CITATION: R. v. Mascoe, 2017 ONSC 4208

COURT FILE NO.: CRIMNJ(F) 1734/16

DATE: 2017 07 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Weinstock, for the Crown

• and -

LASCELLES MASCOE

A. Mamo, for the Defence

HEARD: May 29 – 31, 2017, at Brampton

REASONS FOR JUDGMENT

Hill J.

INTRODUCTION

[1] Lascelles Mascoe pled not guilty to charges of simple possession of crack cocaine as well as possession of cocaine for the purpose of trafficking.

[2] Counsel agreed to conducting a blended trial with evidence concurrently led respecting alleged breaches of the accused’s constitutional rights along with testimony related to proof of the charged crimes. In a somewhat unusual, procedure suggested and agreed to by the parties, the defence called a civilian witness with cross-examination by Crown counsel, followed by the prosecutor calling two police officers, examining the witnesses in-chief with Ms. Mamo cross-examining.

[3] On June 28, 2015, Lascelles Mascoe was arrested by the Peel Regional Police Service (PRPS) in a condominium building in Mississauga, Ontario.

[4] Mr. Mascoe submitted that his s. 8 Charter right to be protected against unreasonable search and seizure was violated by warrantless police entry to a condominium apartment together with the ensuing warrantless search of a suitcase.

THE NOTES OF THE INVESTIGATING OFFICERS

[5] At the outset of PRPS Constable Darrell Corona’s evidence, permission was sought for the officer to use his police-issued notebook as an aid to refreshing his memory as he testified. To this end, when asked by Crown counsel when, in relation to events recorded, the relevant notes (Exhibit #10) had been made, Const. Corona initially stated, “[b]oth at the time and shortly thereafter”.

[6] During his trial testimony, as deficiencies in Const. Corona’s notes were revealed, including an absence of recorded times and certain trial-reported, but unrecorded, important conversations and observations, the constable identified that while some notes were made roughly contemporaneously, a significant portion of his notes were not made until, in his words, “by the time I get around to my notes … it’s now a couple of hours after this incident, if not later”. Further cross-examination established that notes were not commenced at the police facility until about 3:25 p.m., some 6 to 7 hours after the accused’s arrest.

[7] In June 2015, PRPS Const. Jaime Wallace had 1½ to 2 years of policing experience. He also sought permission to use his notebook to refresh memory while testifying. When asked by Mr. Weinstock when the notes (Exhibit #11) were made, the witness’ initial reply was, “I made these notes directly after the incident”. Pressed in his in-chief testimony for further precision, Const. Wallace described this to be, “[a]s soon as I got back to the Division, after the incident”. In cross-examination, the officer conceded that his notes were not made immediately on return to the Division as he had “a bunch of administrative things” to do first. The witness could not state a time when his notes were made. Ultimately, in cross-examination, with in-court production of p. 100 of the witness’ notebook, a page not previously disclosed to the defence, the witness acknowledged that all he wrote at the scene of the call relating to Lascelles Mascoe was, “0846 – Fraud Under $5000”.

FACTUAL BACKGROUND

Simpson Goes to See the Accused

[8] Omar Simpson, aged 35 years, testified that he first met the accused, who he referred to as “Junior”, when the two were in school together. They remained friends.

[9] Simpson has a prior criminal record with 24 convictions between 2001 and 2010. The criminal record includes 6 prior drug-related convictions and 11 breach crimes relating to various court orders. The longest sentence of incarceration imposed on any occasion was 30 days. At the time of trial, Simpson, who had in the past been a semi-professional soccer player, was unemployed and on disability support payments as a result of a fall from a building.

[10] Mr. Simpson informed the court that he smokes marijuana to deal with the chronic pain from his injuries – he has a “weed card”.

[11] Mr. Simpson testified that on June 27, 2015, he spoke to the accused on the phone during the day. He planned to go that night to an apartment at 3880 Duke of York Blvd. to see “a very good friend”, Ryanne Petrovich, a girl he knew who lived there sharing space with another girl whose name he is unable to recall. She had been there a day or two and was not planning to stay long. He understood that the accused would be there that night and may also have known that the accused’s daughter may be staying overnight. According to Simpson, Petrovich and the accused had become friends through him. He had no idea how long the accused had been staying at the Duke of York condominium.

[12] Mr. Simpson informed the court that, in June 2015, he had no idea where the accused was living – “he moves around”. He did not ask the accused where he was residing. Asked why the accused would be at the Duke of York address on June 27, Simpson responded that he had “no idea”. The witness did not know who the registered tenant was of the apartment where Petrovich was staying.

[13] Omar Simpson testified that he drove to 3880 Duke of York Blvd. taking with him some groceries because Petrovich “was staying there” in Unit 1913 and may have taken some clothing such as a sweater. It was “possible”, although he could not recall, that he took baggage other than shopping bags.

[14] Hand-drawn diagrams were produced by the three witnesses who testified at trial. While there were discrepancies between the diagrams, there was agreement that, as one looked through the front door of Unit 1913 into the apartment interior there were two bedrooms at the far end between a livingroom area. The bedroom to the left, described in these reasons as bedroom A, was occupied by Ms. Petrovich. On June 27/28, 2015, the bedroom to the right (bedroom B) was the room where the accused’s daughter slept.

[15] Simpson informed the court that he reached Unit 1913 of the condominium apartment between 8:00 and 10:00 p.m. and, because the accused’s teenaged daughter was in the apartment, they did not go out. The four of them ate, talked, watched TV and “kicked back”. Although it had not been his intention to stay over, by 1:00 a.m., he decided it was too late to drive home. On Simpson’s evidence, he occupied bedroom A with Petrovic, while the accused’s daughter slept in bedroom B, with the accused sleeping on a chair in the livingroom.

[16] Of the four occupants of Unit 1913 on June 27/28, 2015, Omar Simpson was the only one to testify at trial.

The Police Radio Calls

[17] On June 28, 2015, Const. Corona, a uniformed patrol officer with less than 3 years’ policing experience, attended a high-rise condominium apartment building at 3880 Duke of York Blvd. in Mississauga. It was shortly before 8:00 a.m. and the officer was there to determine if an individual “wanted for living off the avails of prostitution” was resident there as this was one of the addresses “he was known to frequent”.

[18] While on scene, Const. Corona received a 7:50 a.m. dispatch regarding a fraud complaint. Returning to his cruiser, the officer read the text of the background of the call before he called the complainant, Julia Kogan, directly. The substance of the information then available to the constable from the communications dispatch was that:

(1) when Ms. Kogan received her recent Visa credit card statement there was a June 22, 2015 $1000-charge for Mississauga Furnished Apartments (MFA), an expense she had not charged to her card

(2) Ms. Kogan advised Visa that she had not incurred or authorized this charged expense

(3) when the complainant then Googled MFA, she identified the Duke of York address and a phone number which she called speaking to Mohammed Abuhattab who she believed to be a property manager

(4) Kogan was advised by Mr. Abuhattab that a condominium unit of 3880 Duke of York Blvd. had been the subject of a short-term rental with her credit card information and identification

(5) Mr. Abuhattab declined to provide the complainant the unit number which had been rented, advising that it would be necessary to have the police involved.

[19] Part of an 8:02 a.m. CAD (Computer-Aided Dispatch) record for Const. Corona’s cruiser stated:

Says officers are to go to the lobby and ask to speak to Mohammed and he and his manager will meet officers in the lobby and take them you to the room right away to sort this all out…

[20] On Const. Corona’s evidence, he next returned to the security front desk in the lobby of the building, at about 8:09 a.m., asking to speak to “the property manager”, Mr. Abuhattab.

[21] Const. Corona recalled at trial that he was alone at the time. The CAD printout appears to indicate Const. Wallace receiving a dispatch to the scene at 8:09 a.m. Const. Wallace testified that he arrived on scene in the building lobby at 8:14 a.m.

[22] Const. Corona was advised by the security desk that Kyle Jordan from the property management company would come out to speak with him. According to the constable, who variously described Jordan as “essentially acting on behalf of the owner of the business” (Abuhattab), “a property manager”, and a “property manager assistant”, it was “never quite clear” to him what Jordan’s official role was. While MFA “facilitate[d]” rentals of condo units, it was unclear to the officer whether Abuhattab owned any of the condominium units in the building.

[23] According to Const. Corona, in a 10 to 15-minute conversation, he learned from Mr. Jordan that Unit 1913 had been rented about a week earlier by Lascelles Mascoe in the name of Julia Kogan. It was also “mentioned that there could be another male associated as well”. Mr. Jordan had spoken with Mascoe by phone and provided the officer the accused’s cellphone number. Jordan described the accused as a black male of larger build. Const. Corona would later record that Lascelles Mascoe was 6’ tall and 240 pounds in weight. Although not certain, Mr. Jordan advised that the accused “may still be staying in Unit 1913”.

[24] Const. Wallace testified that, when he arrived at the lobby of the condominium building, Const. Corona had already been speaking “to the property manager”. The officer testified to being informed by Mr. Jordan that Mr. Mascoe had provided Kogan’s credit card information and PIN through e-mail and that a female had subsequently signed the receipt on the first day of the rental.

[25] On Constable Wallace’s in-chief testimony, Mr. Jordan advised that Lascelles Mascoe “was …currently present in the unit upstairs” … “he thought Lascelles Mascoe was in the apartment” and that two females “normally stay there”. The constable’s notebook recorded that Jordan, “believes Lascelles is present”.

[26] Const. Corona’s notes record that at 8:30 a.m., he contacted Ms. Kogan by phone confirming the information received on his cruiser computer.

[27] Const. Corona testified that Kyle Jordan indicated “that if the room had been rented fraudulently, that we had, we had the authority on his behalf, and also on Mohammed, to clear out the unit”. In cross-examination, the officer stated that, “Mr. Jordan told me, is that if there’s anybody staying within the unit, that’s been fraudulently obtained, you’re, you’re able to remove them” … “that should anybody else be inside the unit, it’s okay to vacate the unit due to the fact that it’s clearly fraudulently obtained”. The officer made no note of this purported authorization.

[28] Const. Wallace testified in-chief that because the unit “was fraudulently obtained … the property manager … wanted everyone out”. The officer made no note of this subject. In cross-examination, the witness claimed to have no recall of anyone expressing a concern that the occupants of Unit 1913 should be kicked out. Const. Wallace gave this evidence, again in cross-examination:

Q. … you felt that they shouldn’t be there any longer?

A. I can’t remember.

Q. You just know that you have to get them out of there?

A. That’s correct.

Intention to Arrest Mascoe

[29] Const. Corona testified that he had reasonable grounds to arrest Mascoe by the time he left the building lobby on the basis that he “had fraudulently obtained that unit”. In his in-chief testimony, the officer maintained that, apart from wanting to clear out Unit 1913, he intended to attend the unit “for the purpose of further investigating”. Questioned further, the witness gave this evidence:

Q. Officer, you had mentioned earlier, I believe, about what you were going to do when you got up to the unit, but if you could just clarify what your intention was in going up there?

A. Sure. It was, first of all, to further investigate the matter, see if anybody was inside. Essentially, clear out that unit on behalf of the property management company, and just — in fact, if Mr. Mascoe was in the unit, then to arrest him.

