CITATION: R. v. Kosterewa, 2016 ONSC 7231
COURT FILE NO.: 15-4962
DATE: 2016-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
BRADLEY KOSTEREWA
Applicant
S. Antoniani, for the Public Prosecution Service of Canada
D. Paquette and L. Wilhelm for the Applicant
HEARD: September 15, 2016
REASONS FOR JUDGMENT WITH RESPECT TO SS. 8 & 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS AND S. 581 OF THE CRIMINAL CODE
A.J. GOODMAN J.:
[1] The applicant is charged with one count of possession for the purpose of trafficking in cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), one count of possession of proceeds of crime and unlawfully possess a prohibited weapon, contrary to their respective provisions of the Criminal Code.
[2] All of these offences are alleged to have occurred at in the City of Hamilton on November 7, 2014.
[3] The applicant pleaded not guilty to the three counts alleged in the indictment, however offered no opposition to the facts as it relates to the cocaine and other contraband seized from him personally upon his arrest.
[4] The applicant seeks to exclude certain evidence seized by the police from his motor vehicle under a judicially authorized search warrant by virtue of an alleged breach of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”). The applicant also raises an issue with respect to the indictment and a violation of the single transaction rule.
Background:
[5] The following details have been taken predominately from the facta filed in this case.
[6] On November 7, 2014, at 3:28p.m. members of the Vice and Drug Unit set up surveillance in the area of 310 Fall Fair Way, Unit 48 in Binbrook, Ontario. At 5:23 p.m. the applicant was observed to pull his black Chevrolet Cruze (“the vehicle”) bearing licence plate #BSHX 36, into the visitors' lot of that complex. At 6:06 p.m., the applicant was observed to leave the residence on his motorcycle, and then proceed to the Binbrook Fairgrounds where he attended at the rear of the parking lot.
[7] Between 6:10 p.m. and 6:20 p.m., the applicant was observed meeting with two separate vehicles. With respect to the first vehicle, he was observed reaching into the front passenger side window. No one exited from the vehicle. The applicant appeared to speak to the occupants while having a cigarette before the vehicle drove away. With respect to the second vehicle, the applicant was observed entering the back seat of the truck where he remained for a few minutes before he exited and the truck drove away.
[8] After the truck's departure, the applicant was observed leaving on his motorcycle and driving to a Tim Horton's plaza. There he was observed meeting up with an unknown white male. The applicant and the male subsequently entered a vehicle, with the male entering the driver's seat and the applicant, the passenger's seat. At that point, police approached the vehicle on foot and arrested the applicant for possession of cocaine for the purpose of trafficking.
[9] A search incident to arrest located a small Ziploc bag with approximately 0.5 grams of cocaine and $50 Canadian currency in the applicant's front right pant pocket as well as an operational pocket sized digital scale in his front jacket pocket. A further search of the applicant's person revealed a $1000 bundle of Canadian currency in his front left jeans pocket; a wallet with $895 Canadian currency in his right rear jeans pocket; a baggie in his left breast jacket pocket containing approximately 15 grams of cocaine; and a dark coloured iPhone 5.
[10] Following this arrest, Officer Griffin attended at Central Station and drafted an information to obtain (“ITO”) CDSA search warrant for 310 Fall Fair Way, Unit 48 and the applicant’s vehicle. The issuing justice granted the Search Warrants, which were received by police via facsimile at 9:58 p.m.
[11] Immediately thereafter, police officers attended at the applicant’s residence to conduct the searches. Officer Beck conducted the search of the vehicle and he located 38 dime bags, each containing powder cocaine. The dime bags were inside of a larger Ziploc bag concealed inside the fuse box compartment of the vehicle near the steering wheel. The total weight of that cocaine was 44.91 grams. Also hidden in the vehicle’s fuse box area, was a second larger Ziploc bag containing 124.57 grams of powder cocaine. A set of brass knuckles was located inside a pouch behind the front passenger seat.
