R. v. Marcellin, 2022 ONSC 6840

COURT FILE NO.: CR-22-07

DATE: 2022-12-12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Sunil Marcellin

Applicant/Accused

R.A. Bellows, for the federal Crown

A.P. Newman, for the applicant

HEARD: November 22, 2022, virtually at Parry Sound

PUBLICATION RESTRICTION NOTICE:

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, BY ORDER OF JUSTICE A.D. KURKE

DECISION ON APPLICATION FOR STANDING

A.D. KURKE, J.

Overview

1The applicant is charged jointly with Nicole Contin and Garnet Seraphine on an indictment with possessing fentanyl for the purpose of trafficking, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act (Count 1), and with possessing the proceeds of crime contrary to s. 354(1)(a) of the Criminal Code of Canada (Count 3). He faces his own charge of breaching a release order by not remaining in his residence unless in the presence of his sureties, contrary to s. 145(5)(a) of the Criminal Code (Count 5). All three offences are alleged to have occurred on February 24, 2021 in Parry Sound, Ontario.

2The evidence to support the allegations comes from or relates to the police execution of a search warrant on that date at the apartment of Contin, where the applicant and Seraphine were staying and out of which the Crown alleges they were dealing drugs. The applicant seeks standing to assert that his s. 8 Charter right has been infringed by police conduct that day, and that the fruits of any search should be excluded from evidence. The stated ground for the application is that the “applicant has a reasonable expectation of privacy over the items seized.”

3The following reasons explain why I do not find that the applicant had a reasonable expectation of privacy in Contin’s apartment and dismiss the application for standing with respect to the search with a warrant in that apartment. However, the applicant does have standing to challenge the seizure of items from his person or from near his person at the location of his arrest outside of the apartment.

Preliminary issue: defence disclosure request

4Counsel to the applicant submitted in his factum, without supporting argument, and at the hearing of the application, that he was entitled to disclosure of police materials relating to the background to and preparation of the ITO in this case, as they “may inform [his] arguments on standing.” At the hearing, he also sought information that had been redacted from the ITO, which had been done almost certainly to protect the identity of confidential informants. The applicant’s disclosure requests are grounded in the Supreme Court’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 and its ratio that an applicant for standing can rely on facts alleged by the Crown.

5The Crown explained at the hearing that she had supplied some of the requested disclosure to the applicant and submitted that an opportunity to explore many of the itemized areas of disclosure had already been granted through the questioning of Crown witnesses during the preliminary inquiry, which took place over three days in early 2022. The Crown’s factum did not deal with the issue of disclosure, which was not raised in the Notice of Application or argued in the applicant’s factum.

6As I stated at the hearing of this application, I decline to entertain the applicant’s disclosure request. The request in the Notice of Application was for a determination that the applicant had standing to assert a breach of his s. 8 Charter right and to seek a remedy under s. 24(2). There was no request for disclosure in the Notice, and the Crown (and Court) are entitled to rely on the expectations created therein. There was no notice given of a disclosure request nor any legal argument to support such a request in the applicant’s factum. On all of the circumstances of the case, the disclosure issue was not properly before the court.

Facts

7The parties relied on an agreed statement of facts. That statement, along with photographs taken by police during the search, the transcripts of the preliminary inquiry and the edited and disclosed Information to Obtain (ITO) that was used to acquire the warrant for the search in this case, constitute the bulk of the facts for the purpose of the application. An overview of the agreed upon facts may be summarized as follows.

8On February 24, 2021, members of the Ontario Provincial Police (OPP) applied for and were granted a CDSA telewarrant to search the residence at 78A Bowes Street, apartment 10, in the Town of Parry Sound. Police had reason to believe there were unknown males from Toronto trafficking cocaine and fentanyl from Contin’s residence at that address.

9At about 3:42 p.m., police attended the residence. The residence door was locked, and a ram was used by the police to gain entry. Police located five persons in the residence and one outside. The one outside, who was the applicant, had been observed exiting the apartment through the second storey dining room window by police who were situated inside and outside the apartment. The applicant was arrested in a snowbank outside the residence, below the open window.

10Seraphine was located inside the apartment in the dining room, attempting to exit the window. Contin was located in the first bedroom, which was identified as being her bedroom. She was observed sticking her head out of her bedroom door upon police entry into the apartment.

