COURT FILE NO.: CR-17-90000522-0000 DATE: 20190624
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MIGUEL ORLANDO ZAVALA-MARTINEZ Accused
Counsel: Andrew Choat & Arielle Elbaz, for the Crown Reid Rusonik, for the Defendant
HEARD: May 10, 2019
B.A. ALLEN J.
REASONS FOR DECISION ON SENTENCING
BACKGROUND
[1] Connected to this decision, I made a previous decision on a defence reduction of sentence application. The defence requested consideration of alleged Charter violations under sections 7, 8 and 9 in fashioning a fit sentence in line with the Supreme Court of Canada decision R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.): [R. v. Zavala-Martinez, 2019 ONSC 1087 (Ont. S.C.J.)]. I decided there was no Charter breach under s. 7 based on disclosure violations by the Crown. I permitted consideration of sections 8 and 9 violations by the police in their investigation and search of the premises and the arrest of Mr. Zavala-Martinez.
[2] In the present decision I will determine whether there were Charter violations and the extent of those violations in deciding whether a reduction of sentence is appropriate, and if so, whether a reduction of sentence below the standard limit for possession of cocaine for the purpose of trafficking is a fit sentence in the circumstances.
[3] Miguel Orlando Zavala-Martinez was convicted by a jury of possession of cocaine for the purpose of trafficking. The amount of cocaine seized was 55.8 grams. Expert evidence at trial revealed that the drug was packaged for sale and had a value between of $2,548.00 and $6,138.00.
[4] By way of background, the Toronto Police Service was involved in an investigation of suspected drug dealing at a Toronto sports bar. The target of this investigation was Mr. Zavala-Martinez. There had been two previous ITOs drafted in relation to the bar. One was refused on June 3, 2016 and the other on June 16, 2016. The search warrant was executed on the bar pursuant to an ITO sworn on June 17th. The police entered the bar under a search warrant, arrested Mr. Zavala-Martinez and charged him with possession of cocaine for the purpose of trafficking as well as possession of proceeds of crime. The jury acquitted him on the proceeds charge.
[5] Mr. Zavala-Martinez was represented at trial by David Rovan. He retained new counsel, Reid Rusonik, for sentencing. On the scheduled date for sentencing the defence brought an application for a mistrial. The defence posited that previous counsel provided ineffective legal assistance for not bringing an application to challenge the validity of the search warrant on the basis of breaches under sections 8 and 9 of the Charter of Rights and under s. 7 for Crown failure to disclose materials related to the warrant.
[6] I denied the mistrial application in my decision rendered February 13, 2019 holding that I am functus following the jury’s verdict and that the defence’s remedy for ineffective legal assistance is through the appeal process: [R. v. Miguel Orlando Zavala-Martinez, 2019 ONSC 10 (Ont. S.C.J.)].
[7] On the Nasogaluak application the defence sought a reduction in sentence in terms of an absolute discharge or alternatively, a suspended sentence. The defence cited the court’s broad discretion under sections 718 to 718.2 of the Criminal Code to fashion a fit sentence if the facts alleged constitute a Charter breach that is related to the principles of sentencing: [R. v. Miguel Orlando Zavala-Martinez, 2019 ONSC 2848 (Ont. S.C.J.)].
[8] The defence’s view was that the police obtained the evidence put before the jury at trial by egregious violations of Mr. Zavala-Martinez’s sections 8 and 9 rights. Defence counsel put before the court on the Nasogaluak application what it submitted was prima facie evidence from the investigation and search source materials that the grounds on which Mr. Zavala-Martinez was detained and arrested were exaggerated and fabricated and disclosed no reasonable suspicion that would justify detention.
[9] The defence proposed a procedural avenue for the sentencing hearing where the evidence related to the alleged Charter violations could be heard. This involved allowing defence counsel to cross-examine the affiant on the ITO related to the warrant and background materials that authorized the search. I concluded on the authority of R. v. Nasogaluak and other cases that followed that the defence should be afforded the opportunity to call evidence on the Charter violations.
SENTENCE
General Principles
[10] The general principles that govern sentencing are well-known. Section 718 of the Criminal Code sets out the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.
[11] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.
[12] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].
[13] Parity is another governing principle that requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].
[14] The operative principles in drug trafficking cases are denunciation, deterrence and rehabilitation.
[15] Section 718.2(a) of the Criminal Code provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
Summary of Principles Enunciated in R. v. Nasogaluak
[16] The Supreme Court of Canada in Nasogaluak set out a number of principles to govern reduction of sentence which for convenience I summarize as follows:
- Though there are limits to a sentencing judge’s discretion, the remedial power of the court under s. 24(1) of the Charter is broad.
- The possibility is not foreclosed that, in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious forms of misconduct by state agents in relation to the offence and the offender.
- A sentencing judge can impose a sentence outside the general range set by case law only when the sentence is in accordance with the principles and objectives of sentencing.