Positions of the Parties:
[12] Mr. Paquette submits that his client does not dispute the fact that he was trafficking in cocaine as a result of his arrest and search incident to arrest. That said, it is submitted that the affiant did not have reasonable and probable grounds to support the subsequent issuance of the search warrant with regards to the applicant’s motor vehicle. The applicant submits that the ITO did not disclose the requisite reasonable grounds in relation to the motor vehicle.
[13] In his factum, the applicant submits that the ITO does not disclose whether Source A has a criminal record or what Source A's motivation was for providing information to police. Most notably, it does not disclose the provenance of Source A's information. Source A's tip is problematic for a number of reasons. It is nothing more than a conclusory statement that the applicant deals drugs out of his vehicle. Notably, the small amount of detail that is provided - that the vehicle is a black, 4-door vehicle, believed to be a Dodge Avenger - is incorrect. The information that is included suggests that rather than compelling firsthand information, it is simply rumour or gossip. Adding to the difficulties with Source A's information, is the dearth of information speaking to Source A's credibility. Source A is considered by police to be "past proven reliable", but we know nothing of his/her record or substantiation of that assertion.
[14] The applicant submits that the tip was minimally corroborated with limited details. Based on limited surveillance at the location of the motor vehicle, and of the applicant, confirmation of ownership of the residence and motor vehicles, the information was, in effect, spent or culminated upon the applicant’s arrest. There was an insufficient basis for which the issuing justice could have granted a search warrant for the vehicle; as such, the applicant’s right to be free from unreasonable search and seizure was breached.
[15] The applicant submits that with a full consideration of the s. 24(2) factors, all of the evidence obtained from the motor vehicle ought to be excluded.
[16] Ms. Antoniani, on behalf of the Federal Crown, submits that there were sufficient grounds to support the issuance of the search warrant for the vehicle. The information provided by Source “A” was very compelling and detailed. Source “A” had first-hand knowledge along with police observations of the applicant' his residence and vehicle over the course of several days.
[17] The Crown submits that Source “A” was a known and proven source. The information provided by the confidential informant was credible, compelling and corroborated to the extent that it could. The affiant supplemented the ITO with points of clarification and additional facts sufficient for the warrant to issue.
[18] The Crown submits that even if the ITO was deficient and the search of the applicant’s vehicle was found to be a violation of s. 8, the evidence ought to be properly admitted under s. 24(2) of the Charter.
Legal principles:
[19] Section 8 of the Charter states “Everyone has the right to be secure against unreasonable search or seizure”.
[20] It is trite law that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. As there was a judicially authorized warrant issued in this case, the onus rests on the applicant to establish a breach of his Charter rights.
[21] In conducting my analysis of the decision of the authorizing justice, the scope of review is that set out by Mr. Justice Sopinka in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115, 60 C.C.C. (3d) 161 (S.C.C.) at 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[22] It is clear that on a s. 8 Charter application, the court reviewing an ITO does not stand in place of the justice who issued the search warrant. The test is whether there is at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued. The properly circumscribed limits of a review were also summarized by the Court of Appeal in R. v. Mahmood, 2011 ONCA 693, at para. 99 and in the case of R. v. Morelli, 2010 SCC 8 at paras. 40 - 42. [^1]
[23] The law recognizes informer privilege as an absolute right. The rule is founded in the recognition of the critical role informants can have in police investigations. Thus, the police, Crown and the Court have a positive obligation to protect the identity of a confidential informant: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281. Information on the ITO that could potentially identify the informant is redacted in order to protect the privilege.
[24] The ITO presented for my review in this case was redacted. While protection of the informer privilege is paramount, there must remain available on the face of the ITO sufficient information upon which the reviewing judge can assess the credibility and reliability of the informant and the information provided.
[25] In performing its role of constitutional review of an ITO, various instructive guidelines have been applied by courts:[^2]
(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).
(2) [T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.
(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) at para. 135:
The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168.[^3]
(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 1973 CanLII 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont. H.C.), at p. 190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364;
(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.
(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. A.-G. for New Brunswick (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470;
[26] In the context of a search warrant ITO, the overarching principles may be summarized as follows:
(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case: R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213, “or even on a balance of probabilities”: R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 1998 ABCA 418, 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.