11Nathan Nanibush and Kyle Jackson were located in the kitchen and the apartment hallway, respectively. They were known to reside in Parry Sound and were later released unconditionally. Minelius Raphael was arrested in the living room and charged. He was discharged following the preliminary inquiry.

12Police seized $1,995 Canadian from the left inside pocket of a Moose Knuckle parka found and seized in the living room. A further $480 was seized from Seraphine’s left front jacket pocket, and $685 was located in the snow under the body and/or hands of the applicant upon his arrest and was seized.

13Various drugs were found on Seraphine’s person and were seized. There were three separate bags in his left front pocket: one containing 4.0 grams of cocaine (Health Canada Certificate: 2040937T); another containing 8.9 grams of white powder identified as phenacetin (Health Canada Certificate: 2040936T); and a third with 0.1 grams cocaine and phenacetin (Health Canada Certificate: 2040946T). There was a further 9.9 grams of fentanyl in Seraphine’s left front jacket pocket (Health Canada Certificate: 20 40946T).

14Three separate quantities of fentanyl were seized from the applicant upon his arrest, specifically: 1 gram in his right front pants pocket (Health Canada Certificate: 2040942T); 14 grams and a further 12.3 grams in the snow directly under his torso (Health Canada Certificate: 2040943T and Health Canada Certificate: 2040944T, respectively).

15Two further quantities of fentanyl: 11.2 grams (Health Canada Certificate: 2040945T) and 3.4 grams (Health Canada Certificate: 2040941T), were found in plastic bags in the apartment itself on the floor under a futon in the living room, and were seized by police.

16Police seized 5.7 grams of white powder later identified as sodium bicarbonate (Health Canada Certificate: 2040938T) from Contin’s bedroom and a further 16.2 grams of sodium bicarbonate (Health Canada Certificate: 2040940T) from a brown purse in that bedroom.

17Three digital scales – two located in the kitchen and one in Contin’s bedroom – were seized by police. A Samsung cellphone and an Apple iPhone on the floor in the living room were seized. Another cellphone on the bed in Contin’s bedroom was also seized.

18At the hearing of this application, counsel for the applicant also highlighted further facts from other sources of evidence and made submissions about inferences relating to those facts.

19The ITO alleges that two or three males from the greater Toronto area were trafficking cocaine and fentanyl at the residence of Contin on various dates. From the ITO, it could be inferred that they had been invited there by Contin’s son, David Contin (“David”). At least one of these males was described as a “black kid”. The males were staying at Contin’s apartment.

20The sources describe purchasing drugs at Contin’s apartment on a date or dates in February 2021. The warrant was executed February 24, 2021. One source indicated that unknown males were selling drugs from the apartment sometime in January, perhaps extending the duration of the applicant’s stay as far back as January 1, 2021.

21An officer observed Nanibush and another male leave the apartment for a nearby convenience store and return. The applicant submitted that this demonstrates that people in the apartment were comfortable bringing things back there and were free to leave and return.

22The author of the ITO summarized that he believed that three unknown males were staying at Contin’s apartment and were in possession of cocaine and fentanyl for the purpose of trafficking and were selling the drugs.

23On the hearing of the application, the defence pointed to various excerpts from the evidence of Crown witnesses at the preliminary inquiry as further evidence to be considered:

a. There was evidence that a property manager at Contin’s building gave to police keys to the apartment that did not work, thus necessitating the use of the ram to gain entry. Based on this fact the defence submitted that the absence of proof that the applicant possessed keys to the apartment, in all of the circumstances of this case, should be considered a neutral factor that does not tell against the applicant’s control of the apartment;

b. A set of keys was seized from the apartment or from someone at the apartment, though from whom is uncertain. The defence submitted that these could be the applicant’s keys or common keys for all residents to use to control entry;

c. The great quantity of food wrappers observed around a bed made it obvious to one searcher “that they’d been staying there for a while.” The same officer later agreed that it could just have been wrappers from multiple people on a single day;

d. The evidence indicated that there were two occupied bedrooms, clothing hanging on a door, and various makeshift beds and a chair made up for sleeping.

24The applicant also highlighted photographic evidence in the Crown brief:

a. Several made-up beds, a refrigerator near one of the beds, and clothing on a rack;

b. A reclining chair with a blanket on it, as though made up to be slept on;

c. An unattributed jacket in the apartment that could have belonged to the applicant, who was arrested outside the building without a jacket;

d. Multiple toothbrushes near a washroom sink, and multiple used towels, arguably indicative of a protracted stay by the applicant;

e. A cupboard in the kitchen with food and spices demonstrating, according to the applicant, that people were living and eating there for some time;

f. Yellow containers on a bed were suggestive of baby food/formula containers, perhaps indicating that someone in the apartment had a child that used formula.

