Court File and Parties

COURT FILE NO.: CR-22-90000014

DATE: 20221223

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: His majesty the king

AND:

kyle garcia and nathaniel english, Defendants/Applicants

BEFORE: S.F. Dunphy J.

COUNSEL: Lucas Price, for the Crown

Sahani Samarappuli for the Defendant/Applicant Kyle Garcia

Daniel Heath, for the Defendant/Applicant Nathaniel English

HEARD at Toronto: December 12-16, 2022

REASONS FOR DECISION - SUPPLEMENTAL

[1] I have been hearing a series of pre-trial applications brought by the defendants and summarized below. At the conclusion of the hearing, I delivered oral reasons disposing of the applications in light of the upcoming trial date reserving the right to supplement those oral reasons with written reasons before the end of the year, time permitting. These are those supplemental reasons which are intended to supplement and not replace my oral reasons.

[2] While Mr. Garcia and Mr. English are co-accused, there are various differences in the circumstances of their arrest and processing such that the issues addressed by their pre-trial motions overlap only to a relatively modest degree. I heard and decided Mr. Garcia’s Garofoli motions on December 12, 2022, dismissing them from the bench with reasons to follow that were delivered in writing on December 14, 2022. These reasons address the following additional pre-trial motions:

a. Application of Mr. English alleging an unlawful arrest contrary to s. 9 of the Canadian Charter of Rights and Freedoms and consequently an unlawful search of his person contrary to s. 8 of the Charter;

b. Application of Mr. English alleging the use of excessive force during his arrest contrary to s. 7 of the Charter;

c. Application of Mr. English alleging that delays in implementing his right to counsel amounted to a violation of his rights under s. 10(b) of the Charter;

d. Application of Mr. English alleging the negligent loss by police of highly relevant video surveillance evidence resulting in a violation of the right of the accused to make full answer and defence contrary to s. 7 of the Charter;

e. Application of Mr. Garcia seeking a declaration that his arrest prior to the discovery of narcotics on the premises violated his rights under s. 9 of the Charter;

f. Application of Mr. Garcia seeking a declaration that he was not promptly informed of the reasons for his arrest resulting in a violation of his rights under s. 10(a) of the Charter.

[3] At the conclusion of the evidence, the Crown conceded that it had failed to discharge its onus to explain the delays in implementing Mr. English’s s. 10(b) Charter right to consult counsel. The delay in the case of Mr. Garcia having been slightly longer that that experienced by Mr. English, the Crown also conceded that Mr. Garcia’s s. 10(b) Charter rights had similarly been violated and agreed to proceed as if Mr. Garcia had brought a parallel application pursuant to s. 10(b) on the same grounds. Substantially all of the facts relevant to the s. 10(b) issue were reduced to an agreed statement of facts applicable to both.

[4] The applicants seek remedies under s. 24(1) and s. 24(2) of the Charter in respect of the alleged breaches of their Charter-protected rights. In particular, Mr. English seeks a stay of proceedings or a reduction of sentence as a remedy for the lost evidence application and the exclusion of evidence found on his person or alleged to have been possessed by him and found in the search of the premises and a reduction of sentence. Mr. Garcia seeks as remedy for the breaches alleged by him an exclusion of all evidence found during the search of his person or of the premises in which he was found.

[5] I have reviewed some of the background facts in my written reasons on the Garofoli application released on December 14, 2022 and will not repeat that summary here.

(a) Unlawful arrest – Mr. English (Charter, s. 9 and s. 8)

[6] Mr. English was arrested by D.C. Sljivo and D.C. Tsaturyan moments after the elevator containing the team of officers assembled to execute the search warrant of the apartment containing Mr. Garcia opened on the floor where that apartment was situated at approximately 3:27 pm on July 15, 2020.

[7] The Controlled Drugs and Substances Act warrant for the apartment unit believed to be occupied by Mr. Garcia was issued prior to the 1:45 pm briefing on July 15, 2020 conducted by D.C. Caramanico. Present at the briefing were five other members of the Major Crimes Unit of 22 Division on duty at that time who were tasked to assist him in executing the warrant and who had worked together executing many other warrants in the past. These were Det. DiRenzo, D.C. Sljivo, D.C. Roy, D.C. Hogg and D.C. Tsaturyan. The warrant authorized a search of the unit for cocaine, crack cocaine, fentanyl and certain listed types of drug paraphernalia as evidence of the commission by Mr. Garcia of the offence of possession of a controlled substance for the purpose of trafficking.

[8] The ITO of D.C. Caramanico reviewed in connection with the Garofoli application established that there were reasonable grounds to believe that Mr. Garcia had engaged in the sale of cocaine crack and fentanyl from that location. D.C. Caramanico testified that he concluded that Mr. Garcia was arrestable based on the information observed in the video feed as summarized in the ITO but that he wished to arrest him inside the apartment unit where he expected to find the controlled substances he was selling. This information, as well as a general summary of the information contained in the ITO, was communicated to those present at the briefing.

[9] Following the 1:45 pm briefing, D.C. Caramanico made his own way to the building and took up a position inside the video room of the building. The other officers on the team waited at a staging area nearby so as not to alert confederates of Mr. Garcia of the presence of police in the area. At 3:10 pm, D.C. Caramanico observed Mr. Garcia going into the unit. He put out a call to the team to assemble at the building and execute the warrant.

[10] While waiting for his team to arrive, D.C. Caramanico continued to observe the video feed live to ensure that Mr. Garcia was still present. He noticed Mr. English dressed in very bright clothing entering the same apartment only two minutes later.

[11] Mr. English was known to D.C. Caramanico, D.C. Sljivo and D.C. Tsaturyan as a narcotics dealer. D.C. Sljivo’s information was derived in whole or in part from Confidential Informants and included information that Mr. English was a higher-end dealer. D.C. Tsaturyan’s information was based more upon the general reputation of Mr. English of which he had become aware from his policing work in that community over a number of years. D.C. Caramanico also had CI information to a generally similar effect as D.C. Sljivo had seen Mr. English before. He recognized him when he saw him enter the subject apartment unit on the video feed. D.C. Sljivo also recognized him on sight while D.C. Tsaturyan did not necessarily recognize Mr. English on sight but had been given a description of Mr. English’s bright and distinctive clothing upon arriving at the building to execute the warrant.