(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case. “There is no fixed formula for what constitutes reasonable grounds to believe. The concept of reasonable grounds involves the application of common sense as well as practical and non-technical principles”: R v. Philpott, [2002] O.J. No. 4872, (Sup. Ct.) at paras. 85-87.
(3) The ITO must raise credibly-based probability that the search will produce evidence of a crime. Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. A non-exhaustive guide was provided by Cromwell J.A. (as he then was) in R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.).
(4) It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320.
(5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described in Cunsolo:
Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 1996 CanLII 174 (SCC), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501;
(6) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences:” R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.), at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Sanchez (2004), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 365, 370.
[27] There is a significant obligation on an affiant to be frank, fair and honest in the ITO. In assessing the contextual validity of a search warrant, any improperly obtained evidence must be expunged from the ITO before the validity of the warrant can be properly assessed. A reviewing court may then consider deficiencies in the ITO relating to the presence, misstatements, overemphasis or a failure to mention material facts, or misleading information. Any or all of these deficiencies can lead to a finding that the warrant is invalid.
[28] While there is a delicate balance that must be maintained between disclosing sufficient information to justify a warrant and concealing information that could reveal the identity of the informant, the information in the ITO must strike a middle ground between those two competing interests and provide information sufficient to justify a warrant. The Supreme Court of Canada has held there has to be reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified time and place: Morelli, at para. 40.
Principles Applied to this Case:
[29] In Garofoli, the court contemplated that the reviewing judge could have the affidavit evidence in support of the authorization, the evidence on behalf of the accused establishing a basis for cross-examination and any other the evidence obtained on cross-examination. The court referred to the examination of the "...record which was before the authorizing judge as amplified on review..." In the same passage, Sopinka, J. refers to the reviewing judge taking into account "new evidence". These references must be understood as requiring the reviewing judge to consider all of the components of the evidentiary record.
The Information to Obtain:
[30] It is necessary to assess the substantive core of the ITO, including any misleading information, irrelevancies, omissions, lack of evidential foundation, matters arguably short on detail, potentially misleading language, as well as other factors, and ask whether the applicant has demonstrated the absence of any reasonable basis for the issuance of the warrant.
[31] While an ITO for a search warrant may refer to hearsay information received from a confidential informant, it must be made apparent that the material in question is credible and trustworthy.
[32] In many instances, the amplification evidence is relied upon by the defence in support of its application to excise portions of the ITO because they may be incorrect, false, or misleading. The Crown is also entitled to benefit from the process in order to support its position that the ITO, as amplified by that new evidence, provides a factual basis upon which the authorizing justice could have issued the warrant.
[33] It is apparent that the applicant’s position was modified from the position taken in his factum to the oral submissions before me. In his factum, the applicant complains about the dearth of information related to the source’s credibility and reliability. The applicant submitted, inter alia, that the information found in the redacted ITO was insufficient to permit the issuing justice to make a proper assessment of the merits of the source information.
[34] During the course of this trial, Ms. Antoniani provided additional information in the form of an email to defence counsel offering additional information with regards to the ITO. The applicant agreed that Crown counsel could file the two-page document (ex. 1).
[35] As this evidence was admitted on consent, it obviated the need to conduct Step 6 of a Garafoli application. As such, I must consider the information contained in the exhibit for the truth of its contents and admissible for this exercise. Nonetheless, the affiant, Constable Griffin was called as Crown witness and was subjected to cross-examination as to the investigation conducted in this matter and tangentially to the ITO proffered to the justice.
[36] The reliability of the informant or “tip” is to be assessed by recourse to the totality of the circumstances. The court must look at a variety of factors including: a) the degree of detail of the “tip”; b) the informer’s source of knowledge; c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources: Garafoli, at 191.
[37] In his grounds to believe, the affiant claimed that Source “A” is a street source. In the redacted segment of the ITO, the affiant goes on to state that the applicant is dealing cocaine out of his residence and from his vehicle which is described as a black four door vehicle, believed to be a Dodge Avenger. Source “A” goes on to state that the applicant has cocaine on his person. The affiant conducted further checks related to the applicant.
