CITATION: R. v. Beaulieu, 2017 ONSC 631

COURT FILE NO.: 330/14

DATE: 2017-01-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL BEAULIEU and STEPHANIE BEAULIEU

Jennifer Briscoe, for the Crown

John Navarrete, for Daniel Beaulieu

HEARD: August 16 and 17, 2016, October 28, 2016, and January 13, 2017

REASONS FOR JUDGMENT

gray J.

[1] Daniel and Stephanie Beaulieu are charged with a number of offences under the Controlled Drugs and Substances Act and the Criminal Code. In substance, the charges arise from the discovery of a number of drugs that were in the possession of Daniel Beaulieu and the home occupied by Daniel and Stephanie Beaulieu on July 19, 2012.

[2] Daniel Beaulieu now brings an application to exclude as evidence the drugs and other material found in his possession and in the home. He alleges violations of ss.8 and 9 of the Canadian Charter of Rights and Freedoms and, argues that the seized items should be held to be inadmissible pursuant to s. 24(2) of the Charter.

[3] Stephanie Beaulieu is represented by counsel, but she took no position on this application, and her counsel was not present for most of it.

[4] I was appointed as the case management judge pursuant to s. 551.1 of the Criminal Code. I heard this application pursuant to s. 551.3 (1) of the Code. Evidence was heard on August 17 and 18, 2016, and was adjourned for argument to October 28, 2016. On that date, counsel for Mr. Beaulieu indicated that he preferred to have a transcript at hand to assist in making submissions. The Crown consented to an adjournment to January 13, 2017, when the matter was argued.

[5] For the reasons that follow, the application is dismissed.

Background

[6] The events that are the subject of this application commenced at a pharmacy located at 2300 Eglinton Avenue West in Mississauga. The owner of the pharmacy had become aware that a number of drugs had, over a period of time, gone missing. Most of the missing drugs were controlled substances.

[7] The owner of the pharmacy became suspicious that the reason for the disappearance of the drugs was theft. The suspicions focused on two specific individuals, a driver, Dawn Ohlke, and an employee at the pharmacy named Odalia Sousa, who was a person responsible for receiving medication at the pharmacy and signing for it.

[8] The owner of the pharmacy retained a private investigator, Andrew Makarewicz, to investigate.

[9] Mr. Makarewicz was a police officer for 32 years, and retired as such in 2005. In July, 2012, he was working for a private investigation company named Profile Inc.

[10] On July 19, 2012, Mr. Makarewicz received a call from Jason Cassie, a vice-president of the company that owned the pharmacy in question. The pharmacy is in one of the buildings operated by Credit Valley Hospital.

[11] Mr. Makarewicz was advised that there were narcotics that were likely being stolen from the pharmacy, and he was asked to attend at the pharmacy and gather information about any suspicious things happening there. He was told that there was one particular person of interest, a female Portuguese person in her late-forties, who was short with curly brown hair, wearing glasses. He was told her name was Odalia. He was told there were some other people on whom some suspicions were focused.

[12] Mr. Makarewicz arrived at the pharmacy at 11:45 a.m. He commenced recording the events by video. He made recordings from the outside and from the interior. The person he referred to as Odalia, or “Odie”, was in the pharmacy at the back, where drugs were dispensed.

[13] Mr. Makarewicz received information that a police contact was Detective Constable Merchant and he was to refer any unusual activity to him.

[14] Mr. Makarewicz made some initial contact with Officer Merchant. Officer Merchant and he discussed the fact that the person of interest was Odie, and Mr. Makarewicz was to follow her if there was any unusual activity and report it to Officer Merchant. Officer Merchant supplied an address for Odie.

[15] Mr. Makarewicz conducted surveillance on the outside of the pharmacy, and recorded it on video.

[16] At 2:55 p.m., Mr. Makarewicz had another conversation with Officer Merchant, and was advised to follow Odie if she left the premises.

[17] The pharmacy closed at about 5:30 p.m. Before closing, Mr. Makarewicz observed various people inside the pharmacy going about their business.

[18] During the day, he received a telephone call from one Mark Outram, the regional director of operations of the company that owned the pharmacy. It was understood that he and Mr. Makarewicz would enter the pharmacy after hours, at approximately 6:30 p.m., to make a count of any prescription drugs that were dispensed and how many were left over. It was also understood that if Odie left the pharmacy, Mr. Makarewicz was to follow her, and if he lost her he would go to her address.

[19] Sometime between 5:30 p.m. and 6:00 p.m., Odie left the pharmacy and hurriedly went outside. She entered a white sports car on the passenger side. The person driving the car was a male with short black hair, and wearing glasses. He appeared to be in his 30s. The vehicle drove away, and Mr. Makarewicz tried to follow it, but lost sight of it. He then went to Odie’s address. He did not see the white sports vehicle there.

