Court File and Parties
COURT FILE NO.: CR-18-0518 DATE: 20190626 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MARCO MARIC, GIOVANNI RAIMONDI, ETHAN ECKSTEIN, ABDUL SHAHIN, VARTEVAR ED BROUNSUZIAN and TANG HIEN QUANH Defendants
Counsel: Brendan Gluckman and Amanda Hauk, for the Crown Gary Grill, for the Defendant Marco Maric Greg Lafontaine and Carly Eastwood, for the Defendant Giovanni Raimondi Robert Yasskin, for the Defendant Ethan Eckstein Enzo Battigaglia, for the Defendant Abdul Shahin Peter Zaduk, for the Defendant Vartevar Ed Brounsuzian Leonard Hochberg, for the Defendant Tang Hien Quanh
HEARD: October 17, 29, November 20, 2018.
REASONS FOR JUDGMENT
PRE-TRIAL CHARTER APPLICATION OF TANG HIEN QUANH
M.F. Brown J.
OVERVIEW
[1] The defendant Tang Hien Quanh stands charged with one count of conspiracy to traffic cocaine and one count of possession of cocaine for the purpose of trafficking.
[2] On a pre-trial motion, the defendant brought an application seeking to exclude certain evidence from his trial under s. 24(2) of the Charter. On November 20, 2018 I gave brief oral reasons dismissing the defendant’s application. At that time, I found that there was no violation of the defendant’s s. 9 Charter rights when he was arrested or his s. 8 Charter rights when the police searched the defendant incident to his arrest or subsequently obtained evidence from the search of the Toyota RAV4 motor vehicle. I also found that even if I was wrong and there was a violation of the defendant’s s. 9 Charter rights in the police arresting him on June 28, 2016 or his s. 8 Charter rights in the police search incident to his arrest or the search of the RAV4 motor vehicle, I was not satisfied that having regard to all the circumstances and the principles set out in R. v. Grant, 2009 SCC 32, that the admission of the evidence at trial obtained from the search incident to arrest or the search of the RAV4 motor vehicle would bring the administration of justice into disrepute. Accordingly, I held that I was not satisfied that the evidence should be excluded under s. 24(2) of the Charter. I indicated at that time that in order not to delay matters I would provide more detailed written reasons at a later date. These are those reasons.
EVIDENCE ON THE APPLICATION
a) Agreed Statement of Facts
[3] The evidence on this application was an Agreed Statement of Facts (ASF) as well as the viva voce testimony of Detective Constable Joel Pavoni of the London Police Service. As disclosed in the ASF, on June 24, 2016 police officers learned that Mr. Marco Maric was expecting a large delivery of cocaine. He was intercepted on a video probe, telling one his runners, Mr. Mikhael Lennox, that they had “50 birds” coming in next week, that nine people were in on the deal and that if it did not happen on Monday (June 27) then Tuesday (June 28) it would happen for sure. On June 27, 2016 in anticipation of an impending drug transaction, officers from the London Police Service conducted surveillance of Mr. Maric, Mr. Ethan Eckstein and Mr. Lennox.
[4] On June 27, 2016, at approximately 7:45 p.m., police officers observed Mr. Maric exit his London residence with a male named Mr. Konstantine Damias. Mr. Damias drove Mr. Maric around the corner where Mr. Lennox’s unoccupied GMC Traverse was parked. Mr. Maric entered the Traverse and drove to a Boston Pizza located at 3090 Wonderland Road in London, Ontario.
[5] Mr. Eckstein was waiting in the parking lot in his Acadia when Mr. Maric arrived. Mr. Maric parked the Traverse beside Mr. Eckstein’s Acadia. He exited the vehicle and spoke with Mr. Eckstein through the driver’s side window. Minutes later, Mr. Damias drove into the parking lot and Mr. Maric entered the passenger side of his vehicle. Officers then followed Mr. Maric back to his residence.
[6] When officers returned to the parking lot an hour later, Mr. Eckstein’s Acadia and Mr. Lennox’s Traverse were no longer parked there. An Infiniti registered to Mr. Lennox was now parked in the same area.
[7] Using a tracking device, officers determined that Mr. Eckstein’s Acadia travelled to a plaza on Paramount Drive in Stoney Creek and returned to London.
[8] Just before 11:00 p.m., officers observed Mr. Eckstein, operating his Acadia, drive back into the Boston Pizza parking lot in London. Mr. Lennox exited the passenger seat of the Acadia and entered the driver’s seat of his parked Infiniti. Both vehicles then left the area.
[9] Officers followed Mr. Eckstein back to Mr. Maric’s London residence. Approximately an hour later, Mr. Eckstein left Mr. Maric’s residence and drove back to the Boston Pizza parking lot. He remained in the lot for approximately three minutes and then returned to Mr. Maric’s residence.
[10] At 1:00 a.m., on June 28, 2016, a police officer located Mr. Lennox’s Traverse parked unoccupied in the parking lot of a plaza at 815 Paramount Drive in Stoney Creek.
[11] At 7:00 a.m., on June 28, 2016, officers from the Toronto Police Service set up surveillance on Mr. Lennox’s Traverse, which was still parked unoccupied in the plaza parking lot at 815 Paramount Drive in Stoney Creek. At the same time, officers from the London Police Service set up surveillance at Mr. Lennox’s home address in London.
[12] At 9:58 a.m., an individual, later identified as Mr. Sinisa Manojlovic, drove into the plaza parking lot in a black Toyota RAV4 that was registered to the defendant. Mr. Manojlovic parked the RAV4 beside the Traverse. He then retrieved a set of keys from a compartment on a Seadoo parked nearby. He boarded the Traverse and drove it to a nearby townhouse complex located at 800 Paramount Drive.
[13] Officers followed him to 800 Paramount Drive and observed him enter the garage for unit 28 and close the garage door.