- However, the sentencing judge cannot override legislative intent and reduce a sentence below a statutory mandated minimum, absent a declaration that the minimum sentence is unconstitutional.
- If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence.
- State conduct amounting to a Charter violation need not be proved.
- A court should reduce a sentence to account for any relevant mitigating circumstances relating to the offence or the offender.
- The circumstances of the breach must align with the circumstances of the offence and the offender, as required by s. 718.2 of the Code; that is, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.
[R. v. Nasogaluak, at paras. 44, 45, 47 and 48].
[17] With those principles in mind, I considered the areas on which I would allow the defence to cross-examine the affiant. The defence proposed four areas for questioning which I accepted as follows:
- on the information about the movements and activities of the woman seen entering and leaving the bar and on whether there is any connection between that woman and the target;
- on the discrepancies between the description in the ITO by the police of the target and the individual described by the informant;
- on the periods of time the police surveilled the target without observing any drug trafficking activity; and
- on the inclusion of adverse information in the ITO, whether that information has any relation to the target and why that information was included in the ITO.
THE CROSS-EXAMINATION
General Questions
[18] Officer Marks was the affiant on the ITO and the source (informant) handler. She was the officer who received information from the source, shared it with other officers and included it in the ITO. She was posted outside the bar while other officers were observing from inside the bar. There was an officer responsible for keeping central notes of what each officer reported over the radio.
[19] Officer Marks testified she was aware of the obligation to be full, frank and fair in garnering and disclosing information in search warrant investigations and that she owed that duty to the other officers, the justice of the peace and the defense. Officer Marks indicated she was aware due to the previous two denials that, before she swore the June 17th warrant, more investigative work was needed to establish reasonable and probable grounds to search the premises. For that reason, further surveillance was conducted on June 4th.
[20] Paragraph 3 in the June 17th ITO, which Officer Marks drafted, contains the information from the further surveillance conducted. That paragraph describes the surveillance done on June 4th. A description of the target and his movements is provided. The activity of a blonde woman observed at the bar is described. Officer Marks testified that her intention in including paragraph 3 was to indicate to the justice of the peace exactly what she observed to establish the target was a drug dealer.
[21] Officer Marks indicated she was aware that being full, frank and fair meant including in the ITO all relevant information both positive and negative in relation to establishing whether or not the target was a drug dealer. She contended that she was full, fair and frank in providing information. She testified that she included in the ITO all information she thought was relevant and left out that which she thought was not.
The Woman and the Target at the Bar
[22] Officer Marks indicated in paragraph 3 that officers made observations inside and outside the bar. All officers involved in the surveillance were able to communicate back and forth by radio to each other as they made observations. Officer Marks admitted she did not include in the ITO details from her memo notes about the initial sighting of the target arriving in a taxi and entering the bar before the blonde woman arrived.
[23] Of considerable concern is the fact that Officer Marks did not include in the ITO the critical information that officers inside the bar were watching the blonde woman. The defence put to Officer Marks that there was no information from the other officers inside the bar of them observing the target or the blonde woman inside the bar and that she knew they were conducting surveillance there. The officer acknowledged that information was not included.
[24] Also significantly, there is no evidence of the other officers observing the target dealing drugs. In particular, there is no note in Officer Marks’ memo book of officers inside the bar observing the target involved in drug dealing. Defence counsel questioned Officer Marks about whether she asked the other officers whether they saw the target dealing drugs. Also troubling is that her answer continued to be unresponsive despite defence counsel’s many efforts to get an answer.
[25] Officer Marks’ response was if the other officers observed a drug deal by the target they would have told her and if they told her that, she would have put that in her memo notes. The officer was evasive. She would not directly answer in the negative or affirmative whether she queried the officers about this. Officer Marks also said she could not say whether there was any reason she would not have asked the officers for that information. The officer testified quite remarkably that she could not say 100 percent whether she asked the officers whether they made contact with the woman.
[26] The defence put to Officer Marks that her view, which the defence suggested she implied in the ITO, was that the target sold drugs to the blonde woman. She saw the woman go into the bar and leave very quickly and go into an alcove down the street and adjust her bra. This, I assume, is a suggestion that reaching for her bra had something to do with retrieving or depositing drugs there. The officer acceded to that suggestion describing those actions as characteristics of a drug deal to which police officers would be alert. The officer stated that she concluded the woman had purchased drugs from the target, a conclusion she said she gathered from the police’s information that there was a drug dealer in the bar.
[27] The defence questioned Officer Marks as to whether it was not part of her obligation of being full, frank and fair to include in the ITO that there was no observation of the target being in contact with the blonde woman or of the target selling drugs. Also remarkable, the officer’s response was that she did not believe she had to include that information in the ITO because her view was that she only had to include what the police saw.
