Court File and Parties

Court File No.: CR-17-635 Date: 2019-04-08 Ontario Superior Court of Justice

Between: Her Majesty the Queen Counsel for the Crown: Ostap Melnik

- and -

Tomas Ivanecky and Michael Angel Counsel for Tomas Ivanecky: Dragi Zekavica Counsel for Michael Angel: Warren Singer

Heard: March 18, 19, 2019

Reasons for Ruling (Section 8, 24(2))

Coroza J.

1. Introduction

[1] Tomas Ivanecky and Michael Angel own a marihuana dispensary called Pharma-Cann. On August 24, 2016, the police searched the dispensary, located in a unit at 2980 Drew Road, Suite 117, in the City of Mississauga. A large amount of cannabis marihuana was seized. The search was authorized by a Justice of the Peace who issued a warrant to the police that same day.

[2] Ivanecky and Angel argue that the warrant fails to specify the place to be searched properly and is therefore invalid. Specifically, they submit that the description in the warrant of the place to be searched (2980 Drew Road, Suite 117) is wrong and that the subsequent police search was warrantless and violated their s. 8 Charter rights.

[3] Should I find a breach, they seek exclusion of the evidence seized from the business as a remedy pursuant to s. 24(2) of the Charter.

[4] For the reasons that follow, I find no s. 8 breach. The application is dismissed.

2. Background Facts

[5] In June 2016, Peel Regional Police received a complaint that quantities of marijuana were being sold by Pharma-Cann. As a result, the police began to investigate the company. It is not disputed that Pharma-Cann is located in Suite 117 of 2980 Drew Road, Mississauga. 2980 Drew Road is a commercial plaza with numerous units on the ground and upper levels.

(i) Cst. Sheamus Neher

[6] Cst. Neher swore out an Information to Obtain in support of the search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 on August 24, 2016. JP Murphy issued the warrant that same day.

[7] The warrant describes the place to be searched as "2980 Drew Road Suite #117, Mississauga, Ontario."

[8] Cst. Neher testified that at the time he applied for the warrant, he was unaware that Suite 117 actually contained two separate businesses. Suite 117 contains Pharma-Cann and Max Employment.

[9] Cst. Neher testified in the days leading up to his application for the search warrant, he conducted surveillance of undercover officers who went into the business. He testified that during their undercover operation the officers entered Pharma-Cann through a front door marked as Suite 117.

[10] Although he did not personally go into the unit, he was advised by other officers who had that the unit was made up of a desk, a glass door to the left and another door to the right. He testified that he was told there were two rooms in the back.

[11] Cst. Neher testified that he believed the place to be searched was Suite 117. He explained that he relied on what he was told by others officers and his own personal search of Pharma-Cann's website. Exhibit C is a screenshot of Cst. Neher's search of the website. He included this material in his Information to Obtain. I have reviewed the exhibit. Indeed, the Pharma-Cann website as captured in the exhibit states:

"We are located beside "Max Employment" on 2980 Drew Road #117"

[12] Cst. Neher acknowledged that when the police executed the search warrant on the business, he observed an interior door that led to an adjacent business, Max Employment. That interior door is depicted in Exhibit E. The door appears to have a sign on it reading "Employees only". Cst. Neher testified that there was nothing on the door that would suggest that it led to a separate unit or business.

[13] He explained that he did not know about the existence of a door leading to Max Employment until he was involved in the search.

(ii) Sgt. David Laing

[14] Sgt. Laing testified that he was the supervising officer of the investigation. He testified that he went into the business on August 17, 2016. At the time, he was undercover. Sgt. Laing testified that he entered through the front door of the business and that there was nothing about the interior door found at Exhibit E that suggested it led to an adjacent business.

[15] When the search warrant was issued on August 24, he was specifically assigned to enter through that interior door and when he did that, he saw a bathroom, kitchen and other offices. When he went into the offices he searched the office furniture and discovered documents that suggested that Max Employment was operating in that area.