[14] Approximately 45 minutes later, the garage door opened and the Traverse exited the garage. The Traverse was being driven by a male later identified as Mr. Jovo Miscevic. Mr. Miscevic drove the Traverse back to the plaza parking lot at 815 Paramount Drive and parked it beside the Seadoo.
[15] Minutes later Mr. Manojlovic arrived in the plaza parking lot driving a Dodge Ram. Mr. Manojlovic and Mr. Miscevic hitched the Seadoo trailer to the Dodge Ram. They then shook hands and Mr. Manojlovic drove off in the Dodge Ram. Mr. Miscevic remained in the area and investigators followed him in and out of several stores.
[16] Meanwhile the London Police Service were conducting surveillance on Mr. Lennox and Mr. Eckstein. They observed Mr. Lennox and Mr. Eckstein meet up in a plaza parking lot on Wonderland Road in London. Mr. Eckstein exited his Acadia and boarded Mr. Lennox’s Infiniti. The two of them then travelled eastbound on the 401 Highway towards the plaza parking lot at 815 Paramount Drive.
[17] At 11:35 a.m., a white Mercedes, registered to the defendant’s sister, entered the plaza parking lot from the west side. Detective Constable Ho of the Toronto Police Service observed the vehicle drive towards the Traverse and the RAV4. He noted it was driving very slowly and almost came to a complete stop beside both vehicles. It then immediately turned around and drove back in the direction from which it had come.
[18] At 11:30 a.m., officers observed Mr. Miscevic walking back towards the Traverse and RAV4. He stood in between the Traverse and RAV4 texting on his phone and looking around.
[19] At 11:39 a.m. D.C. Ho observed the defendant walk towards Mr. Miscevic from the west side of the plaza. D.C. Ho observed the defendant approach Mr. Miscevic and their hands meet. The defendant then walked directly to the front driver’s side door of the RAV4. He was carrying two bags, a black backpack and a black satchel over his right shoulder. He opened the door of the RAV4 and placed both bags into the front of the vehicle.
[20] At 11:41 a.m., Mr. Eckstein and Mr. Lennox drove into the near empty parking lot in Mr. Lennox’s Infiniti. They parked just west of the RAV4. Mr. Miscevic approached the passenger side of the Infiniti and spoke to Mr. Lennox and Mr. Eckstein through the window. At that point eight officers from the London Police Service, who were all wearing police vests which read ‘POLICE’, moved in to arrest the parties.
[21] Detective Constable Valiquette observed the defendant walking away from the RAV4. D.C. Valiquette noted the defendant looked concerned. D.C. Valiquette called out to the defendant to stop. The defendant started to move away quickly from the area, looking back. The defendant was ultimately arrested by police officers D.C. Pavoni and Detective Constable Bullick of the London Police Service. D.C. Pavoni conducted a search incident to arrest and located the keys to the RAV4 on the defendant.
[22] Prior to his arrest, the defendant was not a target of this investigation. He was neither observed on surveillance nor was he heard on the wiretaps. The defendant does not have a criminal record.
[23] Officers then sought and obtained a search warrant for the RAV4. On the front passenger seat, they located a kilogram of cocaine. Officers also located a large metal box under the vehicle in the trunk. They pried it open and located 36 vacuum sealed packages of cocaine weighing a total of 42.4 kilograms. The search warrant for the RAV4 that was authorized is attached as an appendix to the ASF. It authorizes a search of the RAV4 between 6:00 p.m. on June 28, 2016 and 6:00 p.m. on July 1, 2016.
b) Testimony of D.C. Pavoni
[24] D.C. Pavoni testified on the voir dire of this application. He is a member of the London Police Service. He has been a member of the London Police for sixteen years. He has been a member of the Guns and Drugs section since January 2011. In 2011, he became a full time drug investigator. He has been taking training in relation to drug investigations. He has been qualified as an expert in cocaine trafficking as well as an expert in street language in relation to drug trafficking.
[25] He was the lead investigator in the London portion of Project Beyond as it related to Mr. Maric, Mr. Abdul Shahin, Mr. Eckstein and Mr. Lennox. His role was to assist in surveillance, draft search warrants, execute search warrants and process exhibits. D.C. Pavoni testified that the police were investigating Mr. Maric, Mr. Shahin, and Mr. Eckstein at the start of April 2016 after information had been received from a confidential human source that they were involved in the trafficking of cocaine.
[26] D.C. Pavoni testified that it was believed that Mr. Maric was a high level cocaine trafficker, as well as Mr. Shahin, and that Mr. Eckstein was a runner. A runner is someone who perhaps does not profit as much as Mr. Shahin and Mr. Maric would, but is used to transfer drugs from one location to another as part of their network.
[27] D.C. Pavoni testified he was aware of a video probe installed in an address associated to Mr. Maric. As a result of that video probe, he became aware that information was obtained by the police that Mr. Maric was purchasing cocaine at the multi-kilo level and then trafficking that cocaine to other persons.
[28] As a result of this information, the London Police conducted surveillance of Mr. Maric, Mr. Shahin, and Mr. Eckstein in London and Toronto, while Toronto Police were actively investigating them as well.
[29] On June 26, 2016 D.C. Pavoni testified that the London Police had received information from the Toronto Police that Mr. Maric was believed to be receiving a shipment of cocaine in the near future. The information was that Mr. Maric was to receive 60 “birds” which was street language for 60 kilograms of cocaine. One “bird” is a kilogram.
[30] On June 27, 2016 the London Police were conducting surveillance on Mr. Maric at his residence at 3382 Crane Avenue in London. D.C. Pavoni testified that while they were conducting surveillance there, they noticed a Chevy Traverse parked on Settlement Trail which was a street located about a four minute walk from Mr. Maric’s house. The vehicle was registered to Mr. Mikhail Lennox who was identified by Toronto Police as someone believed to be selling cocaine with Mr. Maric.