[28] The defence also questioned Officer Marks about the information in paragraph 3 that the blonde woman said she did not go into the bar. The defence questioned whether the officer was trying to convey to the justice of the peace that the woman lied about going into the bar. The answer to that question did not make sense to me. The officer’s response was that she meant to say that the woman did not enter the bar as a patron, that she went into the bar only to use the washroom. Officer Marks said she should have been clearer. However, she insisted that her intention was not to lie or mislead the justice of the peace. Defence counsel put to her that what she wrote in paragraph 3 is the opposite of what actually happened and was included to make the situation look worse for the target. The officer denied this.
[29] The defence also questioned Officer Marks about the fact she did not include in her notes or the ITO that Officer Correia had observed the blonde woman doing something in the alcove at a time before Officer Marks indicated the observation of the woman in the alcove. In her memo notes Officer Marks does not detail two incidents. She simply says the woman went into the alcove “again”.
[30] In his notes, Officer Correia did not indicate the woman adjusted her bra and Officer Marks did not add that detail to the observation in her notes. Further, there is no note of the woman making two trips to the alcove. The defence asked, since that type of action is characteristic of drug dealing, why she did not feel it relevant to note. She responded that she might have reported it and it did not get recorded in central notes. Dismissing the importance of that omission, if that is what the absence of that information was, Officer Marks testified she simply made a mistake.
[31] The defence challenged Officer Marks that she did not include a second observation of the woman in the alcove because she fabricated that incident. The officer also denied this.
[32] The defence asked, if the observations about the woman were true, why the police did not arrest and search her. To this question Officer Marks again surprisingly responded she was not arrested because the police did not witness a drug transaction. When asked whether the police had reasonable and probable grounds to believe a drug offence took place involving the blonde woman, the officer once again surprisingly responded that the police did have reasonable and probable grounds. Officer Marks did not ultimately give what I would regard as a reasonable answer to why the police did not arrest the blonde woman; why Officer Ayotte told the woman she was free to go. Officer Marks testified the police needed to do further investigation.
[33] The defence put to Officer Marks the question that were the police to have arrested and searched the woman, assuming she had been in contact with the target, and found drugs on her person, would that not have strengthened their reasonable and probable grounds in relation to the target? Again, the officer’s answer to that question was unresponsive. She said, “I can’t assume that we made that decision and stuck to it. We only decided to investigate at that time.”
[34] The defence referred to paragraph 3 where Officer Marks indicates the source has proven reliable. He asked whether by that statement she intended to convey that the target was involved in a drug transaction with the blonde woman. She did not directly answer that question. She responded that her intention was to demonstrate to the justice of the peace that the police observed characteristics of a drug transaction.
Descriptions of the Target
[35] Officer Marks attested in the ITO that the description of the target provided by the source matched the police’s description of the suspect in the bar. The defence pointed to Appendix C of the ITO. Officer Marks explained that Appendix C provides the description the source provided: male, tan skin, small black moustache, 5' 6", late 40s, leather jacket. Officer Marks explained that she provided an excerpt of the notes of the officer who provided a description and that Appendix D, which is entirely redacted, contains a fuller description. The description in Appendix D is: tan skin, Peruvian, black slick hair, 5' 6", late 40s.
[36] The defence pointed to Officer Marks’ handler’s notes which contain a description of the target: male Spanish, Peruvian, short black hair, receding hair, grey moustache, 50s. The officer explained the source also provided that description.
[37] The defence challenged Officer Marks that the source gave differing descriptions of the target. And he further pointed out that the description of the target given by the police differs with the description given by the source.
[38] Officer Marks explained that the description given by the source as set out in her handler’s notes is a description the source gave “on one day.” Officer Marks admitted that there is a difference in age, description of the hair and moustache but stated that the difference in the source’s descriptions is slight. After reviewing the unredacted version of Appendix D of the ITO, Officer Marks admitted that there is only one description of the target. Officer Marks did not inform the justice of the peace that the source gave more than one description of the target. The officer did not explain why she gave only one source description of the target.
Questions about “The Police Investigation” Section in ITO
[39] The defence questioned Officer Marks about whether she was being full, frank and fair in the information she provided in this part of the ITO; whether she was being full, frank and fair when she did not indicate in the ITO that the police surveilled the target in the bar for one hour and 39 minutes and did not observe him conduct a drug deal.
[40] Remarkably, the officer’s response again was: “I didn’t believe it needed to be in the warrant. It doesn’t mean he didn’t do that. We just didn’t observe him at that time.”
[41] The police conducted computer checks on the bar on May 11, 2016. The search disclosed incidents that occurred in 2015. Officer Marks admitted the target was not implicated in the results of the police search but acknowledged that other named persons were implicated. She did not investigate the names of those persons. The defence asked Officer Marks why she did not indicate that Mr. Zavala-Martinez, the target, was not implicated. Her response was: “If I didn’t put it in I assumed the justice of the peace would think he was not involved”. The officer also testified at the time she included that information in the ITO she did not know the identity of the target.
[42] Defence counsel questioned the officer as to why she did not inform the justice of the peace that she did not know whether the results of the computer checks pertained to the target. The officer’s response was that it would not be full, frank and fair to leave out the information from the computer checks.