[16] He explained that he was not aware prior to the search that Max Employment was operating out of Suite 117.

[17] Exhibit H is a copy of a video taken by the police after the search had taken place on August 24. It was played for Sgt. Laing who testified that the video was an accurate depiction of what the unit looked like during the investigation and the search.

[18] I have carefully reviewed the video and I note the following.

[19] First, that there are no markings on the interior door (Exhibit E) that separates Pharma-Cann from Max Employment.

[20] Second, there is an exterior door that leads into Max Employment. However, there are no exterior markings on that door.

[21] Sgt. Laing was asked why he continued to search the Max Employment area once he discovered documents belonging to Max Employment. He explained that he believed the area was still part of Suite 117. The warrant was authorized for Suite 117 and he believed that the company may have been associated to Pharma-Cann and that Pharma-Cann may have been using this area because it appeared that both business were sharing a bathroom and a kitchen area that was only accessible by the interior door.

(iii) Tomas Ivanecky

[22] On behalf of both accused, Mr. Ivanecky testified on the application. He explained that they have leased Suite 117 since August 16, 2014. He explained that the landlord divided the unit into two subunits. Pharma-Cann leased 117B and Max Employment leases 117A. He produced a lease that confirms this. He testified that this lease is registered at Mississauga City Hall.

[23] He testified that there is a sign for Max Employment right above the unit on the façade of the building. It is visible in Exhibit B. Mr. Ivanecky explained that his large sign for Pharma-Cann was not up yet at the time the search warrant was executed. The signage of his company was restricted to the one single exterior door leading from the parking lot to the interior of their office, shown at Exhibits F and G. I note that the signage consists of the words: "Pharma-Cann" (Exhibit F) and "117" (Exhibit G). The "117" is directly above "Pharma-Cann".

[24] Mr. Ivanecky agreed that one of the interior doors contained an "Employees Only" notice to deter customers from going through the door because it led to a common shared area with a bathroom and the offices of Max Employment.

[25] Mr. Ivanecky also agreed that there were no signs in the interior of his office that suggested Max Employment was also using Suite 117.

3. Analysis

(i) The Argument Advanced by the Accused

[26] The argument advanced by the accused is that Cst. Neher failed to advise the issuing justice that there are two separate and independently functioning commercial operations located in Suite 117. By failing (or refusing) to do so, the warrant was facially invalid because it did not specifically refer to Suite 117B, which is the precise description of Pharma-Cann's business.

[27] I disagree with the argument for the following reasons.

(ii) The Warrant Adequately Describes the Place to be Searched

[28] First, I find that it would not have been clear to police officers that Suite 117 was a subdivided unit and not a single unit. I have carefully examined the video (Exhibit H). There is nothing about the interior of the unit that suggests that it is subdivided or that there is one business that carries on business in 117A and another in 117B. Indeed, there is nothing about the interior of Pharma-Cann's business that suggests that it has access to another business.

[29] Second, there is nothing on the exterior of the business that suggests that Pharma-Cann's correct address is Suite 117B. The photographs that show the exterior door of Pharma-Cann refer only to Suite 117. This was the door that surveillance officers observed the undercover officer enter. It was reasonable for the officers to believe that the address of Pharma-Cann is that which was displayed prominently to the public.

[30] Third, the search conducted by Cst. Neher on Pharma-Cann's website reveals that Phrama-Cann describes the location of the business as being at Suite 117. I acknowledge that the website also describes the location as being beside Max Employment. However, it does not clarify that Max Employment is in 117A and Pharma-Cann is in 117B. I accept Cst. Neher's evidence that he believed the reference to Max Employment on the website to be a general marker for the public, not the suggestion that the unit was actually sub-divided.