(emphasis added)

[30] He did not consider that a Feeney warrant was necessary because he did “know for a fact that Mascoe was inside the unit or who, if anyone, was”. In cross-examination, the witness stated:

Q. And you were attending for the purpose of arresting Mr. Mascoe?

A. Further investigating, and if he was there, in fact, yes, then he would be arrested.

Q. Okay. And when you approached the unit, you had, at that time, reasonable and probable grounds to arrest Mr. Mascoe?

A. Yeah, I believe so.

(emphasis added)

[31] In his in-chief testimony, in describing his state of mind prior to going to Unit 1913, Const. Wallace stated, “we knew an offence had been committed”. He wanted to further investigate the details. He gave no consideration to a Feeney warrant. Asked in cross-examination whether he had reasonable and probable grounds to arrest Mr. Mascoe, the officer stated, “I wanted to investigate the matter a little bit more” and to “see what kind of people were in the apartment” and “what it was being used for”. The constable recorded in his notes that he had previously attended the condominium building on calls relating to sex trade activities. He wanted Mascoe to answer questions about how he had obtained the complainant’s personal identification information.

Police Entry to Unit 1913

[32] Const. Corona testified that he was provided a key to Unit 1913 by Mr. Jordan. Const. Wallace testified that the police were not provided a key to the unit.

[33] Omar Simpson testified that he is a light sleeper. At about 8:00 a.m. on June 28, 2015, he awoke to “hard” knocking on the door of the condominium unit. He was the only occupant who woke up. The accused remained asleep on a couch. In his in-chief testimony, Mr. Simpson reported that voices from the hallway said, “Police. Police. Open Up. We’ll break the door down, if you don’t open up!” To Simpson’s recall, the knocking went on for 30 to 40 seconds.

[34] In his in-chief testimony, Mr. Simpson stated that it was not his place to open the door. In cross-examination, the witness stated that he called out through the door, “What’s the problem?” and, when the police warned that they would boot the door down, he “cracked the door”, opening it “just a little bit”, without inviting the police to enter. He feared that the door might be “busted open” and that he might be charged if he failed to comply with the demand to open the door. When he did so, two police officers “burst through the door” pushing the door fully open. He was instantly pressed up against a wall by a white-skinned police officer (Corona) and told that he was under arrest. When he asked, “For what”, he was told, “For fraud”. He was handcuffed “immediately” after the police entered.

[35] On the witness’ evidence, he immediately complained saying such things as he had just gotten there from his house and was just visiting, that nothing was going on, and that he knew nothing about any fraud. Mr. Simpson, of the view that he had been arrested for no reason, was prepared to “talk highly upon it” and recalled that he may have been loud and seemingly belligerent and aggressive.

[36] Const. Corona informed the court that he arrived at the door of the unit at 8:34 a.m. He knocked loudly on the door for a “couple of minutes” announcing “Police” as he did so. To the officer’s recall, Const. Wallace “would have announced with me”. Const. Wallace testified that he knocked for less than a minute on the unit door and called out “Police”. Const. Corona’s notebook records “0843” as the time of “knocking” on the unit door. Following Const. Wallace’s note of “0843” is a reference to “knock on door”.

[37] On Const. Corona’s evidence, because he “could hear scuffling within the unit”, he knew the premises were occupied. He heard no one speaking inside the unit. Const. Wallace’s notes record “hear noises inside apartment”, the officer testified that he heard a male state “The police are here”, followed by a second male party (the witness subsequently voice-identified as the accused), variously described by Const. Wallace in his testimony stating “Open the door” or “Let them in”. The officer’s notes record only “Open the door”.

[38] Const. Corona denied that the officers entered Unit 1913 by pushing their way in without invitation. In his discovery evidence, in describing entry to the unit, Const. Wallace stated, “as we opened the door” Simpson became “belligerent and confrontational”.

[39] Const. Corona testified that an unshirted male person of smaller build than Mr. Mascoe, soon identified as Omar Simpson, eventually answered the door. This party, who was a “smaller build” than Mascoe, and who appeared “very nervous and tense”, asked what the officers wanted. The constable asked if they “could come into the unit”, describing what happened next in these terms:

Q. What did you say to Mr. Simpson when he opened the door?

A. He advised, — well, he asked us what we wanted, and I told him we were there to investigate a fraud, and he said “Oh, okay, come in.”

In cross-examination, the witness gave this evidence:

Q. But it’s your evidence that he just welcomed you into the unit?

A. I asked him if we could come into the unit because we’re investigating a fraud, and he says, “no problem, okay, come in”.

[40] As to any response made by Simpson, the constable’s notebook simply records, “Allowed police into residence”.

[41] Const. Wallace testified that when the officers informed Simpson that they were investigating a fraud, “and the brief details that we know”, he said, “Okay, no problem, come in”. The witness also described Simpson as “quite aggressive … and very confrontational” upon the officers “entering the apartment”. In cross-examination, the witness gave this evidence:

Q. First of all, Officer Wallace, do you remember testifying at the discovery proceedings on this matter, on June 27th of last year?

A. Yes.

Q. Okay. I’m going to read, as I said, a portion of those proceedings:

QUESTION: Okay. Now, what happened when the door opened?

ANSWER: We were met by a shorter male party, he wasn’t wearing a shirt. We later found out his name was Omar. And we were also met by Mr. Lascelles, he was wearing a gray tracksuit. As we, as we opened the door, Omar became quite belligerent and confrontational, and so we did take some time there to, to try to calm everything down.

Do you remember being asked that question and giving that response?

A. I remember being asked that question, yes, and given...

Q. And, and do you remember...

A. …that response, yes.

Q. ...giving that response?

A. That’s correct.

Q. Okay. So, as the door was opened, Mr. Simpson became belligerent and confrontational?

A. That’s correct.

Q. Okay. But it’s your evidence that he was belligerent and confrontational while saying, “no problem, come in”?

A. As the door was open, and we explained what was going on, and as we, as we could see — as I’m placing Mr. Lascelles into custody, that’s when he became belligerent.

Q. So, he didn’t become belligerent and confrontational as you opened the door?

A. It was all a very dynamic situation. So, as we’re having the conversation, as we’re stepping into the apartment, it’s like, what’s going on, come in. And then, he’s getting belligerent, like, what’s this all about, and we’re trying to explain it. And then as we’re trying to explain it, he’s getting belligerent, so then he was placed in cuffs.

(emphasis added)

[42] Const. Wallace was pressed further on this subject in cross-examination:

A. My evidence now is that it was a dynamic situation, and that a lot of things were happening at once. And it’s, it’s quite feasible to be belligerent and confrontational as, as the conversation is happening. So, it started off fairly calm, and then it escalated until we took some action.

Q. So, so, when did Mr. Simpson, by your recollection, become confrontational in relation to when you first stepped into the unit?

A. He was getting confrontational as we stepped into the unit.

Q. So, as the door was being opened?

A. Yeah.

(emphasis added)

[43] The CAD history records “0844:26 W A Couple of Parties”.

The Accused is Arrested

[44] Const. Corona entered the unit and observed a partially clothed adult female could be seen further inside the unit, and the person he believed to be Mr. Mascoe standing inside a few feet from Mr. Simpson. In the discovery evidence in this case, the officer testified that once he stepped into Unit 1913, he considered the accused to be Mascoe. In cross-examination here, Const. Corona testified that he “preferred to get his … I would have at least wanted to confirm a name prior to … arresting”. He engaged Mr. Simpson as Const. Wallace moved to speak to the accused.

[45] Const. Corona’s notes record that both males provided “verbal ID”. In Const. Corona’s opinion, Simpson was “very agitated”, asking what was going on, saying he did not understand anything about a fraud. As the constable made no verbatim note of their conversation, he testified to “the gist” of their exchange.

[46] According to Const. Corona, he was also paying attention to the accused “thinking that he may be the person we were looking to, to find and arrest”. When he heard Lascelles Mascoe identify himself to Const. Wallace, he turned to the accused asking for his cellphone number to confirm his identity. When the phone number provided matched the number received from Mr. Jordan, he was then “absolutely” certain of Mascoe’s identity. Const. Corona testified to the next event:

Q. And following his providing, Mr. Mascoe’s providing that cellphone number, what did you do?

A. At that point, Constable Wallace arrested Mr. Mascoe.

Q. And what’s the timing of that, how much time lapses between entering the unit and putting Mr. Simpson in handcuffs?

A. Not very much time at all, I would say, it would’ve been the same time as Mr. Mascoe was placed under arrest.

Q. So, almost immediately?

A. Within, yeah, within that minute for sure, based on his behaviour.

(emphasis added)

[47] Const. Corona testified that after the accused was arrested, he turned his attention back to Simpson who was becoming increasingly agitated and aggressive to the point of “almost obstructing the arrest”. The constable decided to detain Simpson by handcuffing him and escorting him to a couch where the detainee was seated to calm down.

[48] When Omar Simpson was questioned as to what happened after he was arrested, the witness gave this evidence:

They already – I think … they also put him [the accused] on handcuffs as well.

So everything is pretty much fast.

They came in, they arrested me. Boom they arrested people, they have Lascelles…

[49] Mr. Simpson testified that, within minutes of the police entry, after the accused was arrested and handcuffed, Ms. Petrovich was handcuffed as well.

[50] Const. Corona described Unit 1913 as “a mess” and in disarray. There was food everywhere and clothing on the floor and female undergarments throughout the residence. Const. Wallace described the unit as unclean and in disarray. He observed “numerous condoms and dirty female underwear” leading him to think that the unit might “possibly” be a common bawdy-house. In the officer’s words, “once I got to the apartment and the demeanour of everyone, I could tell there was a criminal element there”.

[51] Questioned further as to his grounds to arrest Mr. Mascoe, Const. Wallace stated, “[a]s we’re stepping into the apartment, it’s clearly an apartment that seems to be used for criminal, for some sort of criminal activity”.

[52] To Const. Wallace’s recall, Simpson was handcuffed by Corona “soon” after the officers secured entry to the unit. The witness testified in-chief that he went immediately to the accused’s location and, when he asked him for identification, the accused verbally provided his correct name. In cross-examination, Const. Wallace stated that after a “brief” conversation, part of which consisted of the witness “[m]ore of less” … “explain[ing] that we were there to identify everyone in the apartment and to see what was going on”, he arrested the accused and handcuffed him to the rear:

A. I asked him for identification, he advised me of his name. At which point, I — based on the circumstance and the fact that he was in the apartment, and, and also, just the overall aggressive demeanour that the door was answered in, I placed him under arrest for fraud.

Q. Prior to your placing Mr. Mascoe under arrest, did he provide any other information to you?

A. Not that I can recall. He seemed to be just, when I was explaining the circumstance, he seemed to be kind of confused, and didn’t seem very forthcoming with any information regarding the allegations.

Q. Do you have an approximate time of the arrest, Officer?

A. 8:46 a.m.

Q. And at what point did you believe you had grounds to arrest Mr. Mascoe?

A. At the point I arrested him, I would say right around there, I note, I realize that he didn’t have much to say in regards to the allegations. And that his lack of a response to what was being said added to my, added to what I was already told prior to entering the apartment. So, once I identified him, and made sure that I was, in fact, dealing with the party that was identified by the property manager, at that point I believe I had enough grounds to arrest him.

(emphasis added)

[53] In cross-examination, Const. Wallace stated: “I can tell when someone is being honest with me and straightforward, and that wasn’t the behaviour I was seeing”. The accused’s demeanour, body language and unpersuasive explanation assisted the officer in getting “good grounds”.

[54] Const. Wallace made no notes, verbatim or otherwise, of the conversation he maintains occurred prior to arresting the accused. The extent of Const. Wallace’s recorded note of the circumstances of the arrest was:

0846 larger male in grey jump suit advises me of his name at which time I advise him he is under arrest for the offence of fraud under $5000

0848 RTC’s/Caution read to male which he advises is understood; explain to him the circumstances around the alleged fraud

[55] The CAD history does not record communication of Mascoe’s arrest.

