R. v. Daye CITATION: 2019 ONSC 5209
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Jamal Daye, Joshua Isaac and Raheem Saunders
BEFORE: Mr Justice Ramsay
COUNSEL: Darren Anger for the DPP; Kim Vanderlee for Daye; Scott Buchanan for Isaac; H. Roy Wellington for Saunders
HEARD: August 6, 7, 8, 9, 2019 at Welland
ENDORSEMENT
1The three accused and a fourth co-accused who will be tried separately are charged with possession of heroin, fentanyl, cocaine and psilocybin. After receiving information from confidential informants, the Niagara Regional Police conducted surveillance of Daye and Isaac over about a month in February 2017. On February 27 they applied for a warrant to search room 115 at the Super 8 motel in Niagara Falls and arrested Daye, Isaac and the former co-accused Nugent. They arrested Saunders in the lobby of the motel while executing the warrant and then got a warrant to search room 215, Saunders’ room, at the same motel. The accused have made several pre-trial motions to exclude evidence.
Reasons for rulings given from the bench
Leave to cross-examine on the information for room 115
2Daye and Isaac asked for leave to cross-examine the affiant and sub-affiants on the information in Form 5 that was sworn to obtain the warrant to search room 115. Saunders asked for leave to do the same thing with respect to the warrant for room 215. These are my reasons for denying leave in both cases.
3To get leave to cross-examine a basis must be shown for the view that cross-examination will elicit testimony tending to discredit the existence of one of the conditions precedent to the issuing of a search warrant. It is not a stringent test: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. It is enough if it could discredit the existence of reasonable grounds to believe that evidence would be found by discrediting the affiant’s credibility, the reliability of the hearsay that she relied upon or the plausibility of the inferences she drew or would have the issuing justice draw.
Cross-examination on the information to obtain the warrant for room 115
4No basis has been suggested for cross-examining the sub-affiants.
5As far as the affiant is concerned Isaac and Daye essentially argue:
a. More detail is needed to establish the credibility of the confidential sources;
b. The sources of such information as the drug history and means of identification of persons seen meeting the accused, and the character of the “drug house” need to be elicited.
c. The affiant needs to be challenged on the conclusions that she drew about what was observed and there is reason to doubt that she honestly or reliably interpreted and conveyed the police observations.
d. There is a contradiction between the evidence of the affiant at the preliminary inquiry and the affidavit.
6I do not think that cross-examination of the affiant has much chance of accomplishing anything other than to amplify the record and support the issuance of the warrant. Dealing with the identified bases in order, I would say this:
7More detail could add to the credibility of the informants. It could detract from it as well, but the confidential information is not enough to support the issuance of the warrant, by itself or taken with the other evidence. CI #1 has specifics but does not say how he knows what he passed on. CI #3 supports CI #1, but with less detail. CI #2 mentions Kody Mounsey buying drugs from “a black male.” The police already knew that Mounsey was involved in drugs and two of the accused were seen at Mounsey’s residence by the police. The confidential information could not justify the warrant by itself or taken with the police observations. It is the police observations that make the case for the warrant. The confidential informants only gave the police an idea where to look.
8The record does not to my mind disclose anything that give rises to any suspicion of dishonesty, lack of full disclosure or bad faith on the part of the affiant. Additional information about the sources of her information would inevitably strengthen the case for issuance of a warrant. It is obvious that in many of the instances of which complaint will be made, the affiant has used police record systems to identify persons and their criminal or drug histories. She sets out those systems in detail at the beginning of the affidavit.
9The conclusions of the officer, when stated, did not serve the purpose of justifying the warrant. They are just guideposts. They make the information easier to read. The question is whether the affiant set out the basis of her conclusions to the extent necessary to let the issuing justice make her own assessment. Cross-examination on how she reached her conclusions would be beside the point.