[38] The affiant testified about the partial days of surveillance conducted by the police. At paragraphs 18 and 19, the affiant described the investigation related to the black, 4-door, Chevrolet Cruze (“Cruze”) with licence plate #BSHX 361 parked in the applicant's driveway. A CPIC query revealed that the applicant is the registered owner of that vehicle. At paragraphs 20, 22 and 25, the affiant set out the police surveillance and related observations regarding the applicant and the use of the impugned vehicle.[^4]
[39] On November 7, police first observe the applicant in his Cruze at his residence followed by his departure on his motorcycle to the Binbrook fair grounds. The applicant says that the presence of the applicant inside of his Cruze for 23 minutes prior to entering his home and then leaving on his motorcycle though "odd" (to use the language of the affiant) is in no way indicative of the presence of drugs in that vehicle. There is no dispute that the applicant is seen operating his motorcycle during the course of the surveillance leading to his arrest.
[40] The applicant argues that para. 12 in the ITO is, at the very least an overstatement, and more likely misrepresents the proffered conclusion based upon the officers’ observations of the applicant on November 7, 2014. A meaningful inference to be drawn from this observation, may, but does not necessarily support, in of itself, the conclusions reached by the affiant. On its face, the applicant has advanced a reasonable argument.
[41] While the applicant’s vehicle plays no direct role, in other words it was not at the scene of the suspected drug activity that culminated in the applicant's arrest on November 7 at the Binbrook fairgrounds; that does not end the inquiry. Surveillance continued and ensued. The affiant testified that the applicant’s behaviour is consistent with a person who is suspicious or at the very least, unexplained. In conjunction with that “unexplained” behaviour, in this case, we have additional information relied upon by the affiant in order to substantiate conduct consistent with criminal activity.
[42] The ITO contained the culmination of source information and police surveillance. Moreover, in the amplification document filed in this proceeding, the statements therein supplement the information redacted in the ITO.
[43] It is settled law that all of this disclosure is critical to the assessment of the credibility of the information provided.
[44] Was the source credible? The investigation conducted by the police did address, to an extent, the reliability of the source. The informant indicated that he had seen the applicant with an amount of drugs consistent with the possession for the purpose of trafficking.
[45] Source “A” provided the following information: a) Brad Kosterewa deals cocaine out of his residence and his car; b) His car is a black four door vehicle, believed to be a Dodge Avenger; c) Brad Kosterewa always has cocaine on his person; d) The source has personally witnessed the applicant sell cocaine; e) The source knows several different parties who purchase cocaine from Brad Kosterewa; f) The source provided some specific information in relation to the applicant's cocaine dealing.
[46] Exhibit one adds the following information to the analysis: At para. 15: Source A has personally witnessed Brad Kosterewa selling cocaine on numerous occasions. At para. 22, police witness cocaine trafficking offence related specifics in relation to the vehicle as described to them by Source “A”. According to the evidence in this hearing, this was not the first time Source “A” had provided information to the police. All of the information provided by Source “A” to the police in the past has been corroborated through investigation. With ex. 1, there are substantive facts in support of the veracity of Source “A”’s information for the search warrant.
[47] Was the information corroborated? It is settled law that the results of a search cannot be used as ex post facto support for the reliability of the information. Surveillance yielded results here.
[48] On October 24, and November 4, 5, and 7, the applicant was seen driving his Cruze. The informant information was further corroborated by the surveillance, and in particular by the events of November 7, 2014, when the applicant was observed to be sitting in the rear passenger seat of his own Cruze for from 5:38 pm - 6:01 pm, for a total of 23 minutes, without the lights on or the engine running. At 6:06 pm, only five minutes after he sat in the rear passenger seat of the Cruze, the applicant left his residence on his motorcycle. He is followed to the very back of the Binbrook Fairgrounds parking lot, where he meets with an SUV for four minutes. At 6:15, the applicant met with a second vehicle, still in the rear of the fairgrounds parking lot, for five minutes. Finally, one minute later, at 6:21 pm, the applicant was followed to a Tim Horton’s plaza where he met with a man on foot and was observed to enter a black Dodge vehicle with the man. Here, there was information about the nature of the drug, its location or other activity suggestive of a commercial enterprise.
