Her Majesty the Queen v. Lovo-Mayorga, 2017 ONSC 668

CITATION: Her Majesty the Queen v. Lovo-Mayorga, 2017 ONSC 668 COURT FILE NO.: 16-00005 DATE: 2017/01/26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN (Respondent)

– and –

Roberto Lovo-Mayorga (Applicant)

COUNSEL: B. Eberhard, for the Crown K. Schofield, for the Applicant

HEARD: January 20, 2017

Justice A.K. Mitchell

Introduction

[1] The applicant, together with his co-accused, Jonathan Perez-Membreno, stands charged with one count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”). Mr. Perez-Membreno stands charged with 5 other drug-related offences.

[2] The applicant seeks to exclude, pursuant to s. 24(2) of the Charter of Rights and Freedoms (the “Charter”), evidence seized by police from a search of his person incident to arrest on the basis the police violated his sections 8, 9 and 10(b) Charter rights. This evidence consists of 23 grams of crack cocaine and $825 in Canadian currency.

The Evidence

[3] Four members of the London Police Service testified on the voir dire – Detective Constable Matthew Garwood, Sargent D’Wayne Price, Detective Constable Jimmy Bulhoes and Police Constable Blake Morrisson. At all material times, DC Garwood, Sargent Price and DC Bulhoes were members of London Police Drugs and Guns Unit.

[4] The events leading to the applicant’s arrest took place on August 8, 2014.

[5] In the Summer of 2014, Detective Constables Pavoni and Brown were the Unit’s undercover police officers assigned to investigate suspected drug activity out of the “Norma Jeans” restaurant/bar located in a strip mall near the north-east intersection of Highbury and Huron Streets in the City of London.

[6] Prior to the events of August 8, 2014, Mr. Membreno had engaged in two prior undercover drug transactions with DC Pavoni and DC Brown at Norma Jeans bar on July 26 and 30, 2014. The first of these transactions took place inside the bar. Mr. Membreno sold DC Brown and DC Pavoni half a gram of cocaine. After the transaction, Mr. Perez-Membreno indicated that he had to go “as his girl was waiting for him”.

[7] Prior to the second transaction involving the sale of cocaine to DC Pavoni and DC Brown on July 30, 2014, Mr. Perez-Membreno was observed meeting with another male outside Norma Jeans and receiving something.

[8] Mr. Lovo-Mayorga had no known involvement in the first two transactions.

[9] DC Pavoni and DC Brown then arranged to purchase an ounce of cocaine from Mr. Perez-Membreno for $1,700. The “buy” was arranged to take place at Norma Jeans bar on August 8, 2014.

[10] The events of August 8, 2014 are not in dispute. On that day, the target of the undercover drug operation was, once again, Mr. Perez-Membreno. At 4:40 pm a briefing took place among DC Garwood, Sargent Price, DC Bulhoes, DC Warren, DC Pavoni and DC Brown. The undercover team was advised the target was male, Spanish, 25 years of age and his name was “Jonathan Perez-Membreno”. The team was also advised the investigation was taking place at Norma Jean’s bar/restaurant. No vehicle or other individuals were mentioned during the briefing. The team was instructed that the plan was to purchase cocaine from Jonathan Membreno and arrest him immediately thereafter.

[11] DC Garwood and Sargent Price provided cover for the undercover officers. They parked across the street in an unmarked police vehicle with a clear view of the entrance to Norma Jeans. DC Garwood was responsible for communicating with the undercover officers and relaying information and direction to Sargent Price who in turn would communicate over the police radio with the “arrest team” comprised of DC Bulhoes and DC Warren.

