COURT FILE NO.: CR-22-00000014-0000 DATE: 2023-06-30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JONATHAN SAMUEL

Counsel: Jordan Tekenos-Levy for the Crown Daniel Molloy, for the Accused

HEARD: January 5, 6, 7 and 8, 2023

Ruling on Mistrial and Charter Applications and Reasons for Judgment

MUSZYNSKI J.

Introduction

[1] Police were called to a Kingston hotel following reports of a violent domestic disturbance in one of the guest rooms. Officers were directed to a room on the 8th floor by hotel staff where they found a female in distress and the accused, Jonathan Samuel. Confronted by the police, Mr. Samuel threw a small bag containing fentanyl and cocaine worth thousands of dollars off the balcony to the street below. It was not his room. He was trespassing. At trial, Mr. Samuel maintained that the police breached his Charter rights and that, in any event, he did not know what was in the bag as the drugs belonged to one of his best friends, Roy Snyder.

[2] Mr. Samuel is charged with possessing fentanyl and cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), obstructing a peace officer, and unlawful entry into a dwelling-house.

[3] Mr. Samuel is also charged with various breaches of a release order and breach of a probation order. The Crown acknowledged that there was no reasonable prospect of conviction with respect one of the breach counts and, accordingly, requested that Count 5 be dismissed. There was a concession that Mr. Samuel was subject to release and probation orders at the material time and that the evidence at trial establishes that he was in breach of those orders. I therefore find Mr. Samuel guilty with respect to Counts 6, 7, and 8.

[4] The remaining counts on the indictment are, on or about the 10th day of June 2021 at the City of Kingston in the East Region Jonathan Samuel:

Count 1: did willfully obstruct Ian Miller, a peace officer in the execution of his duty, contrary to Section 129 (a), of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

Count 2: did without lawful excuse enter a dwelling-house situated at 809-285 King Street East, with intent to commit an indictable offence therein, contrary to Section 349(1) of the Criminal Code.

Count 3: unlawfully did, for the purpose of trafficking, possess a substance included in Schedule I of the CDSA, to wit: Fentanyl, contrary to section 5(2) of the said Act, thereby committing an indictable offence under section 5(3)(a) of the said Act.

Count 4: unlawfully did, for the purpose of trafficking, possess a substance included in Schedule I of the CDSA, to wit: Cocaine, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under section 5(3)(a) of said Act.

[5] The Crown called the following witnesses: a. Anita Shah: a guest at the hotel in Room 809 who initiated a complaint to the front desk about the concerning noises coming from the next room; b. Police Constable Evan Bates: the investigating officer present at the hotel; c. Police Constable Ian Miller: an officer present at the hotel; d. Police Constable Mariah Bouwer: an officer present at the hotel; and e. Robert Hethington: the night auditor at the hotel.

[6] The defence called the following witnesses: a. Roy Snyder: Mr. Samuel’s friend who claims to have been with Mr. Samuel at the hotel and to be the owner of the drugs; b. Tasha Lalonde: Mr. Samuel’s romantic partner present at the hotel.

[7] The following admissions were made at the outset of trial: a. Identity; b. Date and time of the incident; c. Jurisdiction; d. Drug certificates and continuity; e. That possession of the drugs (if possession can be established), was for the purpose of trafficking (i.e. the admission of the Crown expert report and the credentials of Detective Constable Michel Deyell); f. Cell phone extraction data; g. Photos taken by P/C Bates and P/C Miller; h. That at the time of this incident, Mr. Samuel was on a release order.

[8] Further, it is not disputed that Mr. Samuel had an expectation of privacy in the hotel room and that police did not have a warrant when they entered the hotel room.

[9] On the second day of trial, an application for a mistrial was brought by Mr. Samuel alleging reasonable apprehension of bias. After reviewing the material and hearing submissions, I dismissed the application and the trial continued. I advised the parties that I would release written reasons for dismissing the mistrial application following the trial.