[31] During that surveillance, an Infiniti, driven by a male Konstantine Damias, appeared. He attended at 3382 Crane Avenue and picked up Mr. Maric. He then drove Mr. Maric to the Traverse and Mr. Maric got into the Traverse. According to D.C. Pavoni, at that time there was ample parking on Crane Avenue and there was nothing prohibiting the Traverse from being parked in front of 3382 Crane Avenue or in the driveway where the Infiniti had pulled up to pick up Mr. Maric.
[32] They then drove to a Boston Pizza outlet in the City of London. Mr. Damias drove his Infiniti while Mr. Maric drove the Traverse registered to Mr. Lennox.
[33] When they pulled into the parking lot of the Boston Pizza, Mr. Eckstein was already there in his Chevrolet Acadia. The police had previously installed a tracking device on the Acadia. Mr. Maric parked the Traverse and attended at the Acadia where he spoke to Mr. Eckstein at the driver’s side of the vehicle. This occurred in the evening of June 27, 2016. Mr. Maric then left the Acadia and entered the Infiniti driven by Mr. Damias and they then left the area. Mr. Eckstein’s Acadia and the Traverse were left in the parking lot of Boston Pizza. The police did not stay with these two vehicles. They left and followed Mr. Damias and Mr. Maric to Mr. Maric’s parent’s home in London. Surveillance was eventually terminated on Mr. Maric and D.C. Pavoni believed Mr. Maric returned to his residence at 3382 Crane Avenue in London.
[34] The police then returned to the Boston Pizza parking lot that evening on June 27, 2016. They found that the Traverse and the Acadia were gone but an Infiniti registered to Mr. Lennox was parked where the Traverse had been.
[35] D.C. Pavoni testified he learned the Acadia returned to the Boston Pizza parking lot. There was still no sign of the Traverse, but Mr. Lennox was in the Acadia with Mr. Eckstein. Mr. Eckstein exited the Acadia and got into the Infiniti which was still parked in the Boston Pizza parking lot. Both vehicles then left. D.C. Pavoni testified that he learned from the Toronto Police, who conducted their own surveillance, that the Traverse had been dropped off in Hamilton in a parking lot.
[36] D.C. Pavoni testified that he believed the Traverse was being left overnight to be loaded up with cocaine. He said that based on previous surveillance, something very similar had occurred on May 25, 2016 in relation to the Acadia vehicle, not the Traverse. On May 25, 2016 he observed the same deliberate placement of vehicles, only on that date it was the Acadia, not the Traverse, that was left overnight in a parking lot to be filled up with drugs.
[37] D.C. Pavoni testified that on the morning of June 28, 2016, Mr. Lennox and Mr. Eckstein were observed by the police driving in the Acadia. They left London, turned around on the 401, parked at a Starbucks and again switched to a different vehicle. They abandoned the Acadia and switched to the Infiniti.
[38] D.C. Pavoni testified that while he was conducting surveillance of the Infiniti, he communicated with Detective Constable Swart of the Toronto Police. They agreed that if the Infiniti was headed for the parking lot where the Traverse was, the London Police would box in the Infiniti and the Toronto Police would box in the Traverse and assist with the arrest of any persons that were involved.
[39] D.C. Pavoni testified that he followed the Infiniti to the parking lot of the plaza at 815 Paramount Drive in Stoney Creek. When they entered the parking lot of the plaza he immediately saw the Traverse. Beside it was a Toyota RAV4. There were no other cars around the vehicles.
[40] D.C. Pavoni testified that his surveillance team, driving their own vehicle, followed the Infiniti into the plaza parking lot. At that time he saw two people, Mr. Miscevic and the defendant. They were standing between the RAV4 and the Traverse. It was a very isolated part of the parking lot with no other cars around. It appeared to D.C. Pavoni that the defendant was with Mr. Miscevic. They were standing beside one another. He did not know if they were speaking to each other. They appeared to be, but he was not close enough to hear a conversation.
[41] D.C. Pavoni testified that he entered the parking lot at 11:40 a.m. He did not see the defendant with any bags or the hands of the defendant meet the hands of Mr. Miscevic. He did not see whatever happened in the parking lot before 11:40 a.m. on June 28, 2016.
[42] D.C. Pavoni testified that as the Infiniti entered the parking lot it stopped about 25 or 30 metres from the Traverse. At that time Mr. Miscevic left the defendant and approached the passenger window of the Infiniti. As soon as the Infiniti arrived, Mr. Miscevic approached it as though he was waiting for it. When Mr. Miscevic left and approached the Infiniti, the defendant did not leave the area. He remained where he was, between the two vehicles. As Mr. Miscevic approached the Infiniti at the passenger window, it appeared as if he was having a conversation with the occupants of the Infiniti, Mr. Eckstein and Mr. Lennox.
[43] At that point multiple unmarked police cars converged on the Infiniti. All the police that were involved exited their vehicles and identified themselves as police officers. D.C. Pavoni exited his vehicle and the police began to conduct the arrests on Mr. Lennox, Mr. Eckstein and Mr. Miscevic. As D.C. Pavoni was getting out of his vehicle, the defendant started to walk away. His walk turned into a run within three or four steps. D.C. Pavoni pursued him on foot and caught up to him. The defendant was placed under arrest and handcuffed. He was advised he was under arrest for possession of cocaine for the purpose of trafficking. He was read his rights to counsel and cautioned and was then searched incident to his arrest.
POSITION OF THE PARTIES
[44] The defence in this case argues that the police violated the defendant’s s. 9 Charter rights when they arrested him. The defence submits that the arresting officer in this case, D.C. Pavoni, had neither a subjective belief that there were reasonable grounds to arrest the defendant nor has it been objectively established that those grounds exist.