[43] The defence also questioned the officer about information included in the ITO about a male that turned up in a Versadex search who sold drugs from the bar and tried to rob someone with a knife. Officer Marks admitted that person was not Mr. Zavala-Martinez but again indicated the police did not know the identity of the target at that point. She admitted there was a name for that male and a description of him as a “gangster” and that she did not run the name of that male to obtain his identity. She did not inform the justice of the peace that the police did know whether that male was the target of the investigation.
THE PARTIES’ POSITIONS
The Defence
[44] The defence’s position on sentencing changed at this hearing. As noted above, the defence previously sought an absolute discharge or alternatively a suspended sentence and asked that, in deciding sentence, the court consider the Charter violations in mitigation of sentence.
[45] The defence’s position at this hearing is that the court should not impose a sentence at all. The defence seeks a stay of proceedings under s. 24(1) of the Charter on the basis of an abuse of process by the police.
[46] The defence’s view is that the court should not be seen to tolerate police conduct on a search warrant application that is marked by fabrication, deception, the omission of critical evidence, and the inclusion of negative information unrelated to Mr. Zavala-Martinez. The defence argues Mr. Zavala-Martinez ought not to have been charged, prosecuted and convicted given the serious misconduct of Officer Marks in the investigation and in the drafting of the search warrant.
[47] The defence alluded to case authority that addresses police obligations in drafting an ITO. The Supreme Court of Canada in R. v. Morelli makes the following precautionary observations:
In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed [author’s italics].
[R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58 (S.C.C.)]
[48] The defence’s view is that Officer Marks committed all of the wrongs Morelli identified in that she: picked and chose among relevant facts to achieve an outcome against Mr. Zavala-Martinez; did not present all material facts favourable and unfavourable to Mr. Zavala-Martinez; included irrelevant information while omitting the material disclosure of not observing a drug transaction. The defence further asserts that without sufficient factual foundation, Officer Marks also: invited the inference that the blonde woman purchased drugs; invited the inference that Mr. Zavala-Martinez was engaged in a drug transaction with the blonde woman; and invited the possibility of an adverse inference of criminality being drawn against Mr. Zavala-Martinez that would not be possible if the computer searches involving others had not been included.
This, the defence asserts, was deliberate conduct on the part of Officer Marks that resulted in the unlawful detention, arrest and conviction of Mr. Zavala-Martinez. The only appropriate remedy in the circumstances, in the defence’s submission, is a stay of proceedings under s. 24(1) of the Charter for the abusive action of the police.
[49] The doctrine of abuse of process developed in response to two types of protections from abuse covered by s. 7 of the Charter:
a) under the main category, conduct affecting the “fair trial” rights under s. 7, or b) under the residual category, conduct that falls into the “residual” protection of s. 7, the protection of the “integrity of the judicial system”.
[R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 70-71 (S.C.C.)].
[50] The defence argues the stay on the basis of both the main and residual categories. It is the defence position that Mr. Zavala-Martinez was deprived of fundamental justice under s. 7 by being denied a fair trial as guaranteed under s. 11(d) of the Charter. On this view, Mr. Zavala-Martinez’s right to a fair trial was adversely impacted by the police action which resulted in him being faced with evidence at trial that he ought not to have faced, evidence that would have been excluded on a pre-trial admissibility voir dire. On the view that the police conduct led to evidence coming before the jury that would have been excluded, what followed, the defence argues, was an unconstitutional conviction.
[51] Relying on the residual category, the defence argues that violations by Officer Marks were so egregious that erosion of confidence in the integrity of the justice system will be the result if the court were seen to condone this conduct and Mr. Zavala-Martinez were to face sentence.
[52] In the circumstances, as the defence argument goes, a suspended sentence or a discharge would not remedy the persistent impact of having faced an unfair trial and having been unconstitutionally found guilty of a crime. The defence asks this court to see this as a case that fits the Nasogaluak exception where sentence reduction outside statutory limits is the sole effective remedy for the egregiousness of the state conduct.
The Crown
[53] The Crown’s position is that there was no unlawful conviction as Mr. Zavala-Martinez was found guilty after a full and fair trial. The Crown contends the drug evidence was properly before the jury since it was not declared inadmissible or excluded on an application before trial. The Crown observed that if it is the defence’s position that Mr. Zavala-Martinez’s previous lawyer ought to have brought an admissibility application then the appropriate remedy is to appeal on the basis of ineffective counsel.
[54] The trial judge’s jurisdiction in a jury trial, the Crown argues, is to accept the jury’s verdict and sentence the accused in one way or another. The judge must take the relevant facts related to the offence and the offender into account in fashioning a fit sentence. The Crown submits in the circumstances of this case the alleged violations of sections 8 and 9 are not related to the facts of the offence and the offender.
[55] In its analysis of the police conduct and its effect, the Crown relies on the principles developed in a Garofoli application context the mandate of which is to assess the sufficiency of an ITO in determining the validity of a search warrant. It is the Crown’s view that there is no evidence of dishonesty or fraud on the part of Officer Marks in the investigation and the drafting the ITO. And even if there were, the Crown asserts, such conduct would not necessarily invalidate the warrant.