Lack of Voluntariness Voir Dire

[10] According to police, Mr. Samuel engaged in a brief conversation with P/C Miller at the hotel leading up to his arrest. Some of Mr. Samuel’s comments to police could be viewed as exculpatory, while others could be viewed as inculpatory. At the trial, there was no express waiver of a voluntariness voir dire or agreement that voluntariness was not in issue.

[11] Counsel addressed the issue in court following the trial at my request. At that time, Mr. Samuel confirmed that voluntariness was not an issue and expressly waived the requirement of a voir dire.

Issues

I. Should a mistrial have been granted due to reasonable apprehension of bias?

II. On the Charter application, I must determine: a. Does Mr. Samuel have standing to raise a Charter challenge with respect to the fentanyl and cocaine that were discovered in the toiletry bag after it was thrown off the balcony? b. Were Mr. Samuel’s s. 8 rights infringed when police entered his hotel room without a warrant? c. If so, should the evidence obtained following the illegal entry be excluded pursuant to s. 24(2) of the Charter?

III. On the trial proper, I must determine: a. Has the Crown proven that Mr. Samuel was in possession of the fentanyl and cocaine beyond a reasonable doubt? b. Has the Crown proven that Mr. Samuel is guilty beyond a reasonable doubt of obstructing a peace officer by misleading P/C Miller as to why he was on the balcony of Room 809? c. Has the Crown proven that Mr. Samuel is guilty beyond a reasonable doubt of unlawfully entering the balcony of Room 809?

Positions of the Parties

[12] The Crown submits that it is open to the court to find that Mr. Samuel has no standing to bring the Charter application because he forfeited his expectation of privacy when he abandoned the bag of drugs by throwing it onto a public street. Regardless, the Crown submits there is no Charter breach because the evidence establishes that exigent circumstances existed when police entered the hotel room without consent or a warrant.

[13] On the trial proper, the Crown submits that there are serious credibility issues with Mr. Snyder’s testimony. It also submits it has proven that Mr. Samuel had knowing possession of the fentanyl and cocaine beyond a reasonable doubt and that Mr. Samuel is guilty beyond a reasonable doubt of the remaining counts.

[14] The defence submits that Mr. Samuel has standing to bring the Charter application and that the principle of abandonment does not apply in these circumstances. Further, the defence submits the Crown has failed to demonstrate that there were exigent circumstances for the police to enter the hotel room without a warrant and that any evidence obtained following the illegal entry should be excluded.

[15] On the trial proper, the defence takes the position that the Crown has not proven Mr. Samuel had knowing possession of the drugs found in the toiletry bag, considering Mr. Snyder’s evidence claiming the drugs were his and stashed on the balcony without Mr. Samuel’s knowledge.

Evidence at Trial

The evening of June 9, 2021

[16] Tasha Lalonde testified that she started dating Mr. Samuel in May of 2021. On June 9, 2021, Ms. Lalonde, Mr. Samuel, and his surety at the time, Pat Cosgrove, were staying at the Four Points Sheraton Hotel in Kingston. Earlier that evening, a group of people — including Ms. Lalonde, Mr. Samuel, Ms. Cosgrove, Mr. Snyder (Ms. Lalonde’s uncle and Mr. Samuel’s friend), one of Mr. Snyder’s friends, and Jamie Stokes (Mr. Snyder’s wife) — all went to a restaurant for dinner. According to Ms. Lalonde, the group returned to the hotel room to have more drinks and socialize. Ms. Lalonde knew that her aunt and uncle had been drug users in the past, but did not see them with drugs that evening, nor did she see any drugs in the hotel room. By approximately midnight, everyone had left the hotel room except Ms. Cosgrove, Mr. Samuel, and herself. Ms. Lalonde testified that she was drinking but was not doing drugs, aside from smoking marijuana.

[17] Roy Snyder testified that Mr. Samuel is one of his best friends and that he has known him for approximately 2-3 years. Mr. Snyder is currently in custody at Quinte Detention Centre awaiting trial on a second-degree murder charge. His criminal record, which includes 43 prior convictions, was entered into evidence. Mr. Snyder testified that he is currently housed on the same range as Mr. Samuel at Quinte Detention Centre and had talked to him as recently as the morning when he testified.