[45] The defence submits that D.C. Pavoni was determined to arrest anyone in the plaza parking lot in the vicinity of the Traverse. There was no honestly held subjective belief on D.C. Pavoni’s part that there were reasonable grounds for the arrest of the defendant. The defence submits that even if I were to find D.C. Pavoni subjectively believed he had reasonable and probable grounds to make the arrest, there was no objective basis for such a belief. The defence submits that D.C. Pavoni never considered any other alternatives to the arrest of the defendant.
[46] The defence submits that D.C. Pavoni took no investigative steps to ascertain whether the defendant was in any way involved with criminal activity but opted to carry out an arrest because the defendant was meeting with individuals under investigation. The defence submits that the police could have detained the defendant, secured his identification and released him. The defendant had no criminal record. He was not known to D.C. Pavoni. There was no reason to believe the defendant was involved in the drug subculture.
[47] The defence submits that the mere fact that the defendant was in the plaza parking lot in the general vicinity of the Traverse does not amount to reasonable grounds on an objective basis. The defence submits that to the extent an arrest is little more than mere association with a targeted individual or mere attendance at a targeted location, the foundation is not sufficient to afford reasonable grounds to arrest. The defence submits that the evidence on this application is not enough to raise even a reasonable suspicion, let alone a “credibly-based probability”.
[48] The defence further submits that if it had not been for the unlawful arrest, the police would not have been in a position to search the RAV4. The defence submits that if I conclude that the arrest of the defendant was unlawful, therefore any ensuing search was illegal and I must engage in a Grant analysis and the evidence seized must be excluded pursuant to s. 24(2) of the Charter. I had indicated in my brief oral reasons on November 20, 2018 that the defence sought to exclude evidence of the search of the defendant incident to his arrest as part of his s. 24(2) relief. The specific 24(2) relief that the defendant sought in his oral submissions in addition to the exclusion of the evidence of the cocaine found in the search of the RAV4, was the exclusion of the evidence of any and all police observations of the defendant at the scene of his arrest. Because those police observations could also include the evidence of the observations the police made of the defendant at the time of the search incident to arrest where keys to the RAV4 and cash were seized, I have also included the search of the defendant incident to his arrest in my analysis.
[49] The Crown, on the other hand, submits that there was no s. 9 Charter breach when the defendant was arrested. The Crown submits that there were reasonable and probable grounds both on a subjective and an objective basis for the arrest. Additionally, the Crown submits that there were no s.8 Charter violations in any ensuing search. In the alternative, the Crown submits that if there were any breaches of the Charter rights of the defendant, the evidence seized should not be excluded pursuant to s. 24(2) of the Charter.
ANALYSIS
SECTION 9 OF THE CHARTER
[50] The defence submits that the police violated the defendant’s s. 9 Charter rights when they arrested him without reasonable grounds to do so. Section 9 of the Charter provides that no one may be arbitrarily detained or imprisoned. The defence submits that the defendant’s arrest was not authorized by law and therefore was a breach of the defendant’s s.9 Charter rights.
ARREST WITHOUT WARRANT – GENERAL PRINCIPLES
[51] Section 495(1)(a) of the Criminal Code allows a police officer to make an arrest without a warrant when he or she believes, on reasonable grounds, that the person has committed or is about to commit an indictable offence.
[52] The arresting officer must subjectively believe that he or she has reasonable and probable grounds to arrest and those grounds must also be justified on an objective basis. A reasonable person placed in the position of the officer must be able to conclude there were reasonable and probable grounds for the arrest. See R. v. Storrey, [1991] 1 S.C.R. 241 at paras. 15 and 16. The totality of the circumstances relied upon by the arresting officer will form the basis of the objective assessment. See R. v. Lawes, 2007 ONCA 10 at para. 4.
[53] 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. See R. v. Dhillon, 2016 ONCA 308 at para. 25.
[54] In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. The law does not expect the same type of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. See R. v. Golub, [1997] O.J. No. 3097 (Ont. C.A.) at para. 18.
[55] The test for reasonable and probable grounds requires that the matter be viewed from the perspective of a reasonable person “standing in the shoes of the police officer.” The reasonable person must have the same level of experience as the officer whose actions are being scrutinized. An objective assessment of the grounds will thus include consideration of the officer’s experience as well as the dynamics within which he or she acted. See R. v. Hanson, [2009] O.J. No. 4152 (Ont. S.C.) at paras. 58-59 and R. v. Tran, 2007 BCCA 491 at para. 12.
[56] The language of s. 495(1)(a) of the Criminal Code focuses on the officer’s state of mind and reasonableness of the officer’s belief, rather than the actual state of affairs. Reasonable grounds can be based on a reasonable belief that certain facts exist even if it turns out that the belief is mistaken. See R. v. Robinson, 2016 ONCA 402 at para. 40.
[57] Officers may form the grounds to arrest based on information from other sources, including other officers, as well as their own observations. Officers on an investigative team are not silos restricted to act only on what they personally observe or information that they receive. See R. v. Debot (1986), 20 C.C.C. (3d) 207 (Ont. C.A.)
[58] The decision to arrest is evaluated at the time of arrest. An arrest is effected when the police take custody of a person’s body or when a person submits after the police pronounce words of arrest. See R. v. Latimer, [1997] 1 S.C.R. 217 at para. 24. Between the initial attempts to arrest and the actual arrest, the defendant’s flight may also be one of the potentially relevant circumstances that can add to the officer’s grounds for arrest. See R. v. Jackson, 2011 ONSC 5516, [2011] O.J. No. 6394 at para. 64 (Ont. Sup. Ct.).