[12] DC Bulhoes was parked in an unmarked vehicle approximately 20 meters from the entrance to Norma Jeans. He had a clear view of the parking lot. DC Bulhoes observed a silver Acura sedan motor vehicle with tinted windows pull into the parking lot and park along the east wall of the building, farthest from the entrance to the bar. At approximately 6:20 pm DC Bulhoes was advised by Sargent Price that the target had arrived. DC Bulhoes observed that the vehicle was the only vehicle to enter or exit the lot. The vehicle remained parked along the east side of the building with no activity for approximately 7 minutes. DC Pavoni and DC Brown exited Norma Jeans bar and walked to their undercover police vehicle parked in the lot whereupon Mr. Perez-Membreno exited from the rear driver’s side passenger door of the Acura and walked towards the undercover vehicle.

[13] Once Mr. Perez-Membreno exited the Acura, Sargent Price instructed DC Bulhoes and DC Warren to “deal with the Acura”. At approximately 6:27 pm DC Bulhoes proceeded to arrest Mr. Lovo-Mayorga. At the same time, DC Warren arrested the female sitting in the front passenger seat. Immediately after his arrest, the applicant was cautioned and given his right to counsel by DC Bulhoes. DC Bulhoes offered to Mr. Lovo-Mayorga to speak with duty counsel but he declined indicating he wished to speak with his counsel but could not recall his name.

[14] A search of Mr. Lovo-Mayorga incident to arrest was undertaken and the drugs and cash noted above were seized. A search of the vehicle resulted in the seizure of various cell phones. Mr. Lovo-Mayorga was handcuffed to the rear and seated on the curb on the east side of the parking lot. DC Bulhoes requested police back up to transport the applicant to the station.

[15] Approximately a half hour later, PC Morrison arrived on the scene in a police cruiser. He again cautioned Mr. Lovo-Mayorga and re-read him his rights. Mr. Lovo-Mayorga was placed in the back seat of the cruiser and transported to the station. At the station, PC Morrison, conducted a strip-search[^1] of Mr. Lovo-Mayorga. No further drugs were found. At approximately 7:19 pm Mr. Lovo-Mayorga spoke with counsel of his choice.

[16] DC Garwood, Sargent Price, DC Bulhoes and PC Morrison all confirmed they had no dealings with Mr. Lovo-Mayorga or the Acura motor vehicle at any time prior to the events of August 8, 2014.

[17] Despite 10 years as a police officer, Detective Bulhoes had never arrested anyone as part of a “buy and bust” undercover drug operation before the applicant’s arrest. Detective Bulhoes acknowledged that upon receiving the instruction to “deal with the Acura” he had 3 options – arrest the occupants, conduct an investigative detention of the occupants or block the Acura from exiting the area until it could be determined whether Mr. Perez-Membreno had drugs in his possession. DC Bulhoes testified he believed he had reasonable grounds for arrest because a drug dealer had been transported in the vehicle to a pre-arranged drug deal. This belief was based on his other observations of August 8, 2014, the information provided to him during the briefing, the information relayed to him by Sargent Price and his experience with the Unit, interviewing drug users and traffickers and his experience as a border services officer.

[18] Mr. Lovo-Mayorga was charged with possession of cocaine for the purpose of trafficking. He was not charged with any offence relating to the cocaine found in the possession of Mr. Perez-Membreno.

Positions of the Parties

[19] The applicant argues he was subjected to an arbitrary detention in breach of s. 9 of the Charter, an unreasonable search of his person in breach of s. 8 of the Charter and unreasonable delay in retaining and instructing counsel in breach of s. 10(b) of the Charter.

[20] Mr. Lovo-Mayorga submits the police did not have reasonable and probable grounds to arrest him and therefore, his detention was arbitrary. Because his arrest was arbitrary, the search incident to his arrest was not authorized by law and therefore prima facie unreasonable and a breach of his Charter rights. While he submits his s. 10(b) rights were breached by the unreasonable delay between his arrest and his first contact with counsel, this alleged breach was not strenuously argued because no statements were made by Mr. Lovo-Mayorga during the period of delay.

[21] The applicant argued that the police speculated he could be a party to the offence and also that there could be more drugs in the vehicle. Upon this speculation, they founded their reasonable and probable grounds to support their arrest of the applicant. However, speculation is not enough. The applicant argues the police must base their subjective, honestly-held belief that a crime has been committed or will be committed on particulars which elevate their speculative grounds to probable grounds.