[18] Although he could not recall the specific date, Mr. Snyder did remember arranging to meet up with his niece, Tasha Lalonde, about a year and a half ago at a hotel in Kingston for some drinks and to provide Ms. Lalonde with some “party favours”. It was his wife that communicated with Ms. Lalonde as he did not own a cell phone himself. Mr. Snyder testified that by “party favours”, he means crack. Earlier that day, Mr. Snyder claims that he picked up large amounts of fentanyl and cocaine, which he was both selling and using. At approximately 10:00 p.m., he recalls getting to the hotel, although he cannot recall which hotel, with his wife. He recalls being afraid to go inside because he observed a police SWAT vehicle in the parking lot. Since he had been consuming drugs, and had drugs with him, this made him apprehensive. Mr. Snyder testified that the value of the drugs in his possession at the time was between $20,000 - $25,000 and included approximately 4.5 ounces of cocaine and just under 2.5 ounces of fentanyl.

[19] Mr. Snyder’s evidence is that his wife pressured him to enter the hotel, which he did. When they got up to the room, he went out on the balcony with his wife for a cigarette. He was still paranoid and concerned about the police outside. His wife suggested that he take the drugs, which were contained in what he described as a tan carry-all bag and hide them on the balcony of the neighbouring hotel room, which appeared to be empty. According to Mr. Snyder, he listened to his wife and stashed the bag on the next balcony, which was separated from Mr. Samuel’s balcony by a median.

[20] Mr. Snyder testified that over the next hour, he socialized in the hotel room with his wife, niece, and Mr. Samuel. He did not consume any drugs at the hotel but did drink approximately four rye and cokes. At around 11:00 p.m., he took the hint from Mr. Samuel that it was time to go and left with his wife, forgetting the drugs on the next balcony.

[21] Anita Shah was in Kingston working as an extra on a movie shoot and was staying in Room 809 at the Four Points by Sheraton on the evening of June 9, 2021. Although she cannot recall exactly, she believes she would have gone to bed around 11:00 p.m. on the night of June 9, 2021.

Disturbance in Room 808

[22] Ms. Shah testified that she was woken up around 4:30-4:45 a.m. on June 10, 2021 by noise coming from next door – Room 808. She described a loud argument between a male and female about infidelity as well as banging against the wall and cries from the female to “stop”. Ms. Shah called down to the front desk and explained to the hotel employee that she was afraid for the female in the room next door and asked that the police be called.

[23] Mr. Hethington was the only hotel employee working on the overnight shift when Ms. Shah called the front desk. In response to the call, Mr. Hethington went up to Room 808 and knocked at the door. He testified that a male (confirmed to be Mr. Samuel) opened the door slightly. Mr. Hethington explained that there had been a noise complaint. Mr. Samuel, who appeared to be uninjured, calm, and collected, told Mr. Hethington that his girlfriend had been drinking and was emotional. Mr. Hethington did not see the female occupant, nor was he invited inside the room. He did, however, hear a female crying inside.

[24] After his brief conversation with Mr. Samuel, Mr. Hethington walked down the hallway, stopped, and listened. He heard an argument coming from Room 808 and heard a female yelling “leave me alone”. He decided to contact the police. Upon his return to the front desk, the phone was ringing – it was Ms. Shah. She said the arguing next door had escalated and that she was afraid for the female in the room, who she thought might be killed.

[25] Ms. Shah testified that she made a second call to the front desk because she continued to worry about the safety of the female next door.

[26] After speaking to Ms. Shah for a second time, Mr. Hethington called 911. Within several minutes, the police arrived at the hotel.

[27] Ms. Lalonde testified that she had been crying briefly, for about two minutes, earlier in the evening after receiving a rude text message from an ex. She testified that when the hotel employee came to the room about the noise complaint, both she and Mr. Samuel came to the door. Ms. Lalonde testified that she had heard another couple on their floor arguing earlier that night and suggested that could have been the disturbance others had heard. By this time, Ms. Lalonde testified that Pat Cosgrove had left the hotel room to get food.