[20] Mr. Makarewicz received a call from Mr. Outram who said he would meet him at the pharmacy and they would enter it at 6:30 p.m. Mr. Makarewicz started driving to the pharmacy at 6:20 p.m., but in the meantime received another call from Mr. Outram who advised that Odie had arrived at the pharmacy. Mr. Makarewicz arrived at the pharmacy at 6:38 p.m. He did not see the white sports car.

[21] Mr. Makarewicz commenced then to observe what was going on inside the pharmacy, and commenced videotaping. He saw Odie, along with a male person. The male person turned out to be Mr. Beaulieu. Mr. Makarewicz had not seen him before.

[22] Mr. Makarewicz testified that he saw the male and female, particularly the male, going into different parts of the pharmacy, including an area in the back of the pharmacy and a room behind a red door.

[23] At about 6:47 p.m., Mr. Makarewicz left a message for Officer Merchant. He said the parties were involved, inside the pharmacy. He said there should be some back up. He testified that he was concerned that narcotics had probably been stolen from the pharmacy. He testified that he said so in his message to Officer Merchant.

[24] Mr. Makarewicz testified that he returned to his vehicle, and advised Mr. Outram to go to the rear of the premises in case the suspects left from there.

[25] At approximately 7:00 p.m., Mr. Makarewicz observed the male leaving the premises and walking towards the parking lot. At that point, a police vehicle drove up and Mr. Makarewicz advised the driver that the subject had just exited the pharmacy. At that point, Mr. Makarewicz presumed that a theft had occurred. That was the reason he contacted the police.

[26] Mr. Makarewicz testified, and it was captured on video, that the male suspect was carrying a knapsack. He was followed by Odie, who got in her car, a grey Honda. She drove away. Mr. Makarewicz advised the police officer conducting surveillance that she was also involved inside the pharmacy. That officer radioed other units to follow the vehicle.

[27] Ms. Makarewicz went to the parking lot and saw Officer Merchant and some patrol cars with two vehicles, the white sports car and Odie’s Honda. He also saw the male suspect and Odie.

[28] On cross-examination, Mr. Makarewicz acknowledged that while he had testified that he advised Officer Merchant that narcotics had probably been stolen from the pharmacy, that was not mentioned in his notes. He also acknowledged that he had not mentioned this in his testimony at the preliminary inquiry. He said he was relying on his memory.

[29] He also acknowledged that he had not seen Mr. Beaulieu stuff anything into a bag or actually take anything.

[30] On re-examination, Mr. Makarewicz testified that he felt there were narcotics being stolen from the pharmacy, and that that was why he was investigating. He testified that when he left a message for Officer Merchant, he told him that he thought there was a theft that was occurring.

[31] Officer Merchant, whose full name is Aamer Merchant, has been a police officer since July, 1999. He testified that he received a telephone call on July 17, 2012, from Jason Cassie, a vice-president at Profile Investigations. Mr. Cassie said he had a client who believed it was the possible subject of an internal theft of prescription medication. He asked if the police would be able to assist them in their investigation. Officer Merchant testified that he advised Mr. Cassie that if they had enough evidence and a proper suspect, the police would take the appropriate action based on whatever evidence they had gathered.

[32] Officer Merchant testified that he heard from Mr. Cassie again, on the morning of July 19, 2012. He told him that his client was an organisation called Medical Pharmacies. He said that on that day they were expecting a large shipment of opiate-related prescription medication to be delivered to the pharmacy located at the Credit Valley Hospital in Mississauga. He said there would be a private investigator attending the site, and after the pharmacy was closed the private investigator would do an inventory of the delivery with one of the employees from the pharmacy.

[33] Officer Merchant testified that Mr. Cassie advised that there were two possible suspects. One was a delivery driver and the other was possibly an employee at the pharmacy. Mr. Cassie supplied the name of the driver, the name of the private investigator, and the name of the regional director of operations of the pharmacy company, Mark Outram. Later that day, he was advised of the name of the employee at the pharmacy who was a suspect, Odalia Sousa. He was told that she placed the orders for medication, and was responsible for receiving it and signing for it.

[34] Officer Merchant ran CPIC checks on the names but found there were no criminal records that were relevant.

[35] Officer Merchant received a list of names of employees at the pharmacy. Odalia Sousa’s name was on the list.

[36] Officer Merchant testified that he briefed his team of officers, that included Constable Harris and Constable Harloff, that there was an internal investigation going on at a pharmacy at Credit Valley Hospital, that they believed there was an internal theft going on, that they had a private investigator there, and if need be the police would be called to assist. They had no indication that the theft would actually take place that very day.

[37] Officer Merchant testified that he had telephone contact with Mr. Makarewicz. At 7:08 p.m., he was advised that Odalia Sousa had returned to the pharmacy, in the same vehicle that she had left in earlier that day. He said that Ms. Sousa had returned to the pharmacy with an unknown male, and both of them had entered the pharmacy. Mr. Makarewicz said they were moving around the area behind the counter, going in and out of the rooms, and “he believed that they were walking around selecting stuff”. He asked if the police were going to be able to attend and help.