[12] The full team arrived a few minutes later from the staging area where they had been awaiting the order to assemble. To this point, the plan had been to arrest Mr. Garcia upon entry for possession for the purpose of trafficking. D.C. Caramanico advised the team of the new fact being the presence of Mr. English in the apartment as well and described his distinctive clothing. The intention of the team had been to arrest Mr. Garcia upon entry into the apartment – the intention was now to arrest both Mr. Garcia and Mr. English immediately upon entry.

[13] When the elevator doors opened on the 12th floor, the three above-mentioned officers were near the front of the tightly-packed relatively small elevator cabin. Immediately outside those doors was Mr. English. He was immediately recognized by the three mentioned officers and Mr. English also recognized that the six large men inside the elevator, many of whom were wearing police vests, were police officers. Each was surprised by the presence of the other. Mr. English stepped slightly to the side to let the officers pass and go about their business. Det. DiRenzo who showed no signs of recognizing Mr. English as a target stepped outside first. D.C. Tsaturyan and D.C. Sljivo took immediate steps to arrest Mr. English, each grabbing him by the arm nearest to them and proceeding to bring him to ground where he was placed in handcuffs while lying face down on the floor of the corridor, told that he was under arrest for possession for the purpose of trafficking and informed of his rights to retain and instruct counsel. All of this occurred within a matter of less than one minute. It appears that D.C. Tsaturyan and D.C. Sljivo both advised Mr. English separately that he was under arrest while it was D.C. Sljivo who provided the caution and information regarding rights to counsel, doing so from memory – adequately I find - rather than attempting to bring his notebook out for the purpose in the circumstances.

[14] Was the arrest a lawful one?

[15] The basic requirements of a lawful arrest without a warrant are not in any dispute. Section 495(1)(a) of the Criminal Code authorizes a peace officer to effect an arrest without a warrant where there are reasonable grounds for believing that the person has committed an indictable offence. The test of “reasonable grounds” is both subjective and objective. The officer must subjectively believe that reasonable grounds to make the arrest are present and there must also be reasonable grounds for the arrest viewed from the perspective of a reasonable officer standing in the situation of the officer in question having the training, experience and information base of the officer. Reasonable grounds to arrest are not the same thing as “possessing evidence sufficient to offer a reasonable basis to secure a conviction” or a prima facie case for conviction. While considering the former language of “reasonable and probable grounds”, the Supreme Court of Canada decision in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 remains the leading authority on the interpretation of what is now s. 495(1)(a) of the Criminal Code.

[16] Time was spent in cross-examination positing hypotheticals as to just how broad or far the intention of the team members to arrest anyone found inside the apartment might be taken. The team members were probed as to whether there were some categories of “found ins” who would not be arrested on sight or whether the position was that everyone found inside from a hypothetical child to a hypothetical grandmother might be deemed arrestable. As interesting as that discussion may be and notwithstanding the degree of confusion some officers showed between the separate concepts of arrest and investigative detention, such hypothetical discussions are of little utility to resolving the issue of whether there were reasonable grounds for arrest of a particular person who was in fact arrested at the time he or she was in fact arrested.

[17] The question I must determine is whether the arresting officers had a subjective belief in the existence of reasonable grounds to arrest Mr. English and whether a reasonable person in their situation had objectively reasonable grounds to do so when the elevator doors opened and in particular before the results of any searches of the premises to be searched had been undertaken.

[18] Both arresting officers had formed the subjective view that Mr. English should be arrested on sight inside the apartment where he and Mr. Garcia were expected to be found. They both believed that Mr. English was in that apartment for the purpose of buying or selling cocaine or another controlled substance - it mattered not. They believed that Mr. English was there for a business purpose where the business in question was transactions involving cocaine or another controlled substance. When, instead of finding Mr. English inside the apartment the two arresting officers saw Mr. English before their eyes, nothing in that circumstance altered their subjective belief. Having left the apartment so soon after he was seen on video by D.C. Caramanico entering it did not detract from the grounds to arrest Mr. English that both believed they already possessed. If anything, that development tended to confirm their conclusion as to the business purpose underlying Mr. English’s presence.

[19] Was their subjective belief objectively reasonable in the circumstances? In my view it was having regard to the totality of the circumstances then known to them.

[20] Prior to entry into the apartment, D.C. Caramanico had conveyed to the arresting officers the gist of the information contained in the ITO including his own conclusion that Mr. Garcia was arrestable (I shall consider the issue of Mr. Garcia’s arrest below). The ITO contained graphic evidence of at least two transactions which offered reasonable grounds to arrest Mr. Garcia for trafficking. While the prospects of securing a conviction based on that evidence alone may have been slight, the grounds spelled out in the ITO to suspect Mr. Garcia on the charge of possession for the purpose of trafficking and the grounds to suspect that evidence of that crime would be found in the apartment were more than sufficient to support an arrest of Mr. Garcia under s. 495(1)(a) even if police were tactically and prudently set on the course of gathering further and better evidence of the crime to climb beyond merely possessing reasonable grounds for arrest to possessing reasonable grounds to secure a conviction. This information was subjectively known to the two arresting officers both of whom had – in common with D.C. Caramanico – extensive knowledge of the community, that particular building and the incidence of narcotics trafficking in the area in addition.

[21] Expanding the analysis to consider the case of Mr. English, the two arresting officers had grounds to believe that Mr. English was a drug dealer. D.C. Sljivo’s information regarding Mr. English’s involvement in that trade was certainly more specific than that of D.C. Sljivo, but at all events, the evidence before me does not support a conclusion that their information based in relation to Mr. English on a stand-alone basis cleared the threshold for warrantless arrest pursuant to s. 495(1)(a) of the Criminal Code. Mr. English was not the object of their investigation that day and he would not have been arrestable had he merely been seen on the street or in the vicinity of the building on their way to execute the warrant based on the objective information in evidence before me.