[56] The Crown alludes to principles enunciated by R. v. Garofoli and cases that followed where it has been held that even misleading and deceptive evidence and where information is omitted, have been found to be insufficient grounds to invalidate a warrant: [R. v. Garofoli, [1990] 2 S.C.R. 142 (S.C.C.); and R. v. Bisson, [1994] 3 S.C.R. 1097]. There must be bad faith, deliberate non-disclosure, deliberate deception, fraudulent misrepresentation, conduct amounting to abuse of process, to set aside a warrant: [R. v. Paryniuk, 2017 ONCA 87, paras. 69 and 70 (Ont. C.A.)].
[57] The point the Crown makes here is that, with a full Garofoli hearing, which was not conducted in this sentencing hearing, the irrelevant, erroneous and deceptive information would be excised and the warrant amplified to include relevant omitted information. What follows in this analysis is a determination of whether sufficient information exists to support the issuance of the warrant: [R. v. Morelli, at paras. 44 and 45 and 59 and 60].
[58] The Crown acknowledges that in the context of the cross-examination in this sentencing, my decision rests on an assessment of the credibility and reliability of Officer Marks’ evidence and whether her conduct had any effect on the offence and the offender.
[59] The Crown argues Officer Marks did her best to be full, frank and fair in the drafting of the ITO.
[60] In the view of the Crown, there is no suggestion in the evidence that Officer Marks was attempting to imply a drug deal had transpired between the target and the blonde woman. The Crown points to the questions asked by defence around why Officer Marks did not include in the ITO that the police did not observe a drug transaction between the blonde woman and the target or by the target with anyone else. The Crown asks the court to be satisfied with the officer’s response that she did not feel she had to. She just dutifully wrote down what the officers observed.
[61] The Crown also addressed the questions the defence asked about whether Officer Marks intended to convey in the ITO that the blonde woman lied about going inside the bar. The Crown asks the court to accept Officer Marks’ response that she did not intend to convey that perception. It is the Crown’s view that the court should consider that Officer Marks acknowledged her mistake and admitted that she should have used better words and rather should have stated that the woman was not a patron of the bar but just went in to use the washroom.
[62] It is the Crown’s further submission that Officer Marks sufficiently explained discrepancies. The Crown offered that any troubling aspects of the ITO, particularly about the blonde woman, could be excised following which the court would determine whether sufficient information remained to grant the warrant.
[63] The Crown takes the position that there was no deception, lies, or misconduct that should attract a reduction of sentence much less a stay of proceedings. The Crown drew the court’s attention to the point raised in Nasogaluak that it is not required that s. 24(1) be raised in seeking a reduction of sentence. A stay, the Crown argues, would be an illegal sentence, a sentence much below the statutory limit, since there would be no sentence at all. The Crown submits the lowest legal sentence available to Mr. Zavala-Martinez is a suspended sentence.
[64] The Crown relies on the Nasogaluak doctrine of exceptional circumstances in arguing that it is only in some exceptional cases that a sentence below the statutory limits is appropriate and the misconduct alleged by the defence is not so egregious as to meet that standard. The Crown also cited R. v. Donnelly, 2016 ONCA 988 where an accused was physically assaulted, threatened and verbally and psychologically abused and the Court of Appeal did not allow a sentence below the statutory limit: [R. v. Donnelly, 2016 ONCA 988, at paras. 171, 172, 173 and 174 (Ont. C.A.); also see R. v. Gowdy, 2016 ONCA 98 (Ont. C.A), which I discuss below].
[65] The Crown’s view is that the appropriate sentence for an offence involving large quantities of cocaine packaged for commercial profit is provided by statute and case authorities. Under the Criminal Code a conditional sentence is not available and in the Crown’s submission a custodial sentence is called for.
[66] The Crown cites cases involving trafficking in quantities of up to 28 grams of cocaine which have attracted sentences of between six months and two years less a day: [R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.); R. v. Ahmed, 2006 ONCA 831 (Ont. C.A.); and R. v. Butters, 2017 ONCA 973, at para. 6 (Ont. C.A.)]. Trafficking in up to 54.5, 53.97 and 56 grams of cocaine has attracted sentences of three years and 2.5 years: respectively, R. v. Goulet, [1995] O.J. No. 340, at paras. 3-5 and 22 (Ont. C.A.); and R. v. Nuygen, [2005] O.J. 6032, at pp. 8-9 (Ont. C.A.)].
[67] The clear aggravating factors are the nature and quantity of the drug and the fact it was packaged for a commercial drug operation. The mitigating facts, which the Crown accepts, are Mr. Zavala-Martinez’s senior age of 61 and the fact that he has no criminal record.
[68] The Crown recommends a custodial sentence of 2.5 years, a Criminal Code s. 109 ten-year weapons prohibition, and a Criminal Code, s. 487.051 DNA order.