[59] D.C. Pavoni testified that his grounds for arresting the defendant were as follows:
a) D.C. Pavoni was aware that Mr. Maric had been intercepted on a video probe and he believed that there were going to be 60 “birds” or kilograms of cocaine delivered.
b) The surveillance that was being conducted on June 27-28, 2016 matched the surveillance that the police conducted on May 25, 2016. D.C. Pavoni testified that he believed that the Traverse was being left overnight in the parking lot to be loaded up with cocaine. He had this belief because had seen something like this before. On May 25, 2016 he observed the same deliberate placement of vehicles, only on that date, it was an Acadia motor vehicle, not the Traverse, that was left overnight in a parking lot to be filled up with drugs. D.C. Pavoni testified that the surveillance on May 25, 2016 and the seizure of 3 kilograms of cocaine on May 26, 2016 formed part of his grounds to believe that the defendant was involved in a drug transaction on June 28, 2016. He testified that there were a number of similarities between what happened on May 25, 2016 and June 27-28, 2016. These similarities included: the players, the movement of vehicles, the swapping of vehicles and the leaving of a vehicle overnight in a parking lot. D.C. Pavoni testified that his grounds were further supplemented by the information he received on June 28, 2016 from Toronto police that the Traverse had been driven to an address near Paramount Drive and returned to the parking lot a short time later.
c) D.C. Pavoni testified that Mr. Eckstein and Mr. Lennox swapped vehicles on the morning of June 28, 2016 prior to arriving in the parking lot at Paramount Drive. He testified that this was a common technique used by drug traffickers to make it difficult for police to conduct surveillance.
d) The positioning of the defendant in the parking lot with Mr. Miscevic who D.C. Pavoni believed to be the person approaching the Infiniti to speak to Mr. Lennox. It appeared to D.C. Pavoni that the defendant was with Mr. Miscevic. He believed that Mr. Miscevic and the defendant were engaged in a conversation. He believed that the defendant and Mr. Miscevic were going to turn the Traverse which was now supplied with cocaine over to Mr. Lennox and Mr. Eckstein. When the Infiniti pulled in, it appeared that Mr. Miscevic was waiting for the vehicle. As soon as it arrived, he began to approach it. When he did so, the defendant did not leave the area. He remained.
e) The association of the defendant and the two vehicles, the RAV4 and the Traverse. There were no other vehicles around. It appeared the defendant was in as close proximity to the Traverse as Mr. Miscevic. Although he did not approach the Infiniti, the defendant was still at the Traverse when D.C. Pavoni arrived.
f) When the police began to conduct the arrests of Mr. Lennox and Mr. Eckstein, the defendant fled on foot. D.C. Pavoni testified that as the arrests were taking place, the defendant, who was between the RAV4 and the Traverse, turned his back and started to walk away. As D.C. Pavoni got out of his vehicle, the defendant’s walk turned into a run within three or four steps. D.C. Pavoni then pursued him on foot and then caught him and placed him under arrest. D.C. Pavoni testified that he has been involved in more than a hundred takedowns like this and the usual reaction of people is to watch, take a video, maybe step back but not to flee.
[60] D.C. Pavoni testified that based on all the information he had including the information he had about Mr. Maric being supplied with cocaine, that he believed that the defendant was involved in supplying the Traverse with the cocaine that D.C. Pavoni believed was inside the Traverse and that he had reasonable grounds to believe that the defendant was engaged in the offence of possession of cocaine for the purpose of trafficking.
[61] I accept the evidence of D.C. Pavoni in this regard and find that he had an honestly held subjective belief that he had reasonable grounds to arrest the defendant. The defence argues D.C. Pavoni was inconsistent in his evidence in that although he testified that it appeared to him that the defendant and Mr. Miscevic were speaking to each other when he first observed them in the parking lot, that observation was not in his notes which were made on June 28, 2016 on the narrative text which was made on June 29, 2016 and filed as an exhibit on the application.
[62] I do not consider the fact that D.C. Pavoni did not record in his notes or in the narrative text his observation that it appeared the defendant and Mr. Miscevic were speaking to each other as being significant in terms of the credibility of D.C. Pavoni or the reliability of his evidence. D.C. Pavoni testified that when he first observed the defendant and Mr. Miscevic they were standing beside one another. The narrative text reflects that he observed two males standing near both vehicles. D.C. Pavoni testified that he didn’t know if they were speaking to each other but they appeared to be. He said he was 25 metres away from them with the windows up in the car. He couldn’t hear any conversation under those circumstances but he said you can tell when people are engaged in conversation.
[63] This evidence of D.C. Pavoni is not inconsistent with any other evidence on the record in this application. In fact, unbeknownst to D.C. Pavoni, another police officer observed an interaction between the defendant and Mr. Miscevic just prior to the arrival of D.C. Pavoni in the parking lot. As set out in the ASF, at 11:39 a.m. D.C. Ho observed the defendant walk towards Mr. Miscevic from the west side of the plaza. He observed the defendant approach Mr. Miscevic and observed their hands meet. D.C. Pavoni did not enter the parking lot until 11:40 a.m. He was not aware of what happened at 11:39 a.m.
[64] I do not agree with the defence submissions that D.C. Pavoni was determined to arrest anyone in the plaza parking lot in the vicinity of the Traverse. That was not his evidence. He testified that he had coordinated with D.C. Swart of the Toronto Police. They agreed that if the Infiniti was headed for the parking lot where the Traverse was, the London Police were going to box in the Infiniti and the Toronto Police would box in the Traverse and assist with the arrest of any persons that were involved. D.C. Pavoni never testified that it was his intention to arrest anyone in the plaza parking lot in the vicinity of the Traverse or anyone merely present there. He testified that he was not necessarily going to arrest just anyone standing near the Traverse.
[65] This is not a situation where D.C. Pavoni simply chose to arrest the defendant because of his mere presence at the scene or his mere association with individuals the police had under surveillance. It is the constellation of factors as articulated by D.C. Pavoni and to which I made reference at paragraph 59 of these reasons that amount to reasonable grounds for the belief that the defendant was engaged in the offence of possessing cocaine for the purpose of trafficking.