Police arrive at the hotel

[28] On June 10, 2021, at approximately 5:09 a.m., P/C Bouwers, P/C Bates, and P/C Hollingsworth, arrived at the lobby of the hotel. P/C Miller arrived a few minutes later. Their attendance was prompted by a call from dispatch about a possible domestic disturbance in one of the hotel rooms.

[29] The police officers testified that, after speaking to Mr. Hethington, they understood that a hotel guest reported hearing a physical altercation between a male and female in Room 808, including the female begging someone to “stop”. Police were told that Mr. Hethington had gone up to Room 808 and interacted with the male, that the male was uninjured and had reported that his girlfriend was just drunk and emotional. Mr. Hethington informed police that he heard a female crying inside Room 808. Mr. Hethington gave the police a master key card that would allow them entry to any room.

Police door knock at Room 808

[30] P/C Bates, P/C Bouwers, and P/C Hollingsworth, all in uniform, approached Room 808 together. None of the officers heard any sort of disturbance in Room 808 as they approached, although they heard shuffling coming from inside.

[31] P/C Bates testified that he knocked on the door of Room 808 and waited. Because there was no response right away, he announced that he was a police officer and was going to enter. A female eventually opened the door.

[32] P/C Miller testified that he observed the other officers knocking at the door of Room 808 when he got off the elevator. He heard the officers announce themselves as police and a female voice from inside the room say: “I’m coming”. He then observed a female open the door.

[33] P/C Bouwers testified that P/C Bates knocked at the door of Room 808. She cannot recall if they announced that they were police but recalls that, after about a minute of knocking, a female opened the door.

[34] Ms. Lalonde testified that she was engaged in sexual intercourse with Mr. Samuel when the police knocked at the hotel room door. She believes that the police identified themselves when they knocked. It took her a few minutes to open the door for police as she had to look for clothing.

Police discussion with Ms. Lalonde at the door and entry into Room 808

[35] P/C Bates, P/C Miller, and P/C Bouwers each testified that when Ms. Lalonde came to the door, she had red, puffy eyes, and appeared to have been crying.

[36] P/C Bates testified that because of the report from Mr. Hethington, and his observations of Ms. Lalonde, he was concerned for her safety, or thought that perhaps she had done something wrong to someone inside the room. He felt he needed to interact with, and identify, the male party to get more information. As the male was not presenting himself at the door, P/C Bates decided to enter the room. P/C Bates does not recall Ms. Lalonde either inviting him into the room or blocking him from entering, but he remembers entering the room moments after Ms. Lalonde opened the door. He also recalls Ms. Lalonde saying something about loud sexual intercourse as he was entering the room, but he did not accept this explanation. As he entered the room, he again announced “police”.

[37] P/C Miller testified that when Ms. Lalonde opened the door, she looked emotional and distraught, like something bad had happened. She had a hard time explaining what was happening but was able to relay, with significant emotion, that there was a man in the room with her and there was no abuse taking place, just loud sexual intercourse. Given the information that he had obtained from the hotel staff, that there was a woman begging for someone to “stop”, coupled with his observations of Ms. Lalonde, P/C Miller felt that there was something more going on and he needed to investigate to make sure everyone was safe. After approximately a minute or two of engaging with Ms. Lalonde at the door, P/C Miller testified that he and P/C Bates entered the room. Ms. Lalonde did not invite them into the room, but when they explained that they needed to speak with the man she was with, she seemed to understand and did not stop them from entering. He believes that as they entered the room, they called out “police”, but he cannot be certain.

[38] P/C Bouwers testified that by virtue of Ms. Lalonde’s appearance and demeanour, coupled with the information received from hotel staff, she believed that some sort of domestic dispute had taken place inside Room 808. P/C Bouwers did not accept Ms. Lalonde’s explanation that the sounds from the room were loud sex. She did not feel she was getting the full story from Ms. Lalonde. While she was talking to Ms. Lalonde, P/C Bates and P/C Miller entered the hotel room to try and locate the male and were calling out to him.

