CITATION: R. v. Washington, 2017 ONSC 680
COURT FILE NO.: 316/12
DATE: 20170203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Marvin Washington Accused/Applicant
Joseph M. Chapman, for the Federal Crown Kenrick Abbott, for the Provincial Crown
Denis A. Michel, for the Accused/Applicant
HEARD: January 25 and 26, 2017
DECISION ON APPLICATION
Cornell J.:
Introduction
[1] The applicant faces a number of charges including possession of cocaine for the purpose of trafficking, resisting arrest, assaulting a peace officer, and breach of probation, together with a variety of other offences that resulted from this incident and his subsequent arrest. The applicant seeks to have drug and other evidence excluded on the basis that such evidence was obtained as a result of an unreasonable search and seizure. He also alleges that his arrest was unlawful and arbitrary. In accordance with the reasons that follow, the application is dismissed.
Background
[2] The Sudbury Ontario Provincial Police detachment (“OPP”) received a Crime Stoppers tip that Sandra Sandiford was trafficking cocaine and crack cocaine from her residence in Espanola. The tip further indicated that Ms. Sandiford was in the company of a black male from Toronto who had supplied the drugs. An address of 197 The Queensway, Apt. B, Espanola, Ontario, was provided. This address was given in error.
[3] Detective Constable Hamilton of the Espanola Police Force was contacted by the OPP. D./C. Hamilton provided information that three days prior, a call for a uniformed officer to attend at Ms. Sandiford’s residence at 395 Apt. B The Queensway, Espanola, Ontario (“the residence”) had been received. As a result of an officer attending at that address, it had been determined that a black man by the name of Marvin Washington was in Ms. Sandiford’s residence at the time of such attendance.
[4] Ms. Sandiford was well known to the police as a person who engaged in drug trafficking.
[5] As a result of this information, the OPP undertook surveillance of Ms. Sandiford’s residence for two to three hours on the morning of June 2, 2011. A number of vehicles attended at Ms. Sandiford’s residence for a brief period of time and then departed. One individual was observed to attend Ms. Sandiford’s residence by bicycle, enter the residence for a brief period of time, and then depart.
[6] The officers conducting this surveillance all had experience in drug enforcement. The officers concluded that the comings and goings from Ms. Sandiford’s residence were consistent with drug trafficking.
Agreements
[7] At the judicial pre-trial, it was agreed by counsel that the evidence elicited on the Charter applications could be used at the trial. I was originally scheduled to be the trial judge. As a result of a conflict in defence counsel’s schedule, the trial date was changed with the result that I am no longer able to be the trial judge. It was agreed by all counsel that in view of this development, I would be permitted to hear this application despite the fact that I will not be the trial judge.
[8] It was also agreed that the evidence from this application, or some portion of it, would not be used at the trial without leave of the trial judge.
[9] An issue also arose about the fact that D./S. Vardon was not in attendance and was not available to testify upon the application. As a result, counsel for the applicant sought an adjournment to compel his attendance. During the course of a recess, counsel were able to agree that D./S. Vardon received a Crime Stoppers tip indicating that Sandra Sandiford, who lived at 197 Apt. B The Queensway, Espanola, Ontario, was involved in the sale of cocaine and crack cocaine. The drugs in question had been supplied by a black male who had come from Toronto.
[10] As a result of the agreement on these facts, counsel for the applicant indicated that D./S. Vardon’s attendance as a witness was not required and the request for an adjournment was withdrawn.
Preliminary Motion
[11] Counsel for the provincial Crown brought a preliminary motion to seek to have the s. 8 Charter application dismissed without a hearing on the basis that no information had been put forward in the application material that could support the application that had been brought.
[12] This issue was addressed by the Ontario Court of Appeal in R. v. Kutynec, 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277. In Kutynec, the police stopped Mr. Kutynec for suspected drug possession. In the course of speaking to Mr. Kutynec, the police noticed a slight smell of alcohol on his breath. Mr. Kutynec refused a demand for an A.L.E.R.T. screening and was subsequently convicted of refusing to comply with such demand. Mr. Kutynec’s various appeals were dismissed on the basis that there was no evidence that he had been detained when he was first approached by the police.
