilet lid and observed a clear plastic bag floating in the toilet bowl containing a white substance, which was seized and later found to comprise 10.3 gm. of cocaine. When asked about the white substance the applicant told Sgt. Loveday “it’s not mine I don’t live here.” The police later confirmed that the applicant resided in the City of Toronto.
[20] Detective Constable Seini testified that his search of the toilet, by lifting the lid and looking into it, was done incident to the arrest of the applicant.
[21] After the arrest of the applicant and the discovery of the cocaine in the toilet Detective Constable Seini then returned to the police station to continue with preparation of the application for a search warrant for the residence. After the search warrant was issued at 12.05 a.m. he returned to the residence with other officers to execute it, which resulted in the discovery of a further 17.2 gm. of cocaine, 7.9 gm. of marijuana and a further $2,250.00 in currency.
[22] The residence at 142 Cayuga Street was located in a cul-de-sac and was 350 meters from the intersection of Cayuga and Murray where the police stop of the Caliber vehicle took place. It was acknowledged by police in evidence that, due to a bend in Cayuga Street, it would not have been possible to stand on the porch or front step of 412 Cayuga Street and observe the police vehicle stop. Detective Constable Seini estimated that someone would have had to walk 50 to 100 feet from the residence to observe the vehicle stop. He also acknowledged that he made no note of any activity on cell phones on the part of the occupants of the Dodge Caliber vehicle who were arrested. Sgt. Loveday confirmed that he did not note anyone at the scene of the vehicle stop utilizing cell phones and made no note of any vehicles heading towards 142 Cayuga Street. On this basis the police were not in possession of any particular or specific information that someone at the residence at 142 Cayuga Street was likely to have observed the vehicle stop at the intersection of Cayuga and Murray Streets, that anyone who was involved in or who had witnessed the vehicle stop were using his or her cellphone to contact any persons at the residence to alert them to it, nor that anyone was travelling from the location of the vehicle stop to the residence.
Warrantless Search of the Residence
[23] The applicant argues that the warrantless search of the residence infringed section 8 of the Charter which reads as follows:
- Everyone has the right to be secure against unreasonable search or seizure.
[24] It is well-established that:
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.
(see R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) at 14, per Lamer, J.)
[25] A warrantless search or seizure is presumed to be unreasonable under s. 8 of the Charter which would require the party seeking to justify the warrantless search to rebut the presumption of unreasonableness (see Fontana and Keesham, The Law of Search and Seizure in Canada (9th ed.) at p. 826, citing Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.)).
[26] Not every person has standing to seek a legal remedy with respect to an unlawful or unreasonable search, but rather a person seeking such remedy requires an ascertainable interest or a definable grievance (see The Law of Search and Seizure in Canada at p. 1069). An accused seeking to establish standing to challenge a search bears the onus to establish some evidentiary basis for standing or status in order to assert a privacy interest. There must be a sound evidentiary basis to support a privacy interest as opposed to just a theory (The Law of Search and Seizure in Canada at pp. 1074-1075, citing R. v. Stein [2010] B.C.J. No. 614 (C.A.)).
[27] In R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.) Cory, J. stated, at para. 45, that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances and set out a non-exhaustive list of factors to be considered in assessing the totality of the circumstances including, in relation to an accused (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and vii) the objective reasonableness of the expectation.
[28] In this case the only factor enumerated in Edwards which has any application in relation to the applicant on the evidence was his presence in the residence at the time of the search. However, there is nothing in the evidence to indicate that the applicant’s presence was any more than transitory. Recognizing that the onus of establishing an evidentiary basis to support a privacy interest rests on the applicant, no evidence was presented with respect to the purpose or duration of his presence in the residence. There was no evidence of the existence of a subjective expectation of privacy on the part of the applicant. Indeed the statement made by the applicant that “it’s not mine I don’t live here” would point away from the existence of any subjective expectation of privacy in the applicant in relation to the residence. The evidence indicated that the applicant lived in Toronto, and not at the residence.
[29] In my view, the applicant has not discharged the onus on him to establish an evidentiary basis to support a privacy interest in order to seek a remedy under s. 24(2) of the Charter in relation to the warrantless search of the residence at 142 Cayuga Street.
[30] However, this does not end the enquiry because, as discussed below, the applicant asserts that his personal s. 8 and 9 rights were infringed by his arrest by police and the search conducted by the police incident to his arrest.
Warrantless Arrest of the Applicant
[31] The applicant claims that his rights under s. 9 of the Charter were breached on the basis that the police officers who were searching the residence did not have reasonable and probable grounds to arrest him. S. 9 reads as follows:
Everyone has the right not to be arbitrarily detained or imprisoned.