[22] Ms. Schofield referred me to the decision of the Ontario Court of Appeal in R. v. Brown[^2] wherein the test was articulated as follows:

In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer’s belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be reasonable, meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without the subjective component, the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.

[23] The applicant submits that, objectively, a reasonable person, standing in the shoes of the officers, would not believe he had committed, was committing, or was about to commit an offence. At their highest, the circumstances would have permitted, only, an investigative detention of the applicant.

[24] The Crown takes a much more simplistic view of the issue. Crown counsel directed me to the definition of “traffic” found in section 2(1) of the CDSA and argued the simple act of transporting Mr. Perez-Membreno and the cocaine he intended to sell to DC Pavoni and DC Brown gave way to reasonable grounds for the arrest of the occupants of the vehicle. No particulars were needed to tie the vehicle or its occupants to the target of the investigation beyond delivery of the target to the location of the pre-arranged drug transaction on August 8, 2014. That is, any involvement of the Acura or the applicant in the two prior drug transactions was unnecessary.

Analysis

Were the applicant’s [s.8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights breached?

[25] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. Any warrantless search is prima facie unreasonable and requires the Crown to prove it was reasonable.[^3]

[26] Whether there was a breach of s. 8 of the Charter, is dependent on a determination of the threshold issue - whether the police had reasonable and probable grounds to arrest Mr. Lovo-Mayorga for trafficking in cocaine?

[27] As a general rule, police must establish reasonable and probable grounds to believe that an offence has been committed to justify a search of an individual’s person or property in respect of which they have an expectation of privacy. In R. v. Caslake the Supreme Court of Canada held that the authority for a search incident to arrest stems from the lawful arrest. Specifically, the court stated: “since the legality of the search is derived from the legality of the arrest, if the arrest is later found to be invalid, the search will also be.”[^4]

[28] Pursuant to section 495 of the Code, a peace officer may arrest without a warrant a person who, on reasonable grounds, he or she believes has committed or is about to commit an indictable offence.

[29] Quoting from the 1990 Supreme Court decision in R. v. Storrey, for an arrest to be lawful and proper:

…an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.[^5]

[30] The test was further refined in R. v. Dhillon[^6], a recent decision of the Ontario Court of Appeal, where it was stated:

The standard does not require that the police demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.

[31] Detective Price admitted that “go deal with the Acura” supported either detention or arrest. Detective Bulhoes interpreted this direction to mean arrest the occupants of the Acura because in his view the vehicle was part of the drug deal. He testified that the driver, regardless of his identity, had driven a drug dealer to an undercover drug transaction. DC Bulhoes believed that fact, alone, was reasonable and probable grounds for arresting Mr. Lovo-Mayorga.

[32] In addition, DC Bulhoes’ testified he believed there were more drugs in the car because Mr. Lovo-Mayorga exited from the rear seat of the vehicle suggesting he was an “underling”. I find this was not an objectively reasonable belief based only on Mr. Lovo-Mayorga’s placement in the vehicle having regard to the front passenger seat being occupied and this being DC Bulhoes’ first involvement in a dynamic take-down in an undercover “buy” transaction. Moreover, the arrest took place before police confirmed whether Mr. Perez-Membreno had none or only a portion of the drugs in his possession.

[33] In this case, there are few particulars tying the applicant or the vehicle to the commission of a crime and certainly no history tying the applicant or the vehicle to Mr. Perez-Membreno. Mr. Lovo-Mayorga was not known to police, was not a target of this investigation and had never been seen before by any of the witnesses who testified.

[34] In Brown the accused was observed by police extending his arm with a closed fist towards another person who then walked away briskly. The accused then also walked away. The police officer believed that the manner in which the accused held his hand suggested he was concealing drugs in that hand. The officer believed he had witnessed a hand-to-hand drug transaction between the accused and the other person. The officer arrested the accused, searched him and found drugs and a large amount of cash. The court held that the appellant’s interaction with the person on the city sidewalk did not provide any objective basis upon which to believe that the two persons were engaged in a drug transaction. The court found the accused had been arbitrarily detained, the search of his person unlawful and excluded the evidence under s. 24(2) of the Charter.

