Introduction

[1] Joaquim Reis is being tried by me without a jury on charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He has applied to exclude the drugs and other evidence seized as a result of a violation of his rights protected by sections 8 and 9 of the Charter.

[2] I have heard the trial on its merits and the Charter application as a blended voir dire and trial. All of the evidence for the prosecution on the trial and the application has been heard. Mr. Reis testified on the application. I have not yet called on the defence to call evidence on the trial. On January 20, 2017, I dismissed Mr. Reis’s application. These are my reasons for so doing.

Issues

[3] This case raises the following issues:

did Mr. Reis have a reasonable expectation of privacy in the sandwich wrapper that contained the cocaine when the police discovered it; and
was Mr. Reis arbitrarily detained by police while they investigated a citizen complaint of a break and enter in progress on August 23?

[4] I have concluded that Mr. Reis did not have a reasonable expectation of privacy in the sandwich wrapper that contained the cocaine because he had abandoned and that he was not arbitrarily detained.

The Evidence

[5] On August 23, 2015 at 12:13 a.m., Officers Breau and MacArthur received a radio call concerning a break and enter in progress at the Aziza Café at 964 College Street. They arrived in the area in their marked police car two minutes later. They saw a man and a woman standing in a nearby parking lot, who matched the descriptions given in the radio call. Both people were detained. The man was Joaquim Reis. However, he told the police that his name was George Reis.

[6] When the police initially approached Mr. Reis, he was holding a Subway sandwich wrapped in wax paper. While the police investigated the break and enter, Mr. Reis remained in the parking lot with Officer Breau. He was not handcuffed. He asked the officer for permission to eat his sandwich, which was granted. After taking a bite, Mr. Reis placed the sandwich in its wrapper on the hood of a car that was parked in the lot.

[7] Sometime between 12:40 and 1:00 a.m., police discovered that there had been no break and enter. The owner of the café, Mr. Reis’s ex-wife, had arrived on the scene and informed police that Mr. Reis and others had permission to be in the café. It was at that time that police also learned that Mr. Reis was not George Reis, but was Jack or Joaquim Reis.

[8] At 1:00 a.m., Mr. Reis was arrested for obstructing police and was taken to the police station. The actions of the police following Mr. Reis’s arrest are not in issue.

[9] The police remained in the parking lot for some time following Mr. Reis’s arrest. At 1:45 a.m., a woman approached her car, which was parked in the parking lot. As she entered the car she noticed the Subway sandwich on the hood. Officer Breau removed the sandwich and placed it on top of a blue bin located behind the car. After the woman drove off, Officer Breau noticed a baggie on the ground below where the car had been parked. The baggie contained steel wool and a number of smaller baggies that were black on one side with a white marijuana leaf printed on it. He also located a red bag that contained a single pill.

[10] When Officer Breau picked up the sandwich to discard it, he noticed the same small baggies with one black side and a white marijuana leaf printed on it sticking out of the wrapper. He lifted the sandwich out of the wrapper, and discovered a bag that contained white rocks. The white rocks are admitted to be crack cocaine.

Positions of the Parties

[11] Ms. Otter submits that Mr. Reis was lawfully detained while police investigated a possible break and enter. In addition, she submits that Mr. Reis abandoned his sandwich on a parked car and therefore cannot establish that he had a reasonable expectation of privacy in it. Mr. Reis has therefore not established a breach of his rights protected by s. 8 of the Charter.

[12] Mr. Goldkind’s position is as follows. Mr. Reis was arbitrarily detained by the police that evening. The police had no reasonable basis to suspect that Mr. Reis was involved in a crime. Mr. Reis was simply wearing clothing that matched the description of the man looking in the café window that the 911 caller provided. Notwithstanding this lack of grounds, police detained Mr. Reis from 12:15 a.m. to 1:00 a.m. without informing him of the reason for his detention and without informing him of his rights to counsel.