10The alleged inconsistency between what the affiant said at page 17 of the transcript of the preliminary inquiry and what she said in the affidavit is illusory. In the transcript she talks about two confidential informants, one who spoke to her and one who spoke to Det. Perrault. The questioning was not very precise and her answers do not exclude the third human source. They just do not mention him.
11I also note that at the preliminary inquiry, while the affiant was not cross-examined on the information, she was cross-examined about the police observations to which she attested in the information, as were the sub-affiants. The preliminary inquiry transcript was filed as part of the record before me by all three applicants. There is no need for further cross-examination about the police observations that supported the warrant.
Cross examination on the information to obtain the warrant for room 215
12The request to cross-examine the informant on the information to obtain this warrant was made on essentially the same basis and was denied for essentially the same reasons. By the time the warrant for room 215 was applied for, a large quantity of controlled substances had been found in room 115. To justify the warrant the affiant had only to link Saunders to Daye, Isaac or Nugent. They did this through observations of him on the day of the arrest. The confidential information was not relevant, and the affiant was right to leave it out. No basis has been shown to think that further cross-examination of the affiant would tend to elicit information that could discredit any of the grounds for issuing the warrant.
13For these reasons I denied leave to cross-examine the affiant on either affidavit.
Sufficiency of the information for the warrant to search room 115
14I do not accept that any of the averments in the information for either search warrant were misleading, either deliberately or carelessly. It is possible, as defence counsel have done, to look at every observation in detail, to suggest innocent explanations and to demand fuller grounds for every averment that requires an inference to be drawn. But looking at the information as a whole, I cannot help but think that it was open to the issuing justice reasonably to infer that drugs would be found in the place to be searched.
15The officers observed Daye and Isaac together on several occasions in February of 2017 and their observations associated them to the black Hyundai, to each other, to Tanisha Nugent and to room 115 at the Super 8. Saunders came into the picture on February 27, the day of the arrests.
16During February 2017 Daye and Isaac travelled around together in Niagara and elsewhere, according to their mobile phones.
17To my mind, the following observations were key:
18On February 2, Daye and Isaac visited Kody Mounsey’s residence and stayed there for 21 minutes. Given the elapse of 21 minutes, it would not have been a stretch to infer that Mounsey was there. It is also easily inferred that the police know that Mounsey is a drug user from their own records.
19On February 6, Angela Drake got into the Hyundai, which was being driven by Isaac, and got out after about two minutes. Angela Drake is a known to the police as a drug user.
20On February 22, Daye drove to David Shirley’s residence. Shirley is a known user of cocaine and heroin. The police found him in possession of both substances four days later.
21On February 27, Isaac drove to 5241 Hamilton Street, a known drug house. The police (and the neighbours) know what houses are resorted to by drug addicts to obtain and use drugs. It is not a question of expecting the justice to take judicial notice, as argued on behalf of Daye. The affiant deposed that she had access to police record keeping systems.
22On February 27, Isaac, driving the Hyundai, pulled to the curb on Erie Avenue. A man got into the car, it drove 100 metres or so and the man got out.
23It was open to the justice to conclude that the occupants of room 115 were involved in drug trafficking and that evidence of that offence would be found in the room.
Sufficiency of the information for the warrant for room 215
24On February 27, 2017, the police saw Saunders in the company of Daye and Isaac during short meetings with others. They saw him go back and forth between rooms 215 and 115. They found heroin and other substances in room 115, which was associated with Daye and Isaac. They found heroin and cocaine on Nugent, who was associated with Daye and Isaac. That was enough to justify the warrant for room 215.
25In both informations the affiant, who was pressed for time, trod the line between full disclosure and À la recherche du temps perdu in a reasonable way. Her affidavit was not required to be perfect.
26For these reasons I declined to quash either warrant.