[22] However, shortly after 3:12 pm on July 15, 2020, the arresting officers acquired a further piece of information that brought Mr. English on to their radar more directly. They had information that Mr. English – a man they believed to be actively engaged in the trafficking business in the community - was present in an apartment where Mr. Garcia - a man they also reasonably believed to be engaged in trafficking and from that very apartment - was present. They had had reason to believe that evidence of the controlled substances being trafficked was also present in the same apartment. It was objectively reasonable to believe in those circumstances that Mr. English was present in the apartment for purposes connected to the drug trafficking business that all three reasonably believed both men to be engaged in.

[23] The s. 495(1)(a) analysis of a warrantless arrest is conducted in a “totality of the circumstances” basis having regard to what a reasonable person in the shoes of the police officer in question and possessing the training, experience and information of the officer(s) in question. Such circumstances may include the presence of an accused person in a “drug house” or similar location with a known association with the sale of narcotics: R. v. Rover 2018 ONCA 745 at para. 11-13 and R. v. Buchannan, 2020 ONCA 245 at para. 32. The belief of the officers in Mr. English’s active participation in the illicit business of trafficking in narcotics was bolstered by the specific and very immediate addition of actionable information of his presence in an apartment reasonably connected by them to the trafficking business and the activities of another dealer- Mr. Garcia.

[24] However inelegantly, Officer Sljivo and Officer Tsaturyan may have expressed their grounds for concluding that Mr. English was immediately arrestable for the indictable offence of possession of a controlled substance for the purpose of trafficking as soon as they saw him, I am persuaded that they possessed reasonable grounds to do so when the elevator doors opened on the 12th floor. Their grounds to arrest him inside the apartment were objectively reasonable – those grounds were not altered by his presence a few feet away having left the apartment that he had been seen entering only minutes earlier.

[25] Mr. English’s arrest and detention was neither arbitrary nor unlawful.

[26] This aspect of Mr. English’s application is dismissed.

(b) Excessive force in arresting Mr. English and s. 7

[27] Mr. English provided and affidavit and viva voce evidence concerning the manner in which he was arrested. He testified that the following things happened during the course of his arrest which he submits violated his rights under s. 7 of the Charter:

a. D.C. Tsaturyan hit him on the crown of his head with his gun while both D.C. Tsaturyan and D.C. Sljivo forcibly brought him down to the ground face-first and handcuffed him with his hands behind his back; and

b. D.C. Tsaturyan told him to “Shut the F*** Up” and forcibly put his hand over his mouth for a time.

[28] Both officers denied that this occurred.

[29] D.C. Tsaturyan said that his gun was unholstered but kept close by his own chest and under control at all times. He said that he performed only a pat-down safety check while Mr. English remained face-down, performing a more thorough search after standing Mr. English up against the wall following his return from verifying that the apartment had been secured and learning that some narcotics had already been found during the search.

[30] D.C. Tsaturyan and D.C. Sljivo both agreed that they were trying to minimize noise associated with the arrest of Mr. English and moderated their voices accordingly because they did not wish to alert Mr. Garcia inside the nearby apartment of the approach of the police search team. However, both denied having put a hand over Mr. English’s mouth as alleged.

[31] The presence of a drawn firearm was certainly an unusual feature of this arrest but it was one that has been satisfactorily explained and was effectively an unintentional coincidence.

[32] D.C. Tsaturyan drew his gun at some point during the elevator ride up to the 12th floor in order to be ready to enter the apartment and execute the warrant. All of the officers present in the elevator expected to have their firearms drawn by the time they entered the apartment[^1]. He did not draw his gun to arrest Mr. English at the elevator door – he had no expectation that Mr. English or anyone else would be at the elevator door.

[33] The firearm in this case was drawn in connection with the intended dynamic entry into an apartment within a matter of seconds. That apartment was one where cocaine and fentanyl were reasonably believed to be held for the purpose of trafficking. The potential for firearms being found in that context – even in the absence of a specific firearms-related warrant or specific information of the possession or use of firearms by either of the two known occupants of the subject apartment – is an obvious one. The potential for firearms being faced after breaching the apartment door was all the more pressing given the collective experience of the officers in the elevator with the frequent correlation of trafficking and firearms in that area and indeed in that building.

[34] I express no views as to the wisdom of having unholstered the firearm a moment before exiting the elevator as opposed to unholstering the gun while approaching the apartment door after exiting the elevator (as other officers did). I cannot find that his accidentally coincident to the arrest action can rationally be considered a material factor in assessing whether Mr. English’s s. 7 rights were violated.

[35] I am also quite satisfied that it was reasonable in the circumstances for D.C. Tsaturyan and D.C. Sljivo to have elected to detain Mr. English by taking him to ground and securing his arms behind his back with handcuffs. There was a reasonable risk of weapons being present in those circumstances both in the apartment and on Mr. English’s person based on the circumstances present for the reasons discussed above. The decision to arrest Mr. English in that fashion is one that had to be made in a split second reacting to an entirely unexpected change of circumstances in a dynamic and inherently dangerous situation. Mr. English was expected to be in the apartment and not at the elevator door a mere foot or two away. It is of some significance that both officers reacted instantly and in essentially the same fashion. They recognized Mr. English and immediately – with no verbal communication passing between them – proceeded to act in tandem to bring him to ground in a controlled fashion.

[36] I am also satisfied on the evidence that the manner in which police brought Mr. English to ground and handcuffed him was as controlled and violence-free as such a form of arrest could reasonably be expected to be. The hallway video showed – from a distance – what looked to all appearances as a controlled and deliberate grounding rather than a violent throw-down. There was no material resistance offered by Mr. English and no witness reported hearing any scuffle or sounds of violence. Mr. English described police as acting quickly and himself as offering no resistance.

[37] A degree of deference to the operational decisions of experienced police officers in a dynamic situation presenting a tangible risk of danger is due. The arresting officers’ extensive experience in that particular community and with the drug milieu in the area is also a relevant factor.