[32] S. 495 of the Criminal Code and s. 9 itself require, for an arrest to be valid where an officer believes that a person has committed an indictable offence, that there be reasonable and probable grounds for that belief. It is not sufficient for the police officer to subjectively believe that he has reasonable and probable grounds to make an arrest but rather it must be shown that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds existed to make the arrest (see R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.)).
[33] In the present case the police arrested the applicant simply because he was found in the residence in respect of which an application for search warrant was being prepared in relation to drug trafficking. Detective Constable Seini acknowledged that police would have arrested anyone found in the residence and that, prior to the applicant’s arrest, there was nothing connecting him to anything found in the residence.
[34] In order to justify the arrest there must have been something in the conduct of the applicant, as observed by the police officers placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officers’ belief that the applicant was engaged in drug trafficking (see R. v. Brown 2012 ONCA 225, [2012] O.J. No. 1569 (C.A.) at para. 14). In my view, the evidence is devoid of any such objective justification or verification.
[35] I find that the police did not have reasonable and probable grounds for the warrantless arrest of the applicant, and accordingly, his rights under s. 9 of the Charter were breached. Crown counsel acknowledged as much in submissions but, as will be seen, argued that this would only impact the admissibility of the currency found on the applicant incident to his arrest, and not rest of the evidence sought to be excluded by the applicant, being the cocaine found in the toilet or the evidence of where in the residence the applicant was found.
Search Incident to Arrest
[36] The applicant claims that, there having been no reasonable and probable grounds for his arrest, the searches conducted by the police incident to his arrest breached his rights under s. 8 of the Charter.
[37] It is well-established that that if an arrest is not lawful, then the search incidental to it will violate the Charter unless it falls within another exception to the prima facie unreasonableness of a warrantless search as laid down in Hunter v. Southam Inc. (see The Law of Search and Seizure in Canada at p. 950).
[38] In the case of R. v. Adams, [2001] O.J. No. 3240 (C.A.) the court, at para. 9, held that the accused in that case had standing to contest the validity of his arrest in the laundry room of the rooming house where he resided, in which premises the Crown argued that he had no expectation of privacy, by virtue of the fact that the accused’s own Charter right was involved. The accused’s own s. 8 right was found to have been engaged when the police effected a search of his person incidental to his arrest.
[39] I find that the applicant’s rights under s. 8 of the Charter were breached by the police conducting searches incident to his unlawful arrest.
Section 24(2) of the Charter
[40] As indicated above, the applicant seeks to exclude from admission at trial the evidence of the currency found on his person, the cocaine found in the toilet bowl, and where he was discovered in the residence pursuant to ss. 24(2) of the Charter which reads as follows:
Where, 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.
[41] The Crown argues that the only evidence which was obtained in a manner that infringed the applicant’s s. 8 rights was the currency found on his person, incident to his arrest, and not the bag of cocaine found floating in the toilet bowl, nor the observations of the police with respect to where the applicant was located.
[42] I disagree. Evidence obtained in a manner that it may infringe an accused’s Charter rights is not restricted to physical evidence found in the possession of the accused. As stated by the authors of Paciocco and Stuesser, The Law of Evidence (rev. 5th ed.) at p. 1, evidence is the data that triers of fact use in performing their fact-finding function. Thus evidence may be physical or informational.
[43] The case of R. v. Gawich, [2005] O.J. No. 5834 (S.C.J.) represents an example of evidence of police observations, rather than simply physical evidence, being excluded from evidence pursuant to ss. 24(2), in relation to an arrest and search found to be unlawful under sections 8 and 9 of the Charter. Croll, J. held, at para. 14 “with no arrest, there would be no opportunity [for police] to observe [the accused’s] clothing close-up.”
[44] In the recent case of R. v. Edwards (appeal by Pino), 2016 ONCA 389, 2016 O.J. No. 2656 (C.A.) the court confirmed that “obtained in a manner” in subsection 24(2) does not require a causal connection between the Charter breach and the evidence sought to be excluded, but rather the connection may be temporal, contextual, causal or a combination of the three (see paras. 50-56).