[56] Const. Wallace made no note of the accused’s responses including whether the accused requested consultation with counsel and provided no oral testimony on this subject. The witness explained the reference on p. 100 of his notes (the undisclosed page), at “0900”, to “Richard Posner (lawyer) James Lawker” as actually referring to a later point in time, “possibly in the cell area … more than likely”.

Searches in Unit 1913

[57] According to Const. Wallace, after arresting the accused and asking whether there was “anything of concern in the apartment”, the accused stated that he had “a small quantity of marijuana in a white toiletry bag inside the room his daughter is sleeping in”.

[58] Const. Corona recalled Const. Wallace saying that he was going to retrieve some marijuana before Wallace entered bedroom B.

[59] Const. Wallace testified that he entered bedroom B and checked on the well-being of the accused’s 14-year-old daughter. He seized a white toiletry bag from a dresser in the bedroom which contained a clear Ziploc bag which contained a leafy substance believed to be marijuana. Const. Wallace testified that he then advised the accused of a further “charge of possession of CDSA”.

[60] Const. Wallace observed women’s clothing in different parts of the room. As well, he saw “a couple of suitcases or bags … that you could put clothes in”. Some of the bags were on the floor and some near the closet area of the room.

[61] Within minutes of the accused’s arrest and Simpson’s detention, the officers ran background/criminal record checks on these persons. This would have alerted the constables to Simpson’s prior record for drug crimes.

[62] Although he had no note of it, Const. Corona recalled seeing bits of marijuana on the kitchen island. Const. Wallace had no recall of marijuana on the kitchen counter. In his in-chief testimony, Const. Corona was asked these questions:

Q. Officer, did you form any belief as to what was going on in that apartment?

A. Yeah, I did. I’ve investigated several short-terms stays, and attended several units rented out in various condominiums in the City of Mississauga. And based on my observations, and, as well as, the adult female that was partially clothed when I entered, and the condoms and the underwear that was throughout the apartment, I believe it was being used for the purpose of prostitution.

[63] Const. Corona informed the court that he had “suspicions” as to what was going on in the unit. In the course of speaking to the accused, the officer explained that unless the police could get in touch with his daughter’s mother she would go into Children’s Aid Society custody. There was no evidence of the officer asking the accused to orally provide the child’s mother’s phone number. Although the accused was under arrest at this point, and presumably handcuffed, there was no evidence of the accused being uncuffed to deal with his cellphone. In his in-chief testimony, Const. Corona gave this evidence:

A. So, I indicated that because we were going to be clearing out this unit, unless he provided me with the child’s mother’s information, she would be going with Children’s Aid Society. So, at that point, I requested his cell phone, and to unlock his cell phone for me to obtain that information.

Q. And were you, in fact, able to unlock the cell phone?

A. He unlocked it for me. And after he had done so, one of the first things I did was click on the text message icon on the phone. My reason for doing that was to confirm my suspicion with respect to the unit, and to see if, in fact, any of these parties were involved in the sex trade, and if that’s what the unit was being used for.

Q. And, Officer, was there any other reason why you looked in the phone?

A. Also, to obtain the information for the child’s mother.

Q. And what did you see on the phone?

A. Upon clicking the text message icon, there were multiple text messages in relation to what I believed to be the sex trade: there were messages about money, there were messages about rental cars, there were messages about, about basically various criminal activities.

(emphasis added)

[64] Const. Corona testified that he entered bedroom A to speak to the adult female, Ryanne Petrovich, “to further investigate [his] suspicion of the unit being used for the purposes of prostitution”. Petrovich admitted staying in the unit for about a week working in the sex trade.

[65] Const. Corona testified that because the police were going to “clear out” the unit, he instructed Simpson and Petrovich to collect their belongings as “they were going to be leaving”. They collected things from various places in the unit but primarily from bedroom A. Const. Wallace recalled as well Simpson and Petrovich being directed to gather up their own property. Const. Wallace testified that the accused’s belongings were to be taken from the unit along with the prisoner. For officer safety reasons, the accused was not permitted to pack up his own belongings.

[66] According to Const. Corona, at a point when he and Const. Wallace were in the centre part of the unit, with the accused seated and under arrest, a communication occurred between the accused and Simpson:

A. So, at that time, after indicating for them to collect their belongings, Mr. Mascoe made an indication for — which I believe was directed to Mr. Simpson, to collect his bag, suitcase. The blue square on the diagram represents the suitcase, which I located cocaine. And at that time, as he was sitting on the couch or on the seat there, he indicated, made a reference to his bag. That reference, the best way I can describe it, was turning his head to the left as he said something about, don’t forget my bag.

Q. And you just turned your head to the left for the record?

A. Correct.

Q. So, Officer, I’m just going to ask you, I’m going to, sort of, break that down a little bit. Now, do you recall Mr. Mascoe’s exact words?

A. Not his exact words, I know it was something to the effect of, don’t forget my bag, I remember he said “Bag.”

Q. At the time Mr. Mascoe made that statement, was he seated or standing?

A. He would have been seated.

Q. Okay. Now, why did you believe that that statement was directed to Mr. Simpson?

A. I believe that because it wasn’t, he wasn’t facing me at the time he said it, he was facing Mr. Simpson to his right.

Q. And you’re, you’re indicating to your right?

A. Correct. So, he was looking to his right, speaking towards his right, and made a head reference to his left? So, when he did that, that’s the first time I — drew my attention to that particular bag, as there was no other suitcase or bag in that general area.

[67] Under cross-examination, Const. Corona advanced this version:

Q. And, and you say that at this, you testified that at this time, you saw Mr. Mascoe tell Mr. Omar to not forget his bag, that’s correct?

A. That’s right, he made reference to the bag that was sitting in the room.

Q. Okay. And you say, he was looking at Mr. Omar while he was saying this — or sorry, Mr. Simpson while he was saying this?

A. Mr. Simpson had just got up from the couch and was walking towards the room on the left-hand side, and I was facing, like, if Mr. Mascoe would’ve been on my right and forward would be Mr. Simpson, and he was looking — he wasn’t looking at me, he was looking towards Mr. Simpson when he said that.

Q. So, he was looking towards Mr. Simpson while motioning in the opposite direction?

A. He was looking towards Mr. Simpson as he’s speaking to him. And as Mr. Simpson is looking back ,making eye contact with him, he’s making a motion to the left-hand side over his shoulder, which is where the suitcase was located just a few feet away I guess inside that room.

[68] Also in cross-examination, Const. Corona was questioned as to the absence of any recorded note of the accused seeking to have Simpson collect his suitcase from bedroom B:

Q. And, Officer, you seem quite confident that he made that utterance to Mr. Simpson?

A. Yes.

Q. That’s your evidence. Okay, well, I’m going to suggest to you that there’s absolutely no mention of this head nod or this utterance to Mr. Simpson in your notes?

A. I think I did, if I could refer to my notes?

THE COURT: Yes.

Q. Absolutely.

A. Thank you, Your Worship [sic]. So, “At this time” — on page 168 to 169 I said, “At this time the accused requested to collect his belongings specifically his suitcase which was in the other room in close proximity to child.” And that’s what I meant by that statement, because he requested to collect his belongings, he stated “Bag, and collect his bag,” and he referenced “His bag” which was right there. And that’s what I meant by that...

Q. Okay, so....

A. ...I probably should have been more clear.

Q. Yeah, let’s look at your notes. So, I appreciate you just read from page 168, I’m just going to continue down onto page 169 of your notes, so you say “Advised accused, I would retrieve suitcase as he was in custody?”

A. Correct.

Q. So, that was in response to him requesting his belongings?

A. Yeah, when I said “This bag,” and that’s when he looked to the floor, kind of, looked at his feet and sighed. And I said, and I said, “Mr. Simpson,” something to the effect of, no, I’ll be collecting those belongings, because he had just asked him to collect his belongings and I said, “No.”

Q. Okay. But there’s nothing in your notes about him saying this to Mr. Simpson, correct?

A. Well, I didn’t do verbatim what he said. And like I said, it’s hard for me to say verbatim exactly what was said, but I know what the reference was and the terminology he was using.

Q. Okay. Well, if anything, these notes, you know, indicate that he said it to you because you say, “At this time accused request to collect his belongings”...

A. Right, but that....

Q. ...it sounds like he’s saying it towards you?

A. No, I don’t think he said it towards me. And I don’t know who he was saying, I can’t say who he was actually speaking to because he wasn’t looking directly at me, and he was speaking — I think he was looking at Mr. Simpson. However, Ms. Petrovich is just beyond Mr. Simpson in the same, same — too so....

Q. Okay. Officer, you just testified that you were confident he said it to Mr. Simpson, now your evidence is that you can’t say who he said it to?

A. No, I believe it was to Mr. Simpson, I do. If you’re asking me what I believe, I definitely, certainly believe it was said to Mr. Simpson, because Mr. Simpson is the one that seemed to respond by looking back at him. However, I don’t know, like, you’d have to ask your client exactly who he meant to state that to.

Q. And now, your testimony is that he asked someone else, he asked Omar specifically, said don’t forget my “bag”?

A. Don’t forget my bag, correct.

Q. Okay. Officer, I’m going to suggest that those are two very different things?

A. I wouldn’t, because he’s still wanting to collect his belongings, and that’s what I meant by that statement.

Q. So, are you now saying that that is what happened, that he, he said don’t forget my bag to Mr. Simpson?

A. I’m saying exactly what I have told the Court right from last year and right from day one, that’s the reference that Mr., that your client made. And like I said, I believe it was directed to Mr. Simpson, because when I had told Mr. Simpson and Ms. Petrovich to go collect their belongings, I un-handcuffed him and allowed him to go, that’s, at that time, is when your client made that utterance.

Q. Okay. So, I note, today you said, I can’t say exact wording but I know he said “Bag?”

A. Correct.

Q. Is that correct?

A. Yeah, he....

Q. Okay. But in your notes you put, he asked to collect his belongings, specifically, his suitcase?

A. Bag, yeah.

Q. Okay. So, you made no mention of the word “Bag” in your notes?

A. No, I said “Suitcase” because it’s the only bag that was in view to me when I turned around...

Q. ...saying he said suitcase, he said don’t forget my suitcase?

A. No. No, he said “Don’t forget my bag.” But I said “Suitcase” in my notes, and it didn’t say specifically the terminology that he used or verbatim, but that’s my interpretation.

(emphasis added)

[69] Const. Corona testified that after the accused “made that motion and indicated for the bag”, he looked into bedroom B and observed an open suitcase on the floor in that room. “[A]ssuming” that this is what the accused was referring to, he inquired, “This bag?”, at which point the accused sighed and looked defeated as he then stared at the floor. The officer made no note of this reaction by Mr. Mascoe. Bedroom B was “messy” with female clothing on the floor. There was makeup on a counter.

[70] In his in-chief evidence, after describing Simpson and Petrovich going about gathering up their belongings as he stood by keeping “a close eye on” them, Const. Wallace was specifically questioned as to whether the accused made any communications:

Q. Now, do you recall where Mr. Mascoe was upon being under arrest?

A. He was sitting on a chair that was in between the, the kitchen area and the couch area, I believe.

Q. Okay. And do you recall if Mr. Mascoe made any further statements at this time?

A. Not that I can remember specifically. But I know there are, there are conversations happening between basically everyone in the apartment because once we realized that, that Omar wasn’t necessarily a part of the situation, he was also inquiring about, about what was going on, we were also speaking to the female. And I also believe, Constable Corona was talking to, to the people in the apartment as well.