[35] At its highest, the evidence establishes that Mr. Lovo-Mayorga, as driver of the Acura, transported Mr. Perez-Membreno and his drugs to Norma Jeans bar on this single occasion.

[36] Section 2(1) of the CDSA defines “traffic” as meaning, in respect of a substance included in any of the Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

[37] I find that the police had reasonable and probable grounds to arrest rather than merely detain because there was independent evidence a crime had been committed by the driver of the vehicle – it is a proven fact the drugs were transported to the deal in the Acura driven by Mr. Lovo-Mayorga. The fact Mr. Lovo-Mayorga was the driver of the Acura in which Mr. Perez-Membreno was transported to Norma Jean’s distinguishes the case from Brown. In Brown the conduct of the accused, objectively viewed, was not criminal. It was suspicious behaviour and nothing more. Here, the act of transporting the target to the pre-arranged location for the purpose of engaging in the sale of cocaine is, without more, reasonable grounds to believe the crime of trafficking drugs has been committed. Such conduct has been codified in the CDSA as constituting criminal activity.

[38] The CDSA supports the subjective belief of DC Bulhoes and his decision to arrest the applicant, as driver of the vehicle, rather than merely detain him. Independent of the charge he is facing, the transportation of the target to Norma Jean’s on August 8, 2014 provided reasonable grounds for his arrest. The fact he was not charged with any crime relating to the cocaine in the possession of Mr. Perez-Membreno is irrelevant for purposes of this analysis.

[39] But for the legislated definition of “traffic” in the CDSA, my decision would have been different. For example, had Mr. Lovo-Mayorga been the passenger in the Acura or had Mr. Lovo-Mayorga accompanied Mr. Perez-Membreno on foot to Norma Jean’s his arrest would have been arbitrary given the absence of any connection to the cocaine in Mr. Perez-Membreno’s possession.

[40] Having found DC Bulhoes had reasonable and probable grounds to arrest Mr. Lovo-Mayorga, his arrest was lawful by virtue of s. 495 of the Criminal Code. Therefore, the search of his person incident to arrest was also lawful. The manner in which the search was carried out was not in any manner improper and has not been suggested to be unlawful.

Was the applicant’s [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) right breached?

[41] With respect to the implementation of Mr. Lovo-Mayorga’s s. 10(b) Charter right, there was no breach. Immediately following his arrest, DC Bulhoes administered the caution, advised him of his right to speak with counsel and offered that he speak with duty counsel. Mr. Lovo-Mayorga refused to speak with duty counsel instead insisting that he wished to speak with his own lawyer whose name he could not remember at that time. Implementation of his right to speak with counsel was suspended until such time as privacy could be assured and Mr. Lovo-Mayorga either remembered the name of his counsel or agreed to speak with duty counsel. Mr. Lovo-Mayorga spoke with his counsel of choice approximately one hour following his arrest. In the interim, Mr. Lovo-Mayorga did not provide any statements to police and was not questioned by police.

Disposition

[42] It is unnecessary to conduct a s. 24(2) Charter analysis having found no breach of Mr. Lovo-Mayorga’s s. 8, s. 9 or s. 10(b) Charter rights. Accordingly, the evidence comprised of the 23 grams of cocaine and $825 CDN is admissible at trial.

Justice A. K. Mitchell

Released: January 26, 2017

[^1]: This involved the applicant removing his clothing and with his back facing PC Morrison leaning over and touching his toes. [^2]: 2012 ONCA 225, [2012] O.J. No. 1569 at para. 14. [^3]: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 at page 278. [^4]: 1998 CanLII 838 (SCC), [1998] 1 SCR 51 at para. 13. [^5]: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at para. 17. [^6]: 2016 ONCA 208