ANALYSIS
This Is Not a Garofoli Hearing
[69] The Crown’s position is based in the analysis employed for a Garofoli inquiry where the contents of an ITO and the validity of a search warrant are questioned and the admissibility of evidence determined under s. 24(2) of the Charter. In that context, a finding of state conduct amounting to a violation of the Charter if serious enough results in the exclusion of evidence seized under the warrant. With the Nasogaluak reduction of sentence inquiry a different analysis comes into play. General sentencing principles take primacy in assessing state conduct.
[70] That is to say, sentence reduction is viewed through a different lens, the lens of sentencing principles. It is the facts related to the offender and the offence that are the focus of sentence reduction, generally, and this would also apply where a search warrant is a feature in the sentencing inquiry. The orientation in sentence reduction is not toward looking at the facts to assess the validity of the warrant where the tools of excision and amplification are available to correct or clarify errors; but rather on looking at the facts as they stand in the ITO and at other facts to determine whether they reveal state misconduct that warrants mitigation of sentence.
[71] It is important to note that unlike a Garofoli application, the Nasogaluak inquiry does not require a finding of state misconduct that rises to the level of a Charter violation. State conduct falling short of this can support reduction of sentence. Evidence of a Charter violation is not necessary. The violation of Charter rights need not be proved: [R. v. Nasogaluak, at para. 53].
Conclusion on Officer Marks’ Evidence
[72] After I reviewed the evidence on a whole I conclude that Officer Marks’ conduct fell below the expected standard of a police officer seeking state intrusion on the rights of an individual. Officer Marks was charged with a vital public trust, to go before the issuing court on a one-sided basis to obtain authorization for the police to conduct a sudden invasive action on an individual in a public place. I do not find Officer Marks was full, frank and fair for failing to put all relevant information in a clear form before the issuing court and for providing potentially misleading and deceptive information to that court.
[73] I agree with the defence that Officer Marks violated some of the cardinal tenets articulated in R. v. Morelli. I find she did not present all the material facts, favourable and unfavourable. She did not state explicitly as she should have that the police did not observe Mr. Zavala-Martinez conduct a drug transaction at any time during the one hour and 39 minutes of observation. That is a critical fact that goes to the heart of reasonable grounds to arrest him. I find the omission of that fact is a material non-disclosure.
[74] It is true that Officer Marks did not expressly state in the ITO that Mr. Zavala-Martinez engaged in a drug transaction with the blonde woman. However, I find Officer Marks’ account of the woman going into the bar where Mr. Zavala-Martinez, the target, was present and immediately leaving and going into an alcove and adjusting her bra could invite the conclusion that he engaged in a drug deal in the bar with the woman. And contrary to what is stated in the ITO, it is unclear from Officer Marks’ and other officers’ notes whether the woman entered the alcove twice and whether she even adjusted her bra at all.
[75] Were Officer Marks to have omitted reference to the activities of the woman where there is no proven connection to Mr. Zavala-Martinez, this would have obviated a possible conclusion being drawn that he transacted a drug deal with her.
[76] Officer Marks included irrelevant information about previous criminal activities of other persons in relation to the bar, one described as “a gangster”, which occurrences she admitted did not involve Mr. Zavala-Martinez. Officer Marks indicated she did not know the identity of the target at the time the computer search was conducted. She did not confirm the name of one of those persons and provided the name of the other person, who was not Mr. Zavala-Martinez.
[77] I find Officer Marks ought to have omitted that information which she admitted was irrelevant. Having included that information, the officer ought to have made it clear that the incidents had no bearing on Mr. Zavala-Martinez. Allowing that information into the ITO could invite the negative inference that Mr. Zavala-Martinez was somehow connected to the other criminal activity.
[78] Also of obvious importance in any ITO involving a target person is the description of the target person. The information from police notes and the ITO on the physical description of the target reveals the source gave more than one description to Officer Marks and that the descriptions by the source differed from the description provided by the police. Officer Marks omitted from the ITO the critical information about the existence of different descriptions. The significance of that information is evident.
[79] The failure to inform the justice of the peace of the varying descriptions of the target is a critical shortcoming. The differences in age, hair and moustache descriptions are important to have drawn to the attention of the issuing court. The justice of the peace might have arrived at a different conclusion on reasonable and probable grounds if the differences were pointed out. That information goes to the reasonable grounds of ensuring the arrest of the right person.
[80] There is also contradictory evidence in the ITO about whether the blonde entered the bar which is at a minimum confusing. I am not sure that Officer Marks stating that the woman entered and exited the bar and then stating that the woman said “she never went into the bar” can be attributed to simply bad wording and not a suggestion that the women was lying. The officer’s explanation that she did not mean the woman did not go into the bar, but rather went in not as a patron but to use the washroom, does not seem a reasonable explanation. The explanation comports with a much larger and different body of facts and conveys the opposite of what is expressed in the ITO. The blonde woman was apparently a main actor in the bar scenario on June 4th. There should be no confusing information about her in the ITO.