[13] Had Mr. Reis not been arbitrarily detained, he would not have placed his sandwich on the hood of the car, he would not have been asked his name, he would not have lied about his name, he would not have been arrested for obstruct police and transported to the police station, and the police would not have discovered the crack cocaine in the sandwich wrapper.

[14] Furthermore, Mr. Goldkind argues that Mr. Reis’s expectation of privacy in his sandwich was not extinguished when he left it on the hood of the parked car because he did not abandon it willingly and voluntarily. He abandoned it because he was detained. Unlawful state action cannot create the very abandonment upon which the Crown relies.

Did Mr. Reis have a reasonable expectation of privacy in the sandwich wrapper when the police searched and seized it?

[15] To establish a breach of his rights protected by s. 8 of the Charter, Mr. Reis must first establish that he had a reasonable expectation of privacy in the sandwich wrapper when Officer Breau searched it at 1:45 a.m.[^1]

[16] The issue is whether Mr. Reis abandoned the sandwich in its wrapper. To determine whether Mr. Reis abandoned the sandwich, the question is whether his actions in relation to the sandwich, “would lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.”[^2]

[17] Mr. Reis testified that he put the sandwich down on a parked car while he was being detained in the parking lot by Officer Breau. He first ate some of it after obtaining Officer Breau’s permission to do so. He testified that he put it down because he was just standing there. He was not told to put it down. In response to the Crown’s suggestion that he put the sandwich down because he was done with it, he said, “basically, yes.” He did not pick the sandwich up or ask for it at any later point. He testified that once he was arrested, the sandwich did not matter. Had the police not stopped him that night, Mr. Reis testified that he would have taken the sandwich home and eaten it.

[18] Mr. Goldkind submits that Mr. Reis must have abandoned his sandwich voluntarily before the court can find that he abandoned his privacy interest in it; that abandoning his sandwich because the police have detained him does not amount to voluntary abandonment.

[19] This submission is contrary to a number of decisions in which courts have held that attempts to dissociate oneself from the subject matter of a search result in a finding that the subject matter has been abandoned along with any privacy interest in it. I point to three such cases, the circumstances of which are similar to this case.

[20] In R. v. B. (L.),[^3] police officers saw the accused carrying a black bag. When the officers approached the accused, he was no longer carrying the bag. One of the officers found the bag and asked the accused whose bag it was. The accused said that he did not know. The trial judge found that the accused had not abandoned the bag. The Court of Appeal disagreed, and at para, 71 found that the accused had abandoned the bag and, “effectively precluded himself from relying on s. 8 of the Charter to impugn the lawfulness of the search.”

[21] In R. v. Nesbeth,[^4] a man, who had not been detained, ran away when police approached him. He threw away his knapsack as he ran. When the knapsack was recovered by police, it was found to contain cocaine. The trial judge held that the police search of the knapsack violated s. 8 of the Charter because they knew they were not dealing with abandoned property in the classic sense. The Court of Appeal disagreed, and held that the trial judge failed to consider whether the accused had a reasonable expectation of privacy in the knapsack when the police retrieved it and opened it. The court held at para. 22 that the accused, “gave up the ability to regulate access to the property when he threw it away.” The accused, therefore, precluded himself from relying on s. 8 of the Charter.

[22] Similarly, Mr. Reis gave up his ability to regulate access to his sandwich when he left it on the hood of a car in a public parking lot.

[23] Finally, I refer to the Court of Appeal’s decision in R. v. Plummer,[^5] in which the accused placed a firearm in his girlfriend’s bag when he saw police approach his girlfriend’s car in which he was seated. The trial judge concluded that the accused had not abandoned the firearm. His reasoning is set out at para. 36 of the Court of Appeal’s judgment as follows:

I am not persuaded the applicant abandoned the gun. I accept his evidence that had the police not come back to the Honda, he would have left with the gun. Even if they did not come back, I am not prepared to find he was giving up the gun to Ms. Bennett.

[24] The Court of Appeal did not accept this conclusion, and found that the accused abandoned the firearm by removing it from his person and hiding it in his girlfriend’s bag. He was therefore precluded from relying on s. 8 of the Charter as he had no reasonable expectation of privacy in the firearm that was seized.