[39] All three police witnesses testified that it is standard protocol to interview the individuals involved separately when responding to what may be a domestic dispute.

[40] Ms. Lalonde testified that opening the door and seeing between 4-6 police officers caused her to cry and go into shock. She explained to the officers that she was just having loud intercourse and that her partner was in the bathroom, but after two minutes or so of talking to them, two of the officers pushed passed her and entered the room anyway. They did not seem to want to listen to her story. Ms. Lalonde’s evidence is that her eyes may have been red and puffy from smoking marijuana and drinking, but that she was not upset.

[41] All three police witnesses agreed in cross-examination that having police knock at your door in the middle of the night could be traumatic and cause someone to experience distress, or even to cry.

Police discovery of Mr. Samuel on Room 809 balcony

[42] P/C Bates and P/C Miller could not find the male occupant in Room 808. He was not in the bathroom as Ms. Lalonde reported. P/C Miller opened the door to the balcony and noticed a male, Mr. Samuel, on the neighbouring balcony that appeared to be hiding. P/C Miller testified that Mr. Samuel reported being on balcony to pray. Suspecting that he was not being honest, P/C Miller suggested that Mr. Samuel go back inside his room. Mr. Samuel tried to open the door to Room 809, but it was locked. Mr. Samuel claimed his wife was inside the room sleeping, which P/C Miller did not accept.

[43] P/C Miller spotted a bag on the floor of the balcony of Room 809 and asked Mr. Samuel to explain what it was and what it was doing there. Mr. Samuel denied knowing who the bag belonged to and what was in it, and got increasingly agitated, and uncommunicative. Mr. Samuel picked up the bag and “frisbee tossed” it to the street below and put his leg over the balcony, like he was going to jump over, when he was pulled inside by P/C Bouwers.

[44] After P/C Bouwers learned that the male was on the balcony of Room 809, she gained entry to Ms. Shah’s room, opened the balcony door, and observed Mr. Samuel throw something off the balcony. She pulled him back inside the room.

[45] Ms. Shah heard someone on her balcony that was trying to get inside. Police knocked on her door, entered her room, opened the balcony door, and pulled in the man who had been on her balcony without her consent.

The toiletry bag of drugs

[46] Photographs of the toiletry bag of drugs was entered into evidence. The white/cream coloured toiletry bag has see-through, plastic windows on the sides and contained $170 in Canadian currency (including older bills), and various plastic baggies containing fentanyl and cocaine. The toiletry bag is only slightly longer than the length of the Canadian bills that were contained inside.

[47] Mr. Snyder described the bag initially as a “carry-all” or “knapsack” that was large enough to carry clothing. Testifying nearly two years after the event, he recalled almost the exact amount of fentanyl and cocaine that was in the bag; however, he could not recall the colour of the fentanyl but suspected it was either blue or purple, because that is what he usually purchased. Mr. Snyder’s evidence is that he can recall the precise amounts of drugs in the bag because he purchased a larger quantity than usual and still had not paid his dealer in full. He testified that there was cash in the bag, including old bills that he had wanted to keep for his children. His evidence was that there was approximately $700 in cash in the bag.

[48] Ms. Lalonde believes that her uncle had an over-the-shoulder tan bag with him when he came to the hotel but cannot recall specifically, nor can she recall whether he left with the bag or not. The bag that Mr. Snyder usually carried, according to Ms. Lalonde, did not have a see-through panel on it.

The cell phone

[49] Mr. Samuel had a cell phone in his hand when he was pulled off the balcony of Room 809. The cell phone was seized by police. A warrant was obtained to extract the data from the phone. The extracted data was entered into evidence on consent and revealed the following: a. a Tinder user account accessed on the phone was registered using an email associated with Mr. Samuel; b. a Facebook Messenger account accessed on the phone was registered to Mr. Samuel; c. a Facebook account accessed on the phone was registered to Mr. Samuel; and d. one of the contacts listed in the phone is “Jamie & Roy”.