Q. And, Officer, what’s the next thing that you recall happening following these conversations, and the other individuals, Ms. Petrovich, pardon me, the female and Mr. Simpson packing up?

A. At 9:10, PC Corona advised Lascelles that he was going to be charged with a further charge of trafficking and possession of CDSA for some drugs that he had recovered inside the room. So, then I, once again, re-read the rights to counsel and caution as a result of that.

(emphasis added)

[71] According to Const. Corona’s testimony, he entered bedroom B because of the motion and utterance he attributed to the accused. He observed an open suitcase on the floor, containing male and female clothing, which “was the only bag or suitcase … in that general direction”. The constable informed the court that he saw no other suitcase in this bedroom. The witness testified to seeing a white envelope in the interior flap of the receptacle on which was written, “Daddy”. On the constable’s evidence, the “first thing” he “grabbed out of the suitcase” was the envelope for various reasons: (1) “to confirm ownership” of the suitcase, and (2) because he “was curious” as to whether the item was from the child to her father, and (3) to follow up on “suspicions” that there was another reason that the accused wanted Simpson to take the suitcase.

[72] As indicated in Const. Wallace’s diagram (Exhibit #9), he was standing “in the middle of the livingroom” as the unit occupants who were not under arrest gathered their belongings. The witness was questioned during his in-chief testimony about Corona’s entry to Bedroom B:

Q. At the time that Constable Corona went into that room, did you have any understanding of why he was going in there?

A. Not at that time, I just knew that we were trying to get everything together, and get as much — because as well as there being a lot of belongings in the room, in, in the apartment, we also noticed that, we also obviously observed that Mr. Lascelles was handcuffed to the rear and he was unable to pack his own bags and belongings. So, we were just trying to sort all of that out and get everyone’s stuff together to vacate the apartment.

At the time, I just knew that he was, he was going — I just saw him go into the room, I wasn’t really sure what was going on in that respect, but afterwards I realized what he had gone into the room to do.

(emphasis added)

[73] Having completed his questioning of Const. Wallace, Mr. Weinstock then indicated to the court, “Those are all my questions, Your Honour”. The witness, Wallace, then spoke up saying he had something to add:

Now, that I’m sitting here thinking about the events, I remember there being a brief conversation about — I remember standing in between Omar and Mr. Mascoe, and he was trying to get Omar to go inside the room to get a, to get a bag that was his, he was motioning for him to go inside the room. And then that’s when, I think that’s when Constable Corona then entered that room.

(emphasis added)

[74] Const. Wallace was then questioned further by Mr. Weinstock:

Q. To the best of your ability, could you, at the time of this interaction, can you describe, first of all, where you were when you observed this?

A. Sorry, bear with me, this was over two years now so it’s a little bit fuzzy. But I was, I remember I was, I was standing, I had a pretty good observation of both parties, and when I say “Both parties,” I’m speaking of Mascoe and Omar. And I remember him just motioning that, like, I mean, his bag or his belongings were inside the room.

A. He was, like, like, nodding over his shoulder to the left. He was sitting more or less facing the front of the apartment, and he was motioning to the left. And he was, he was motioning to Omar to get his, to get his bags for him.

Q. Where was Omar at that time?

A. I think he was sitting at the other side of the table, basically in front of, or off to the side of Mr. Mascoe.

Q. I’ll just say for the record, you appear to be moving your head and thumb in the left.

Officer, as I stated, you had described some physical motions that you observed in that interaction, do you recall hearing any statements from either Mr. Mascoe or Mr. Simpson in the course of that interaction you described?

A. I just, I don’t — I just remember Mr. Mascoe saying something to the effect of don’t forget my bag, or get my bag, and made, and made the motion with his head to the left towards the room where his daughter was in.

(emphasis added)

[75] The subject was again addressed in cross-examination of the officer:

Q. So, Officer, I know you kind of started with one recollection of how the cocaine came to be found, and then you started to remember some more details. So, initially, you testified that you weren't sure why Officer Corona went into, into the bedroom where he located the suitcase, so you initially didn’t remember that today, is that fair to say?

A. That’s fair to say, yeah.

Q. Okay. And then near the, kind of, tail end of your evidence you started to remember, and said something about Mr. Mascoe asking Omar, saying to Omar, don’t forget my bag...

A. Yeah.

Q. ...is that what you remember happening?

A. Yeah, something to that effect. He was — as, as — basically, as we coming close to the end of the apartment being vacated, I remember him motioning to the room where his daughter was in, and trying to get Omar to get his bag or something like that. And it was my observation that he didn’t want us to see that motion, like, it was, it was, like, kind of away from us, trying to get him, trying to get his attention away from where I was standing.

Q. Okay. I’m going to — so, that recollection of what he said to Omar, and the, the head nod which you’ve demonstrated, none of that is mentioned anywhere in your notes, is that correct?

A. No, that’s an independent recollection.

Q. Okay. And would it be fair to say that that something pretty important?

A. Constable Corona was the one who, who located the drugs and that sort of thing, and he was the one who had a better point of view of that. I did see it, I did witness it so I know, I figured — that day, we had a lot, a lot of things going on, and I did try to get as much detail as possible, but I figured he, because he was the one who found he would have put that in his notes.

Q. Okay. So, this wasn’t something you remembered at that time when you wrote your notes?

A. I, I remembered it, however, I didn’t note it.

Q. You just didn’t think it was important enough to include in your notes?

A. I’m a human and I make mistakes, so in my error, going back if I could, I would put it in my notes, but I did make a mistake by not making a notation of it. But whether or not it’s in my notes, doesn’t mean, it doesn’t take away from the fact that it happened...

Q. Okay.

A. ...because this is my evidence and my memory that it did happen.

Q. Okay. And it’s something that you remember two years later, testifying today, you remember that happening?

A. That’s correct.

Q. And you remember him saying, don’t forget my bag?

A. Something to that effect.

(emphasis added)

[76] Const. Corona testified that the white envelope contained a card which had the accused’s “daughter’s name at the bottom”. The card and the envelope and the suitcase were not seized and there were no photographs taken of the items.

[77] According to Const. Corona, as he removed the envelope from the suitcase flap, he “surprisingly” observed, partially exposed and directly behind where the envelope had been located, a clear, plastic Ziploc bag containing what appeared to be two medium-sized balls of a white powdered substance which he believed to be consistent with cocaine. As well, the constable observed two additional, and visible, small baggies appearing to contain lesser quantities of cocaine. He did not seize the suitcase because it contained female clothing.

[78] In all, 23.1 g. of marihuana was seized and 59.4 g. of cocaine. It was an agreed fact that the possessor of this quantity of cocaine possessed the drug for the purposes of trafficking. Also, according to Const. Corona’s in-chief testimony, weighed from the two smaller baggies were 2.45 g. and 2.3 g. of crack cocaine respectively (“4.75 grams in total weight”). Although two baggies of crack cocaine were allegedly seized, Const. Corona’s notes only record one baggie with 2.3 g. of crack cocaine being weighed and logged in at PRPS 12 Division which is consistent with an Agreed Statement of Facts filed at trial (Exhibit #4).

[79] Mr. Simpson testified that, from early on in their arrival, the police searched throughout the apartment including in drawers and suitcases. In the witness’ view, they were searching and “snooping” and looking everywhere – it seemed to be “about something totally different” than a matter of fraud.

[80] Mr. Simpson estimated that he remained handcuffed for roughly 15 to 20 minutes before he was uncuffed and, along with Petrovich, instructed to gather up his, and the accused’s, “stuff” with direction to “get out of here you guys”. On Simpson’s evidence, he gathered up clothes putting items into different bags that were “empty” and “free” to use. In the witness’ words, “I was to be a friend, just gather the man’s stuff” in order that it would not be lost. Bedroom B contained a garbage bag and at least two small suitcases. Simpson recalled putting stuff he thought might belong to the accused into different bags. At some point, he dragged the suitcase from the closet, an unzipped receptacle, from which cocaine was subsequently seized by the police.

[81] Mr. Simpson testified in-chief that he saw a police officer look in that suitcase on the floor of bedroom B after lifting the flap of the receptacle – “the officer lifts over a flap off … the suitcase”. The officer moved a postcard and discovered some cocaine. In cross-examination, the witness stated that after the officer lifted the postcard and looked at it, the constable went into the pocket of the suitcase and found cocaine behind where the card had been. Only in cross-examination by Mr. Weinstock did Simpson state that he knew of the cocaine as it belonged to his friend, Christina, whose surname he could not recall. He brought the cocaine with him to the apartment on June 27 and put it in the suitcase in bedroom B as it seemed “the safest place” as no one had been going in and out of that room. According to Simpson, the accused was unaware that he had brought cocaine into the apartment.

[82] Omar Simpson testified that in packing clothes into various bags he included the suitcase where he had concealed cocaine although he did not know for sure whether that bag belonged to the accused. He took that suitcase to his car and subsequently phoned the accused’s sister to come and pick it up.

[83] Before the police departed the scene, arriving at PRPS 12 Division at about 11:00 a.m., everyone was removed from Unit 1913. Const. Wallace was of the view that none of the occupants had “any rights to be there”. At trial, the officer was unable to recall who made the decision to remove the occupants.

POSITIONS OF THE PARTIES

The Defence

[84] On behalf of the accused, Ms. Mamo submitted that in light of Simpson’s testimony that the accused slept in Unit 1913 on June 27/28, 2015, and with the accused found by the police in the unit along with his daughter, and evidence that he had been seen in the condominium building by Kyle Jordan, he had a reasonable expectation of privacy in the unit in the early morning hours of June 28. Insofar as the suitcase in bedroom B, a receptacle containing male clothing in a bedroom occupied by the accused’s daughter, and in light of the prosecution theory that the suitcase in which the cocaine was discovered belonged to the accused, the accused also had standing to challenge search of the suitcase.

[85] It was submitted that the police had no lawful right to enter Unit 1913 without a warrant. The officers’ physical entry to the dwelling and resultant warrantless observational opportunities, searches and questioning amounted to a search with intrusion of constitutionally-protected privacy.

[86] The police required a warrant or lawful consent to enter Unit 1913. They had neither. There were no exigent circumstances of imminent harm to a person or destruction or loss of property justifying dispensation with warrant or consent authorization.

[87] Omar Simpson’s evidence that the police pushed their way into the unit ought to be accepted. The officers had reasonable and probable grounds to arrest the accused and the evidence supports that they intended to do so without a Feeney warrant. Police explanations as to other intentions ring “hollow”. The police evidence that Simpson was hostile and unwelcoming cannot be reconciled with their account of a friendly invitation to enter.

[88] Opening the door of a dwelling does not amount to an express or implied invitation to enter. Const. Wallace’s evidence suggesting the accused directed Simpson to let the police in must be rejected. The officer made no note of this utterance and Const. Corona heard no such statement.

[89] In the alternative, and in any event, any purported consent on Simpson’s part to the police officers entering the unit was constitutionally invalid as the submitted consent was not only not informed and voluntary, but also the “consent” was not obtained from an individual who had authority to consent to police entry.

[90] Ms. Mamo noted that a statement of police presence to investigate “a fraud” without any detail, and police failure to advise of the consequence of a very real prospect of an arrest of the accused were he to be found in the dwelling, demonstrate that no valid consent was sought.

[91] In addition, Simpson, a small black-skinned male, was obviously not Lascelles Mascoe. The police understood Mascoe to be of a heavy build. The police made on effort, prior to entering, to determine who Simpson was and his relation to the unit. On the evidence, Simpson did not enjoy an equal and overlapping privacy interest in the unit with the accused. The accused could not be said to have reasonably believed that an overnight guest would admit the police without warrant.