[49] If I understand Mr. Paquette’s argument, he urged the court to delineate between the information resulting in his client’s valid arrest with the combination of the prior information, from that of the subsequent evidence used to support the ITO, as two distinct acts. Counsel argues that the police ought to have started afresh with their investigation and source information in order to sustain a subsequent search warrant. In other words, the information from the confidential informant was spent with the culmination of the applicant’s arrest. With respect, I must disagree with this approach to the application of the law.
[50] Once an accused is validly arrested, based on a variety of information, source, surveillance, investigative or otherwise, does not mean the police are estopped from using such information to order obtain an initial or subsequent search warrant to continue their investigation; provided that the information contained therein is credible, reliable and can sustain the issuance of such a warrant. That is what occurred here and there is no basis for the collateral attack on information leading up to the applicant’s arrest, continued with the police investigation and application to execute a search warrant.
[51] Premised on the constellation of factors available to the issuing justice, in my view, there is ample support for the ITO to sustain the warrant to search. There was a link to the criminal activity alleged to be taking place both prior to and post-arrest. There was surveillance of any interaction between the suspects and others, surveillance of the accused in his motor vehicle for a significant period of time just prior to the observations of the drug transactions, albeit unexplained, but temporally linked to the applicant’s departure from his residence. This was followed by the distribution of cocaine soon after his departure. The source information was not conjecture and had been confirmed by police observations throughout the relevant time period.
[52] In other words, the information in the ITO contained material grounds bolstered by information from the applicant’s arrest regarding the allegations specified by the affiant. The applicant’s arrest did not stop the investigative process, so-to-speak, or require a renewed investigation with or without revisiting Source “A”’s information. There was a basis for the details contained in the ITO that there would be evidence to afford that the suggested criminal activity was actually being carried out at the residence and with the use of his motor vehicle.
[53] I am satisfied that the ITO, on its face, presents adequate temporal and factual underpinning for the information in support of the affiant's allegation that the applicant had specific drugs in his vehicle available for trafficking. When reading the ITO as a whole, the informational content does support the reasonable inferences advanced by the ITO affiant and, in turn, provide a foundation upon which a judicial officer, acting reasonably and judicially could have issued a warrant with respect to the applicant’s motor vehicle.
[54] I find that the applicant’s s. 8 Charter rights were not breached as a result of the warrantless search and seizure of his motor vehicle on November 7, 2014.
Section 24(2) of the Charter:
[55] If I am in error with respect to my analysis, I would admit the evidence pursuant to s. 24(2) of the Charter along the lines of the well-established principles found in the jurisprudence.
[56] Section 24 of the Charter states:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) 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.
[57] Briefly, in the seminal case of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada outlined the following three lines of inquiry to take into consideration when determining whether the admission of the evidence brings the administration of justice into disrepute. They are:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
The seriousness of the Charter-infringing state conduct.
[58] In considering the seriousness of the Charter-infringing state conduct, the court must ensure that they are not in effect condoning state deviation from the law. This is to be determined by looking at the breach on a spectrum where inadvertent or minor violations will be viewed differently from willful or reckless disregard of Charter rights.
[59] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. Police conduct that show a wilful or reckless disregard of Charter rights will inevitable have a negative effect on the public confidence in the rule of law.[^5]
[60] The affiant was fully candid with the justice as to the circumstances surrounding the grounds contained in the ITO. In my opinion, the police conduct in this case did not exhibit bad faith. In this case, I find that the admission of this evidence would not send a message that the justice system is somehow condoning serious state misconduct or its admission would greatly undermine public confidence in the justice system. This factor weighs in favour of inclusion.
The impact of the Charter violation on the Charter-protected interests of the accused.
[61] The second branch of the test is outlined in Grant at paras. 76 & 78:
...focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter right however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[62] As mentioned earlier, our law provides for protection of individual rights against unreasonable search. It is settled law that dwelling houses enjoying the highest degree of privacy interests. The impact on the applicant's Charter-protected interests was reduced as it related to his unoccupied motor vehicle, with a reduced expectation of privacy at play: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C. R. 51 at para. 15.