(iii) Summary

[31] I agree with the proposition advanced by defence counsel that when the police search a single unit in a multi-unit commercial building, they must describe the target unit with some degree of precision. Obviously, the police cannot choose to ignore ambiguity in the description of the address if they know about it. I agree that the police are required to take necessary steps to identify the address with sufficient precision so the scope of any search is properly confined to the place the police have reasonable grounds to believe contains the illicit substances. The fundamental issue is whether Cst. Neher's description of Pharma-Cann's address to the issuing justice was adequately precise.

[32] When I review the following evidence, in my view, it was reasonable for Cst. Neher to describe the place to be searched as Suite 117. He relied on the following:

• the description provided to him by the other officers, which revealed nothing about Max Employment carrying on business in a subdivided unit;
• his own search on the Internet that revealed that Pharma-Cann only describes the business as being located in 117; and,
• Sgt. Laing's description to him of the interior of the unit, where he saw nothing that would suggest another business was operating in the unit.

[33] With respect, I do not agree that Cst. Neher "failed or refused to inform himself" as to the correct commercial address of Pharma-Cann before preparing his Information to Obtain. It is true that Cst. Neher could have contacted the land owner of the commercial plaza prior to applying for the search warrant, and would have discovered that the commercial unit 117 was divided into two separate and independent stores. However, I find Cst. Neher's testimony on the matter reasonable. Namely that the police do not usually advertise to the public about ongoing undercover investigations. In any event, I do not accept that there is a hard and fast rule that a landlord of a commercial premise must be contacted prior to the execution of a search warrant.

[34] Moreover, there is nothing on this record that suggests that Cst. Neher deliberately ignored any ambiguity about the specific address of Pharma-Cann. I find to the contrary. The officer relied on specific information that Pharma-Cann's address was Suite 117.

(iv) R. v. Ting is Distinguishable

[35] The accused rely on R. v. Ting, 2016 ONCA 57 from the Court of Appeal for Ontario. I do not believe that Ting assists the accused and it can be distinguished on the facts of this case: see also R. v. Messon, 2018 ONSC 1158.

[36] In Ting, police investigating a drug ring knew a particular address contained several units, but obtained two warrants that did not sufficiently describe any of the three interior units.

[37] The trial judge held that both warrants were invalid and excluded the evidence seized under s. 24(2) of the Charter. Ting was acquitted.

[38] The Court of Appeal upheld the trial judge's decision. Miller J.A., writing for the Court, held that an adequate description of the place to be searched is a fundamental component of a search warrant, as (a) the justice of the peace must know that the authorization is proper and not unduly broad; (b) the police must know the scope of their search powers; and (c) those subject to the warrant must not be left in doubt as to the validity of the warrant: Ting, at para. 49.

[39] Miller J.A. held that what constitutes an "adequate description" will depend on the case and the location searched. For multi-units or multi-use buildings, the description must differentiate the units within the building. Residents in single and multi-units have the same high expectation of privacy: Ting, at para. 51. A failure to provide an adequate description renders a warrant invalid.

[40] In Ting, Miller J.A. held that the first warrant was invalid as the apartment it described (the rear residence) was not the one searched by the police (the basement unit). Furthermore, the Court agreed with the trial judge that the second warrant was also invalid as it also did not properly specify the unit to be searched because it only described the unit as being the basement residence. Furthermore, the Court of Appeal noted that the police had searched the residence without a warrant and were still present in the apartment when they decided to obtain a second warrant. The Court of Appeal added that had the police promptly left the apartment on realizing their error, this initial entry would not have prevented them from lawfully obtaining a new warrant.

[41] In my view, this case is different than Ting. For the reasons that I have outlined above, the police clearly specified the place to be searched. Unlike in Ting, there was nothing to indicate that the description in the Information to Obtain was ambiguous or overly broad. The description matches the information presented to the public, and confirmed during undercover observation.

[42] Ting confirms that the test is whether or not the police provided an adequate description to the issuing justice. The police in this case met that standard and the warrant issued by JP Murphy is a facially valid warrant. The warrant authorized the search of Suite 117 and that is precisely the unit that the officers entered and searched.

