SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 9373

DATE: 2019-07-29

RE: R. v. L.R.

BEFORE: Justice D.A. Broad

COUNSEL: Jennifer Caskie and Katherine Enns, for the Crown Harald Mattson, for the Accused/Applicant L.R.

HEARD: June 6 and 7, 2019

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

ENDORSEMENT re admissibility of evidence obtained as a result of search of the accused’s rented vehicle under warrant - sections 8 and 24(2) of the charter

Background

[1] The applicant L. R. was arrested on August 14, 2017 and jointly charged with J.J.T. with uttering threats, assault, sexual assault, kidnapping, forcible confinement, and human trafficking in respect of a 15 year old complainant, G.C.

[2] Both accused have elected to be tried by judge alone with the trial currently scheduled to begin on October 7, 2019.

[3] G.C. provided a statement to police on August 6, 2017 in which she alleged that she was kidnapped on either July 31 or August 1 and assaulted, sexually assaulted and forced into the sex trade. G.C. advised police that she escaped and used a client’s cell phone to call her mother.

[4] G.C. further advised police that the applicant, Ms. R., was involved with other individuals in committing the offences on the indictment. In particular, during the week that she alleged she was held in captivity, the applicant arranged appointments by posting ads for her on a sexual services website and drove her to all of the appointments in a blue Nissan Altima.

[5] As a result of a further investigation by police, the applicant was arrested on August 14, 2017. Immediately prior to her arrest, the applicant was observed driving a blue Nissan Altima, said to have been the same vehicle that was used while G.C. was trafficked between the dates of July 30, 2017 and August 6, 2017.

[6] The Nissan Altima (the “vehicle”) was towed to Waterloo Region Police Service and placed in evidence storage.

[7] On August 17, 2017 the investigating officers, Detectives DeMarte and Merrigan, noted that there were no grounds to search the vehicle. They contacted G.C.’s mother regarding whether G.C. had left any property in the vehicle and received a response that she had left a pair of blue and white Under Armour “flip flops” (sandals) in the vehicle.

[8] Detectives DeMarte and Merrigan attended to access the vehicle without a warrant in order to remove the flip-flops. They did not locate flip-flops in plain view, however Detective DeMarte observed and opened a large black bag in the back seat of the vehicle and noted the presence of three wallets. He opened a wallet and observed the driver’s licence of the applicant, approximately $1,000 in cash and a driver’s licence in the name of Taylor Moxey.

[9] Detectives DeMarte and Merrigan determined that a warrant was required to search the vehicle. They withdrew and applied for a search warrant in respect of the vehicle on August 18, 2017. The Information to Obtain (ITO) was sworn by Detective Merrigan and the warrant was issued by Justice of the Peace Anderson on August 18, 2017. The warrant provided at Appendix “B” that the items that were to be searched for inside the vehicle were cash and identification.

[10] As a result of the search of the vehicle the following items were seized from the vehicle:

(a) a small amount of marijuana;

(b) a white leather wallet containing:

(i) multiple pieces of the applicant’s identification;

(ii) BMO MasterCard in the name of Renata R.; and

(iii) two Vanilla pre-paid MasterCard’s.

(c) Bell Mobility receipt dated July 4, 2017 in the name of the applicant;

(d) a red leather wallet;

(e) a black Guess wallet containing:

(i) driver’s licence, SIN card, and AirMiles card in the name of the applicant;

(ii) various loyalty cards;

(iii) driver’s licence in the name of Alyssa Anderson;

(iv) Canada’s Wonderland season pass signed by Alyssa Anderson; and

(v) driver’s licence, BMO debit card, TD debit card with the name of Taylor Moxey,

Application

[11] The applicant has brought an application requesting an order under s. 24(2) of the Charter of Rights and Freedoms (the “Charter”) to exclude from evidence all direct or derivative evidence arising from an alleged breach of her rights pursuant to section 8 of the Charter resulting from the search of her vehicle.