[92] The owner of Unit 1913 was never identified. The complainant was Ms. Kogan who was the subject of an identity theft. There was no independent common law authority for the police to execute warrantless entry into the unit to investigate that alleged crime or to sort out the lawfulness of asserted tenancy rights issues. There was no urgency or necessity here to justify warrantless entry and searching.

[93] Ms. Mamo submitted that the unconstitutional police entry to Unit 1913 necessarily tainted any on-scene statements by the accused relating to the marijuana and any subsequent warrantless searches within the dwelling. In any event, it was argued, the police evidence of a search of the suitcase in bedroom B on the basis of a gesture and statement by the accused relating to the bag must be rejected. There was no recorded note by the officers of any such acknowledgement or direction by the accused and the police evidence on the point was conflicting and implausible. The police were engaged in an unlawful warrantless search for drugs or evidence of fraud or a bawdy-house crime. The card was not seized. Despite purported concern for safeguarding of the accused’s belongings, the suitcase was not seized.

[94] In addressing exclusion of the seized evidence under s. 24(2) of the Charter, it was submitted that non-consensual warrantless entry to a dwelling, and an end-run around Feeney requirements, and warrantless searches in a dwelling, were far from inadvertent violations of Charter rights. The s. 8 breaches were serious. Aggravating the situation was misleading police evidence at trial apparently advanced in an effort to constitutionally legitimize state wrongdoing. The impact on the accused’s s. 8 Charter right, in circumstances of highly intrusive state entry to, and conduct in, a dwelling, was significant. While the third prong of the Grant analysis may favour admission of the evidence, on balancing the totality of relevant factors, exclusion of the evidence is warranted.

[95] The constitutional analysis to the side, and turning to the merits of the prosecution, it was submitted that knowing possession of the cocaine was not proven beyond a reasonable doubt. Omar Simpson admitted the cocaine was his and that the accused had no knowledge of its presence in Unit 1913.

[96] Even if Simpson’s admission was disbelieved or did not raise a reasonable doubt, possession on the part of the accused was unproven. Ms. Mamo again noted that there was no credible evidence that the accused, by gesture or statement, acknowledged that the suitcase containing the cocaine was his property. There was female clothing in the suitcase. Ms. Petrovich was staying in Unit 1913 and female clothing was in both bedrooms of the unit. There was evidence from Simpson and Const. Wallace of multiple suitcases and bags in bedroom B. On the whole of the evidence, the Crown’s evidence fell short of the beyond a reasonable doubt threshold.

The Crown

[97] After considerable reflection, Mr. Weinstock abandoned a preliminary position taken that the accused was without standing to raise s. 8 Charter challenges. Counsel submitted:

In terms of the s. 8 argument, if it assists the court … I wouldn’t be challenging Mr. Mascoe’s ability to assert standing to challenge the s. 8 … to raise the s. 8 argument in this case … for a slightly different basis than my friend has set out but I think it stands nonetheless. The reason is I think that, on the Crown’s theory of possession in this case, being the toiletry bag and the suitcase, in my understanding it wouldn’t lie for the Crown to then, given the officer’s evidence, it wouldn’t lie for the Crown to say that Mr. Mascoe doesn’t have standing in these items.

… in terms of the reasonable expectation of privacy, I had addressed the court yesterday on the manner in which I thought that Mr. Mascoe was able to challenge the search that being as a result of the search of the … search incident to arrest of the two items in the apartment and that, as in Adams, that gave him standing to then challenge the entry. On reflecting on the evidence that was called in this case and also it’s admissibility, I’ve come to the position that I think that Mr. Mascoe does have standing in the apartment itself, albeit a very, very limited degree of standing and an uncertain one ultimately. I base this on a few points and this is the evidence I determined was called in court that was not hearsay with regard to the unit itself. First of all, Mr. Mascoe was present in the unit. An individual called Kyle Jordan, who appeared to the officers to be in a position of authority regarding the building or the units, and this is by virtue of his providing a key to the unit to Const. Corona, provided the officers the name of Lascelles Mascoe as well as a phone number associated to that and gave them also the unit number. Mr. Mascoe was observed in the unit shortly afterwards and he provided his name as well as the same phone number that was provided by Mr. Jordan. There is also Mr. Mascoe’s statement to Const. Wallace regarding his toiletry bag in the back bedroom. The Crown’s position with respect to the statement he made regarding, “Don’t forget my bag” referring to the suitcase, and the fact that Mr. Mascoe’s young daughter was also inside the apartment. There was also the point on Const. Wallace’s evidence that he believes that he heard Mr. Mascoe state from behind the door, when the police were knocking, to … something to the effect of “Let them in”. So while I think it’s unclear as to how long Mr. Mascoe had been there, what his exact interest in the apartment was, who else was staying at the unit and what their interest was, if we’re speaking about a balance of probabilities, I think it does arise to more than mere presence in the circumstances.

[98] On the subject of consent entry, Crown counsel submitted that the court ought to accept the police evidence that after knocking and announcing their presence, and a desire to speak about their fraud investigation, Mr. Simpson invited them into Unit 1913. The officers did not force their way into the unit. Simpson was not a credible witness for a variety of reasons and his evidence to the contrary should be rejected. While Mr. Weinstock acknowledged difficulty in seeing from the evidence a police question such as “Can we come in?”, or a statement such as, “We’d like to come in”, Simpson did state, “No problem, come in”. Crown counsel fairly acknowledged that it was problematic that the police officers did not, before entering, refer to the live potential for Mr. Mascoe to be arrested or their intention to evict everyone from the dwelling.

[99] Mr. Weinstock submitted that the police witnesses’ evidence ought to be accepted that they did not intend to instantly arrest Mr. Mascoe but rather intended to undertake further investigation of the fraud allegation. The police officers were unsure whether Mr. Mascoe was presently in the unit. In these circumstances, there was no requirement for a Feeney warrant.

[100] Crown counsel further submitted that, although Simpson had “essentially no rights to the apartment”, the officers were entitled to rely on Omar Simpson’s invitation for them to enter the unit. It would not be reasonable for the court to assume that a guest would consent to police entry to a dwelling to investigate a fraud.

[101] I think it fair to say that Crown counsel’s principal reliance for the lawfulness of police entry to the dwelling was based, not upon consent or exigent circumstances, but rather upon what was described as a common law and statutory duty to protect private property based upon implied consent of the owner. Armed with information that Mr. Mascoe had apparently used Ms. Kogan’s identity to fraudulently obtain the short-term rental accommodation of Unit 1913, an offence said to have been committed against “the lawful owner” of the dwelling, on this basis alone the police were justified on reasonable suspicion in securing warrantless entry into a private dwelling, through reasonable means, to protect property against crime. It was submitted that this common law police power amounts, not to an imminent danger situation, but to an “exception or a separate way in which police can enter on and investigate … on private property that’s separate and aside from, for instance, the exigent circumstances doctrine or the 911 types of cases”. As the police must execute the power reasonably and therefore, for example, could not simply barge in or breach the unit door as there was no imminent personal safety threat, the means of entry here were reasonable – knock, announce, identify a fraud inquiry, and entry secured through an open door.

[102] As to the warrantless search of the suitcase in bedroom B, Mr. Weinstock submitted that the police actions do not fit neatly into any category. The court should accept the police evidence that the accused specifically acknowledged the suitcase to be his property. That said, counsel noted the duty for police to safeguard an arrestee’s personal property. There is also a limited right of search incidental to lawful arrest. Simply because a police officer has a concurrent suspicion about a receptacle does not detract from an otherwise validly-held reason to search an item. The card was in plain view and, when moved, what appeared to be cocaine was itself partially visible. Once cocaine was discovered, a warrantless search of the remainder of the suitcase was lawful.

[103] Turning to s. 24(2) of the Charter, as I understood Crown counsel’s submission, any conduct based upon a mistake of authority on the part of the police officers, particularly given the information they had secured from Ms. Kogan and Mr. Jordan, was not clearly unreasonable or deliberately undertaken to circumvent the law. Given the accused’s very much reduced expectation of privacy in Unit 1913 in light of the circumstances of his occupation of the dwelling, the intrusion upon his reasonable expectation of privacy was not significant although the state interference with his liberty interests was serious. The exclusion of the real evidence would fatally impact the prosecution case. In balancing all relevant considerations, the evidence ought to be admitted.

[104] As to the merits of the prosecution itself, assuming admission of the seized evidence, Mr. Weinstock submitted that Simpson’s evidence, generally, and specifically as to his secretive ownership of the cocaine, should be viewed with extreme skepticism. The testimony of the witness, who had a lengthy criminal record, was implausible in many respects. In submitting that the prosecution had proven the accused’s knowing possession of the cocaine, Crown counsel noted the accused’s admission to the police of his toiletry bag in bedroom B, the presence of his daughter in that room, the accused’s apparent signal to Simpson and communication with Const. Corona relating to the relevant suitcase, and the “Daddy” card and male clothing in that receptacle.

ANALYSIS

Introduction

[105] Blended trial procedure, involving the calling of witnesses whose testimony impacts upon live constitutional issues, as well as evidence relating to proof of the elements of the alleged offences, requires the court to pay close attention to legally assigned onuses and burdens of proof. In this case:

(1) the Crown is obliged to prove the charges in the indictment beyond a reasonable doubt

(2) insofar as standing to raise an asserted breach of a s. 8 Charter right, the accused must demonstrate that, at the relevant time and place, he personally had a reasonable expectation of privacy

(3) where an accused establishes an intrusion on reasonable expectation of privacy arising from warrantless state misconduct, the prosecution must establish circumstances reasonably justifying departure from the prior judicial authorization model generally applying to state interference with an individual’s reasonable expectation of privacy.

[106] The following analysis determines that, whether considered from a constitutional perspective or on the merits of the case itself, the accused stands to be found not guilty.

[107] Turning to the present case, and in particular the subject of absence of evidence, the court did not have the benefit of hearing testimony from the owner of Unit 1913, Kyle Jordan, Mohammed Abuhattab, Julia Kogan, Ryanne Petrovich or the accused’s daughter. Of more limited relevance, of course, is the absence of evidence from the accused himself. In terms of physical or demonstrative evidence, the relevant lease/contract documents for Unit 1913 for the June 27/28, 2015 time period were not produced, there was no forensic information relating to any testing of the surface of the plastic baggies, there were no photos of the unit or the subject suitcase or the drugs in situ, no inventory of the suitcase contents, and no seizure of the envelope, card or the suitcase.

[108] Ahead of addressing specific legal issues, and factual analysis of relevant testimony, a general observation will effectively set the context for the court’s conclusions – regrettably, no one of the three witnesses at trial testified in an entirely credible or reliable way. That said, the trier of fact is at liberty to accept some, none or all of any witness’ evidence.

[109] Omar Simpson’s prior criminal record must be taken as impacting upon the trustworthiness of his evidence. As he testified, the witness demonstrably indicated his dislike of the police and his negative reaction to events of the early morning of June 28, 2015 – tone and volume of his voice, the rapidity of aspects of his testimonial presentation and his obvious anger and hostility were patently obvious. Some responses to questions were ambiguously vague and rambling. There were inconsistencies of varying importance in the witness’ evidence. Only under cross-examination by Mr. Weinstock did Simpson, for the first time, introduce evidence claiming that the cocaine was in his sole possession.

[110] In June 2015, Consts. Corona and Wallace were relatively inexperienced PRPS officers. While admittedly, inexperience as a peace officer can negatively, but innocently, affect the reliability of such a witness’ evidence and actions, the altogether unsatisfactory content and presentation of the police witnesses’ evidence in this trial cannot be assigned simply to inexperience as police officers or to being witnesses in a courtroom.