[13] The Court of Appeal went on to review in considerable detail the process to be followed in cases involving Charter challenges, as the Criminal Proceedings Rules had yet to be put in place.
[14] In argument before me, Crown counsel took the position that unless sufficient information is contained in the application, the Crown has no ability to know the case that it is required to meet. In certain circumstances, procedural fairness applies not just in favour of the defence, but to the Crown as well. This is such a case. The onus lies on an accused person asserting a Charter remedy to present evidence that his or her Charter rights have been infringed. It is therefore incumbent on a person asserting a s. 8 Charter violation to establish, in some manner, an evidentiary basis for such position.
[15] This can be done by outlining the evidentiary basis in the application material. In the absence of such information, the court in Kutynec stated at pp. 288-289:
…the trial judge may call upon the defence to summarize the evidence that it anticipates it would elicit on the application. … If the defence is able to summarize the anticipated evidentiary basis for its claim, and if that evidence reveals no basis upon which the evidence could be excluded, then the trial judge need not enter into an evidentiary enquiry. In other words, if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement, or a finding that the evidence in question was obtained in a manner which infringed the Charter, or finding that the test for exclusion set out in s. 24(2) was met, then the trial judge should dismiss the motion without hearing evidence.
There is nothing unique in this position. Where an accused bears the burden of proving the admissibility of evidence, it is incumbent on counsel to put forward a factual and legal basis on which the evidence could be admitted. Counsel is not entitled to proceed immediately to a voir dire on the issue. The same principle should be applied where the onus is on an accused to establish that certain evidence is inadmissible.
In many cases, the accused’s entitlement to an evidentiary hearing with respect to an alleged Charter violation will be readily established on the basis of information provided through disclosure, cross-examination at prior proceedings, or by an indication by counsel for the accused that he or she intends to call evidence which will substantiate the Charter violation. I see no difficulty in a trial judge asking counsel what evidence will be called on the application to exclude evidence and what witnesses will be called. Direct answers to these simple questions will often quickly determine the need for an evidentiary inquiry and will assist in deciding the format and timing of that inquiry.
[16] This procedural issue was subsequently resolved by the formulation of the Criminal Proceedings Rules that came into force on May 11, 1992.[^1] Rule 31.03(2) of the current version of the Rules sets out the information required in the notice of application, which includes:
(c) A precise, case-specific statement of the basis and grounds upon which the evidence is said to be inadmissible;
(d) A detailed summary of the evidence or other material upon which the party seeking exclusion relies and a statement of the manner in which the applicant proposes to introduce the evidence;
[17] In this case, the information available to the police at the time of this incident was that Mr. Washington was a guest and staying in the residence of Sandra Sandiford. In order to assert a violation of s. 8 of the Charter, the proponent must have a privacy interest in the premises sufficient to support this claim. See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 50 and 51.
[18] The material filed by the applicant in support of the application makes no mention of the applicant having a privacy interest in the residence nor is there any reference to any evidence of such fact in the application material.
[19] If the material that has been filed in support of the application is deficient, what is to be done? Some guidance can be obtained from the decision of the Ontario Court of Appeal in R. v. Durrette (1992), 1992 CanLII 2779 (ON CA), 9 O.R. (3d) 557, where Finlayson J.A. said at p. 570:
Such an allegation must be supportable by the record before the court, or if the record is lacking or insufficient, by an offer of proof. [Emphasis added.]
[20] Given the absence of evidence in the application material, I called on counsel for the applicant to provide me with “an offer of proof”. In response to this request, I was advised that it was the applicant’s intention to question four police officers who were involved in the investigation, the search, and the arrest. When pressed to outline what evidence that would be forthcoming to assist the applicant, counsel for the applicant indicated that he “hoped” that such evidence would indicate that the applicant had been staying at Ms. Sandiford’s residence for a period of time sufficient to establish a privacy interest.
[21] Various factors must be considered in determining whether or not there is a reasonable expectation of privacy. These include possession or control over the residence in question, historic use of the property, ownership or leasehold interest in the property, the ability to regulate access to the property, including the right to admit or exclude others from the place, as well as the existence of a subjective expectation of privacy and an objective reasonableness for this expectation: see Edwards, at para. 45.