[38] Officer Merchant testified that Mr. Makarewicz was extremely excited. Mr. Makarewicz believed that the theft was, in fact, occurring that very minute. There was an urgency in his tone. He expressed that he needed the police to come immediately.

[39] Officer Merchant testified that he left whatever he was doing and started heading over to the Credit Valley Hospital. He contacted Constable Harris. He told him to get the team started heading over immediately to the Credit Valley Hospital. He advised Officer Harris that the investigator felt that the theft was happening immediately, and the police needed to get over there immediately and assist him.

[40] Officer Merchant testified that Mr. Makarewicz called him a few times, and every time he was even more excited. His indication was that they were still in there, they were still going back and forth, they were in the area where the drugs were kept, and he believed they were stealing the stuff immediately.

[41] Officer Merchant testified that he believed he arrived at the pharmacy sometime between 7:20 p.m. and 7:25 p.m. That is the time when Ms. Sousa was arrested. He testified that he got to the parking lot as soon as she was arrested.

[42] Officer Merchant testified that he read Ms. Sousa her right to counsel and cautioned her.

[43] Mr. Beaulieu was also present in his vehicle. Mr. Beaulieu had been arrested. There was a black backpack that was seized, that was in the possession of Mr. Beaulieu. It had a large quantity of drugs in it. The drugs included OxyContin, Oxyneo and fentanyl. Ms. Sousa and Mr. Beaulieu had been arrested for possession for the purpose of trafficking in a controlled substance.

[44] Mr. Beaulieu advised that he was self-employed, that he used to shovel snow in the winter and landscape in the summer. Mr. Beaulieu gave him his address, 3115 Trailside Drive in Oakville. Mr. Beaulieu’s vehicle was registered to an address at 1538 Leda Avenue in Mississauga.

[45] Officer Merchant advised Mr. Beaulieu that the police would be executing a search warrant at the residence. He advised his team to head over to the Leda Avenue address. He subsequently received information from Constable Harloff that that address was not, in fact, the correct address. The correct address was 3115 Trailside Drive in Oakville. The police were going to head over there and investigate.

[46] Officer Merchant testified that he and another officer attended at Odalia Sousa’s residence at 480 Grand Highland Avenue in Mississauga. They secured that residence. He then attended at the police station to prepare the search warrant for two addresses.

[47] At approximately 9:35 p.m., Officer Merchant received information from Constable Harloff that the police had attended the address at Trailside Drive. They had a male, Carlos Ariganello, and Mr. Beaulieu’s wife, Stephanie Beaulieu, in custody. Officer Merchant was advised that upon arrival, they observed an individual walking out of the residence with a black bag. They arrested the individual and found the bag was full of pills and a quantity of money. The individual advised that Stephanie Beaulieu had called him to come over and hide the bag, and that she had just received a call to do so. Officer Merchant was advised that Ms. Beaulieu had received a call from the people at the Leda Avenue address, and was advised that the police had attended looking for her.

[48] Officer Merchant testified that a search warrant was issued for the Trailside address, but was denied for Ms. Sousa’s residence.

[49] Pursuant to the search warrant issued for the Trailside property, drugs that had been in the bag seized from the individual, and a further quantity of drugs found inside the residence, were seized.

[50] On cross-examination, Officer Merchant testified that in his conversation with Mr. Cassie on July 17, 2012, Mr. Cassie indicated that they had opiates missing, they believed there were employees involved, and they believed there was a criminal offence being committed. It was not a simple thing such as missing or misplaced inventory.

[51] Officer Merchant confirmed that initially the police were not aware that anyone other than employees at the pharmacy were involved. Mr. Beaulieu was not being considered. In fact, his appearance with Ms. Sousa was a surprise, and caught everybody off guard.

[52] Officer Merchant acknowledged that when he testified that Mr. Makarewicz had told him that he believed a theft was occurring right then and there, it was possible that he did not actually use the words “theft in progress” or “theft”. He said “when some people tell us stuff, they don’t exactly have to use the word ‘theft’. There’s numerous other ways people can convey what is going on.” He acknowledged that there was nothing in his notes that mentioned a possible theft.

[53] Officer Merchant acknowledged that when he arrived at the parking lot where Ms. Sousa and Mr. Beaulieu were, they were already under arrest. He gave Ms. Sousa her rights to counsel, and he believed or assumed Mr. Beaulieu was given his right to counsel. He acknowledged that in fact, Mr. Beaulieu did not speak to a lawyer until hours later. He said the police did not let anybody make any phone calls because they were concerned about the potential destruction of evidence. He acknowledged that when Mr. Beaulieu provided the Trailside address, he had not spoken to a lawyer.

[54] Officer Merchant acknowledged that when the Trailside residence was frozen, a warrant had not yet been obtained.

[55] Officer Merchant acknowledged that Mr. Ariganello was never charged. After he provided a statement, it was decided that he would not be charged.