[50] The cell phone extraction report revealed text messages from June 9 and 10, 2021 between the owner of the phone and other parties that are consistent with illicit commercial transactions. For example, the phone received a text message on June 9, 2021 at 10:01 p.m. that said: “I have $80 on me n someone stole some shot off me late-night if u can help me out this one last time I will not duck it up I’m still trying to get more cash I’m waiting for a friend to go with me to collect”. A few minutes later, a response said: “I’ll do 5 pts for 80.”

[51] Further, there is a text message exchange, also commercial in nature, arranging a meeting in Room 808 at the Four Points Sheraton just after 4:00 a.m. on June 10, 2021.

[52] Ms. Lalonde testified that she had her own phone on the night of June 10, 2021.

I. Mistrial Application

Background

[53] At the outset of trial, counsel filed a document titled “Admissions” as the first trial exhibit. The document contained a heading titled “Proposed Order of Witnesses”. One of the proposed Crown witnesses for the second day of trial was Tasha Lalonde. Next to Ms. Lalonde’s name was a comment: “not currently subpoenaed, despite attempts”.

[54] During the testimony of a police witness, Ms. Lalonde walked into the courtroom. Since Ms. Lalonde was listed as a proposed Crown witness, she was asked to vacate the courtroom and remain in the hallway given that I had made an order excluding witnesses.

[55] After the police witness’s testimony was concluded, I asked if the Crown intended to call Ms. Lalonde earlier than planned since she was present at the courthouse and because there had been issues with service. The Crown said it would no longer be calling Ms. Lalonde to give evidence.

[56] In response to the Crown’s announcement, Mr. Samuel immediately summonsed his lawyer closer to speak with him.

[57] The trial continued with the Crown’s final police witness. After the examination-in-chief, counsel for Mr. Samuel advised the court: “…just in advance of cross-examination, I need to speak with Mr. Samuel on something, down in the cells. I anticipate that it is going to take a little bit longer than my previous discussions with him, and I know this is the second time that I’m asking for the court’s patience, but I just note that we’re on the first witness of the second day… So, I’m in the court’s hands…” Counsel for Mr. Samuel then noted “[a]nd I’m cognizant that court time is very valuable, and we should utilize it fulsomely. It’s just there is something I need go…”

[58] I provided counsel with a 20-minute break to speak with his client and indicated that if they required more time, I would be amendable to breaking early for the day. After the 20-minute break, counsel for Mr. Samuel stated as follows: “[s]o, I have had a chance to start my review with Mr. Samuel, but given some other circumstances this afternoon, I think it may make some sense, given that we do have some extended time, to return tomorrow.”

[59] Prior to concluding for the day, I asked counsel if there was anything else we could accomplish. Besides making a request that I assist getting Mr. Samuel a proper meal on his return to the institution, nothing else was raised.

[60] Not knowing the nature of the issue that precipitated the request to break early for the day and concerned about the prospect of a mistrial or an adjournment request breaking up the trial schedule, I emailed the registrar and requested that she inform counsel, after I left the courtroom, that there were other judges in the building in case they wanted to speak with any. I am advised that the registrar relayed this information to counsel after Mr. Samuel had been brought out of the courtroom.

[61] At the outset of the second day of trial, a mistrial application was brought by Mr. Samuel alleging that my comment about there being other judges in the building available to speak with counsel was inappropriate and raised the appearance of unfairness. Mr. Samuel submits that the only inference that could have been drawn from my comment was that this was a case that should be resolved. Mr. Samuel further submits that “the precise leaning of the Court on the issues is not known” but that the “implied suggestion that the parties look towards a resolution reasonably suggests that an acquittal is not an option for this court” and a mistrial is required. The Crown did not take a position on the mistrial application.

Analysis

[62] To be successful on the mistrial application, Mr. Samuel must prove, on a balance of probabilities, that I have demonstrated a reasonable apprehension of bias such that the only remedy must be a mistrial.