[12] The Crown acknowledged in submissions that, notwithstanding that the vehicle was not owned by the applicant but was rented by her mother from a car rental agency and provided to the applicant for her use, she had a reasonable expectation of privacy in respect of the vehicle.

Position of the Applicant

[13] The applicant submits that the entry into the vehicle by Detectives DeMarte and Merrigan on August 17, 2017 constituted a warrantless search. She argues that Detective DeMarte, while looking for the complainant’s sandals, went beyond what such a search would require. The officers had no information that the complainant had left a black bag in the motor vehicle. The manner in which the search was carried out was therefore not reasonable.

[14] The applicant further submits that the excising of paragraph 54 from the ITO would not have permitted the warrant to issue for search of the vehicle.

[15] Paragraph 54 reads as follows:

“on August 17th, 2017 at 10:10 a.m., Detective DeMarte and I entered the evidence Bay and accessed the Nissan Altima. I looked in the front seat area of the vehicle and did not see flip-flops. Detective DeMarte made notes with regard to his involvement. I have reviewed his notes and I learned the following information:

(a) Detective DeMarte opened a large black bag that had been in the back seat of the vehicle and observed three (3) wallets.

(b) Detective DeMarte opened a wallet to ensure it did not belong to the victim and observed the following:

(i) the driver’s licence of L. R.;

(ii) approximately $1,000 cash;

(iii) a driver’s licence in the name of Taylor Moxey.”

Position of the Crown

[16] The Crown submits that the initial entry into the vehicle by the detectives in order to retrieve the complainant’s flip-flops was not a search. She argues that the entry into the vehicle for that purpose had nothing to do with the investigation of the alleged offences. Furthermore, the Crown argues that the detectives entering the vehicle to retrieve the complainant’s property was related to protecting the police from a subsequent civil claim relating to the contents of the vehicle. For both reasons section 8 of the Charter was not engaged by the police conduct.

[17] The Crown argues that the entry to the vehicle was therefore not taken for an investigative purpose. The purpose was to retrieve property over which the applicant had no reasonable expectation of privacy and to return that property to its rightful owner.

[18] In any event the Crown submits that if its argument that the entry to retrieve the flip-flops was not a search does not prevail, the remedy would be to excise the references to the unconstitutionally obtained evidence from the ITO. Even in the absence of observations made by Detective DeMarte, the ITO contains ample evidence to connect the use of the vehicle to the offences. In particular, information that the complainant’s property would be in the vehicle connected her to the applicant, which, in and of itself, is evidence in respect of the offence and would be sufficient to grant the warrant.

Analysis

[19] In my view it is not necessary to make a finding on whether the detectives’ initial entry into the vehicle was a search for the purposes of section 8, as I find that the excising of the references to Detective DeMarte’s observations following the initial entry the warrant still stands.

[20] I find that the statements in the ITO that would be subject to possible excising would not be limited to para. 54. Information obtained by Detective DeMarte on the initial entry is also referred to at para. 59 (b)(i), para. 60(a)(iii), (iv) and (v) and para. 60(b)(iii), (iv), (v) and (vi). These paragraphs each reference items observed by Detective DeMarte following that entry of the vehicle.

[21] I cannot accede to the applicant’s submission that following the excising of the foregoing passages from the ITO could not have been issued.

[22] Under the heading “Grounds to Believe that the Items to be Seized Will Afford Evidence of the Offence” the ITO alleges at para. 59 that the complainant has stated that she gave Ms. R. all of the money she made providing sexual services, estimated to be between $4,000 to $5,000 in total. The vehicle used was the blue Nissan Altima rental car. Locating cash inside the vehicle will assist in proving receipt of material benefit and further corroborate the complainant’s statement.