[56] Officer Andrew Harris testified. He has been a police officer since December, 2001. He was on duty on July 19, 2012. He was contacted that day by Officer Merchant, who told him that there might be something to do with an internal theft involving prescription drugs, and if he knows more he would let him know. He might be required to assist.

[57] At approximately 7:09 p.m., Officer Harris received another telephone call from Officer Merchant. He said there was an internal theft occurring at a pharmacy at Credit Valley Hospital. He said there was a private investigator on site and there is possibly a theft occurring. Officer Harris was required to attend to assist the private investigator, and he believed there was an internal theft.

[58] Officer Harris spoke to Constable Harloff and asked him to attend as well.

[59] Officer Harris attended at Credit Valley Hospital and went towards a medical outbuilding in a shared parking lot. He met the private investigator, whose name was Andy Makarewicz.

[60] Mr. Makarewicz advised that the pharmacy was closed, and there were people inside. Officer Harris, from his vantage point, could see inside the pharmacy. He could see a male, approximately six feet tall with a medium build, wearing a blue t-shirt and grey shorts carrying a backpack. He saw the male in the aisles, and then he went out of sight.

[61] Officer Harris saw the male come out of the medical building. He came out of the main doors and walked east towards what would be the hospital parking, towards a five-storey parking lot. He was carrying a backpack that was stuffed and jammed. The individual was not wearing business attire, and he had a stuffed full backpack. Officer Harris believed it was stuffed with prescription drugs.

[62] The male went into the five-storey parking lot. Shortly after, an older female came out and went to a Honda Civic. She drove into the same parking lot. Officer Harris followed her into the parking lot. He subsequently learned that she was Odalia Sousa.

[63] Officer Harris observed Ms. Sousa enter the parking spot on the second storey. She parked beside a white Audi. The male person that had left the pharmacy was standing outside the white Audi, and the trunk was open. The backpack was inside it.

[64] Officer Harris knew there was police back-up in the area, but did not know how far away the police were. He believed the people he was observing were in possession of a controlled substance for the purpose of trafficking.

[65] Officer Harris arrested the male party who carried the backpack, when he was standing outside his Audi. Officer Harris took the backpack from the car, and walked the male back to the police vehicle where Officer Harris opened the top of the backpack. He observed large pill bottles. They were bulk bottles. He gave Mr. Beaulieu his rights to counsel.

[66] Officer Harris advised Constable Melinder that a female was also involved. Officer Melinder attended and arrested Ms. Sousa.

[67] Mr. Beaulieu requested to speak to a lawyer, Thomas Wiley. A call was not placed right away, because there was a fear that evidence could be moved or destroyed prior to the police executing a warrant on Mr. Beaulieu’s residence. Mr. Beaulieu gave him an address, 3115 Trailside Drive in Oakville. It was after Mr. Beaulieu had been read his rights.

[68] Officer Harris attended at 480 Grand Highland in Mississauga, Ms. Sousa’s residence, with Officer Merchant. He subsequently attended at the police station and took statements from Ms. Sousa, Mr. Ariganello, Stephanie Beaulieu and Mr. Beaulieu.

[69] Attempts were made to reach Mr. Wiley, Mr. Beaulieu’s lawyer. Eventually, at 1:20 a.m., Mr. Beaulieu spoke to duty counsel.

[70] Officer Harris testified that a recording of Ms. Beaulieu’s statement was not made, because the equipment failed.

[71] On cross-examination, Officer Harris confirmed that when he obtained information from Officer Merchant about an internal theft investigation, that was on the telephone.

[72] Officer Harris confirmed that Mr. Beaulieu was arrested at approximately 7:25 p.m., and did not speak to a lawyer until about 1:30 a.m. the next morning, about six hours later. He said that in the past, people speaking to counsel had led to the destruction of evidence. Until they could secure the houses and be certain that no evidence would be destroyed, he wasn’t able to speak with counsel. Officer Harris took the position that even though officers were on the scene at approximately 9:00 p.m. or 9:30 p.m., Mr. Beaulieu could not have been given an opportunity to contact counsel any earlier than he was.

[73] Officer Harris testified that when he observed what was going on inside the pharmacy, he did not see anyone stuffing anything into something. What he saw was movement.

[74] Officer Harris testified that he was at the pharmacy for an investigation of internal theft of opiate prescription drugs. This was based on information that he had received from Officer Merchant.

[75] Officer Ian Harloff testified. He has been a police officer for 16 years.

[76] Officer Harloff testified that at 7:10 p.m. on July 19, 2012, he received a call from Officer Harris, who told him to attend at Credit Valley Hospital. He said there was an internal theft from a pharmacy in progress, and there was a private investigator on scene that needed their assistance. He understood that somebody was stealing something from a pharmacy at the hospital. Because it was a pharmacy, he assumed it was drug related.

[77] Officer Harloff attended at Credit Valley Hospital along with two officers.