[63] I find that that the search of the applicant’s vehicle in these circumstances did not provide for a serious Charter violation. My consideration of the second factor weighs in favour of inclusion.
Society’s interest in the adjudication of the case.
[64] In considering this factor, the question to be asked is "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion." The reliability of the evidence is an important factor in this line of inquiry. This aspect of the inquiry considers whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence.
[65] There is no doubt about society’s interest in prosecuting cocaine trafficking offences. The cocaine, cash, and related objects existed entirely independently of the Charter breach and are considered non-conscriptive evidence. There is no dispute that the illicit drugs are of significance to the prosecution. While I must be cautious not to place too much emphasis on this latter point, society's interests in the adjudication of the case on its merits are best served by not excluding evidence that was obtained by means of a Charter breach, when its probative value is so strong. A consideration of this public interest factor militates in favour of admission of this evidence.
[66] The final step is a balancing of all of these factors. The impact on the Charter-protected interests of the applicant was not serious. The police conduct in this case demonstrated good faith and no deliberate disregard of Charter rights. The evidence is of great probative value to the Crown's case as a whole considering the truth-seeking goal of the trial and the public interest in the prosecution of serious crime. The required balancing of all of the s. 24(2) factors militates in favour of admission of the cocaine from the applicant’s motor vehicle.
Section 581- The single transaction Rule:
[67] Although not advanced as an issue in his factum, in oral submissions the applicant also argues that there was a violation of the single transaction rule in drafting of the charge in the indictment. The applicant says that the events giving rise to the two separate and discreet events ought to have been spelled out in two different counts in the indictment; namely the drugs seized from the applicant upon his arrest and the later seizure of drugs and paraphernalia from the motor vehicle as a result of a judicial authorization. As I understand the argument, the applicant claims prejudice along with a violation of procedural fairness.
[68] Section 581(1) of the Criminal Code provides that each count on an indictment shall, in general, apply to a single transaction. The test for sufficiency of an indictment is governed by the need for certainty in proceedings and fairness to the defendant in preparing his or her defence. In R. v. Ryan (1985), 1985 CanLII 3653 (ON CA), 23 C.C.C. (3d) 1, p. 6, the Ontario Court of Appeal held:
The test continues to be whether the information contains sufficient detail to give to the accused reasonable information with respect to the charge and to identify the transaction referred to therein. In our opinion, the kind of information that will be necessary to satisfy this test will vary depending on the nature of the offence charged… What particularity will be needed with respect to a given charge will ‘depend on the circumstances’: See also R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301.
[69] Factors relevant to the determination of whether an offence has been sufficiency identified for the purposes of an information or indictment were considered by the Supreme Court in R. v. B. (G.), 1990 CanLii 7308 (SCC), at pp. 44-45. In that case, the court noted as follows:
The factual matters which underlie some offences permit greater descriptive precision than in the case of other offences. Accordingly, a significant factor in any assessment of the reasonableness of the information furnished is the nature and legal character of the offence charged…. While it is obviously important to provide an accused with sufficient information to enable him or her to identify the transaction and prepare a defence, particularity as to the exact time of the alleged offence is not in the usual course necessary for this purpose…
[70] In this case, the applicant says that he was arrested by police after surveillance revealed to be conduct consistent with the distribution of drugs. Police searched the applicant and located approximately 15 grams of cocaine on his person. He was arrested for possession of cocaine for the purposes of trafficking on the basis of this discovery. The applicant was then cautioned and given his right to counsel. Police subsequently sought a warrant in relation to the applicant’s home and vehicle, - neither of which was near the situs of the arrest - in part on the basis of the previous discovery of a prohibited substance upon arrest. This warrant was granted at 9:58 p.m. and police executed and ultimately located a further approximately 150 grams of cocaine in the subject vehicle.