[25] Mr. Reis testified similarly that had the police not approached him that evening and detained him, he would not have abandoned his sandwich, but would have taken it home with him. This does not change the fact that Mr. Reis tried to divest himself of possession of the sandwich and its wrapper by leaving it on the car, and thereby precluded himself from relying on the protection afforded him by s. 8 of the Charter. The Plummer case, a decision by which I am bound, is determinative of this issue.

[26] In conclusion, I find that Mr. Reis’s s. 8 rights were not engaged in the circumstances of this case, and therefore, the search and seizure of the sandwich wrapper and its contents were not unlawful.

Was Mr. Reis arbitrarily detained by police while they investigated a citizen complaint of a break and enter in progress on August 23?

[27] Given my conclusion on the expectation of privacy issue, it is not strictly necessary to decide this issue. However, because Mr. Goldkind argued that Mr. Reis’s unlawful detention ought to be the starting point for the remainder of my analysis, I will consider it.

[28] Investigative detention is governed by the procedure laid down by the Supreme Court of Canada in R. v. Mann.[^6] The police must have reasonable grounds to suspect that a person is connected to a particular crime and that the detention of that individual is necessary. Regard must be had to the totality of the circumstances when determining whether the police had reasonable grounds. In addition, the detention must be conducted in a reasonable manner.

[29] In this case, I find that the detention was conducted in a reasonable manner. Mr. Reis was not handcuffed. He stood in the parking lot with Officer Breau while other officers investigated the possible break and enter. Officer Breau was polite and professional, according to Mr. Reis.

[30] Mr. Reis testified that Officer MacArthur, on the other hand, was intimidating and aggressive. According to Mr. Reis, it was Officer MacArthur who asked him numerous times for his name. Mr. Reis testified that he did not want to give his name to Officer MacArthur because he was on bail and he did not know why he was being asked for his name. After Officer MacArthur asked him two or three times for his name, Mr. Reis gave him his brother’s name and date of birth.

[31] This evidence is contrary to the evidence of Officer Breau, who testified that he was the officer who asked Mr. Reis his name. Mr. Reis told him it was George Reis, with a date of birth of August 21, 1963. Mr. Reis also provided Officer Breau with an address and telephone number. Officer Breau testified that he used his radio to ask the dispatcher to check the name George Reis on the police database. After Officer Breau completed his check, he advised Mr. Reis that he was in detention while the police investigated a break and enter.

[32] I accept the evidence of Officer Breau that he was the officer who asked Mr. Reis for his name, and not Officer MacArthur. It fits with the other evidence, including Mr. Reis’s, that Officer MacArthur went in to the café to investigate while Office Breau stayed with Mr. Reis. It also makes sense that Officer Breau would have made enquiries about Mr. Reis’s name once Mr. Reis gave it to him.

[33] I am satisfied that the detention of Mr. Reis was conducted in a reasonable manner.

[34] When considering whether the officers had reasonable grounds to detain Mr. Reis, I have taken into account the totality of circumstances, which include the contents of the 911 call that was broadcast over the radio, the timing of the arrival of Officers Breau and MacArthur, and the location of Mr. Reis and the female when the officers arrived.

[35] Both officers testified about the content of the radio call. Officer Breau testified that the radio call included the following information:

▪ the citizen heard smashing noises and saw three people inside the café;

▪ one of the people was possibly a male on a moped;

▪ the citizen was watching the café from a distance;

▪ a white female, wearing a black tank top, left the café and was running eastbound on College Street;

▪ the female was approaching a white male, wearing a blue dress shirt, shorts and a blue baseball cap, who was looking in the window; and

▪ the male and female were in the alleyway next to the café, on the north side of College Street.