[78] Officer Harloff located Officer Harris in the parking lot, where they had parties in custody, and advised that there was a quantity of prescription drugs located on the parties. He was assigned to attend the residence of Mr. Beaulieu to execute a search warrant. He was told it was 3115 Trailside Drive. He was to secure that residence to prevent destruction and loss of evidence. There was a vehicle on scene, which had a residence address of 1538 Leda Avenue, Mississauga.

[79] Officer Harloff first attended the Leda Avenue address. He was advised that Mr. and Mrs. Beaulieu had bought a new home in Oakville. The officers thus headed to 3115 Trailside Drive in Oakville.

[80] Upon arrival, Officer Harloff discovered a male party walking towards a minivan that had its trunk open. The male had a large black duffle bag in hand, and he placed the bag in the rear of the minivan. The male was arrested by Constable Melinder. The bag was searched, and it contained a large number of pills and cash.

[81] Officer Harloff attended the residence and spoke to Stephanie Beaulieu and advised her that Mr. Beaulieu had been arrested for possession of drugs for the purpose of trafficking, and the residence would be secured pending a search warrant.

[82] Officer Harloff spoke to Constable Melinder, and was advised that the male party in custody had made statements regarding Stephanie Beaulieu’s involvement with the bag. He was advised that Stephanie Beaulieu had directed the male to take the bag and hide it as it was full of cash. As a result, Officer Harloff directed another officer to arrest Stephanie Beaulieu.

[83] Ms. Beaulieu and Mr. Ariganello were transported to the police station. Officer Harloff took custody of the exhibits and went to the police station. Officer Harloff took photographs of the exhibits, and prepared lists of what was seized.

[84] On cross-examination, Officer Harloff confirmed that the individual who was seen leaving the Trailside Drive residence with a bag was immediately arrested. While leaving a home with a bag and putting it in a car was not itself a criminal offence, given the nature of what Officer Harloff understood was going on, it made sense that there was likely a criminal offence being committed.

Submissions

[85] Mr. Navarrete, counsel for Mr. Beaulieu, submits that there were no reasonable and probable grounds to arrest Mr. Beaulieu on July 19, 2012. As a result, the so-called search of his knapsack incident to arrest was invalid. As a result, Mr. Beaulieu’s rights under ss.8 and 9 of the Charter were infringed.

[86] Furthermore, Mr. Navarrete submits that material that was obtained subsequent to those breaches, and that formed part of the basis for the Information to Obtain (ITO) leading to the search warrant, could not be used to justify the warrant. If that material is excised or ignored, the warrant cannot justify the search of the home or the duffle bag.

[87] Counsel also submits that the police had no reasonable and probable grounds to arrest and search Mr. Ariganello.

[88] Mr. Navarrete submits that all of the seized evidence should be excluded pursuant to s.24(2) of the Charter.

[89] Mr. Navarrete submits that there were no reasonable and probable grounds to conclude that there was any theft occurring from the pharmacy on July 19, 2012.

[90] Mr. Navarrete submits that it is crucial to note that neither Mr. Makarewicz nor Officer Merchant had any note to the effect that a theft from the pharmacy was in progress or was about to occur. While both witnesses testified that Officer Merchant was advised to that effect on July 19, 2012, neither witness had any notation of such in his notes.

[91] Mr. Navarrete submits that Officer Merchant was an experienced police officer, and Mr. Markowtiz had been a police officer for 30 years. Both of them were well aware of the importance of making accurate, detailed notes. It is highly likely, Mr. Navarrete submits, that if there had been any discussion about a theft occurring, or even probably occurring, one or both of them would have made a note of it. The fact that neither one of them made such a note means it is highly unlikely that there was any such discussion.

[92] That being the case, Mr. Navarrete submits, one is left only with the observations made by Mr. Makarewicz and one of the police officers as to what was occurring inside the pharmacy, and what they observed when Mr. Beaulieu and Ms. Sousa left it.

[93] All that was seen inside the pharmacy was people moving around. No one observed anything being put into a bag or anything being taken.

[94] All that was observed after Mr. Beaulieu and Ms. Sousa left the pharmacy was Mr. Beaulieu walking towards the parking lot, and Ms. Sousa driving towards the lot, and into it.

[95] None of these activities, either together or in combination, could conceivably provide reasonable and probable grounds to believe that a theft was occurring or had occurred. Thus, Mr. Navarrete submits, the arrest of Mr. Beaulieu was not based on reasonable and probable grounds that he had committed any offence.

[96] Since the arrest of Mr. Beaulieu was unlawful, there could be no lawful search incident to arrest. Accordingly, the search of Mr. Beaulieu’s backpack was unlawful.

[97] Mr. Navarrete submits that while Mr. Beaulieu was advised of his right to counsel, he was not given any opportunity to contact counsel until several hours later. Before he had an opportunity to contact counsel, he was asked to provide his address, which he did. It was only because he provided the address that the police knew where he lived, and a warrant to search that address was obtained.