[43] I also agree with the Crown that in Ting the officers in that case had information that unit 4204B was further divided into other units, while in this case the officers did not know about the subdivision when they applied for the warrant. Further, it has not been established on the evidence why they should have known that this was the case.

4. 24(2) Analysis

[44] Accordingly, I find that on the facts of this case there was no violation of s. 8 (unreasonable search).

[45] However, if I am wrong, I must consider whether or not to exclude the evidence under s. 24(2) of the Charter. I will deal with the issue of s. 24(2) of the Charter briefly.

[46] It is not disputed that the accused bears the burden of demonstrating the evidence should be excluded.

[47] Following R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the factors I must consider are:

(i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the applicants' Charter rights; and (iii) society's interest in the adjudication of the case on its merits.

[48] After considering and balancing the factors, I am of the view that admitting the evidence seized from the entry into the premises would not bring the administration of justice into disrepute.

(i) Seriousness of the Charter Infringing Conduct

[49] This factor favours admission of seized evidence (i.e. the marihuana) because, in my view, the infringing state conduct was not serious. The police responded to citizen complaints by applying for a warrant that was granted. The application followed a thorough investigation that ended when police presented their findings to a justice. It cannot be said that the erroneous description of the address was deliberate, willful or flagrant or that they exhibited a casual attitude toward the rights of the accused. Consequently, the seriousness of the breach is attenuated.

[50] I do note one could argue that once it became apparent that the search area contained documents suggesting another business used the space, the police should have sought clarification on the division of the unit and amended the warrant to continue the search of Pharma-Cann in order to prevent an overbroad authorization. However, I have no evidence that the search of Max Employment was intrusive or lengthy. Sgt. Laing described this area as sparse. Exhibit H confirms the evidence of the officer.

[51] At para. 72 of Grant, the Supreme Court of Canada has held that "[t]he more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct" by the exclusion of evidence linked to the conduct, in order to preserve state adherence to, and public confidence in, the rule of law.

[52] In this case cannot find there was a wilful disregard of the applicants' Charter rights. In fact, the police did not act in bad faith when they searched Suite 117. The police turned their minds to getting a warrant. This decision goes a long way in convincing me that they were not acting in bad faith in their approach. I have concluded that public confidence would not be undermined by what the police did here.

(ii) Impact of the Breach on the Applicants' Charter Rights

[53] I must consider the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on the applicants' protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights count for little, bringing the administration of justice into disrepute.

[54] There is no dispute by the parties that the accused maintained a reasonable expectation of privacy in the business premises. The Crown concedes as much. However, it is not at all clear to me that the accused have a reasonable expectation of privacy in the search of the area belonging to Max Employment. It seems to me that this attenuates the breach somewhat.

[55] However, in the end, if the police went into the Pharma-Cann's business without a facially valid warrant, I am of the view that this factor favours exclusion of the evidence.

(iii) Society's Interest in the Adjudication of the Case on its Merits

[56] In adjudicating the third factor, the Supreme Court of Canada in Grant instructs trial judges to ask whether the truth-seeking function of the criminal trial process better served by admission of the evidence, or by its exclusion?

[57] The factors to be considered are the reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the offence. The Supreme Court of Canada has held that this last factor has the potential to cut both ways.

[58] I agree with the Crown that excluding the evidence from trial for what is not a deliberate breach because of the failure to sufficiently describe the premises adequately would have the effect of bringing the administration of Justice into disrepute. The evidence obtained as a result of the investigation is reliable and exclusion would certainly lead to a termination of the prosecution. Consequently, this stage of the analysis favours inclusion.

[59] When I combine all those factors and in particular when I consider that any Charter breach by the police was not deliberate, I am not persuaded that Mr. Ivanecky and Mr. Angel have demonstrated on a balance of probabilities that if a Charter breach was found the evidence should be excluded.

5. Conclusion

[60] The application is dismissed.

Coroza J. Released: April 8, 2019