[66] This is not the same situation as R. v. Brown, 2012 ONCA 220 upon which the defendant relies. Unlike the arresting officer in that case, D.C. Pavoni did not display a cavalier attitude towards the exercise of his powers of arrest nor did he view an arrest as the best tool when investigating crime. D.C. Pavoni arrested the defendant because he believed he had reasonable grounds to do so.
[67] As noted earlier, often a police officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. The law does not expect the same type of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. See Golub, at para 18.
[68] In my view the objective test has been met in this case. A reasonable person in the position of D.C. Pavoni would be able to conclude that there were reasonable grounds to arrest the defendant for possession of cocaine for the purpose of trafficking. In coming to this conclusion, I take into consideration D.C. Pavoni’s experience in drug investigations. The totality of the circumstances are sufficient to establish the objective reasonableness of the subjective grounds for arrest.
[69] As noted by the Ontario Court of Appeal in R. v. Anang, 2016 ONCA 825 at para 22 determining whether there were objective grounds to arrest is not a mathematical exercise involving the counting of the number of surveillance incidents. Rather, it is the nature of the information derived from the surveillance, taken in the context of the totality of the circumstances and weighted through the perspective of the experience of the arresting officer that informs the decision.
[70] I am satisfied on the totality of the evidence that D.C. Pavoni had a subjective belief that there were reasonable grounds for the arrest of the defendant and, as well, that those grounds were justifiable from an objective point of view. The cumulative effect of the evidence that I referred to earlier in paragraph 59 of these reasons demonstrates reasonable grounds on an objective basis for D.C. Pavoni to believe the defendant committed the indictable offence of possession of cocaine for the purpose of trafficking. I am satisfied that there were reasonable grounds for the defendant’s arrest without a warrant pursuant to s. 495(1)(a) of the Criminal Code. The arrest was therefore authorized by law and not a breach of the defendant’s s. 9 Charter rights.
SECTION 8 OF THE CHARTER
[71] Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures. A search is reasonable if it is authorized by law, if the law itself is reasonable, and the manner in which the search was carried out is reasonable. See R. v. Collins, [1987] 1 S.C.R. 265 at para. 34.
[72] In this case the defence submits that the arrest of the defendant was a violation of his section 9 Charter rights and therefore any ensuing search by the police was also unlawful and violated the defendant’s s. 8 Charter rights.
[73] A lawful search incident to arrest is predicated upon the lawfulness of the arrest itself. If the arrest is not lawful, then the search incidental to it will violate the Charter unless it falls within another exception to the prima facie unreasonableness of a warrantless search as set out in Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
[74] For the reasons I have just explained I am of the view that the arrest of the defendant was authorized by law and was not a breach of the defendant’s s.9 Charter rights. Given that the arrest was lawful, so was the search conducted incidental to his arrest, which, on the record before me, was conducted incidental to the defendant’s arrest and in a reasonable manner. Accordingly, there was no breach of the defendant’s section 8 Charter rights in the search incident to his arrest.
[75] I am also of the view that there was no breach of the defendant’s section 8 Charter rights in the search of the RAV 4. That search was carried out pursuant to a validly authorized search warrant. The defendant did not seek to challenge the validity of that search warrant before me.
[76] Where prior judicial authorization is sought, the search is authorized by law and there is a presumption of validity. The onus is on the applicant to demonstrate that the warrant could not have issued. See R. v. Sadikov, 2014 ONCA 72 at para. 83.
[77] The Supreme Court of Canada in R. v. Garofoli set out the procedure and relevant framework of analysis to challenge the admissibility of evidence obtained pursuant to a prior judicial authorization. See R. v. Garofoli, [1990] 2 S.C.R. 1421.
[78] In adopting this approach, the Court in Garofoli authorized reviewing courts to conduct a full substantive review of an authorization to determine issues of admissibility. The Garofoli hearing is the established process for challenging judicial authorizations and evidence obtained pursuant to those authorizations. See R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 7.
[79] The search of the RAV4 was conducted pursuant to a presumptively valid judicial authorization. Neither the authorization nor the manner of search has been impugned before me. The onus is on the defendant to establish the search was not authorized by law or that it was conducted in an unreasonable manner. On the record before me, the defendant has failed to do so. Accordingly, there was no breach of the defendant’s section 8 Charter rights in the search of the RAV4.
SHOULD THE EVIDENCE BE EXCLUDED UNDER S. 24(2) OF THE CHARTER?
[80] In this case, the defence, relying on cases such as R. v. Strachan, [1988] 2 S.C.R. 980 and R. v. Pino, 2016 ONCA 389, submits that there was a serious and deliberate breach of the defendant’s s. 9 Charter rights and that there was a causal, temporal and contextual connection between the evidence obtained by the police and the s. 9 Charter breach. Therefore, submits the defence, the evidence was obtained in a manner that breached the defendant’s Charter rights. The defence submits that the admission of the evidence would, having regard to all the circumstances, bring the administration of justice into disrepute and the evidence should be excluded.
“Obtained in a manner” Requirement
[81] The first issue that must be addressed in this analysis is whether the evidence the defence seeks to be excluded was “obtained in a manner” that infringed the defendant’s Charter rights. To obtain an order excluding the evidence under s. 24(2) of the Charter, a defendant must show that the evidence to be excluded was obtained in a manner that infringed a Charter right.
[82] The phrase “obtained in a manner” requires that the defendant establish a connection between the Charter breach and the discovery of the evidence. The impugned evidence must be obtained in a way that infringed or denied the defendant’s Charter rights. See Strachan. This can be demonstrated by showing that the evidence is part of the same transaction or course of conduct that involves the Charter breach. Temporal, contextual and causal relationships between the Charter breaches and evidence are all taken into account. See R. v. Wittwer, 2008 SCC 33 at para. 21. Tenuous and remote connections cannot form the foundation upon which the exclusion rests.