[111] An obvious starting point in this regard, is the note-taking of the constables. In seeking leave of the court to be permitted to reference their police-issue notebooks to refresh memory, both officers misled the court as to the contemporaneity of their note-taking. Initially, Const. Corona testified that his notes were made “at the time and shortly thereafter”, while Const. Wallace maintained that he made his notes “directly after the incident”. Leave was given to refresh memory from the respective notes on the basis of these sworn representations. Then, under subsequent questioning, Const. Corona testified that notes were made “a couple of hours after the incident” which ultimately became 6 to 7 hours later. Const. Wallace progressed from “shortly thereafter”, to as soon as he returned to PRPS 12 Division, to some unknown time after he performed a “bunch of administrative” tasks at the police facility. Additional disclosure respecting the witness’ notes was made while he was testifying.

[112] Police officers, not equipped with body-worn cameras and microphones, cannot reasonably be expected to take notes of every detail of incidents in which they participate in execution of their duties. Be that as it may, officers are duty-bound to accurately and reasonably contemporaneously record important facts, for example those respecting constitutionally-related subjects (i.e. consent, rights to counsel, warrantless searches) and relevant utterances by an investigative target, accused or other principal actor. Leaving to the side for the moment deficiencies in the police witnesses’ notes relating to recording of times, and inconsistencies between the notes and oral testimony, the notes, as discussed more fully below, failed to record such important facts.

[113] The constables were testifying two years after the events of June 2015 and had undoubtedly been involved in many, many transactions in the course of their duties in the interim leading up to this trial. While this is not to suggest that the witnesses would not have retained some independent memory of relevant matters, their notes were of limited value on some material issues and the presentation and content of their evidence transparently revealed reconstructive gap-filling and questionable present-day justification for their actions in 2015.

[114] While the court plays no part in marking or grading the quality of police note-taking in a particular case, or meting out disciplinary remand for real deficiencies, the quality of a police witness’ notes can, and did in this case, impact upon the credibility and reliability of the witnesses’ evidence.

[115] The criminal justice system reasonably expects that police officers will prepare “accurate, detailed and comprehensive notes”: Schaeffer et al. v. Wood et al., 2013 SCC 71, [2013] 3 S.C.R. 1053, at para. 67. Bluntly put, “the quality of the record-keeping and the adequacy of an officer’s notes are important” to fair adjudication: R. v. Thompson, 2015 ONCA 800, at para. 58.

[116] Apart from the subject of police notes, there were significant inconsistencies between the two police witnesses’ evidence including in particular whether any dialogue could be heard between Unit 1913 occupants prior to the unit door opening, the purpose of attending at Unit 1913, the timing of Mr. Mascoe’s arrest, and the circumstances of the purported gesture/utterance by the accused relating to the suitcase found to contain cocaine.

Standing – Reasonable Expectation of Privacy

[117] Reasonable expectation of privacy “can vary with the nature of the matter sought to be protected, the circumstances in which the place where state intrusion occurs, and the purposes of the intrusion”: R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, at p. 53; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 22-24. “The onus of proof of such reasonable expectation, to a probability standard, lies on the Charter claimant”: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 30.

[118] While perhaps a close call in some respects, and recognizing that a trespasser generally is not considered to have a reasonable expectation of privacy (R. v. Lauda, 1998 CanLII 804 (SCC), [1998] 2 S.C.R. 683), I accept the parties’ position that the accused had standing to assert s. 8 Charter right protection relating to warrantless police entry to Unit 1913 and ensuing warrantless searches. As a matter of fact, having regard to the totality of the circumstances, it can be inferred that the accused had a subjective expectation of privacy in Unit 1913 which was a reasonable expectation, albeit a diminished expectation (Buhay, at para. 22 – “The expectation of privacy does not have to be of the highest form of privacy to trigger the protection of s. 8”) in the unit as that paradigm has come to be recognized: R. v. Spencer, 2014 SCC 43, at para. 18; R. v. Cole, 2012 SCC 53, at para. 40; R. v. Patrick, 2009 SCC 17, at paras. 27-53; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 19-20, 22.

[119] The accused, albeit through apparent criminal means, had acquired a short-term rental of the condominium unit, inferentially for himself and perhaps others. There was no evidence that the accused had any other residence. On the evidence accepted by the court, at the outset of police attendance, the accused was in the unit asleep behind a locked door. The unit was a dwelling. The accused’s daughter was asleep in one of the bedrooms and the accused had some belongings in the unit. These factors are of course consistent with the prosecution theory of the case and, on balance, meet a number of the non-exhaustive criteria for standing to identify a personal and objectively reasonable right to privacy as identified in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45; see also R. v. Reeves, 2017 ONCA 365, at paras. 60-62. The facts, such as they are, support the parties’ agreement that a reasonable expectation of privacy was engaged on Mr. Mascoe’s part in Unit 1913.

[120] As long-recognized in American jurisprudence, an accused charged with an unlawful possession offence is confronted with the predicament, in establishing standing to assert a constitutional right, with admitting aspects of knowledge and control, the very elements the prosecution must prove to establish guilt.

[121] The facts of illegal conduct on the part of the occupant of rented accommodation, non-destructive conduct in relation to the dwelling, does not serve to exclude a reasonable expectation of privacy: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at pp. 49-52 ­­­; Buhay, at paras. 19-24; R. v. Mercer (1992), 1992 CanLII 7729 (ON CA), 7 O.R. (3d) 9 (C.A.), at pp. ­­­­14-15 (leave to appeal refused [1992] S.C.C.A. No. 231); R. v. Dornan, 2008 CanLII 4978 (ON SC), [2008] O.J. No. 507 (S.C.J.), at paras. 22-39.

[122] Lascelles Mascoe, like the owner of the contents of a shoplifted purse, or the overnight guest staying one night in a motel room paid for with a stolen credit card, or the homeowner who has just moved in having acquired title with a fraudulent mortgage, had a reasonable expectation of privacy in the unit and any of his belongings within.

Were the Searches Reasonable?

[123] On the evidence, 3880 Duke of York Blvd. was a residential condominium building with a lobby and security desk. The parties made no submissions respecting the implications of R. v. White, 2015 ONCA 508 insofar as the lawfulness of police attendance on the 19th floor outside the door of Unit 1913. Be that as it may, there was no dispute that the police engaged in searches by virtue of their warrantless entry to Unit 1913 and ensuing inspections of the unit’s interior: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 27-28, 50; R. v. Paterson, 2017 SCC 15, at para. 26.

[124] A warrantless search is presumptively unreasonable and contrary to s. 8 Charter principles – “[i]n the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable”: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 22; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 29.

[125] On the whole of the evidence, and the submissions of counsel, the purpose(s) of the police in attending Unit 1913 to secure entry must be considered in these alternative contexts or some combination thereof:

(1) to arrest Lascelles Mascoe

(2) to investigate the alleged fraud relating to the unit rental

(3) to vacate or clear out the unit of all occupants

(4) some other objective, for example, attempting to determine whether the unit was being used as a common bawdy-house.

[126] It should be noted that police officers not infrequently intersect with citizens while having more than one purpose in doing so. Provided that the degree of state interference with a reasonable expectation of privacy is on the basis of at least one valid statutory or common law police power exercised in compliance with the constitution, then the fact of concurrent police objectives will generally not invalidate the search: Nolet, at paras. 32-46.

[127] On the evidence accepted by the court, Consts. Corona and Wallace intended to arrest the accused for fraud and, incidental to that action, to check out whether the unit was being used for the illicit purpose of sex trafficking. The court specifically rejects the police witnesses’ evidence that there existed an intention to secure entry to Unit 1913 to “investigate” before making an arrest decision. In this regard, the court accepts these facts:

(1) the constables were communicated a dispatch respecting a fraud in relation to Unit 1913

(2) Const. Corona then conducted an on-scene fraud investigation receiving information from Ms. Kogan and Mr. Jordan as to the circumstances of the June 2015 rental of the unit

(3) Const. Corona was initially on scene in search of a pimp, Const. Wallace had previously attended the condo building on sex trade calls, Unit 1913 was the subject of a short-term rental, and it was reported that males and females were currently associated with the unit

(4) the officers believed, on the basis of the accused’s facilitation of rental of the unit, the time of day, and information received from Mr. Jordan, that the suspect may be in the unit – a police officer need not be certain or “know for a fact” that a suspect subject to being arrested is in a particular dwelling before seeking a Feeney warrant pursuant to s. 529.1 of the Code – there need only be reasonable grounds for such a belief which clearly existed here

(5) Const. Corona acknowledged that when he left the building lobby, to go upstairs to the unit, he had reasonable and probable grounds to arrest the accused

(6) although Const. Corona maintained in his testimony that he was intent on going to the unit for “further investigating”, without articulating what investigation he had in mind, his responses to questioning at trial make it apparent that if the accused was “inside” the unit he would be arrested

(7) Const. Wallace believed, prior to going to Unit 1913, that a crime had been committed – he was somewhat evasive in responding to questioning as to whether, at this point, he had reasonable and probable grounds to arrest Lascelles Mascoe

(8) in light of Const. Corona’s and Simpson’s evidence, Const. Wallace’s evidence is rejected that voices inside Unit 1913 including direction either to open the unit door or to let the police in, two utterances with potentially significantly different implications – Const. Corona, also positioned right outside the door, heard no such conversation and Const. Wallace had no note of the significant exchange he claimed to have heard

(9) as discussed more fully below in relation to the subject of consent, the court accepts Simpson’s account that once he partially opened the door, the police officers pushed their way into the unit – consistent with Const. Wallace’s discovery evidence saying “as we opened the door”

(10) the officers’ description of Simpson as hostile and confrontational is inconsistent with an individual calmly welcoming the authorities into the unit as maintained by the police witnesses

(11) an 8:46 arrest occurred after knocking on the door of Unit 1913 commencing at 8:43 a.m. for 45 seconds to 2 minutes and Const. Corona testified that the accused was arrested by Const. Wallace very soon after entry to the unit once the accused confirmed his cellphone number

(12) the officers provided inconsistent accounts as to which male party in the unit was first handcuffed

(13) in a transparently false effort to avoid the Feeney issue, Const. Wallace claimed to have “investigated” further with the accused in a mini-interview about the alleged fraud before effecting the arrest – there was no further investigation – the constable could not report the contents of this exchange and his evidence was confusing as to whether it was the accused’s silence or some unpersuasive explanation that triggered the arrest – most telling is the officer’s notes (para. 54 above) which clearly record that the arrest preceded explanation to the accused of the circumstances of the fraud investigation.

[128] Subject to limited exception, the police require a warrant to enter a dwelling-house to arrest an occupant therein: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13; and s. 529 of the Criminal Code:

Including authorization to enter in warrant of arrest

529 (1) A warrant to arrest or apprehend a person issued by a judge or justice under this or any other Act of Parliament may authorize a peace officer, subject to subsection (2), to enter a dwelling-house described in the warrant for the purpose of arresting or apprehending the person if the judge or justice is satisfied by information on oath in writing that there are reasonable grounds to believe that the person is or will be present in the dwelling-house.

Execution

(2) An authorization to enter a dwelling-house granted under subsection (1) is subject to the condition that the peace officer may not enter the dwelling-house unless the peace officer has, immediately before entering the dwelling-house, reasonable grounds to believe that the person to be arrested or apprehended is present in the dwelling-house.