Law relating to standing

25A claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619. There is no rule of automatic standing for an accused to seek Charter relief simply because the “Crown alleges that the accused is in possession of the property which was discovered and seized”: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at paras. 52-54.

26An accused can be granted standing to seek redress for a breach of his s. 8 Charter right if he had a reasonable expectation of privacy in the premises where a seizure took place, even if he had no proprietary or possessory interest in the premises or in the articles seized: R. v. Pugliese, 1992 CanLII 2781 (ON CA), [1992] O.J. No. 450 (C.A.), at para. 12 (QL); Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at 159-159; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 291.

27In R. v. Van Duong, 2018 ONCA 115, at para. 7, the Ontario Court of Appeal clarified the connotation of the word “expectation” in the phrase “reasonable expectation of privacy” and distinguished between an entitlement to privacy and a desire for privacy. It is an “entitlement” to privacy that is involved in the s. 8 Charter right:

“Expectation” can be ambiguous between two meanings, only one of which is relevant to s. 8 analysis. In the first sense, a person has an expectation of privacy where he desires privacy and believes it is unlikely, as a matter of fact, that he will be disturbed. In the second sense, a person has an expectation of privacy where she believes she will be undisturbed because she is entitled to be left undisturbed. In s. 8 jurisprudence, subjective expectation is used in this latter sense.

28The determination of a person’s reasonable expectation of privacy is made in light of the totality of the circumstances of a case and can exist even where privacy conceals illegal activity: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at paras. 47-49.

29To determine a person’s reasonable expectation of privacy for the purpose of s. 8, Edwards is the guiding authority. At para. 45 of that decision, the Supreme Court of Canada offered, among other things, an oft-cited non-exhaustive list of factors to consider in assessing the totality of the circumstances. Those factors include for any particular person:

a) his or her presence at the location searched at the time of the search;

b) his or her possession or control of the property or place searched;

c) his or her ownership of the property or place;

d) his or her historical use of the property or item;

e) his or her ability to regulate access, including the right to admit or exclude others from the place;

f) the existence in the accused of a subjective expectation of privacy; and

g) the objective reasonableness of the accused’s expectation of privacy.

30The applicant need not provide evidence on an application for standing, as doing so could unfairly involve self-incrimination. A reasonable expectation of privacy can be established both by evidence adduced by the applicant and by asking the court “to assume as true any fact that the Crown has alleged or will allege in the prosecution against [an accused person] in lieu of tendering evidence probative of those same facts in the voir dire”: Jones, at paras. 9 and 32; R. v. Labelle, 2019 ONCA 557.

Discussion

31The applicant must establish that he had a reasonable expectation of privacy in Contin’s apartment to obtain standing to seek Charter relief for a breach of his s. 8 Charter right with respect to the items seized by warrant in Contin’s apartment. The place of the search by warrant was 78A Bowes Street, apartment 10, Parry Sound.

32The applicant chose to adduce no evidence at this hearing.

33The applicant instead relies on the agreed statement of fact and the Crown’s allegations to argue that he had a reasonable expectation of privacy that provides him the right to seek relief based on ss. 8 and 24(2) of the Charter.

34The Edwards factors remain as guidance for the inquiry about standing: see, e.g., R. v. Sangster, 2021 ONCA 21, at paras. 16-21.

35From the evidence on the application, I have considered the factors in Edwards and am able to determine the following:

a. The applicant was present at the time of the police entry into the apartment and its search, though he arguably attempted to evade police by leaving through a second storey window. Although the Crown has urged it upon me, I am unable to conclude at this juncture that the applicant’s exit through the apartment window should be taken as evidence that he had no reasonable expectation of privacy in the apartment that he had left (for such an argument see, e.g., R. v. Nesbeth, 2008 ONCA 579, at paras. 21-22);

b. There is no evidence that the applicant exercised any possession or control over Contin’s apartment. On the evidence in the ITO, the applicant may have been Contin’s or David’s invited guest. While Nanibush and another person went to a nearby convenience store and returned to the apartment, there is no evidence of whether they could just walk back in, or had to be let in upon their return;