[98] Mr. Navarrete submits that the breaches of the Charter must result in the excising of information in the ITO that was derived after the breaches occurred. With that information excised, the warrant cannot justify the search that occurred.

[99] Mr. Navarrete submits that the evidence discloses serious breaches of ss. 8 and 9 of the Charter. In the circumstances, the challenged evidence should not be admitted pursuant to s.24(2) of the Charter.

[100] Under s.24(2) of the Charter, the court must consider three factors:

a) the seriousness of the Charter-infringing state conduct;

b) the impact of the breach on the Charter-protected rights of the accused; and

c) society’s interest in adjudicating the case on its merits.

[101] Mr. Navarrete submits that the infringements of Mr. Beaulieu Charter-protected rights were serious.

[102] Mr. Navarrete submits that the arrest of Mr. Beaulieu was precipitous, and should only have been effected after a proper investigation. Instead, the police acted on entirely insufficient evidence that any crime had been committed. Subsequently, the applicant’s home was frozen before any warrant was issued. Mr. Ariganello was arrested and searched simply because he was seen leaving the home with a duffle bag. There was no other suspicious behaviour on his part. Statements were obtained from him that led to the arrest of Ms. Beaulieu.

[103] In this case, the Charter-infringing conduct was flagrant and egregious. This factor favours exclusion of the evidence.

[104] Mr. Navarrete submits that there was a serious impact on the Charter-protected interests of Mr. Beaulieu. His backpack was searched without a warrant. He had a reasonable expectation of privacy in the backpack. What occurred at his home was a warrantless search (assuming the warrant was invalid), thus violating a high expectation of privacy in his own home. His wife was arrested in his home.

[105] Mr. Navarrete submits that this factor favours exclusion.

[106] Mr. Navarrete submits that while society has a strong interest in adjudicating a serious case on its merits, the public also has a strong interest in ensuring that Charter protections are respected. This is particularly so in the case of a serious case.

[107] Mr. Navarrete submits that on balance, an analysis of the relevant factors means that the seized evidence should not be admitted. It would bring the administration of justice into disrepute to admit it.

[108] Ms. Briscoe, counsel for the Crown, submits that the application should be dismissed, and the challenged evidence should be admitted.

[109] Ms. Briscoe submits that there is ample evidence to support the conclusion that there were reasonable and probable grounds to arrest Mr. Beaulieu. Thus, his arrest was lawful, and the search incident to arrest was also lawful.

[110] Ms. Briscoe submits that all of the circumstances should be considered in deciding whether there were reasonable and probable grounds to arrest.

[111] Ms. Briscoe submits that it is not sufficient to focus simply on what was observed by Mr. Makarewicz and another police officer at the pharmacy. All of the background leading up to those observations must also be considered.

[112] Ms. Briscoe points out that the police had been alerted that significant quantities of drugs had gone missing from the pharmacy in question, and that it was suspected that this was as a result of an internal theft. There were two specific suspects, one of whom was Ms. Sousa.

[113] On July 19, 2012, Mr. Makarewicz had been asked to investigate the suspected theft of drugs, and he attended at the pharmacy for that purpose. Prior to his attendance, he had conversations with Officer Merchant. Both Officer Merchant and Mr. Makarewicz testified that Officer Merchant was told that it was suspected that drugs were being stolen from the pharmacy. Both witnesses testified that Mr. Makarewicz advised Officer Merchant that drugs were in the course of being stolen while Mr. Makarewicz was making his observations.

[114] Based on what Officer Merchant had been told, Officer Harris was advised that a theft was in the course of being committed, and he attended at the scene. Based on his understanding of the background, and based on his observations, he arrested Mr. Beaulieu.

[115] Based on all the circumstances, Ms. Briscoe submits that it can only be concluded that Officer Harris, who effected the arrest, had reasonable and probable grounds to believe that a theft of drugs from the pharmacy had been committed. Accordingly, the search of Mr. Beaulieu’s backpack, incident to arrest, was lawful.

[116] Ms. Briscoe submits that there was ample evidence to justify the issuance of the warrant. She notes that the ITO contains the following information:

a) information was received from Mark Outram, a regional director of the pharmacy, who discovered that there were large quantities of controlled substances missing, and that an excessive amount of narcotics was being ordered for this particular pharmacy;

b) the company had contacted a private investigator to assist in investigating the missing narcotics;

c) on July 19, 2012, Mr. Outram attended the pharmacy after it was closed and he observed one of the suspects, Ms. Sousa, enter the store, and she was followed by an unknown male;

d) that Ms. Sousa and the unknown male were subsequently arrested;

e) the unknown male is not an employee of the pharmacy;

f) Mr. Makarewicz investigated possible employee theft of narcotics at the pharmacy, and as a result of information received from Mr. Makarewicz, the police attended, entered into surveillance, and ultimately arrested Ms. Sousa and Mr. Beaulieu;

g) Ms. Sousa subsequently advised the police during an interview that she had been supplying Mr. Beaulieu with narcotics that she had stolen from the pharmacy;

h) Mr. Beaulieu was read his rights to counsel and cautioned, after which he provided an address of 3115 Trailside Drive, Oakville;

i) upon arriving at the residence at 3115 Trailside Drive, the police observed Carlos Ariganello exit the residence carrying a large black duffle bag, in which there were several thousand various narcotic pills and approximately $16,000 in Canadian currency;

j) the residence was secured awaiting judicial authorization to enter and search the residence;

k) Mr. Ariganello provided a statement in which he stated that Ms. Beaulieu told him the bag contained money and asked him to hide it.