[63] Mr. Samuel relies on the following cases to support his submission that a mistrial is the only appropriate remedy: a. R. v. Lyttle (2005), 202 C.C.C. (3d) 549 (Ont. C.A.), where a trial judge made comments during the trial that he believed the complainant prior to hearing evidence from the accused or submissions regarding the complainant’s credibility; b. R. v. Hargraves (1982), 69 C.C.C. (2d) 380 (Ont. C.A.), where the Court of Appeal ordered a new trial because of comments made by the trial judge during a directed verdict application that he had reasonable doubt as to the guilt of the accused; c. Regina v. Roy (1976), 32 C.C.C. (2d) 97 (Ont. C.A.), where, after only hearing from a few Crown witnesses, the trial judge called counsel into chambers, commented on the quality of the evidence, and initiated plea discussions; d. R. v. S.M., 2022 ONCA 765, 164 O.R. (3d) 561, where a trial judge held a meeting with counsel in chambers, in the absence of the accused, and commented on the quality of the evidence and negotiated a resolution, without the accused’s knowledge; e. R. v. Netchaev, [2005] O.J. No. 1688 (Ont. S.C.), where the trial judge allowed a mistrial application after inviting counsel into chambers, mid-trial, and made comments concerning credibility issues of witnesses on both sides.

[64] Unlike the cases relied on by Mr. Samuel, I did not make any comments about the evidence at trial, I did not direct counsel to attend before a fellow justice, nor did I initiate chambers discussion with counsel, or negotiate a resolution.

[65] The context of what occurred on the first day of trial is critical: a. Defence counsel requested a 15-minute extension to the lunch break. b. An individual listed on the Crown witness list, that the Crown was having difficulty serving, showed up unexpectedly. c. The Crown announced that it would no longer be calling that witness. d. Mr. Samuel reacted to the Crown’s announcement, following which defence counsel requested an indulgence to speak with his client. e. Defence counsel asked for additional time over the afternoon break to speak with his client. f. Defence counsel asked to break early for the day to meet with his client because of “some other circumstances” that had come up that afternoon.

[66] There can be unexpected developments during a trial that can cause things to go off the rails. Sometimes, these issues are brought to the attention of the trial judge, but sometimes there are good reasons for the trial judge to remain in the dark. In this case, the parties were not encouraged “to conduct a pre-trial before another judge” as alleged in the mistrial application. Rather, I took proactive steps to control and manage the conduct of the trial in light of what had occurred that afternoon.

[67] With the Crown backing away from its intention to call Ms. Lalonde as a witness, there was now the prospect of the defence having to call the witness without the benefit of being able to cross-examine her. Did the prosecution’s decision impact Mr. Samuel’s decision on whether to testify? Would judicial assistance, independent of the trial judge, help with a work-around solution to these or other issues impeding the trial’s progress?

[68] I reject the defence submissions that the only inference that could be drawn from my comment was that the case should be resolved or that my comment created a reasonable apprehension of bias. A reasonable observer, fully apprised of the circumstances, and familiar with active trial management processes, would not conclude that the trial judge appeared to have arrived at some pre-judgment of the case. Mr. Samuel’s application for a mistrial was dismissed.

II. Charter Application

[69] Mr. Samuel brings an application pursuant to s. 24 of the Charter to exclude evidence at trial on the basis that it was obtained illegally.

[70] While Mr. Samuel raises issues of illegal search and detention in his Charter application, his fundamental complaint is that police infringed his reasonable expectation of privacy afforded by s. 8 of the Charter when they illegally entered his hotel room thereby allowing them, without consent or a warrant, to make observations and to ultimately seize the drugs.

a. Does Mr. Samuel have standing to bring a Charter application?

[71] Although neither party raised Mr. Samuel’s standing to bring the Charter application, after the conclusion of the Crown’s submissions, I requested submissions on the applicability of the decision of R. v. Stevens, 2012 ONCA 307, leave to appeal to S.C.C. refused, 34928 (December 6, 2012). In Stevens, the Court of Appeal upheld the trial judge’s decision to decline to rule on whether a search warrant was valid on the basis that the accused lost his expectation of privacy when he abandoned a gun that he threw out the window of his home.