[38] Clearly cracking a suspect over the head with a gun on first sight where the suspect exhibits no visible sign of threatening behaviour would be a circumstance strongly suggestive of excessive force if that is what happened. However, I am far from satisfied that the applicant has proved that this in fact occurred as alleged. In fact, I cannot so find.

[39] As a preliminary observation, the allegation appears somewhat unlikely because pointless. If the goal was to secure silence and avoid alerting Mr. Garcia in the apartment down the corridor, hitting someone hard enough on the head with a gun to have drawn blood as Mr. English alleges happened here would also carry a very high risk of causing the victim to issue a loud and involuntary scream of pain.

[40] Mr. English’s failure to mention an injury that he said drew blood and caused a bump is a feature of his evidence that did not enhance its believability. His explanation for not having done so strained credulity.

[41] Mr. English alleged that the blow drew blood and caused a bump to be raised. None of the officers who dealt with him that day noticed any signs of an injury. D.C. Caramanico and D.C. Sljivo were with him in the hallway for an extended period of time and rode with him down the elevator. D.C. Sljivo searched him for weapons at quite close quarters after having placed his wrists in handcuffs. The security cameras provided clear images of Mr. English’s head less than an hour after the incident with no signs of blood or injury. The elevator camera in particular provided a very clear and up-close view of the precise area of his head that he described as receiving the injury. Nothing resembling an injury is visible. While the video evidence cannot definitively rule out the presence of an injury, there is an utter lack of corroboration of this allegation from a number of sources including the video where corroboration might have been expected to be present.

[42] Having heard Mr. English’s testimony, I was left with significant concerns about his credibility and reliability as a witness. Mr. English’s denial of any knowledge of the bag later found to contain narcotics and shown by the security video very clearly dropping in front of his feet at a point where Mr. Garcia was a distance ahead of him and D.C. Sljivo was well to his side (and where the elevator video showed a visible lump on his left thigh moments earlier) did not enhance Mr. English’s credibility. While he was unfailingly polite and respectful at all times, his evidence seldom appeared candid and straightforward. In many cases his evidence appeared quite evidently tailored to an impression he wished to leave rather than the expression of a genuine memory. He showed a willingness to exaggerate where it suited him. He suggested – in my view quite implausibly – that he weighed only 138 lbs. in 2020. His build was visibly similar to that of the shorter and only very slightly stockier D.C. Caramanico who weighed about 180 lbs. at that time.

[43] The allegation of excessive force employed during the arrest cannot be sustained. Finding none, I find no basis to consider what remedy might be appropriate.

(c) Loss of evidence: s. 7 Charter

[44] D.C. Caramanico testified that he returned to the surveillance video room in the building shortly after handing his prisoner off to the transport officers shortly after 4:15 pm on July 15, 2020. His purpose in doing so was to download all of the relevant video footage stored on the system on to a thumb drive. He knew that the retention policy of management as regards to such video was at least one month and possibly as long as two months but he believed files were erased or overwritten after that time. It was necessary to download the footage from each camera separately for each desired time period and the download tended to result in a variety of individual files of different lengths and file sizes based on technical criteria internal to the system that he did not fully understand. He had experience – including with the video clips he downloaded the prior day for the purposes of the ITO - with finding back at the station that some clips failed to properly download. In that earlier case, he did not find it necessary to return because he judged he had enough for the ITO. He also testified that he had the free run of the video room with the permission of management, possessing a key for that purpose. He did not check each of the video files downloaded before leaving the video room but he did make sure that he had the corridor camera showing the arrest of Mr. English and the arrival of the team in front of the apartment door (both caught on the same camera), the elevator camera showing the conveyance of both arrested men down to the lobby and the hall camera showing both arrested men being conveyed to the east door where the dropped package was recorded. He did not check to see if the clips included the elevator camera showing the warrant execution team going up to the apartment, but he did believe that he had downloaded it.

[45] Whether D.C. Caramanico simply failed to download this last clip but thought he had done so or whether an unexplained but not unprecedented error occurred when downloading it cannot now be determined with any confidence. He did not in fact possess the clip when he got back to the station and did not notice its absence for more than year. He went on vacation shortly after this arrest and did not review the file after his return until the day before the start of the preliminary inquiry.

[46] Mr. English’s application alleges that the failure to acquire and preserve from destruction the video clip from the elevator camera showing the officers arriving on the 12th floor at 3:27 pm on July 15, 2020, amounted to unacceptable negligence on the part of police that has resulted in material prejudice to Mr. English’s right to make full answer and defence warranting the remedy of a stay of proceedings under s. 7 and s. 24(1) of the Charter.

[47] Mr. English was arrested within one or two seconds of the elevator door opening on the 12th floor of the apartment building. His arrest and search were recorded by the security video camera in the corridor located at or near the ceiling of the corridor and located about three apartment units down from the elevator lobby. The hallway camera does not afford a perfect view of the circumstances of Mr. English’s arrest – it is located high on the wall or on the ceiling of the hallway several apartments down the hall from the elevator lobby. Portions of the arrest were obscured for a few seconds while four other officers ran down the corridor and forced entry into the apartment. However, while distant, the images captured were of fairly high resolution and good quality.

[48] The one thing not captured by the hallway video was the first second of contact between Mr. English and the two arresting officers, D.C. Tsaturyan and D.C. Sljivo. The area immediately in front of the elevator doors where Mr. English was waiting for the elevator to arrive was not captured by this camera. It was during the initial moment of contact that D.C. Tsaturyan is alleged to have struck Mr. English on the head with his gun. D.C. Tsaturyan admitted that his gun was drawn in preparation for rushing into the apartment but said that he held it in his right hand, close to his chest, safely pointed down and under his full control. He said he kept his gun in that position while he used his left hand to assist D.C. Sljivo in gaining control of Mr. English and bringing him to ground.

[49] There were two elevators servicing that portion of the building located side-by-side. It is not clear which of the two were used by police to go up to the 12th floor. Each of the elevators is equipped with a video camera and indeed still shots from both are contained in the ITO. From those still shots it can be confidently asserted that the elevators are symmetrical twins of each other – one with the control panel to the left of the door and one with the panel to the right. The camera is also of fairly high quality, yielding good quality video and still screen captures.