[117] Ms. Briscoe submits that the warrant should be held to be valid. There are no grounds to excise any of the material or information from the ITO that led to the issuance of the warrant.

[118] For these reasons, the evidence seized pursuant to the warrant should be admitted.

[119] In the alternative, Ms. Briscoe submits that the evidence should be admitted pursuant to s.24(2) of the Charter.

[120] Ms. Briscoe submits that if there was any breach of the Charter, there was no egregious conduct on the part of the police.

[121] If the police can be faulted, it can only be said that they acted too soon. Clearly, they believed in good faith that a theft of drugs from the pharmacy was being committed.

[122] The police had background information to strongly suggest that drugs had been disappearing from the pharmacy, and that a possible explanation was theft by one or more employees, one of whom was Ms. Sousa. That being the case, when Ms. Sousa and an unidentified male (who would not appear to have any legitimate reason to be inside the pharmacy after hours) were seen going to various locations within the pharmacy, the suspicion that a theft was occurring was very strong, if not conclusive. When the two people were seen exiting the pharmacy and going to the same parking lot, one of them with a stuffed backpack, suspicion was increased.

[123] At the very least, the good faith of the police is evident.

[124] For the same reason, the police acted in good faith in obtaining a warrant for the search of the premises. The police did not take the position that they had the right to search the premises without a warrant. Rather, they simply secured the premises and waited until a warrant could be obtained.

[125] Even if some of the information in the ITO should be excised, there was ample material remaining in the ITO to justify issuance of the warrant. Even if that was not so, once again the good faith of the police is evident.

[126] For these reasons, if there was a breach of the Charter, it was clearly at the less serious end of the scale.

[127] Ms. Briscoe concedes that Mr. Beaulieu had a high expectation of privacy in the backpack and his home.

[128] Ms. Briscoe submits that society has a strong interest in the prosecution of these serious charges on their merits.

[129] On balance, Ms. Briscoe submits that the evidence should be admitted pursuant to section 24(2) of the Charter.

Analysis

[130] The main issue is whether Mr. Beaulieu’s arrest without a warrant was lawful. If the arrest was lawful, the search of his backpack, incident to arrest, was also lawful. If the arrest was unlawful, the search was also unlawful.

[131] An arrest without a warrant by a police officer can only be effected if the officer has reasonable and probable grounds to make the arrest. The threshold is not overly high. The officer clearly need not be satisfied beyond a reasonable doubt. However, suspicion is not enough. The officer must subjectively believe that an offence has been, or is being, committed, and there must be, on an objective basis, reasonable grounds for that belief.

[132] It was Officer Harris who effected the arrest. Thus, it must be determined whether he had reasonable and probable grounds to believe that Mr. Beaulieu had stolen drugs from the pharmacy.

[133] Clearly, Officer Harris subjectively believed that Mr. Beaulieu had stolen drugs from the pharmacy. He testified that he had received information that there was an internal theft of drugs going on, that he had seen Mr. Beaulieu exit the pharmacy and had a stuffed and jammed backpack. Officer Harris testified that he believed that the backpack was stuffed with prescription drugs. Mr. Navarrete did not argue that Officer Harris did not have a subjective belief that Mr. Beaulieu had stolen drugs from the pharmacy.

[134] Mr. Navarrete’s argument, in the main, was that there was no objective evidence that any theft was occurring or had occurred.

[135] With respect, there was ample evidence that would objectively have given Officer Harris reasonable and probable grounds to believe that a theft had occurred.

[136] Officer Harris testified that he had received a call from Officer Merchant regarding an internal theft at the pharmacy. He testified that he was told that a private investigator was in the course of watching the pharmacy, and that there was possibly a theft occurring. He was required to assist the private investigator, who believed there was an internal theft.

[137] Officer Harris testified that when he attended, he was able to see inside the pharmacy, and he could see a male carrying a backpack in the pharmacy. The pharmacy was closed. He could see the male moving about in the pharmacy.

[138] Based on what he was told and what he could observe, in my view Officer Harris had reasonable and probable grounds, on an objective basis, to believe that Mr. Beaulieu had committed theft of drugs from the pharmacy.

[139] If it is necessary to go beyond Officer Harris’ specific belief, based on reasonable and probable grounds, and to look more generally at the information available to the police as a whole, I think there was ample evidence to support the proposition that there were reasonable and probable grounds to believe that a theft had occurred.