[71] The applicant submits that in the circumstances of this case, the location of the two quantities of narcotics arises out of two distinct and discrete events. The initial search of the applicant led to his being charged with the offence before the court and initiated these proceedings against him. The applicant submits that it is clear, or a reasonable inference supports that Count 1 of the indictment refers to the events giving rise to his arrest. The second search, in part, was premised on the results of the search incident to arrest. It was not a part of the earlier events, but rather was an altogether discrete initiative taken by police when they sought a warrant to search the applicant’s home and a second vehicle following his arrest on the charge of possession for the purpose. As such, these series of events could not be viewed as a ‘single transaction’.
[72] The Crown submits that if the evidence of the cocaine found in the vehicle is admitted into evidence, the Court would be entitled to consider it on sentencing, pursuant to s. 724(1) of the Code, regardless of whether the count in the indictment is found to include that quantity. Nevertheless, the existing count indicates date, substance and jurisdiction and the elements of the offence of possession for the purpose of trafficking. It is not particularized in any way that limits it to only a portion of the cocaine in the applicant's possession on that date and so can and should be read to include all quantities in the applicant's possession at the time of his arrest, regardless of the location of those quantities.
[73] The Crown argues that the applicant was free to apply to the court to divide the count if he felt that he was prejudiced by the single count. It is clear that he was aware that the Crown intended to include all the cocaine in his possession in the one count. The applicant had the disclosure and was not taken by surprise. The Crown submits that there is no evidence of prejudice and no basis upon which this application can succeed.
Discussion:
[74] The charge here is possession for the purpose of trafficking in cocaine. The amount of cocaine seized from the applicant at the time of his arrest can sustain such a charge. The amount of cocaine seized later that same day from the applicant’s motor vehicle can equally sustain a similar charge.
[75] The applicant submits that each of the two distinct searches and seizures permits, or in this case, denies the defendant recourse to different defences. In support of his position, the applicant refers to various authorities, including R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C. R. 1020, R. v. Sandhu, 2009 ONCA 102, R. v. Muthuthevar, [2012] O.J. No. 3181 (S.C.) amongst other cases.
[76] In my view, the cases proffered by the applicant are clearly distinguishable on their particular facts and application on the potential for prejudice with respect to the single transaction rule. For example, in Saunders, the Crown having failed to establish the specific drug alleged in the indictment was bound but such particularization. In Muthuthevar, the issue was knowledge and possession. At para. 39, in referring to s. 581, the court declined to apply the lesser and including offence doctrine to bolster the Crown’s proof of possession of the drug.
[77] The jurisprudence provides for some guidance to trial judges on the issue of severance of counts. A trial judge must consider the factual and legal nexus between the count(s), whether they arise from the same or related transactions, the general and real prejudice to the accused, the undue complexity of the charge(s), whether the accused wishes to testify on some counts (or in this case- a segment of the single count) and the real possibility of inconsistent verdicts. The fact that evidence may be admissible on one count (or in this case in part of the single count) but inadmissible on another count (or segment of the single count), is in itself, not grounds for severance or dividing the count.
[78] I agree with Ms. Antoniani in that there was no change in the applicant’s jeopardy with regards to the single count he faced, albeit the quantity was elevated. No statements or conscripted evidence was obtained from the applicant as a result of the subsequent search and seizure of the larger quantity of drugs. Full disclosure was provided.[^6] Other potential remedial sections found in the Criminal Code, for example, dividing a count pursuant to s. 590.2, were not sought by the applicant. The applicant did not request particulars related to the count pursuant to s. 587. In any event, I need not get into a protracted discussion as to whether or not these remedial sections are applicable here.
[79] It is settled law that a single transaction can encompass more than one ‘incident’ or ‘offence’. This has generally been applied in relation to allegations of a series of similar acts ranging over a period of time. While s. 581(1) requires that a count relate to a "single transaction", a "single transaction" is not synonymous with a single incident, occurrence or offence. Separate acts which are successive and cumulative and which comprise a continuous series of acts can be considered as one transaction and no objection can be taken on the basis of uncertainty.