[45] In my view, the evidence of the cocaine found in the toilet bowl and the observations of the police of where the applicant was found, in particular in the bathroom sitting on the toilet seat lid in close proximity to the cocaine beneath him, was tied to the s. 9 breach, being the unlawful arrest of the applicant, through a combination of temporal, contextual and causal connections. The lifting of the lid on the toilet bowl followed immediately upon the arrest of the applicant. Detective Constable Seini testified that he conducted the search of the toilet incident to the arrest of the applicant. The arrest of the applicant following his extraction from the bathroom arrest led Detective Constable Seini to re-enter the bathroom and lift the lid of the toilet where the applicant had been seated moments before in order to search the toilet. The search of the toilet was part of the same transaction as the arrest and was therefore contextually connected to it, as were the observations of the police placing him in close proximity to the cocaine found in the toilet.
[46] It is well known that the court is called upon to conduct a three stage enquiry in determining whether the admission of evidence obtained as a result of Charter-infringing police conduct would bring the administration of justice into disrepute under s. 24(2). Consideration must be given to the following three factors:
(a) The seriousness of the state conduct; (b) The impact of the breach of the Charter-protected interests of the accused; and (c) Society’s interest in the adjudication of the case on its merits
(see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71).
[47] In the case of R. v. Rocha 2012 ONCA 707 (C.A.) Rosenberg, J.A., writing for the court, stated as follows with respect to the principles to be applied in relation to the first inquiry of the Grant test, being the seriousness of the state conduct:
The touchstone of analysis of this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts "effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct": R. v. Grant, at para. 72. Police conduct that shows "a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute": R. v. Grant, at para. 74.
[48] As indicated above, the arresting officer Detective Constable Seini acknowledged that the police team would have arrested anyone found in the residence and that, prior to the applicant’s arrest, there was nothing connecting him to anything found in the residence. The applicant was arrested simply because he was found in the residence in respect of which a search warrant was being prepared. There was no evidence that Detective Constable Seini gave any consideration to the need to have reasonable and probable grounds to effect an arrest or to any options other than immediate arrest. I would not go so far as to suggest that the police acted in bad faith in arresting the applicant. There was no evidence that members of the police team possessed any animus towards the applicant in particular, nor did they deliberately set out to deprive him of his Charter rights for some improper purpose or to gain some illegitimate advantage. Rather Detective Constable Seini’s actions disclosed “a somewhat cavalier attitude towards the exercise of his powers of arrest,” using the words of the Court of Appeal in Brown at para. 26. As was found in Brown the conduct of the police points towards exclusion of the evidence.
[49] I also find that the impact of the breach on the Charter-protected rights of the applicant favours exclusion of the evidence. As observed by McLachlin, C.J.C. and Charron, J. in Grant at para. 77 “the more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute” and at para. 78 “similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.”
[50] There was nothing in the evidence touching specifically on actual subjective impacts of the arrest on the applicant’s dignity. However, the interference with the applicant’s liberty was neither fleeting nor technical. The right to be free of arbitrary arrest is an important privacy interest and may be presumed to have an effect on the subject’s dignity.
[51] The third inquiry relates to society's interest in having the case adjudicated on its merits. Ordinarily where evidence in this category is real or physical, there is little concern as to the reliability of the evidence and therefore the public interest in having a trial adjudicated on its merits will usually favour admission of the derivative evidence (see Grant at para. 126). However in this case the reliability of the evidence of the cocaine found in the toilet is diminished by the lack of evidence of any connection of the applicant to the residence and the fact that, when the applicant was discovered in the bathroom, the cocaine was not on his person and was not in plain view or within easy reach of the applicant.
[52] There are a number of possible plausible explanations for the applicant being found to be in proximity to the cocaine, located beneath the lid of the toilet, when he was found, other than his having an interest in it or possessing it for the purpose of trafficking. The probative value of the evidence of where the applicant was found in the residence is inextricably linked to the admissibility of the cocaine into evidence. The only physical evidence found on the applicant was the currency. Another factor to be considered on the third inquiry is the importance of the evidence to the Crown’s case. It can be said that the evidence is crucial to its case against the applicant. For this reason society’s interest in having the case adjudicated on its merits favours inclusion of the evidence sought to be excluded by the applicant, but not strongly, given the relative lack of reliability of the evidence.
[53] A balancing of the factors set forth above leads to a conclusion that a reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute (see Brown at para. 30). The arrest was arbitrary and not based on reasonable and probable grounds. The impact on the applicant’s Charter-protected interests can be said to be serious and society’s interest in having the case adjudicated on the merits does not strongly favour inclusion, given the relative unreliability of the evidence.
[54] The application is therefore granted and the evidence consisting of the currency found on the applicant’s person, the cocaine found in the toilet and the police observations of where the applicant was found in the residence is excluded, as against the applicant.
D.A. Broad J. Date: August 9, 2016