[50] How likely is it that the missing video should have shown whether or not D.C. Tsaturyan hit Mr. English over the head with his gun in the first instant as he alleges?

[51] It seems likely that the elevator was the same (elevator #2) as was employed to take the two prisoners down to the lobby at 4:13 pm given the door to the left of the control panel and D.C. Tsaturyan’s evidence that he was standing before the control panel and reached for Mr. English’s right arm with his own left arm. However, nothing turns on which elevator was used as I have concluded that the images that would have been captured in either case would be effectively the same.

[52] The security camera in both elevators is contained high in the upper corner of the elevator facing the control panel offering only a high-angle and side view of the door and the corridor beyond. A review of Exhibit 2 as well as the two still photos from the ITO (Exhibit 3 and Exhibit 4) satisfies me that the elevator camera offers only a very limited view of the area beyond the elevator door.

[53] Mr. English was standing directly in front of the elevator door while waiting for the elevator to take him back to the lobby at 4:13 pm when the door to elevator #2 opened. The moment is well recorded on Exhibit 2. His head was not visible in the image until he took a further step forward and was inches from crossing the threshold into the elevator itself. Mr. English’s own evidence was that upon the elevator door opening at the moment of his arrest, he saw that it was full of police and took a step to the side and not forward. The hallway camera – albeit from a distance – shows Det. DiRenzo (a large man) exiting the elevator first a moment before Mr. English came into view already under the control of D.C. Sljivo and D.C. Tsaturyan.

[54] The likelihood that a side angle, downward-pointing camera at the upper rear of an elevator should have captured any relevant portion of the alleged actions of D.C. Tsaturyan vis-à-vis the head of Mr. English is low. The elevator was crowded with six large police officers preparing to surge forward. D.C. Tsaturyan was one of the smaller of the six and was at the front of the press of officers. Any view of the area beyond the door would have been obstructed by reason of that fact. Mr. English was outside the elevator. His head very probably would not have been visible at all when the doors opened at all events. I cannot exclude of course that some relevant information might have emerged from a close analysis of such a video clip, but the likelihood of it providing evidence decisive or even material to Mr. English’s excessive force application is not high.

[55] The potential probative value of the evidence not preserved is a factor in assessing the degree of negligence in the preservation of the evidence displayed by police. I find that potential to be on the low side given these circumstances.

[56] In my view, the failure to preserve this particular video clip cannot be ascribed to unacceptable negligence. Unacceptable negligence is a question to be considered in the full context of the circumstances as they existed at the time: R. v. Bero, 2000 CanLII 16956 (ON CA) at para. 34. There was no reason on July 15, 2020 for D.C. Caramanico to have expected that this particular clip was of any particular relevance beyond a vague “you never know what you’re going to need later” sense and, for the reasons mentioned above, the likelihood of the clip in question containing useful evidence of the point of contact in that first second is objectively relatively low.

[57] There were no circumstances present then or in the days following that would have elevated to the forefront the question of whether police had preserved evidence of the first second of contact between police and Mr. English. Mr. English made no contemporary complaint of having been hit over the head with a gun by anyone or of having received a cut on the top of his head as a result. D.C. Caramanico spent a lengthy period of time in the presence of Mr. English in the corridor waiting for the transport to arrive and rode down the elevator with him. He did not hear any such complaints or observe any signs of injury to Mr. English at that time. He did review the video clips showing Mr. English boarding the elevator and walking down the ground floor corridor when being conveyed to the transport wagon. That video provided a close shot of the top of Mr. English’s head that also shows no sign of any injury.

[58] D. C. Caramanico had reason to check the clips showing Mr. English in the moments leading to the package being discovered at his feet and he double-checked those two clips to be sure they were downloaded without error. He also made sure the hallway clip showing the arrest of Mr. English and the approach of the search team to the door of the apartment prior to executing the warrant was captured. He had no particular reason to double check every single clip of potential relevance even if he knew of the possibility of the occasional download error. A contemporary complaint by Mr. English would have elevated the missing clip from the realm of theoretically, potentially relevant to actually and immediately relevant and in plenty of time to have checked into it. There was no such complaint and D.C. Caramanico had no reason to anticipate it.

[59] I find no unacceptable negligence occurred in this case and the lost evidence application must also be dismissed.

(d) Delays in implementing Mr. English’s and Mr. Garcia’s rights to counsel: s. 10(b)

[60] The Crown has conceded the existence of a s. 10(b) breach arising from delays in the implementation of the rights to counsel for both Mr. English and Mr. Garcia.

[61] Mr. English was arrested at 3:27 pm and a transport wagon ordered by D.C. Caramanico within no more than about five minutes. He was given a caution and informed of his right to counsel within one minute. He advised police that he wished to speak to counsel. He was escorted out of the building to a police transport wagon at 4:15 pm. The transport wagon arrived at 11 Division and Mr. English was escorted into the booking hall at 5:02 pm. The booking process was completed and he was sent for a Level III search at 5:15 pm. When the search process was complete, Mr. English was escorted to a private interview room at 5:21 pm. He was not connected with his counsel via telephone until 5:55 pm. The total elapsed time from arrest to being placed in contact with counsel was thus just under 2.5 hours.

[62] The chronology in the case of Mr. Garcia is essentially the same until the two arrived at the station and is thereafter slightly longer, reflecting in part the fact that Mr. Garcia was processed in the booking hall behind Mr. English. Mr. Garcia was brought to the booking hall at 5:32 pm and was placed in the interview room after his Level III search ten minutes later at 5:42 pm. He was not placed in communication with counsel for approximately 50 minutes (at 6:29 pm). The total elapsed time from arrest to being placed in contact with counsel was thus almost exactly three hours.

[63] There is no dispute about the foregoing chronology and the Crown has admitted that it is unable to discharge its burden of explaining the delay satisfactorily. The issue must thus be considered through the lens of s. 24(2) of the Charter. To engage in that analysis, I must examine in somewhat greater depth the factors that contributed to this overall delay.