[22] At best, the offer of proof put forward on behalf of the applicant might simply have established that the applicant was an occupant of the premises in question and failed completely to address the various considerations outlined in Edwards.
[23] In the absence of any outline of evidence to establish a privacy interest by the applicant nor there being any offer of proof to support such a claim, I ruled that it was appropriate to dismiss the applicant’s s. 8 Charter application in connection with the assertion of a privacy interest without hearing evidence. Such an approach was upheld by the Court of Appeal at para. 18 of R. v. Garrick, 2014 ONCA 757, 322 C.R.R. (2d) 1.
[24] Having made this determination, I now turn my attention to a consideration as to whether exigent circumstances existed that would permit the police to enter Ms. Sandiford’s residence without a warrant and whether reasonable and probable grounds existed to arrest the applicant.
Did Exigent Circumstances Exist?
[25] Ms. Sandiford left her residence in the company of another individual, entered a vehicle and proceeded to drive away. Surveillance was maintained on the vehicle. The vehicle stopped at another residence, Ms. Sandiford entered the residence and exited the residence a short time later. Given all of the information that was available to the police, a decision was made by D./C. Miller to stop the vehicle and arrest Ms. Sandiford for drug trafficking.
[26] Three unmarked cruisers were used to stop the vehicle and conduct the arrest. The arrest itself took place in close proximity to a main intersection in Espanola. The arrest was witnessed by a number of pedestrians and by vehicular traffic, some of whom called out to Ms. Sandiford.
[27] Ms. Sandiford was somewhat cooperative when she was arrested. She advised the police that Marvin Washington was in her residence and that he had been staying with her for a few days. She admitted that there was marijuana in her home. When asked if there was any cocaine, she replied that she did not know as she had not searched Mr. Washington.
[28] At the time of the arrest, Ms. Sandiford’s cell phone was seized. Following her arrest, the phone rang numerous times and various text messages were being received. At least two of the text messages were in indicative of drug transactions.
[29] When Ms. Sandiford advised D./C. Miller that Marvin Washington was still at her home, he became concerned that given the number of people who had witnessed the arrest, Ms. Sandiford’s notoriety in the community, and the number of unanswered telephone calls and text messages she had received, it was likely that Mr. Washington would be notified of the arrest and would proceed to destroy evidence. D./C. Miller formed this belief based on his extensive experience as an officer involved in undercover and other drug crime investigations.
[30] D./C. Miller decided to proceed immediately to the residence. Upon arrival, he knocked on the door. Moments later, a curtain covering the window was pulled back and a black man’s face appeared. D./C. Miller said words to the effect that he had a message from Sandra. In response, the curtain was brought down across the window, a click was heard indicating that the door was being locked, and footsteps were heard indicating that someone was running away from the door.
[31] D./C. Miller immediately formed the belief that the occupant of the house had refused entry in order to allow drugs and other possible evidence of criminal conduct to be destroyed.
[32] Faced with this factual background, the question that I am now called upon to answer is whether exigent circumstances existed so as to permit the police to enter the residence without a warrant.
The Governing Principles
[33] It is well-established that ordinarily a warrant is required in order to enter a residence to effect an arrest. Section 529.3(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46, and s. 11(7) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), both provide an exception to the requirement for a warrant to enter a residence if there are exigent circumstances. This issue was considered by the British Columbia Court of Appeal in R. v. Duong, 2002 BCCA 43, 162 C.C.C. (3d) 242, at paras. 22-23:
The definition of exigent circumstances in s. 529.3(2)(b) is in its effect a codification of the common law, which held that exigent circumstances exist where there is imminent danger of the disappearance or destruction of evidence if the search or seizure should be delayed in order to obtain a warrant: e.g., R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at 241-42, 24 C.R. (4th) 1 at 19-20, 84 C.C.C. (3d) 173 at 188-89, R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at 53, 115 C.C.C. (3d) 129.