A Feeney arrest warrant can be an anticipatory warrant (“or will be present”) in the sense that when an officer applies for the warrant, he or she need not be confident that the target is at that time actually in the place to be entered. The court issuing a Feeney warrant shall include in the warrant such terms and conditions as considered advisable “to ensure that the entry into the dwelling-house is reasonable in the circumstances” (s. 529.2).

[129] In some cases, police secure lawful entry to a dwelling without a warrant and, in speaking to occupants therein and learning additional facts, such an investigation only then leads to reasonable and probable grounds to arrest, resulting in a lawful arrest – see, for example, R. v. Petri, 2003 MBCA 1; R. v. Couturier, 2004 NBCA 91. That is not this case – there was no intent to further investigate and no further investigation was in fact conducted – a warrantless end-run around Feeney requirements violates the Charter: see, for example, R. v. Adams (2001), 2001 CanLII 16024 (ON CA), 157 C.C.C. (3d) 220 (Ont. C.A.); Tymkin v. Winnipeg (City) Police Service, 2014 MBCA 4 (leave to appeal refused [2014] S.C.C.A. No. 75); R. v. M.C.G., 2001 MBCA 178.

[130] An exception to the prior judicial authorization requirement may be the existence of “exigent circumstances” as codified in s. 529.1 of the Code:

Exigent circumstances

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or

(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

These extraordinary criteria justifying warrantless entry to arrest are not present in this case. In addition, Crown counsel specifically disavowed reliance upon exigent circumstances as authority for the warrantless entry to Unit 1913.

[131] The warrant requirement of s. 529 applies as well to “an arrest in the dwelling-house of a third party”: Adams, at para. 6.

[132] Leaving aside the absence of exigent circumstances as defined in s. 529.1(2) of the Code, no such circumstances existed as described in R. v. Kelsy(M), 2011 ONCA 605, at paras. 24, 35:

Exigent circumstances have been recognized at common law as a basis for searching property without a warrant. Cases that have addressed the issue of exigent circumstance appear to rest on two bases. The first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained. The second basis emerges where there is a concern for public or police safety.

By their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only where necessary.

See also R. v. Kim, 2015 ABCA 274, at paras. 12-13, 19; Paterson, at paras. 4, 26-33; R. v. Stevens, 2011 ONCA 504, at paras. 56-57; Buhay, at para. 62.

[133] Consent to enter private premises is an exception to the warrant requirement such that s. 8 Charter considerations do not apply – “If an individual provides … consent, what would otherwise be a search or seizure, is no longer a search or seizure”: R. v. Simon, 2008 ONCA 578, at para. 48. Consent to state intrusion upon what would otherwise be a reasonable expectation of privacy involves “relinquishing one’s right to be left alone by the state and removes the reasonableness barrier imposed by s. 8 of the Charter”: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.), at p. 541 (passage approved in R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at para. 34).

[134] “[C]onsent to enter for the purpose of an arrest [is] an exception to the requirement for police to obtain a Feeney warrant”: R. v. R.M.J.T., 2014 MBCA 36, at para. 46; Tymkin, at paras. 78, 81, 92.

[135] Consent, to validly constitute a waiver of the s. 8 Charter right, must meet a high standard – a consent which is “fully informed and meaningful” (R. v. Bergauer-Free, 2009 ONCA 610, at para. 53) – “an effective and informed waiver” of an individual’s s. 8 rights (Simon, at para. 49). “Real” consent is not simply “acquiescence or compliance”: Wills, at p. 541. To similar effect is the observation in R. v. Atkinson, 2012 ONCA 380, at para. 49:

When determining whether to imply an invitation to enter a residence from the words and conduct of a homeowner in a brief interaction with a police officer, we should not lose sight of the dynamics of the police-citizen relationship. The essence of the policing function puts citizens on an uneven footing with police. We should not too readily imply an invitation to enter from the absence of objection or mere compliance, any more than we would equate consent with acquiescence or compliance in equivalent circumstances: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (Ont. C.A.), at p. 348.

[136] In Wills, at p. 545, the court described “the difficult onus placed on the Crown by the waiver requirement” and further held at pp. 542 and 546 that:

The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice.

In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:

(i) there was a consent, express or implied;

(ii) the giver of the consent had the authority to give the consent in question;

(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,

(vi) the giver of the consent was aware of the potential consequences of giving the consent.

See also Atkinson, at paras. 55-56; R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.), at para. 12; R. v. Blackstock (1997), 1997 CanLII 14495 (ON CA), 10 C.R. (5th) 385 (Ont. C.A.), at paras. 3, 5.

[137] While the “degree of awareness of the consequences of waiver of the s. 8 right … will depend on its particular facts … it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent” (Borden, at para. 40).

[138] As prescribed in Wills, a valid waiver/consent requires that “the giver of the consent had the authority to give the consent in question”. Put differently, in Reeves, at para. 42, “[c]onsent must also come from the right person”. Such a person must have “a privacy interest” in the dwelling and “authority to allow the police entry”: Everett v. McCaskill, 2015 MBCA 107, at para. 76 (leave to appeal refused [2016] S.C.C.A. No. 44). In Reeves, at paras. 42-51, the court discussed “equal and overlapping privacy interests” of residents of a home and noted, in respect of joint residency, the impact of that arrangement on the question as to whether any one of the residents would reasonably expect that another resident would be able to authorize a search of the dwelling. So, for example, an “overnight guest” does not have a sufficient privacy interest to provide a valid consent: Tymkin, at paras. 90, 92-94, 120.

[139] The police are not entitled to rely on a bona fide mistaken belief in consent to justify a warrantless search: Reeves, at para. 71; Mercer, at p. 18; Cole, at paras. 75-79.

[140] On the totality of the circumstances, it cannot reasonably be concluded that Mr. Mascoe would anticipate that Simpson would grant permission to the police to enter Unit 1913. In the present case, although the court rejected the prosecution evidence that anything beyond knocking and an announcement of “Police” occurred before Omar Simpson opened the door and the officers pushed their way into Unit 1913, even on the constables’ evidence, had this finding not been made, there was, in any event, no valid consent to state entry to Unit 1913. As noted earlier, the court rejects the evidence that the accused instructed Simpson to open the door or to admit the police. As well, the court relies upon these facts:

(1) the officers did not know Omar Simpson – on no account could Mr. Simpson be confused with someone of heavier build – when the unit door was opened, no effort was made by the officers to determine his identity or his relation to the premises

(2) Simpson was an overnight guest who had been in the unit for about 12 hours – he had no privacy interest in the dwelling such that the accused would reasonably expect that Simpson would voluntarily admit the police

(3) prior to entry, the police provided Simpson, partially dressed and just awakened, no details of the alleged fraud, no communication of the pending consequences of admitted entry including arrest of the accused and eviction of the unit’s occupants, and no indication that he had the right to refuse their entry.

[141] With no warrant to enter, no exigent circumstances justifying warrantless entry, and no valid consent to enter on the part of an occupant in Unit 1913 with authority to consent to police entry, I turn finally to the Crown’s submission, relying upon R. v. Reid, 2016 ONCA 944, that the police were lawfully entitled to enter Unit 1913 on the basis of an “implied invitation” on the part of the unit owner to investigate “unlawful occupants”.

[142] Undoubtedly, the police are under a statutory and common law duty to protect private property from criminal offences. Their actions undertaken in furtherance of this obligation must nevertheless be Charter-compliant as state actors only act constitutionally to the extent that they are empowered to do so by law. Police duties and police powers are not necessarily correlative: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 35. Employ of the Waterfield test to define and extend police powers requires the utmost caution on account of interference with liberty, privacy or property interests.

[143] Warrantless police actions in furtherance of protection of property have, on rare occasions, been recognized as reasonably justified: for example, R. v. Chapin (1983), 1983 CanLII 1811 (ON CA), 43 O.R. (2d) 458 (C.A.) (entry to unlocked truck, registered to another city, parked at angle to curb); Sanderson (recovery of complainant’s belongings from boyfriend’s residence to protect against threatened destruction of property); R. v. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.) (commercial property 50 to 60 feet off highway, late at night after closing hours, police entry into public parking lot to investigate possible break-in).

[144] In the Mulligan decision, a case relied upon at para. 22 of the Reid judgment, the court stated at para. 24 that “[i]t is plainly in the interests of a property owner or occupant that the police investigate suspected crimes being committed against the owner or occupant upon the property”. In furtherance of the observation, at para. 26, that the implied licence to undertake such an investigation on private property “must be strictly curtailed to avoid the risk of abuse”, and the court’s rejection of a breach of the s. 8 Charter right, these limits were expressly identified:

(1) in entering the property, the police had no intention to investigate any possible criminal activity on the part of the owner “or occupant” of the property or to secure incriminating evidence against such an individual (paras. 31, 33)

(2) the warrantless entry on property was “restricted to an area of the property to which the public had access by general invitation of the owner. The officer did not enter a residence …” (para. 35).

(emphasis added)

[145] The facts in Reid are relatively unique and involved extraordinary warrantless entry into a dwelling – an entry, while not justified as hot pursuit, arguably more grounded in exigent circumstances than the Mulligan approach. The police responded to a 911 call about an assault in progress. On arrival, the police learned from a distraught complainant that her boyfriend, Troy Reid, had assaulted her, and that he was in possession of drugs and in breach of a curfew. She directed the police to a rooming house where a man in the lobby related that a black man, generally matching the suspect’s description, was on the second floor dealing drugs and that it was “crazy” up there with people continually in and out of unit 202. When the officers knocked on the door requesting that the door be opened, a woman opened the door part way as it jammed on some bunched-up fabric on the floor. People could be heard shuffling around inside. The woman said that she needed time to get dressed. As the sergeant assisted her in opening the door fully, and then stepped in apparently with no one’s consent, he inquired of her and a Caucasian male standing inside whether they lived there. When they responded that they did not and were unaware who did, the officer suspected that he may be confronted with an “apartment takeover” in which lawful tenants had been forcibly displaced in order for the intruders to use the premises to carry out illegal activity. As the officer “became concerned for the well-being for the true resident of apartment 202”, he moved to open a closed door in the unit where he discovered Troy Reid in the bathroom in possession of a quantity of drugs.

[146] Having reviewed the counsel submissions and trial judge’s reasons in Reid, it is apparent that the primary focus was whether Reid had standing to assert a personal s. 8 Charter right. At trial, and subsequently on appeal, that issue was decided in the Crown’s favour. The standing determination overcame the prosecution concession that, without consent, the sergeant crossed the apartment threshold before learning that the occupants may not have been lawfully there – this “may be a trespass”. The defence had argued that there had been an “illegal” police entry given this chronology. The trial judge, noting that the police “breached the door” prior to conversation about the occupants’ connection to the dwelling, queried:

… should he apply for a warrant? Technically, he should have.

… should he then apply for a warrant … the question is should he have tried. And the answer to that question is yes he should have tried.

[147] While the reasons of the trial judge are not entirely clear, his standing and s. 24(2) conclusions appear to have trumped any concerns about the necessity for a Feeney warrant.

[148] Crown counsel fairly noted that the facts of the Reid case are “very different” from the present case. The factual matrix of Reid is quite distinguishable from the circumstances here. As said, the case was primarily decided at trial, and affirmed on appeal, that Reid had no standing to assert a violation of an expectation of privacy reasonably worthy of s. 8 Charter protection. The police conduct in Reid was effectively directed to determining the well-being of the dwelling’s true tenant – a public safety issue.