[64] In the circumstances of these two arrests, I am satisfied that there was no reasonable option available to police to implement the s. 10(b) Charter rights of both men prior to transporting them to the station.

[65] Both prisoners were arrested for possession for purposes of trafficking of what was believed to be cocaine and fentanyl. While both had been subjected to a search incidental to arrest, neither had received the type of thorough search that would take place at the station.

[66] The search incidental to arrest failed to bring to light the plastic shopping bag containing narcotics that is alleged to have been secreted inside Mr. English’s shorts on his left thigh, allegedly slipping down Mr. English’s shorts while he walked towards the transport wagon. There is good evidence to support this allegation that will be for the jury to assess at Mr. English’s trial. Instances of prisoners ingesting secreted narcotics at severe risk to themselves are not hard to imagine and have occurred.

[67] In situations similar to the present one, the risks of loss or destruction of evidence and the risks to prisoners in custody attendant upon leaving them with one or more free hands in a private location to speak to counsel on the phone before a thorough search for narcotics has been conducted are self-evident.

[68] At all events, there was no practical opportunity to offer a location of privacy outside the station. The internal corridor where Mr. Garcia and Mr. English waited was narrow and afforded no privacy. Police had valid reasons for wanting to keep the two out of the public areas of the complex where the risk of police being swiftly outnumbered by friends and colleagues of the two was judged to be a significant and material risk.

[69] A period of time was needed to secure the premises. The pandemic had caused temporary changes to police procedures which prohibited the use of marked police cruisers for transporting prisoners back to the station and which prohibited the advance booking of transport wagons. I am satisfied that a transport wagon was ordered as soon as reasonably practicable by D.C. Caramanico but the Crown has been able to shed no particular light on why it took as long as forty-five minutes to arrive. The time in transport from the scene of the arrest to 11 Division also appears slightly long given Toronto traffic patterns, the distance and time of day. Some or all of this may be ascribed to teething pains in adapting to post-pandemic procedures although this was several months into that process.

[70] I find that the delay between arrest and the arrival of Mr. English and Mr. Garcia at the station for booking has been reasonably explained save and except ten or twenty minutes. Each of the time for bringing the transport wagons to the building (about 45 minutes) and the time in transit to the station booking room (also about 45 minutes) seems about ten minutes too long and the Crown has been unable to unearth records to explain it. D.C. Caramanico thought the wait for the transport wagon was longer than it actually was but also agreed that it was somewhat longer than it would have been in pre-pandemic times. He also ascribed some of it to the in-process merger between 11 and 22 Division.

[71] The Crown has also failed to explain the reason for the more significant delay during the period of time the two spent in their respective waiting rooms prior to being connected to a call with their lawyer. Mr. English spent 35 minutes in the interview room before he was put on the phone with his lawyer. Mr. Garcia spent a longer period of time in the interview room (about fifty minutes).

[72] Turning to the s. 24(2) Grant[^2] analysis I consider first the seriousness of the breach.

[73] In my view, the seriousness of the breach must be considered in part in light of the cumulative delay that was steadily compounding. Both prisoners arrived at the station having already been under arrest and in custody for approximately 90 minutes without being permitted to exercise their s. 10(b) rights to consult counsel. While some of the delay was due to the nature and circumstances of the arrest and, to a degree, the extraordinary circumstance of the pandemic, some of it (about twenty minutes or so) remains unexplained.

[74] Even reasonable delay is delay. Whatever the reason for the delay, it seems to me logical to observe that the degree of urgency that attaches to discharging the continuing obligation to implement the s. 10(b) rights of an arrested person grows with each passing minute. The urgency may be comparatively light at the beginning of the delay process but grows ever more pressing and severe as time goes by. What may be reasonable at minute ten may become less so at minute 180.

[75] Instead of showing a recognition of the growing urgency of implementing this important right of these two arrested persons, police records fall utterly silent and offer no assistance in explaining why Mr. Garcia was left waiting about fifty minutes and Mr. English about 35 minutes for an already somewhat deferred obligation to facilitate consultation with their respective lawyers.

[76] While the impact must therefore be considered serious, other circumstances must also be brought to the table for consideration to assess the degree of seriousness in context.

[77] There is no suggestion that the delay in this case was intentional or systemic. Balls may have been dropped and records not kept, but the wheels of the custodial process continued to grind forward and did so in recognition of the existence of this undischarged duty. The prisoners were not taken to the general prisoner population after their booking. They were both placed in an interview room directly after their booking process was complete to facilitate access to counsel. This was not a Rover[^3] where implementation was intentionally delayed for an improper purpose.

[78] Also, without excusing the overall delay (three hours from arrest to implementation in the case of Mr. Garcia and just under 2.5 hours in the case of Mr. English) the unexplained portions of it are a comparatively small piece of the total delay picture.

[79] The evidence viewed as a whole satisfies me that the delay in this case was not an endemic or system-wide failure but an instance of a confluence of circumstances, the bulk of which are case-specific. It was however serious and the lack of adequate records to explain it precludes a finding of good faith efforts to comply.

[80] Considering the delay in context, I find that this first Grant factor tends to weigh towards exclusion of the evidence sought to be excluded but not strongly so. The total delay was, for example, less than what occurred in Hobeika[^4] and the period of time spent unattended in the interview room was considerably shorter than was the case in Noel[^5].

[81] I turn now to the second Grant factor: the impact of the delay on the Charter-protected interests of the two applicants. On balance, I find that the impact was minor.

[82] The “obtained in a manner” debate has been settled in this jurisdiction at least by the Court of Appeal’s decision in Pino[^6]. There is a temporal and contextual connection between the evidence sought to be excluded by both applicants and the police conduct which is part of the same chain of events applying the more generous view of “obtained in a manner” adopted in Pino. That does not mean that the degree of causal (as opposed to temporal) connection between the breach and the evidence sought to be excluded from evidence ceases to be a factor. In R. v. Pileggi 2021 ONCA 4, 153 O.R. (3d) 561 the Court of Appeal found that the lack of a causal connection is a factor that may be considered when examining the second test in the Grant analysis: Pileggi at para. 120.