Exigent circumstances are also the focus of s. 11(7) of the Controlled Drugs and Substances Act, which authorizes an officer to search a place without warrant when the conditions for obtaining a search warrant exist but it would be impracticable to obtain one because of exigent circumstances. Unlike the Criminal Code, this statute provides no definition of exigent circumstances. A search warrant may issue under this statute upon reasonable grounds to believe that particular incriminating evidence will be found in the place to be searched.
[34] In R. v. Phoummasak, 2016 ONCA 46, 350 C.R.R. (2d) 370, Doherty J.A. set out the test to be applied to determine if exigent circumstances exist at para. 12:
Section 11(7) of the CDSA, unlike other statutory provisions providing for exigent circumstances searches (e.g. Criminal Code s. 529.3), does not define exigent circumstances. In my view, the phrase has the same meaning in s. 11(7) of the CDSA as it does in the Criminal Code provisions and at common law. Exigent circumstances under s. 11(7) exist if (1) the police have grounds to obtain a search warrant under s. 11 of the CDSA (the probable cause requirement) and (2) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay (the urgency requirement): See R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at paras. 25-27; R. v. McCormack, 2000 BCCA 57, 143 C.C.C. (3d) 260, at paras. 17-25; R. v. Duong and Tran, 2002 BCCA 43, 162 C.C.C. (3d) 242, leave to appeal to SCC refused, [2002] S.C.C.A. No. 112.
Did grounds exist to obtain a search warrant?
[35] This question must be answered in the affirmative.
[36] On the day in question, the OPP had received a tip from Crime Stoppers and information from the Espanola Police that they had received a recent tip that Ms. Sandiford was in possession of a large amount of cocaine that she was selling from her residence. The cocaine had been brought to her residence by a black man who lived in Toronto.
[37] Three days prior, the Espanola Police had attended at Ms. Sandiford’s residence in response to a request for assistance. At that time, it was determined that a black man by the name of Marvin Washington was staying in Ms. Sandiford’s home.
[38] The surveillance of Ms. Sandiford’s residence observed conduct that was consistent with drug trafficking as did Ms. Sandiford’s short visit to another residence shortly prior to her arrest.
[39] At the time of her arrest, Ms. Sandiford admitted to there being marijuana in her residence.
[40] As a result of the prior CPIC check, the police were also aware that Mr. Washington had a drug conviction and was currently on probation.
[41] Armed with this information and given these circumstances, it is clear that grounds existed for a search warrant to be issued. Lest there be any doubt about this, the fact is that a warrant was subsequently issued to search the residence and no application has been brought to challenge the validity of that warrant.
Were there urgent circumstances?
[42] Was there a reasonable basis for the police to believe that there was imminent danger that evidence in the residence would be destroyed if the police did not enter the residence shortly after they knocked on the door? There are a number of reasons why the police had reason to believe that evidence would be destroyed if they did not act quickly. Accordingly, this question is also answered in the affirmative.
[43] Firstly, I need not repeat the wealth of background information that the police had available to them indicating that the applicant was involved in drug trafficking.
[44] Secondly, the police had legitimate concerns about evidence being destroyed given the unexpected public nature of Ms. Sandiford’s arrest and the likelihood that the applicant would be notified of this development, in D./C. Miller’s experience.
[45] Thirdly, there are the actions of the applicant at the time that the police attended at the residence. The curtain covering the door window was closed, the door was locked, and the occupant was heard running away from the door.
[46] Given all of this information, it is abundantly clear that D./C. Miller had reasonable grounds to believe that there was an urgent situation at hand that dictated that the police enter the residence without a warrant in order to prevent the destruction of evidence.
[47] I am therefore satisfied that both branches of the test have been met. I am satisfied that the police had grounds to obtain a search warrant under s. 11 of the CDSA (as they eventually did). I am satisfied that D./C. Miller believed, on reasonable grounds, that the applicant would destroy evidence if the police did not enter Ms. Sandiford’s residence without delay.
Orchestration of exigent circumstances
[48] It was argued on behalf of the applicant that the police orchestrated the exigent circumstances by arresting Ms. Sandiford in such a public place. A careful consideration of the evidence leads me to the conclusion that this position is not tenable.