[36] Officer MacArthur testified that they received a “hot shot” call, indicating a possible crime in progress. Although the details of the call are displayed on the screen of the computer in the police cruiser, Officer MacArthur testified that he generally relies on the information he hears over the radio, particularly when it is a report of a crime in progress. The information he heard was as follows:

▪ break and enter in progress at Aziza café;

▪ there were smashing sounds and a report of three people inside; and

▪ possibly a male involved, who was on a moped, a female wearing a black tank top, and a second male wearing a blue dress shirt.

[37] The two officers testified that they arrived in the alleyway next to the café at 12:15 a.m., two minutes after receiving the radio call. They saw a male wearing a blue shirt, shorts and a baseball cap, speaking to a female wearing a black tank top in a fenced parking lot off the alleyway. There was no one else in the area.

[38] Police are entitled to rely on information conveyed in a 911 call. Such information can provide police with reasonable grounds to believe that a crime has been committed and that an individual is connected to that crime.[^7]

[39] Mr. Goldkind argues that the information Officers Breau and MacArthur received was insufficient to provide them with reasonable grounds to believe that Mr. Reis was connected to the break and enter of the café. The 911 caller reported only that a white male, wearing a blue dress shirt, shorts and a blue baseball cap, was looking in the café window. That information was insufficient to permit police to detain Mr. Reis, according to Mr. Goldkind.

[40] I disagree. That is not the only information the officers received. Officer Breau testified that the call included the detail that a woman was seen leaving the café, approaching a male looking in the café window, and going with the male to an alleyway beside the café. Officer MacArthur testified that he heard that possibly three people were involved in the break and enter, including a female wearing a black tank top and a male wearing a blue dress shirt.

[41] In my view, Officers Breau and MacArthur had reasonable grounds to detain Mr. Reis for investigation based on the following circumstances:

▪ the 911 call reporting a break and enter in progress;

▪ the police saw Mr. Reis and a female two minutes after receiving the radio call standing in a parking lot near the cafe;

▪ Mr. Reis and the female were in the location indicated by the 911 caller;

▪ Mr. Reis and the female matched the descriptions given in the 911 call; and

▪ the police saw no one else in the area.

[42] The detention of Mr. Reis between 12:15 a.m. and 1:00 a.m. was lawful. It was not until shortly before 1:00 a.m. that police discovered that there had been no break and enter, and that Mr. Reis’s first name was Joaquim, not George. Officer Alias testified that he learned this information when he spoke with the owner of the café just before 1:00 a.m. Officer Alias arrested Mr. Reis at 1:00 a.m. for obstructing a peace officer.

[43] In summary, I find that Officer Breau had reasonable grounds to suspect that Mr. Reis was connected to the reported break and enter of the café, that the detention of Mr. Reis was necessary, and that the detention was conducted in a reasonable manner. Mr. Reis was not arbitrarily detained.

Conclusion

[44] Mr. Reis did not have a reasonable expectation of privacy in the sandwich and wrapper at the time that Officer Breau seized it. As a result, his application to exclude the evidence seized is dismissed.

Corrick J.

Released: February 6, 2017

CITATION: R. v. Reis, 2017 ONSC 887

COURT FILE NO.: CR-16-90000239-0000

DATE: 20170206

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

and -

JOAQUIM REIS

RULING ON CHARTER APPLICATION

Corrick J.

Released: February 6, 2017

[^1]: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at para. 18.

[^2]: R. v. Patrick 2009 SCC 17 at para. 25.

[^3]: (2007), 2007 ONCA 596, 227 C.C.C. (3d) 70 (Ont. C.A.)

[^4]: 2008 ONCA 579

[^5]: 2011 ONCA 350

[^6]: R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 at para. 45. (S.C.C.)

[^7]: R. v. Clayton, [2007] 2. S.C.R. 725 at para. 34.

Her Majesty the Queen v. Joaquim Reis, 2017 ONSC 887

Case Summary

Introduction

Issues

The Evidence

Positions of the Parties

Did Mr. Reis have a reasonable expectation of privacy in the sandwich wrapper when the police searched and seized it?

Was Mr. Reis arbitrarily detained by police while they investigated a citizen complaint of a break and enter in progress on August 23?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2