[140] The police were originally contacted based on the belief that drugs were disappearing from the pharmacy, and that it was suspected that this was because of theft by one or more employees, one of whom was Ms. Sousa. As a result, Mr. Makarewicz was retained to investigate. Mr. Makarewicz had communicated with Officer Merchant and asked if the police would assist. This was because of a suspected internal theft of drugs.

[141] On the day in question, Mr. Makarewicz spoke to Officer Merchant while the events within the pharmacy were underway. It is this conversation on which Mr. Navarrete focused in his cross-examination of the witnesses, and on which he focused in his submissions.

[142] Mr. Navarrete strongly submitted that it was unlikely that Mr. Makarewicz advised Officer Merchant that a theft was underway, otherwise that would have been recorded in the notes of either Mr. Makarewicz or Officer Merchant, or both of them. Because it was not recorded by either of them, it is unlikely that such a conversation occurred.

[143] With respect, I think having regard to all of the surrounding circumstances it is more likely that Mr. Makarewicz conveyed to Officer Merchant the clear message that a theft was underway. Whether he actually used the word “theft” is not material.

[144] As noted, Mr. Makarewicz had been retained to investigate a possible theft of drugs from the pharmacy. On July 19, 2012, he was observing one of the suspects who was in the pharmacy after hours with an unknown male, who was not an employee. As a result of his suspicions, Mr. Makarewicz felt compelled to call Officer Merchant and tell him that a police presence was required immediately. One can think of no reason for doing so other than a belief, on his part, that a theft was underway. Whether or not he actually used the word “theft”, there can be no doubt that Officer Merchant believed that was what was taking place. Otherwise, there could be no reasonable explanation for the immediate attendance of Officer Merchant at the pharmacy with a number of other police officers.

[145] In the circumstances, there can be little doubt that the police, in addition to Officer Harris, reasonably believed that a theft of drugs from the pharmacy was occurring or had occurred.

[146] Since the employee suspect had left the pharmacy and ended up in the same parking lot as the other non-employee suspect, and that the backpack worn by the non-employee suspect was in the trunk of his vehicle, there can be little doubt that, in the circumstances, Officer Harris would have had reasonable and probable grounds to believe that a theft of drugs from the pharmacy had occurred, and that the drugs would likely be found in the backpack, as indeed they were.

[147] For these reasons I hold that the arrest of Mr. Beaulieu was lawful and the search incident to arrest was also lawful. Accordingly, the drugs seized from the backpack will be admitted into evidence at trial.

[148] I am not persuaded that reliance on the search warrant was unlawful.

[149] Whether or not the arrest of Mr. Ariganello and the search of the bag that was with him were unlawful is of no moment. Mr. Beaulieu has no status to complain of any impropriety in that connection.

[150] The search of the home occupied by Mr. and Ms. Beaulieu was pursuant to a search warrant. No search was conducted before the issuance and execution of the warrant.

[151] The ITO contains ample evidence that would justify the issuance of the warrant. Based on my ruling regarding the lawful arrest of Mr. Beaulieu, there are no grounds to excise any of the information or material in the ITO.

[152] Mr. Beaulieu complains that he furnished his address before he had been given an opportunity to contact counsel. However, there is no complaint based on s. 10 of the Charter. Even if there were, I am not persuaded that it would affect the matter. I am not persuaded that the police could not have obtained the address by other means.

[153] In the event I am wrong with respect to the rulings I have made, I must consider the issue under s.24(2) of the Charter.

[154] I think the seriousness of the breach of the Charter, assuming there was one, is at the low end of the scale. Clearly the police acted in good faith. They had information that suggested, strongly, that drugs were disappearing from the pharmacy. There would be little reason for one of the suspected employees to be in the pharmacy after hours with an unknown non-employee. At the very least, there were strong reasons to believe that the individuals were in the process of stealing drugs.

[155] In view of the good faith of the police, this factor favours admission of the evidence.

[156] Mr. Beaulieu had a reasonable expectation of privacy in both his home and the backpack. This factor favours exclusion.

[157] Society has a strong interest in a determination of a case of this sort on its merits. Exclusion of this evidence will put an end to the Crown’s case. This factor favours admission.

[158] While the court does not simply take a numerical approach to the balancing of the factors, at the end of the day I conclude that Mr. Beaulieu has not established that the admission of the challenged evidence would bring the administration of justice into disrepute.

[159] For these reasons, the evidence will be admitted.

Disposition

[160] For the foregoing reasons, the application is dismissed.

Gray J.

Released: January 26, 2017

CITATION: R. v. Beaulieu, 2017 ONSC 631

COURT FILE NO.: 330/14

DATE: 2017-01-26

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DANIEL BEAULIEU and STEPHANIE BEAULIEU

REASONS FOR JUDGMENT

GRAY J.

Released: January 26, 2017