[49] D./C. Miller made it clear during the course of his evidence that events were fluid and unfolding quickly. He felt that it was necessary to arrest Ms. Sandiford following her short visit to a local residence as he had concluded that he had reasonable and probable grounds to arrest her for drug trafficking. The evidence of D./C. Miller made it clear that he was somewhat taken aback by how widely known Ms. Sandiford was in the community as exhibited by the number of people calling out to her or waving to her following her arrest.
[50] The other officers involved in this investigation each confirmed that they were simply following instructions from D./C. Miller as events unfolded and that there had been no planning whatsoever at the time of Ms. Sandiford’s arrest or prior to the time they were instructed to accompany D./C. Miller to Ms. Sandiford’s residence.
[51] If the police engage in a “planned and calculated procedure” and thereby created an artificial situation of urgency, then it is clear that the police cannot rely upon such conduct to establish a situation of urgency. See Phoummasak and R. v. Silvera, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 85.
[52] There is simply no evidence to suggest, let alone establish, that Ms. Sandiford’s arrest in a public place was “planed and calculated”. All of the evidence is to the contrary.
[53] I am satisfied that the police did not orchestrate the exigent circumstances in order to avoid the need to obtain a warrant prior to entry.
Reasonable and Probable Grounds
[54] I now turn to a consideration of whether the police had reasonable and probable grounds to arrest the applicant.
[55] When entry to the residence was refused, the door to the residence was breached. D./C. Miller then observed a black man about 15 feet away from him running into another room. When D./C. Miller gave chase and entered that room, he observed that it was a bathroom. He observed a black man kneeling at the toilet with his arms positioned down towards the toilet. He pushed the man to the floor at the same time that he observed 10 to 12 plastic packages containing a white powder that were in the process of being flushed down the toilet. D./C. Miller attempted to reach in the toilet to retrieve some of the bags, but was prevented from doing so by the applicant. After D./C. Belanger arrived on the scene and assisted in subduing the applicant, D./C. Miller used both of his arms to remove the toilet from the floor to which it had been mounted. No search of the toilet or any portion of the residence was undertaken at that time.
[56] Given all of the background information that was available to D./C. Miller and the actions of the applicant after the door was breached, D./C. Miller testified that he formed the belief that he had reasonable and probable grounds to arrest the applicant at the time that the struggle with the applicant occurred. At that point in time, D./C. Miller advised the applicant that he was under arrest for possession of cocaine for the purpose of trafficking.
[57] The applicant was then taken back into the living room where a search incident to arrest was conducted. The search revealed cash in an amount of approximately $1,300, but no drugs.
[58] The police removed the applicant from the residence. The premises were secured. A warrant was obtained to search the residence. As previously recounted, a clear plastic bag containing a white powder fell from the toilet at the time that it was searched.
[59] D./C. Miller was asked about his intentions while he proceeded from the scene of Ms. Sandiford’s arrest to her residence. He responded by saying that if he found the applicant at the residence, it was his intention to ask him to leave so that premises could be secured while a warrant was obtained. D./C. Miller made it clear in his evidence that he had not formed any intention to arrest the applicant prior to the time that the struggle with the applicant occurred in the bathroom.
[60] A great deal of evidence was available to D./C. Miller that indicated that the applicant was in Espanola to traffic in drugs. When taken together with the actions of the applicant after the door was breached, I am satisfied that D./C. Miller had reasonable and probable grounds to arrest the applicant at the time that the struggle occurred in the bathroom of the residence.
Conclusion
[61] In accordance with these reasons, I find that there has been no violation of the applicant’s s. 8 or s. 9 Charter rights. Accordingly, the application is dismissed.
The Honourable Mr. Justice R. Dan Cornell
Released: February 3, 2017
CITATION: R. v. Washington, 2017 ONSC 680
COURT FILE NO.: 316/12
DATE: 20170203
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – Marvin Washington
DECISION ON APPLICATION
Cornell J.
Released: February 3, 2017
[^1]: Originally the Ontario Court of Justice Criminal Proceedings Rules, S.I./92-99. Subsequently repealed and replaced by the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7.