Saunders – unlawful detention and excessive force
27When the detectives executed the warrant on room 115 they brought the Emergency Task Unit with them for safety reasons. They had no information linking the targets of the search to weapons, but firearms commonly go with heroin and cocaine. As the room was being searched, Saunders arrived in the lobby of the hotel. PC London of the ETU stopped him, suspecting that he might be one of the targets of the search. He entered the lobby in uniform and armed with a pistol and said, “Police, everybody get down.” Saunders and the motel manager got down. There was no yelling and no pointing of a firearm. The manager had been allowed to get up by the time Constable Hicks arrived a few minutes later, but Saunders was left on the ground, face down and handcuffed. When Constable Hicks arrived, she searched Saunders’s pockets for weapons. She found a bag of marijuana and a wad of cash, both of which were visible before reaching into the pocket. She arrested Saunders for possession of marijuana and informed him of his right to counsel.
28In the circumstances London had reason reasonable grounds to suspect in all the circumstances that Saunders was connected to the possession of drugs in room 115 and that his detention was necessary on an objective view of the circumstances, including the impending search of a motel room for drugs that are often associated with firearms and the need to ensure Saunders’s safety. London had the right to have everyone get down and to detain Saunders briefly until he could be searched, and Hicks had the right to look for weapons.
29Hicks asked Saunders some preliminary questions such as name, address and where he was staying. He said, “room 215” but the police already knew so. Shortly thereafter Hicks was informed that Saunders had been seen associating with the others and was instructed to arrest him for possession of controlled substances for the purpose of trafficking. The grounds for that arrest did not depend on his admission that he was staying in room 215.
30She later realized that she herself had seen him going back and forth between rooms 215 and 115 that day (Transcript of preliminary inquiry, Oct. 17, 2018, p. 22).
31I do not believe Saunders’s version of events, although it would not make the difference to my decision. He said that he argued and only went down when the officer pointed his weapon because he did not want to go back to gaol. An experienced person such as Saunders would know that resisting the police was more, not less, likely to lead to gaol. And in 2017 a little bit of marijuana was not much to worry about, even for someone with a criminal record who was at liberty on interim release.
32For these reasons I declined to exclude evidence based on this application.
Rulings on motions on which decision was reserved
Strip search
33At 3:40 pm on February 27 the police arrested Isaac, Daye and Nugent near the Tim Horton’s on Victoria Avenue. As the police approached, Nugent pulled 7.9 g of heroin and 3.72 g of cocaine from her brassiere and tried to throw it away. In my view that gave the police reasonable grounds to believe that she might be hiding more drugs in her undergarments. It gave them grounds to believe the same of Daye, Isaac and Saunders, who were believed on reasonable grounds to be involved with her in the joint enterprise of drug trafficking. The decision to conduct a strip search was justified as required in R. v. Golden, 2001 SCC 83, paragraphs 135-139.
34The strip searches were executed in accordance with the requirements of Golden, paragraph 101. After a supervisor’s approval, the searches were conducted in a private room in the police station, one prisoner at a time, in the presence of one officers of the same sex as the prisoner. The search was video-taped but the tape could not be seen by others. A special form was filled out to document each strip search and the grounds therefor. The prisoners were asked to drop their underpants and the inside of the underpants was inspected for the presence of drugs. The prisoners were never completely naked. No one was asked to separate his buttocks. No cavity searches were conducted. As it happens, nothing was found.
35Saunders also complains about his original “cursory” search on booking. He was asked to hold up his shirt so that his midriff and waistband could be inspected. When he did, his trousers fell and his underwear became visible. Rearrangement of clothing that exposes undergarments is a strip search. But this one was accidental. I do not think that the police intentionally conducted any strip search at that point. Nor is there any causal, temporal or contextual link between this search and any evidence that was obtained.
36The application to exclude evidence on this basis will be dismissed.
Delayed implementation of right to counsel
37Daye and Isaac were arrested at 3:40 pm on Victoria Avenue near a Tim Horton’s and the library and were promptly informed of their right to counsel. They said that they would like to speak to duty counsel. They were taken to Central Holding by uniformed officers, who were told that Street Crimes Unit, i.e. the detectives in charge of the case, would take care of calling duty counsel. They took that as an instruction not to do so themselves. They understood correctly in my view.