[80] In R. v. Flynn, 1955 CanLII 126 (ON CA), 1955 CarswellOnt 13, at para. 16, [1955] O.R. 402, the Court of Appeal stated:
In the instant case, the charge against the appellant was that, within a period of some months, he stole electrical appliances from Kelvinator of Canada Limited and, notwithstanding that the evidence indicates that the articles were not all stolen at the same time, the theft alleged, in the circumstances of the case, constituted one transaction and was properly, in my opinion, treated as one continuous theft. I do not think that any difficulty arises in the facts of this case as to autrefois convict. The Crown having treated the theft or the series of thefts during a limited period of time, from the same owner, as constituting one continuous theft, and the appellant having been convicted, he could not, in my opinion, later be again convicted on an indictment charging him with theft from Kelvinator of Canada Limited, between the dates mentioned in the indictment, of any of the electrical appliances which were found missing when stock-taking or inventory took place, notwithstanding that some of the missing articles were not found in the possession of the appellant. I would therefore not give effect to this ground of appeal.
[81] In Sandhu, the Ontario Court of Appeal had occasion to discuss the single transaction rule. At para. 19, the Court held that a single transaction may encompass a number of separate incidences over a lengthy period of time. In addressing para. 24, the Court found that the appellant did not demonstrate that the indictment caused him prejudice. Similarly, I am not persuaded that the applicant has demonstrated unfairness or real prejudice in his denial of a factual segment of the count alleged, because he desires to admit one segment of the case related to the drugs seized at the site of arrest, but not the subsequent seizure. It was open to the applicant to dispute and challenge the prosecution’s case, as is his right, in regards to the subsequent substantive search and seizure of drugs from his vehicle. In my opinion, prejudice does arise from offering a defence to a segment of the entire transaction in tandem with a formal admission as to certain facts related to the applicant’s arrest and subsequent drug seizure, - as is the case here - that could provide for mitigation in sentencing.
[82] In this case, there is no legal barrier to the Crown laying a single count to cover off events and activities occurring on the same day and involving the same illicit substance alleged to be linked to the applicant.
Conclusion:
[83] The application is dismissed. I find that the applicant has not established a breach of his rights pursuant to ss. 8 and 24(2) of the Charter. Accordingly, all of the drug or drug-related evidence arising from the search of his Chevrolet Cruze motor vehicle at 310 Fall Fair Way, Binbrook, is admissible in this trial.
[84] In my opinion, the count in the indictment was of sufficient detail to provide the applicant with reasonable information with respect to the charge and to identify the transaction before the Court related to the entirety of the cocaine seized on the same date, albeit from two different locations.
[85] Notwithstanding the persuasive arguments of counsel, I am not convinced that proceeding under a single count would deny the applicant the right to make full answer and defence or would imbue prejudice. Provided that the various searches survive constitutional scrutiny, the totality of circumstances is sufficient to ground a finding there was neither a violation of the single transaction rule nor a breach of s. 581 of the Code. The application is, therefore, denied.
A.J. Goodman J.
Released: November 25, 2016
CITATION: R. v. Kosterewa, 2016 ONSC 7231
COURT FILE NO.: 15-4962
DATE: 2016-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
BRADLEY KOSTEREWa
Applicant
REASONS FOR JUDGMENT WITH RESPECT TO SS. 8 & 24(2) OF THE CHARTER OF RIGHTS AND FREEDOMS AND S. 581 OF THE CRIMINAL CODE
A. J. GOODMAN J.
Released: November 25, 2016
[^1]: See also R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Wiley¸ 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-274; and R . v. Reid (2016), 2016 ONCA 524, 132 O.R. (3d) 26 (C.A.) at para. 73.
[^2]: I refer in part to Hill J.’s comprehensive analysis of the applicable law in the case of R. v. Ngo, [2011] ONSC 6676 (Sup. Ct.).
[^3]: R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 CanLII 984 (BC CA), 2 B.C.A.C. 73 (C.A.) at 79.
[^4]: Although pressed by applicant’s counsel during cross-examination of the affiant, the information regarding the Dodge and Chevrolet model of motor vehicle was not pursued as a significant factor.
[^5]: See R. v. Grant at para. 74.
[^6]: There is no qualm with the disclosure provided in this case, (although I acknowledge that Crown counsel provided the evidence in ex. 1 just prior to the commencement of trial).