[83] In the case of Mr. English, the evidence sought to be excluded is (i) the small quantity of fentanyl (1.39g) and $2,995 in alleged proceeds found on his person during the search incidental to his arrest; and (ii) the much larger quantity of fentanyl (92.6g) and cocaine (32.53g) found in the package on the main floor hallway floor alleged to have fallen from Mr. English’s shorts while being conducted to the transport wagon.

[84] Three is no causal connection between any of these items and delays in implementing Mr. English’s right to counsel. The two are temporally and contextually connected per Pino, but they are not causally connected in fact.

[85] In the case of Mr. Garcia, the evidence sought to be excluded includes (i) the cash ($1,970.60) found on his person during the search incidental to arrest, and (ii) the fentanyl (31.05g), cocaine (18.25g) and cash ($105.05) found in his satchel during the search of his apartment under the warrant.

[86] As with Mr. English, there is no causal connection between any of these items and the breach of Mr. Garcia’s s. 10(b) rights. In neither case was there a reasonable prospect of having implemented the s. 10(b) rights of the accused prior to the discovery of the evidence sought to be excluded. The evidence sought to be excluded cannot reasonably be described as the fruit of a tainted tree because all of it came to light before the breaches of s. 10(b) occurred.

[87] On the other hand, there is no evidence of the kind of diligence in keeping the prisoner informed of progress as was present in Pileggi. There is nothing to suggest deliberate misconduct but good faith has not been established either.

[88] On balance I find that this second Grant factor does not favour exclusion of the evidence.

[89] I turn now to the third Grant factor.

[90] Absent the evidence of the controlled substances and alleged proceeds sought to be excluded, a hearing of the charges on the merits would be all but impossible. The truth-seeking function of the trial process would very clearly be enhanced by the introduction of this evidence.

[91] The crimes in question involve possession for the purpose of trafficking of an exceptionally deadly narcotic – fentanyl – that has taken a terrible toll upon society and ranks as one of the top causes of death in young people in this community. Exclusion of this evidence would tend to bring the administration of justice into disrepute.

[92] Finally, viewing the longer-term reputation of the administration of justice as a whole, the use of the impugned evidence would not bring the administration of justice into disrepute. As noted, the failings in this case were fact-specific not endemic and had no causal role in the discovery of the evidence sought to be excluded.

[93] This third Grant factor strongly weighs against exclusion.

[94] Considering the three Grant factors together, I find that the balancing exercise does not favour exclusion of the evidence obtained. It will be for the trial judge to determine what weight, if any, ought to be accorded to the factor of the admitted s. 10(b) breaches in the sentencing of either or both accused in the event the jury finds either or both guilty on any of the charges pending.

(e) Unlawful arrest and search - Mr. Garcia (s. 8 & 9 Charter)

[95] Before entering the apartment to execute the search warrant, D.C. Hogg had already concluded that Mr. Garcia was arrestable upon entry in the apartment for the crime of possession for the purpose of trafficking. He reached that conclusion based on the information he had received regarding Mr. Garcia and the warrant he was about to execute up until that point. That information included the briefing conducted by D.C. Caramanico less than two hours before which included information that Mr. Garcia had been captured on video engaging in trafficking transactions the prior day and that narcotics were believed to be located inside the apartment. He had read the warrant but not the ITO, relying upon the briefing from D.C. Caramanico about the ITO’s contents. The warrant specified the offence for which evidence was being sought: possession of cocaine for the purpose of trafficking by Mr. Garcia. He also learned of the presence of Mr. English in the apartment and saw Mr. English being arrested outside the elevator door as he was exiting the elevator. In addition to the information learned from D.C. Caramanico, D.C. Hogg had also been made aware by D.C. Sljivo of information that the latter possessed concerning Mr. Garcia’s involvement in the trafficking business.

[96] Immediately upon entering the apartment, the search team fanned out. D.C. Hogg headed towards the bathroom off the living room area where Mr. Garcia was discovered standing. D.C. Hogg proceeded immediately to take control of Mr. Garcia, bringing him to ground in a controlled fashion and applying handcuffs to his wrists behind his back.

[97] After applying the handcuffs, Mr. Garcia was brought to his feet by D.C. Hogg. The total elapsed time to this point was little more than about a minute from the time of initial entry.

[98] Upon standing Mr. Garcia up against the wall, D.C. Hogg undertook a safety pat-down search of Mr. Garcia looking for weapons. No weapons were found but a large quantity of cash was found in his pockets. This was removed from his pockets and placed on the floor in front of his feet. The amount was later determined to be $1,970.60.

[99] From the point that he first put hands on Mr. Garcia and began to bring him to ground, D.C. Hogg was clearly intending to arrest Mr. Garcia and was taking steps to do so based on the grounds he had for arresting Mr. Garcia that he learned prior to entry into the apartment. However, to the point where Mr. Garcia was brought to his feet and D.C. Hogg began the safety search, he had not yet informed Mr. Garcia of the reason for his arrest. While conducting the search, D.C. Hogg learned that a large quantity of narcotics had been found in the living room. D.C. Hogg then advised Mr. Garcia that he was under arrest for possession for the purpose of trafficking and possession of proceeds of crime.

[100] Mr. Garcia was given a caution and informed of his rights to counsel. Shortly afterwards, he was conducted out to the hallway to wait with Mr. English for a transport wagon to arrive to take both of them to 11 Division for processing.

[101] Mr. Garcia’s position regarding the alleged breaches of s. 9 and s. 8 of the Charter may be summarized as follows. D.C. Hogg lacked reasonable grounds to arrest him for possession for the purpose of trafficking at the point where he was arrested. Lacking reasonable grounds for a warrantless arrest under s. 495(1)(a) of the Criminal Code, the arrest was presumptively arbitrary and contrary to s. 9 of the Charter. The mere fact that police were executing a CDSA search warrant in relation to the premises does not lead to any presumption that police also possessed reasonable grounds to arrest persons found inside the premises: R. v Lacroix, 2016 ONSC 3052 at para. 52-54. The grounds for arrest advanced by D.C. Hogg did not confer reasonable grounds to arrest for possession for the purpose of trafficking. Mr. Garcia was not arrested for trafficking but for possession for the purpose of trafficking which is a different offence and D.C. Hogg had no information that Mr. Garcia had been seen in possession of controlled substances or that he had been seen transferring possession of such substances.