38They arrived at the police station around 4 pm. Daye was presented to the booking sergeant at 4:20 pm and Isaac at 5:30 pm. The delay between arrival and booking is accounted for by a lineup of other prisoners. Saunders, who was not arrested until 4:20 pm (at which time he was given his right to counsel to which he replied that he would like to talk to duty counsel) actually got booked at 5:15 pm, a little before Isaac.
39When a prisoner has asked to speak to counsel, the booking sergeant asks either the transporting officer or the officer in charge of the case to call counsel. In this case, SCU had already taken responsibility for calling duty counsel. Constable Hicks was the detective in charge of the case, but Detective Sergeant Marr, the detective in charge of SCU, took over for her around 5 pm when she went off to write a warrant for room 215. Marr was in contact with the booking sergeants about this time, because he was asking for a strip search. I infer that everyone expected Marr to take care of calling duty counsel or having someone do so. All I know that he did in this regard is to call PC Campbell at 6:57 pm and tell Campbell to call duty counsel for all four prisoners. PC Campbell did so, leaving a single message with the contact information for all four prisoners. At 7:08 pm Saunders spoke to duty counsel. At 7:45 pm Marr called Campbell again to tell him that he had to leave a separate message for each accused. Campbell did this and Daye and Isaac spoke to duty counsel at 8:11 pm and 8:20 pm respectively.
40Detective Sergeant Marr does not recall delaying the implementation of right to counsel, but I can only infer from what was told to the transporting officers that he wanted to take care of it himself for some reason. Having taken on that responsibility it was up to him to facilitate the exercise of right to counsel without delay. Some delay is attributable to the lineup at booking and the time-consuming procedures inherent therein, but duty counsel should have been called well before 6:57 pm. The delay between 6:57 and 7:45 I take to be an innocent mistake on Campbell’s part due to his inexperience with calling for multiple prisoners. Given the time they were booked and the time for the strip search, I would have thought that duty counsel could have been called by 6 pm at the latest. The rights of all three accused to consult with counsel without delay were breached and it was a serious breach. I think that Marr got busy and did not get around to it, which is no excuse.
41I do not think, however, that any evidence was “obtained” by the breach. To be obtained by the breach, and therefore subject to exclusion under s.24(2) of the Charter, there need not be a causal connection between the breach and obtaining the evidence. There need only be a temporal, causal or contextual link, or a combination of the three. None of the three exists here. To me, the facts of this case looked at after reviewing the entire course of events, are much more like those in R. v. Do, 2019 ONCA 482 than those in R. v. Pino, 2016 ONCA 389. With respect to Isaac and Daye, the drugs were seized from room 115 pursuant to a warrant that was issued before Daye, Isaac and Nugent were arrested. As in Do, but not in Pino, the breach did not relate to the arrest. It was not a continuous transaction and there was no common link.
42With respect to Saunders, the drugs in room 215 were seized pursuant to a warrant that was issued at 9:28 pm and executed at 10:30 pm, well after he spoke to counsel at 7:08 pm. In her information to obtain the warrant Det. Hicks said that Saunders had confirmed that he occupied room 215, but that did not make the difference in establishing grounds. I do not see the importance of the distinction between the person who rented the room and a person who came and went from it frequently in the circumstances.
43The breach had ceased before the search began. Obtaining the evidence did not relate to the breach of the right to counsel causally, temporally or contextually.
44I have found that no evidence was obtained by breach of the right to counsel. On that reasoning I do not arrive at the analysis in R. v. Grant, 2009 SCC 32. The application to exclude the evidence will be dismissed.
45On the return date a date for trial will be set. Counsel do not have to await the return date to consult one another and reserve time with the trial coordinator
J.A. Ramsay J.
Date: 2019-09-10