[149] In the present case, there was no evidence as to the identity of the owner of Unit 1913. MFA appears to have had some role in renting the unit for the owner. The fraud complaint came from Ms. Kogan, a credit card holder with no connection to the unit. There does not appear to have been a formal complaint to the police by MFA. Neither Const. Corona or Const. Wallace made any note of a request by Mr. Jordan to have the police clear out the unit. The police are not responsible for the civil eviction of tenants who secure accommodation through fraud.

[150] The warrantless entry to Unit 1913 to arrest Lascelles Mascoe was illegal. Though primarily cast as a case of an illegal entry into a dwelling breaching s. 8 of the Charter, it was understood in this trial that if the arrest was found by the court to require a Feeney warrant, the arrest breached the accused’s s. 9 Charter right as well.

[151] Turning next to the warrantless search of the suitcase, following the unlawful arrest of Mr. Mascoe, this search too was in breach of the accused’s s. 8 Charter right. A search incidental to arrest is constitutionally sound only where it follows upon a lawful arrest: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 5; Caslake, at para. 39; R. v. Day, 2014 SCC 74, [2014] 3 S.C.R. 614, at para. 1 (affing 2014 NLCA 14, at paras. 60, 66). Before considering any other applicable police authority justifying the search of the receptacle, these factual circumstances and determinations are relevant:

(1) on Const. Corona’s evidence, his attention was directed to the suitcase by a nod toward Simpson and an utterance on the part of the accused

(2) the officer made no note of these critical communications by the accused or of the accused’s purported reaction to the officer, not Simpson, getting to the suitcase – matters of the utmost significance to knowledge, control and ownership of the suitcase

(3) the constable’s actual note appears to request the officer, not someone else, to secure his belongings

(4) although Const. Corona claimed at trial that verbatim language by the accused was a reference to “bag”, that word was omitted from the officer’s notes

(5) Const. Wallace, positioned in the centre of Unit 1913 watching the occupants, also made no note of seeing or hearing any communication by the accused respecting luggage

(6) initially at trial, Const. Wallace professed lack of knowledge as to what led Const. Corona to enter bedroom B before claiming recall of the accused trying to get Simpson to go into that bedroom

(7) Const. Wallace’s testimonial characterization that the accused “didn’t want us to see the motions” made little sense given the close physical proximity of the officers to the accused and the report of not just a gesture by the accused but also an oral utterance directed to Simpson

(8) Omar Simpson, the identified intended recipient of the communications, was not questioned by Crown counsel as to seeing or hearing the communication the police witnesses claim was made in his direction

(9) although Const. Corona testified that there was only one suitcase in bedroom B, and therefore no confusion as to the bag referred to by the accused, both Simpson and Const. Wallace described multiple receptacles in that room

(10) although Const. Corona primarily described his interest in the suitcase as confirming ownership of the receptacle, within the context of assertion by the police that an arrestee’s belongings travelled with the prisoner, it is apparent that the police did not obtain, inventory and transport the accused’s clothes and other belongings.

[152] Inconsistent with Const. Corona’s evidence of seeing in plain view in an open suitcase the “Daddy” card in bedroom B, Omar Simpson testified that a police officer flipped open the flap of the unzipped suitcase in bedroom B and then withdrew a postcard. In his evidence, Simpson also described the police as searching throughout the unit commencing soon after entry. On balance, the court is unable to reject Simpson’s account.

[153] On the totality of the evidence, I am unable to accept the police evidence that the accused, by gesture and/or utterance, sought to draw attention to any suitcase in bedroom B. Nor do I accept that warrantless police interference with the receptacle and its contents was motivated by officer safety concerns to ensure that no weapon resided therein, or pursuant to some police protocol to take custody of an arrestee’s property. Although it is strictly unnecessary to decide, on the evidence accepted by the court, the most likely interpretation of the police conduct, though not admitted by the police witnesses, is that, after seizure of the marijuana from bedroom B, when the cocaine was discovered a warrantless and general search was underway for drugs and evidence of common bawdy-house operation. On the latter point, as already noted at para. 127(3) above, prior to entry to Unit 1913, the police had a basis for suspicion which, prior to search of the suitcase, had escalated to reasonable and probable grounds for believing that the unit was operated as a common bawdy-house having regard to these circumstances:

(1) female clothing and condoms were strewn about the unit

(2) Petrovich admitted conducting prostitution activities in the unit

(3) the officers made a call to PRPS vice officers.

[154] In the present case, there being no exigent circumstances making it impracticable to obtain a s. 11 CDSA warrant to search a dwelling, no warrantless search for a prohibited substance was reasonable. A s. 487 Code warrant would be required to search for evidence of a s. 210 Code crime relating to keeping a common bawdy-house.

Admission/Exclusion of the Evidence

[155] Unconstitutionally obtained evidence should be excluded under s. 24(2) of the Charter if, considering all of the circumstances, its admission would bring the administration of justice into disrepute. Review, and a balancing assessment, has regard to the factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[156] As to the seriousness of the Charter-infringing conduct, there is nothing technical about the unconstitutional conduct of the state actions in this case. With reasonable grounds to arrest Lascelles Mascoe for fraud, and intending to arrest him if found in Unit 1913, and perhaps having a suspicion that the condo unit might be a common bawdy-house, the police officers secured warrantless entry to the dwelling by pushing their way through the partially opened door. There were no circumstances of real urgency. Almost immediately, the accused was arrested without the necessary Feeney warrant thereby breaching ss. 8 and 9 of the Charter. No lawful or reasonable justification otherwise existed for the warrantless entry and ensuing searches.

[157] The Charter-infringing conduct is very much toward the serious end of the spectrum. On the totality of the circumstances, officer inexperience does not explain the unconstitutional actions of the police. Feeney requirements preceded June 28, 2015 by nearly two decades – to quote Paterson, at para. 46, “[t]hese police officers were not operating in unknown legal territory”. Not only is there an absence of good faith and, leaving aside the apparent post-Fearon (2014 SCC 77, [2014] 3 S.C.R. 621) unreasonable search of the accused’s cellphone, other features of the case, for example, the misleading of the court respecting the contemporaneity of police note-taking, the finding that the police witness’ reference to intention to conduct “investigation” in Unit 1913 was a hollow label of convenience pretextually designed to obscure their real intention to arrest without a Feeney warrant, and rejection of other police testimony advanced to place state conduct in a more favourable light (i.e. Const. Wallace’s evidence of hearing, through the closed unit door, the accused direct Simpson to open the door; and the constables’ evidence claiming that the accused made a gesture and utterance relating to a suitcase), exacerbate the seriousness of the Charter-infringing conduct: R. v. Lam, 2014 ONSC 3538, at para. 285.

[158] As to the impact of the constitutional misconduct on the accused’s Charter-protected interests, the police actions were not technical or fleeting. While the accused may have enjoyed a diminished expectation of privacy in the dwelling given the circumstances of his occupancy and the likely use to which the unit was being put, the warrantless interference with liberty was significant.

[159] As to the final Grant factor, society’s interest in adjudication on the merits, the seized drugs constitute real and reliable evidence which pre-existed the Charter breaches, the exclusion of which would be fatal to the prosecution of a case involving serious charges. I would note that in light of the court’s non-acceptance of evidence that the accused in any manner directly or indirectly acknowledged the suitcase containing the cocaine to be his property, the Crown’s case of knowledgeable possession is circumstantial in nature. As noted in the Paterson case, at para. 56:

It is therefore important not to allow the third Grant 2009 factor of society's interest in adjudicating a case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant's Charter right.

[160] At para. 99 of the Reeves decision, the court stated:

This court recently summarized the post-Grant paradigm for s. 24(2) in R. v. McGuffie, 2016 ONCA 365, 28 C.R. (7th) 243. In McGuffie, at paras. 62 -- 63, Doherty J.A. describes the paradigm as follows:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].

[161] At paras. 55-57 of Paterson, in words apposite to the present case, the court observed that:

55 … As the Court observed in Grant 2009 (at para. 84), "seriousness of the alleged offence ... has the potential to cut both ways... . [W]hile 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." The public interest in maintaining a justice system "above reproach" has helpfully been explained by Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 348 O.A.C. 365, at para. 73:

On the one hand, if the evidence at stake is reliable and important to the Crown's case, the seriousness of the charge can be said to enhance society's interests in an adjudication on the merits. On the other hand, society's concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious ... . [Citations omitted.]

56 … In this case, I find that the importance of ensuring that such conduct is not condoned by the court favours exclusion. As Doherty J.A. also said in McGuffie, at para. 83, "[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights protected by the Charter by excluding the evidence... . This unpalatable result is the direct product of the manner in which the police chose to conduct themselves."

57 Having considered these factors separately and together, I am of the view that the evidence obtained as a result of the entry and search of the appellant's residence should be excluded, as its admission would bring the administration of justice into disrepute.

[162] Accordingly, evidence of the police observations, the seized cocaine and derivative test results are excluded.

The Merits of the Prosecution Case

[163] In the alternative, and because the parties addressed the issue of the sufficiency of the prosecution’s proof of the alleged offences assuming the impugned evidence were to be admitted, their submissions in this regard should also be addressed.

[164] Omar Simpson’s evidence that the cocaine was his, without anyone else’s knowledge, is rejected as incredible and incapable of raising a reasonable doubt having regarding to the totality of the trial record including the following:

(1) the witness’ prior record and general demeanour while testifying

(2) the witness’ disclosure of ownership of cocaine only during cross-examination smacked more of a reaction to prosecution questioning and an effort to help out a friend than a truthful account

(3) it is unclear in advancing the admission that Simpson was aware of 4 separate wrapped quantities of cocaine

(4) the witness could not recall Christina’s surname

(5) the explanation as to why the drugs would be concealed in a suitcase in a room where Simpson was not sleeping was confusing and unpersuasive.

[165] In the absence of evidence accepted by the court that the accused acknowledged in any fashion the suitcase in bedroom B, the Crown’s circumstantial case rests largely on Mr. Mascoe’s association with and presence in Unit 1913, his acknowledgement of having a quantity of marijuana in bedroom B, the presence of male clothing in that bedroom, the use of that room by the accused’s daughter, and the presence of male clothing, and, a card signed by the teenager in an envelope (addressed Daddy) in the relevant suitcase.

[166] In considering whether the accused was in possession of the drugs as alleged, with knowledge and control, the totality of the evidentiary record must be examined to determine whether that inference can safely be drawn. In the balance, and leaving aside the hearsay evidence of Const. Corona that he learned from Mr. Jordan that another male may have been associated to the unit and Omar Simpson’s evidence that Petrovich was staying in the unit with another female, there was circumstantial evidence suggesting that an adult female at times occupied bedroom B. The court considers as well that:

(1) there was evidence that Unit 1913 was messy with women’s clothing throughout the dwelling including in bedroom B

(2) there were circumstances consistent with the unit being operated for the purposes of prostitution

(3) according to the testimony of Simpson and Const. Wallace, there was not just one suitcase in bedroom B

(4) there was female clothing, not described as children’s clothing, in the suitcase where the cocaine was discovered and no evidence, with respect to this shared receptacle, that Petrovich was claiming ownership of the female clothing in bedroom B

(5) Simpson took the suitcase without being sure that it belonged to the accused – despite the police evidence that the arrestee’s belongings were to accompany him, the evidence does not indicate police seizure of the suitcase or any of the male clothes or belongings from within the receptacle

(6) there was no forensic confirmation of the accused’s physical contact with the baggies containing the cocaine.

[167] On the whole of the record, the court cannot be satisfied, beyond a reasonable doubt, that knowing possession of the cocaine on Mr. Mascoe’s part is the only reasonable inference that can be drawn from the evidence.

CONCLUSION

[168] The accused is found not guilty.

Hill J.

Released: July 13, 2017