[102] There is simply no merit to the position advanced by Mr. Garcia.

[103] I shall not re-analyze the evidence assembled in the ITO and learned during the course of that morning. While the ITO was for the purpose of obtaining a warrant to search premises for evidence of the commission of a crime and not for the purpose of arresting Mr. Garcia, the combination of the warrant, the summary of the ITO conveyed to D.C. Hogg by D.C. Caramanico during the briefing, the information learned from D.C. Sljivo regarding the connection of Mr. Garcia to the trafficking business and the information learned on arrival at the building regarding the presence of Mr. English provided reasonable grounds to conclude:

a. That there were controlled substances inside the apartment;

b. That Mr. Garcia was operating a trafficking business and doing so from that apartment;

c. That the controlled substances reasonably believed to be found inside the apartment were evidence of the commission of the crime of possession for the purpose of trafficking by Mr. Garcia;

d. That Mr. Garcia had been captured on video two times in the previous day engaging in trafficking in controlled substances.

[104] “Reasonable grounds” under s. 495(1)(a) of the Criminal Code does not require possession of evidence sufficient to secure a conviction beyond reasonable doubt. Grounds arise from a variety of sources: information from colleagues, information from informants, personal observations, hearsay information, etc. The evidence that had been assembled from the described sources (analyzed elsewhere in these reasons and in my Garafoli ruling) went far beyond a mere suspicion or hunch. In particular, the distinction Mr. Garcia’s counsel sought to draw between trafficking and possession for the purpose of trafficking is a specious one when applied to the question of the existence of reasonable grounds for arrest. The person who sells controlled substances to another is engaged in trafficking. However, that person also possesses the controlled substance for the purpose of trafficking an instant before possession changes hands.

[105] Mr. Garcia could have been arrested outside the apartment for possession of cocaine for the purpose of trafficking that day even if the prudent decision was taken to defer arresting him until he was found in the apartment in the expected presence of further evidence. D.C. Hogg had reasonable grounds to arrest Mr. Garcia for possession for the purpose of trafficking prior to learning of the outcome of the search of the apartment. The evidence amply demonstrates that the subjective and the objective aspects of the test under s. 495(1)(a) of the Criminal Code were both satisfied at the time of Mr. Garcia’s arrest.

[106] This aspect of Mr. Garcia’s application must be dismissed.

(f) Application of Mr. Garcia pursuant to s. 10(a) Charter

[107] Mr. Garcia’s application pursuant to s. 10(a) of the Charter is premised upon the delay between the time of Mr. Garcia’s arrest and the time when Mr. Garcia was advised that his arrest was for the crimes of possession of controlled substances[^7]. D.C. Hogg did not inform Mr. Garcia of the reason for his arrest until after the safety search described above had been completed. The time from when D.C. Hogg first put his hands upon Mr. Garcia until he told him of the reason for his arrest was less than ninety seconds.

[108] Upon his arrest, Mr. Garcia had the right to be informed “promptly” of his arrest and the reason for it: Charter s. 10(a). Mr. Garcia submits that the less than 90 second delay between initiation of arrest and compliance with s. 10(a) in this case resulted in a failure to inform him “promptly” resulting in a breach of his s. 10(a) rights.

[109] I do not agree for the following reasons:

a. Mr. Garcia was advised prior to his arrest that the people who had forced entry into the apartment where he was otherwise the only person present were police acting under a search warrant;

b. It was reasonable for D.C. Hogg to give priority to ensuring that Mr. Garcia was safely detained, a process that included taking control of Mr. Garcia, securing his wrists behind his back with handcuffs, bringing him safely to his feet and conducting a preliminary pat-down check to ensure no weapons or other items potentially compromising safety was on his person;

c. The foregoing process of detaining Mr. Garcia safely took less than 90 seconds; and

d. During the course of securing the situation, D.C. Hogg learned additional information (including the cash found on Mr. Garcia’s person) which he incorporated into the arrest information conveyed at that time.

[110] The s. 10(a) information obligation does not require that safety of the suspect, officers or bystanders be put at risk in discharging this important constitutional obligation. The requirement of “promptly” does not preclude a reasonable window of opportunity to secure the scene from a safety perspective. The purpose of s. 10(a) - advising the accused why his or her liberties are being interfered with and informing the accused of the nature and degree of the jeopardy so as to permit the meaningful exercise of rights under s. 10(b) – is in no way compromised by the sequence of events followed in this case.

[111] I find that Mr. Garcia was promptly advised of the reason for his arrest and his rights to be so advised were accordingly not violated. This aspect of Mr. Garcia’s application must be dismissed.

Disposition

[112] Accordingly, I dismissed the applications of Mr. Garcia and Mr. English. With the exceptions of the admitted breaches of s. 10(b) of the Charter, I found none of the other alleged breaches to have been made out. In the case of the admitted s. 10(b) breaches, I found that the circumstances did not warrant the exclusion of any evidence under s. 24(2) of the Charter. However, nothing in my ruling precludes an eventual sentencing judge from taking the admitted breaches of s. 10(b) into account at that stage of the trial should it ever be reached.

S.F. Dunphy J.

Date: December 23, 2022

[^1]: Det. DiRenzo, as a detective, was equipped at the time with a taser which he drew prior to entry into the apartment.

[^2]: R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353.

[^3]: R. v. Rover, 2018 ONCA 745

[^4]: R. v. Hobeika, 2020 ONCA 750

[^5]: R. v. Noel, 2019 ONCA 860

[^6]: R. v. Pino, 2016 ONCA 389

[^7]: It is not particularly clear whether D.C. Hogg specified that Mr. Garcia was under arrest for possession of cocaine for the purpose of trafficking or whether he was that he was under arrest for possession of cocaine and fentanyl for the purpose of trafficking. Nothing is alleged to turn on whether the additional information was initially provided.