c. There is evidence that the applicant and Seraphine were dealing drugs from Contin’s apartment, but if true, that fact does not establish any reasonable expectation of privacy. While a drug dealer in that circumstance might well desire privacy, such conduct does not create an entitlement to privacy;

d. The apartment was Contin’s, and not the applicant’s. The fact of food and spices on kitchen shelves assists in knowing that someone has lived for a time at Contin’s apartment, but that person could be Contin alone or Contin with her son David;

e. The bulk of the evidence on this application has the applicant staying at Contin’s apartment for part of February 2021. It is possible that he was there from as early as early January 2021, but there is not strong evidence of such a stay. It is possible that the applicant was invited more than once by David, though that is unclear. The identity of male visitors in January 2021 is unclear, but the ITO suggests that another person, one Hassan, was also associated with David and in or near Parry Sound in January and February 2021.

f. Nothing in the apartment or the evidence can validate a claim that the applicant regularly used Contin’s apartment. Bedding, towels, a few pieces of unattributed clothing, bottles of baby food, toothbrushes, and food wrappers speak more to there being a number of people in the apartment rather than to the length or nature of their tenure, except that it likely included at least one overnight stay by several persons prior to the police search. There is no evidence that it was the applicant who put or hid drugs under the futon in the living room;

g. It is likely that the applicant left a jacket in the apartment when he exited from there so abruptly, but that was probably not intentional, and is perhaps attributable to the haste and manner of his exit. As this was February in Parry Sound, even someone paying a short visit to a residence there would likely have brought a jacket;

h. It would involve speculation to find that the applicant had authority to control entry to the apartment or had a key to do so or to come and go as he wished. The property manager’s difficulties with keys says nothing about the applicant. Keys found during the search at the apartment by police were most likely Contin’s.

36Still to be assessed is the applicant’s subjective expectation of privacy. The applicant chose to offer no evidence on this application, so there is no direct evidence that he had any subjective expectation of privacy in Contin’s apartment.

37What is missing from the evidence, and likely unknowable on the Crown’s evidence, is the applicant’s knowledge, views and intentions with respect to Contin’s apartment. Did he view himself as anything more than a houseguest? Did he feel entitled to be left undisturbed in Contin’s apartment? If so, why? How long had he stayed there? How often? Did he plan to continue visiting there? Of the beds or chair slept in, which, if any, did the applicant occupy, and how many times? Was one of the toothbrushes in the bathroom actually his? What clothing did he have there and was one of the towels one that he actually used?

38But even if a subjective expectation of privacy on the applicant’s part can be presumed (see Jones, at para. 21), it remains to assess the objective reasonableness of such an expectation. There is almost no evidence to establish the objective reasonableness of any expectation of privacy by the applicant over Contin’s apartment. What evidence there is would require significant speculation to stitch together a narrative that would support the applicant’s claim to a reasonable expectation of privacy in Contin’s apartment.

39On the evidence before this court, the applicant was staying at Contin’s apartment for some period of time, but I have no evidence to establish or measure any level of control that he exercised over the premises, or to assess any meaningful historic use of the apartment. It was not his apartment, and there is no evidence of any relationship with Contin from which some measure of control could be inferred. The evidence is suggestive that the applicant was a houseguest who used the apartment for his business of dealing drugs. He was present at the premises at the time of, or at least almost immediately prior to, police entry. I can find no objectively reasonable basis for any subjective expectation of privacy by the applicant.

40On the totality of the circumstances, I am accordingly unable to find that the applicant had any reasonable expectation of privacy in Contin’s apartment.

41On the other hand, the applicant had a reasonable expectation of privacy in items seized from him or from near him in the snowbank outside the building. On the facts that the Crown alleges, those items were underneath the applicant or in his pocket, and they were therefore in his actual possession and control. But they were not seized in the apartment during the authorized search. On the facts in this application, the applicant would have standing to challenge the seizure of items at the place of his arrest, but not the warrant that authorized the search of Contin’s apartment and the seizure of items from that apartment.

Conclusion

42For the above reasons, the application for standing to seek relief pursuant to s. 24(2) of the Charter for an alleged breach of the applicant’s s. 8 Charter right with respect to the search by warrant of Contin’s apartment is dismissed.

43However, the applicant has standing to challenge the seizure of drugs and money from his person or near him on the ground at the place of his arrest.

The Honourable Mr. Justice A.D. Kurke