[81] I can only conclude that Officer Marks was not diligent and mindful of her obligation to be full, frank and fair in critical areas of the ITO. Not to include in the ITO the very essential fact that the other officers in the bar, with whom she was in contact, never observed Mr. Zavala-Martinez in a drug transaction, I can only conclude was deliberate. How can it be mere carelessness or negligence not to include the most critical information about a target who was being investigated for drug trafficking?
[82] Including information in the ITO about criminality not related to Mr. Zavala-Martinez, I think, is also more than carelessness. I believe Officer Marks had to put thought into including information about other persons’ activities and into neglecting to alert the justice of the peace that she was not sure those occurrences involved Mr. Zavala-Martinez. That I do not think was a slip of the pen, or perhaps more aptly, a slip of the fingers on the keyboard.
[83] I find the inconsistency in the information about the number of times the blonde woman went into the alcove may be attributable to carelessness or negligence. However, the inference can be drawn from her movements into and quickly out of the bar where the target was present, and from her adjusting her bra in the alcove, that she had engaged in a drug transaction with the target. I find Officer Marks who was in communication with other officers during their observations was obligated not to omit in the ITO the information that no officer observed any contact in the bar between the target and the woman.
Conclusion on State Conduct
[84] This court did not look at whether, with deficiencies in the ITO excised or amplified, the warrant could have issued, as the court would on a Garofoli application. The court looked at what the justice of the peace saw on the face of the ITO, as presented by Officer Marks that could reasonably have led the issuing court to issue the search warrant. This is a sentencing hearing where the court considered Officer Marks’ conduct, the contents of the ITO and other source materials. To this evidence, the court applied sentencing principles and examined the state conduct, whether amounting to Charter violations or something short of that, warrants consideration in reduction of sentence. With that orientation, I assessed the credibility and reliability of Officer Marks’ testimony under cross-examination.
[85] As I have concluded, I do not find Officer Marks credible in her assertions that she was full, frank and fair in her disclosure to the justice of the peace. It is clear from her evidence that the search warrant was obtained due in some measure to the deficiencies in the ITO revealed on cross-examination. I find the deficiencies in the ITO cut directly to reasonable and probable grounds and led to the police entering the bar and detaining, arresting and searching Mr. Zavala-Martinez without legal justification, and thus resulted in the infringement of his right under s. 8 not to be unreasonably searched and under s. 9 not to be arbitrarily detained.
Relation of Breach to Offence and Offender
[86] As required by s. 718.2 of the Criminal Code, in considering whether mitigation is appropriate, the circumstances of the breach must align with the circumstances of the offence and the offender. I find there is alignment.
[87] Mr. Zavala-Martinez is 61 years of age. He has no criminal record. He was age 59 when he was arrested. He has worked steadily in the construction industry for several years and has a wife and two children to support in Canada and one daughter remaining in Peru whom he is attempting to bring to Canada. His wife does not work outside the home. Mr. Zavala-Martinez’s employer describes him as a hardworking and reliable employee.
[88] There is evidence from trial that before and at the time of his arrest he suffered from a condition affecting his backside which has required several surgeries. There is evidence from a psychiatrist that he has suffered over the years from panic attacks for which he receives treatment. His condition arose from his experience of having to leave his family behind in Peru for seven years after he fled to Canada in 2002 from political persecution in Peru.
[89] Following upon the state violations of his rights Mr. Zavala-Martinez was arrested and convicted of a very serious offence related to trafficking in a pernicious controlled substance. This is a bad stain on an otherwise clear record. In the circumstances, Mr. Zavala-Martinez is now burdened with such an offence in his declining years. A further barrier is that the criminal record may affect his ability to travel.
Stay of Proceedings
[90] As noted above, the defence argues the only appropriate remedy for the police’s Charter violating conduct is a stay of proceedings under s. 24(1) of the Charter on the basis of trial unfairness and the risk to the integrity of the justice system if the court is seen to condone the state conduct. The defence sees s. 24(1) as a justifiable path to allow a remedy outside the statutory limit and outside the regular case authority ranges for sentencing for drug trafficking.
[91] Nasogaluak makes it clear in determining a fit sentence that s. 24(1) is not the first choice remedy in addressing state violations relating to the circumstances of an offender. As the Ontario Court of Appeal observed in R. v. Gowdy cited above:
An effective remedy for a proven wrong, which also happens to be a Charter breach, may be taken into account in determining a fit sentence under Part XXIII of the Criminal Code. First choice resort to s. 24(1) to reduce a sentence to account for any harm flowing from unconstitutional conduct does not comply with the general rule espoused in Nasogaluak, at para. 5.
The general rule of Nasogaluak is that a sentence reduction outside statutory limits does not generally constitute an “appropriate” remedy under s. 24(1), unless the constitutionality of the statutory limit itself is challenged. No such challenge was advanced here. An outside statutory limits sentence was not generally available under Nasogaluak, which requires that sentences imposed under Part XXIII comply with statutory minimums and other provisions which prohibit certain forms of sentence in respect of the offence, such as the restrictions regarding conditional sentences set out in s. 742.1(b) of the Criminal Code.