[23] Moreover, the complainant stated that Ms. R. sometimes used the name “Taylor Moxey” to rent hotel rooms. Obtaining pieces of identification will further corroborate Ms. R.’s statement to the complainant. Locating the victim’s identification will go to confirm that she has been in the vehicle. Moreover, additional wallets with identification may contain information that can lead to identification of the unknown party reported by the complainant to have been involved in the offences.

[24] The fact that Ms. R. was arrested after exiting the blue Nissan Altima rental car provides sufficient linkage between the vehicle and the commission of the offences to support a finding by the issuing justice that there were reasonable grounds to believe that a search of the rental vehicle will afford evidence with respect to the commission of the offences as required by s. 487 of the Criminal Code. As observed by Leach, J. in R. v. Johnson [2019] O.J. No. 1600 (S.C.J.) at para. 53 (5th bullet point), citing R. v. Debot, (1987), 30 C.C.C. (3d) 207 (C.A.), at p.2019, aff’d [1989] 2 S.C.R. 40 at p.1165, the appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted. At para. 53 (10th bullet point) Justice Leach observed that an issuing justice is entitled to draw reasonable inferences from stated facts and the affiant of an ITO is not obliged to underline the obvious.

[25] I find that there was therefore reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued (see Johnson para. 53 12th bullet point).

[S. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[26] In the event that I am wrong and the warrant could not have issued even after excising the passages referred to above, thereby resulting in a breach of s. 8 of the Charter on that basis, I find that s. 24(2) of the Charter nevertheless favours admission of the evidence derived from the search of the vehicle.

[27] The three-part formula for application of s. 24(2) as enunciated in R. v. Grant, 2009 SCC 32 (S.C.C.) is well-known. The court must consider (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) the societal interest in an adjudication on the merits.

[28] In my view the police conduct exercised in good faith. Detectives DeMarte and Merrigan had initially determined not to obtain a warrant to search. Their initial entry of the vehicle was to retrieve property belonging to the complainant. I am unable to accept the implied submission of the applicant that the detectives acted in bad faith and that their professed reason for the initial entry into the vehicle was a ruse designed to gain entry without a warrant to have a “look-see” in the vehicle. The applicant did not seek leave to cross-examine the affiant and/or the sub-affiant of the ITO and accordingly this proposition was not put to Detectives DeMarte and Merrigan, and they were not afforded an opportunity to respond to it.

[29] When Detective DeMarte was unable to locate the complainant’s flip-flops and observed the black bag containing three wallets it was reasonable for him, in the context, to conduct a cursory review of the bag’s contents and an initial search of the wallets to confirm that they did not belong to the complainant. As the Crown argues, as soon as the detectives realized that the contents of the vehicle may have evidentiary value they withdrew and sought a warrant, supporting their good faith and respect for the applicant’s Charter rights.

[30] It my view the first branch of the test under s. 24(2) favours inclusion of the evidence obtained or derived from the search of the rental vehicle.

[31] The second branch of the Grant test also favours inclusion of the evidence. Although the Crown acknowledged that the applicant had a reasonable expectation of privacy in the vehicle, as a rental vehicle contracted for by her mother and provided by her to the applicant for her use, the impact on the applicant’s Charter-protected rights can be considered to be at the low end of the scale.

[32] On the third branch, I accept that society has a strong interest in the adjudication of the charges against the applicant on their merits, given their extreme seriousness. However, this aspect blunted by the fact that the evidence derived from the search of the vehicle is not central or key to the Crown case. I find that this third factor is relatively neutral - it favours neither inclusion nor exclusion.

[33] In consideration of all the circumstances of the case, I find that, on balance, the admission of the evidence obtained by Charter breach, if it were found, would not bring the administration of justice into disrepute.

Disposition

[34] For the foregoing reasons, the application of the applicant to exclude from evidence all direct or derivative evidence arising from an alleged breach of her rights pursuant to section 8 of the Charter resulting from the search of the rented vehicle that she was driving at the time of her arrest is dismissed.

D.A. Broad, J.

Date: July 29, 2019