[83] As Justice Laskin noted in Pino at para. 72, a court’s approach to the “obtained in a manner” requirement in s. 24(2) should be generous, consistent with the purpose of s. 24(2). The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections. However, the connection cannot be either too tenuous or too remote.
[84] In my view, for the purposes of the s. 24(2) analysis, in the event there was a Charter breach of s. 9 by the police in their arrest of the defendant or a s. 8 breach in the ensuing search of the defendant incident to his arrest or the search of the RAV4, I am satisfied that the Charter breach or breaches meet the s. 24(2) “obtained in a manner” prerequisite. Approaching the analysis in a generous manner, consistent with the purpose of s. 24(2), if there were any Charter breaches, there was both a temporal and contextual connection between the evidence seized in the search incident to arrest and the search of the RAV4 and the Charter breaches requiring a s. 24(2) analysis. See Pino at para. 74. If there were any Charter breaches, they all occurred within a short period of time during the investigative process after the arrest that led to the searches and obtaining of evidence and were all part of the same course of conduct occurring after the defendant’s arrest.
[85] As noted earlier, the defence in oral submissions argued that any and all evidence of the observations of the defendant by the police at the scene of the defendant’s arrest on June 28, 2016 should be subject to a s. 24(2) analysis and be excluded. In my view, the evidence of the police observations of the defendant prior to his arrest, in the event his arrest was a breach of s. 9 of the Charter, was not obtained in a manner that infringed a Charter right. The connection between the evidence obtained in the police observations prior to the defendant’s arrest and any subsequent Charter breach is too tenuous or remote to require a s. 24(2) analysis and to obtain an order excluding the evidence under s. 24(2) of the Charter. See Wittwer at para. 21.
[86] However, for the reasons I just explained, the evidence obtained in the search of the defendant incident to his arrest and the search of the RAV4 which occurred after the defendant’s arrest, require a s. 24(2) analysis in the event there was a Charter breach.
Section 24(2)
[87] The proper considerations under s. 24(2) of the Charter were established in Grant at paras. 72-82. In determining whether evidence should be excluded under s. 24(2), the court considers (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the defendant’s Charter-protected interests, and (iii) society’s interest in an adjudication of the case on the merits.
a) The Seriousness of the Charter – Infringing State Conduct
[88] Dealing with the first factor, the seriousness of the Charter-infringing state conduct, this factor focuses on the actions of the police. The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. See R. v. Paterson, 2017 SCC 15 at para. 43. The court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to disassociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See Grant, at paras. 72-75; R. v. Taylor, 2014 SCC 50 at para. 39.
[89] In this case if there was a breach of the defendant’s Charter rights the police conduct cannot be categorized as either deliberate or egregious. The decision by the police to arrest the defendant cannot be categorized as capricious or frivolous in the circumstances. In my view the conduct of the police in these circumstances could not be construed as a wilful or reckless disregard of the defendant’s Charter rights. As its highest, if there were a breach of the defendant’s Charter rights, I consider the conduct of the police to be an inadvertent error in judgment. If D.C. Pavoni was short of reasonable grounds to arrest the defendant, he was just short of such grounds. In my view, at worst, it was a close judgment call. The police were acting in good faith. There was no misconduct on the part of the police in acting as they did.
[90] D.C. Pavoni was responding to a dynamic and potentially dangerous situation that unfolded very quickly. He testified that when dealing with multiple kilograms of cocaine, an officer is dealing with cocaine that is worth a considerable amount of money. Drug traffickers will often arm themselves to protect themselves from being robbed by other drug dealers. D.C. Pavoni also spoke of the dangers associated with moving motor vehicles. He testified that he had been involved in several incidents where the suspect vehicle has been boxed in and persons have fled, rammed the police vehicles and caused injuries to other police officers.
[91] After the arrest of the defendant, D.C. Pavoni provided the defendant with the reasons for his arrest and his rights to counsel. After the arrest of the defendant at 11:40 am by D.C. Pavoni, a search warrant was sought sometime before 6:00 pm on June 28, 2016 by Police Constable William Chase, a police officer with the Toronto Police, for the RAV4 vehicle. As the Court noted in R. v. Rocha, 2012 ONCA 707 at para. 28, applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights.
[92] In this case the defendant was not challenging the validity of the search warrant. There was no evidence before me on this application that the warrant was obtained through the use of false or deliberately misleading information or the drafting of the ITO that in some way subverted the warrant process. In these circumstances, the obtaining of the warrant generally tells in favour of admitting the evidence. See Rocha at para. 28.
[93] With respect to the first Grant factor, the seriousness of the Charter-infringing state conduct, I am of the view this first Grant factor favours admission of the evidence. In all of the circumstances if there was a breach of the defendant’s Charter rights, the gravity of the Charter-infringing state conduct was at the lower end of the seriousness spectrum. If there were Charter breaches, they did not demonstrate a pattern of police misconduct or deliberate disregard for the Charter rights of the defendant by the police. The police were acting in good faith.
[94] This is not a case such as in R. v. Côté, 2011 SCC 46 or R. v. Strauss, 2017 ONCA 628 where by the time a search warrant was issued there had been multiple and deliberate breaches of the defendant’s rights. Nor is this a case such as Pino, where the Charter violations were compounded by the dishonest testimony of the police regarding their conduct associated with the Charter breaches.
b) The Impact of the Charter Breach on the Defendant’s Charter-Protected Interests
[95] As to the impact of any Charter violation on the defendant’s Charter-protected interests, the second factor of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the defendant. The impact of the Charter violation may range from “fleeting and technical to profoundly intrusive.” Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See Grant at paras. 76-78.