[R. v. Gowdy, at paras. 126 and 127 (Ont. C.A.), author’s italics]
[92] Nasogaluak did not foreclose the possibility that a sentence reduction outside statutory limits may be the sole effective remedy for state misconduct. However, the court cautioned that such a remedy is restricted to exceptional cases and particularly egregious conduct in relation to the offence and the offender. In Nasogaluak the court did not find that to be the case where a police officer seriously injured the offender breaking his ribs and causing a punctured lung.
[93] As poor and inexcusable as Officer Marks’ conduct was I do not find the state conduct in this case rises to the level of warranting a reduction of sentence outside the statutory limits. Nor is this one of those exceptional cases of egregious state misconduct where a stay is the sole effective remedy. A stay is a rare and exceptional remedy, a remedy reserved only for the “clearest of cases”: [R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68 (S.C.C.)].
[94] When I consider the facts related to Mr. Zavala-Martinez and the drug charge he faces, I find a sentence which aligns with those facts can be fashioned in accordance with the sentencing provisions under Part XXIII of the Criminal Code.
THE TYPE OF SENTENCE
[95] A sentencing judge can impose a sentence outside the general range set by case law only when the sentence is in accordance with the principles and objectives of sentencing. The court in Nasogaluak speaks of both the breadth of and limitation on the discretion a sentencing judge is afforded in setting a sentence:
The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.
[R. v. Nasogaluak, at para. 44]
[96] There is no question that cocaine is a dangerous and insidious drug that spawns addiction, violence and the deterioration of families and communities in its wake. No question that is an aggravating factor. Non-custodial conditional sentences are not available for charges involving Schedule I drugs like cocaine pursuant to the Criminal Code, s. 742.1 and significant custodial sentences have been imposed for such offences.
[97] Case authorities demonstrate the general range of sentence is a custodial sentence of six months to three years with offences involving drugs like cocaine in amounts similar to the case at hand, quantities intended for a commercial enterprise. So the general rule is to impose a custodial sentence. A non-custodial sentence therefore is outside the regular range of sentence set by case law. It is only in “exceptional circumstances” that non-custodial sentences for drug trafficking offences related to Schedule I drugs are available.
[98] An absolute discharge is not available where as in this case a conviction has been registered. A suspended sentence is available under s. 731.1(a) of the Criminal Code. Suspended sentences have been imposed in “exceptional circumstances” where various mitigating factors exist such as: the absence of a criminal record, steps toward rehabilitation, gainful employment, remorse, aboriginal heritage, senior or youthful age, disability or a combination of factors: [R. v. Dallal, 2018 ONSC 715 (Ont. S.C.J.); R. v. Thevarajah, 2016 ONSC 6739 (Ont. S.C.J.)]; [R. v. Voong, 2015 BCCA 285, [2015] B.C.J. No. 1335 (B.C.C.A.)]; R. v. McGill, 2016 ONCJ 138, [2016] O.J. 1346 (Ont. C.J.); and R. v. Duncan, [2016] O.J. 25 (Ont. C.J.)].
[99] A suspended sentence is within the limits set under Part XXIII of the Criminal Code but outside the general sentencing range set by case law. As R. v. Gowdy explains, a sentencing judge is permitted within their discretion to impose a sentence outside the range providing regard is had to all of the circumstances of the offence and the offender and the needs of the community in which the offence occurred. I find the case before me is one of those rare cases involving a cocaine trafficking offence where a suspended sentence is appropriate taking into account Mr. Zavala-Martinez’s circumstances and any possible community concerns.
[100] In addition to the other mitigating factors in Mr. Zavala-Martinez’s circumstances, I will take into account state misconduct, the violation of his constitutional rights, as a mitigating factor. I therefore considered the following mitigating factors: the sections 8 and s. 9 Charter violations; the absence of a criminal record; his senior age; his physical and psychiatric medical conditions; his gainful employment status; family support; and his family financial responsibilities. Mr. Zavala-Martinez has no history as a criminal element. He has been a productive member of society and a family man and I can see no societal need to incarcerate him for the protection of the public.
[101] I impose a probationary period of three months. A suspended sentence in this case accords with the principles and objectives of sentencing.
SENTENCE
[102] Miguel Zavala-Martinez, will you please stand. I will now impose sentence.
[103] I order you to serve a suspended sentence. I impose a three-month probationary period during which period the sentence will be suspended.
[104] I impose the compulsory terms of probation provided at s. 732.1(2) of the Criminal Code for a period of three months. I order that you shall:
a) keep the peace and be of good behaviour; b) appear before the court when required to do so by the court; and c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
[105] I further impose the following mandatory ancillary order:
An order under s. 109 of the Criminal Code for ten years prohibiting the possession of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance.
B.A. ALLEN J.