[96] Another issue that favours the admissibility, rather than the exclusion, of the evidence in this case regarding this second Grant factor is the concept of discoverability. Discoverability remains a relevant factor under s. 24(2) analysis. See Grant at para. 121; Côté at para. 69; R. v. Singh, 2016 ONSC 1144 at para. 48. The fact that the police could have demonstrated reasonable and probable grounds for a search warrant will tend to lessen the impact of the illegal search on the accused’s interest protected by the Charter. See Côté at para. 72. In other words, if the evidence in question would have been uncovered in any event, the impact on the defendant’s Charter-protected interests is less serious and admission of the evidence is more likely.
[97] Also as noted by Justice Campbell in Singh at para. 48 just as a strong causal connection between the Charter violation and the police obtaining of the impugned evidence will tend to favour the exclusion of the evidence, a weak or a non-existent causal connection between the Charter violation and the state securing of the impugned evidence will militate in favour of the admission of the evidence.
[98] There is no evidence on the record before me that gratuitous or unreasonable force was used by the police in the execution of the arrest. After a brief foot chase the defendant was compliant with the arrest. On the record before me the arrest occurred quickly and the use of force was proportionate. The fact that the defendant was handcuffed and left seated on the curb in the grassy area of the parking lot until 12:50 p.m. when D.C. Pavoni left the scene is not, in my view unreasonable, given the circumstances of the case. Nor is the fact that subsequently information about the defendant’s arrest and charges appeared on the Toronto Police Facebook page filed as an exhibit on this application. I have no direct evidence as to the impact of the circumstances of the arrest on the defendant. That being said, I have no doubt that it would be upsetting and stressful to the defendant to be arrested in public in broad daylight and left in public view, whether or not the arrest was lawful.
[99] If there was a Charter violation in the search of the defendant incident to his arrest, even a brief and limited one as occurred in this case, it is, nevertheless, a significant violation of the defendant’s privacy and security of the person.
[100] In terms of the search of the RAV4 by the police, even if there was a breach of the defendant’s s. 9 Charter rights at the time of his arrest, on the basis of the record before me, there is a weak or non-existent causal connection between the Charter breach and the state securing of the evidence found in the subsequent search of the RAV4. In my view, in the circumstances of this case, the RAV4 was going to be searched irrespective of the defendant’s arrest. It was searched within hours after the defendant’s arrest, pursuant to a judicially authorized search warrant that was executed in a reasonable manner. The legality of that search warrant was not challenged by the defendant.
[101] In terms of the second Grant factor, the impact of any Charter breaches on the defendant’s Charter-protected interests, I am of the view this second Grant factor while favouring exclusion of the evidence incident to arrest, favours admission of the evidence seized in the RAV4. Given the lessening of the impact on the defendant’s Charter-protected interests on the basis of the discoverability factor in relation to the search of the RAV4, I am of the view that the impact of any Charter breaches on the defendant’s Charter-protected interests was not significant in relation to the search of the RAV4.
c) Society’s Interest in the Adjudication of the Case on the Merits
[102] Under the third factor in Grant, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See Grant, at paras. 79-84.
[103] The third factor acknowledges that the public has a keen interest in seeing cases adjudicated on their merits. With regard to this factor, the court looks to the truth-seeking function of the criminal trial and the impact of admitting or excluding the impugned evidence on the trial. A breach that undermines the reliability of evidence will point toward exclusion because the admission of unreliable evidence cannot enhance truth seeking. On the other hand, excluding reliable evidence that is key to the prosecution’s case is a relevant consideration militating against exclusion. See R. v. Spencer, 2014 SCC 43 at para. 80; Taylor at para. 38.
[104] The evidence obtained in the search incident to the arrest of the defendant was a quantity of cash and keys to the RAV4. The evidence obtained in the search of the RAV4 was 43.4 kilograms of cocaine. This was real, physical evidence. It was reliable and important to the Crown’s case against the defendant. Society has a strong interest in the adjudication of this case on its merits. The allegations against the defendant of conspiracy to traffic cocaine and possession of cocaine for the purpose of trafficking are serious. In terms of drug offences, these charges fall at the most serious end of the spectrum. This third Grant factor favours admission of the evidence.
d) Overall Balancing
[105] The trial judge must consider each of the Grant factors and determine whether, having regard to all the circumstances, the admission of the evidence obtained as a result of the Charter breach would bring the administration of justice into disrepute. There is no overarching rule that governs how to balance these three factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed to encapsulate considerations of all of the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of decision tree. See Grant at paras. 85-86.
[106] The seriousness of any Charter-infringing state conduct by the police in this case was at the lower end of the seriousness spectrum. If there were any Charter breaches, they do not demonstrate a pattern of police misconduct or deliberate disregard for the Charter rights of the defendant. The police were acting in good faith. Any Charter breaches in this case do not represent conduct from which the court must disassociate itself. The arrest of the defendant occurred quickly and the use of force was proportionate and not unreasonable. The impact of any Charter breaches relating to the search of the RAV4 was attenuated by the discoverability of the evidence and the tenuousness of the causal connection between any Charter breaches and the state securing of the impugned evidence. The evidence in question was both real and reliable. Society has a strong interest in the adjudication of this case on its merits. The exclusion of the evidence would have a marked negative impact on the truth-seeking function of the trial.
[107] Balancing the three factors considered under Grant, I am of the view that, in all of the circumstances, the admission at trial of the evidence obtained from the search of the defendant incident to his arrest and the search of the RAV4 would not bring the administration of justice into disrepute.
CONCLUSION
[108] For all these reasons, I am not satisfied that the evidence obtained from the search of the RAV4 or the evidence obtained from the search of the defendant incident to his arrest or the evidence of the observations of the police of the defendant at the scene of the arrest should be excluded under s. 24(2) of the Charter. The application is dismissed.
M.F. Brown J.