[72] After allowing counsel an opportunity to review the law over an extended lunch hour, I heard submissions on the issue.

[73] The Crown submits that it is open to the court to decline to hear Mr. Samuel’s Charter application because he lost his expectation of privacy over the toiletry bag of drugs when he threw it off the balcony and onto the public street. The Crown cites para. 8 of Stevens, which states:

In the factual circumstances here, the trial judge was not required to determine the legality of the search. In order to engage a person’s rights under s. 8 of the Charter, that person must first establish a reasonable expectation of privacy: see R. v. Edwards, [1996] 1 S.C.R. 128, at paras. 33 and 39. Having thrown the handgun out the window into a neighbour’s yard, the appellant no longer had any reasonable expectation of privacy respecting the gun… Indeed, he gave up the ability to regulate access to it when he threw it away.

[74] Mr. Samuel submits that Stevens can be distinguished from this case because the accused in Stevens threw the gun out of the window before police entered the house, whereas Mr. Samuel threw the drugs off the balcony after police entered the hotel room. That is not my reading of the facts in Stevens; it is my understanding that the gun was indeed tossed once police presence was known by the accused.

[75] The decision in Stevens is an endorsement released from the Court of Appeal, as opposed to longer “reasons”. Relying on R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, Mr. Samuel submits that “care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court” rendered in a short endorsement: Singh, at para. 12. The short endorsement referred to in Singh was a four-sentence oral endorsement. Although one generally hopes that the precedential value of a decision does not increase with its length, I note that Stevens is a more robust decision with a greater degree of analysis than Singh.

[76] Stevens has been relied upon in similar cases dealing with the issue of abandonment and standing to advance Charter arguments: see R. v. Gordon, 2018 ONSC 1297; R. v. Ansah, 2020 ONCJ 71. Further, the law of abandonment, engaging relinquishment of privacy interests, was considered well before Stevens: see R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567; R. v. B.(L.), 2007 ONCA 596, 86 O.R. (3d) 730; R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172.

[77] In my view, there is a real question as to whether Mr. Samuel has standing to bring this Charter application. However, and particularly because there was no advance notice from the Crown challenging Mr. Samuel’s standing, I have determined that it is not necessary for the case to turn on this issue.

b. Were Mr. Samuel’s s. 8 rights infringed when police entered his hotel room without a warrant?

[78] The dominant theme of jurisprudence involving s. 8 of the Charter is the impact of state action on an individual’s reasonable expectation of privacy.

[79] The police did not have a warrant when they entered Mr. Samuel’s hotel room. Hotel rooms, like private residences, are places with a significant reasonable expectation of privacy: see R v Wong, [1990] 3 S.C.R. 36; R. v. Mercer, 7 O.R. (3d) 9 (C.A.).

[80] A warrantless search is presumptively unreasonable and in violation of the s. 8 constitutional protection against unreasonable search and seizure: see R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at fn 1. The onus is on the Crown to establish that despite the absence of a warrant, on a balance of probabilities, the search was reasonable in the totality of circumstances of the case.

[81] In this case, there is no evidence that Ms. Lalonde or Mr. Samuel invited the officers inside the hotel room or consented to their entry. Rather, the police officers allege that they entered the room due to what they perceived to be exigent circumstances.

[82] An exception to the warrant requirement is a situation of exigent circumstances: Criminal Code, s. 487.11; R. v. Stairs, 2022 SCC 11, 467 D.L.R. (4th) 579, at para. 114, per Karakatsanis J. (dissenting, but not on this point). When a police officer relies on exigent circumstances to justify a warrantless entry into a dwelling, their reasonable grounds for believing such action is necessary to deal with an imminent threat to public safety must directly relate to the known circumstances of a particular case, their grounds cannot simply be based on ‘policy’ or ‘protocol’: see R v Wilhelm, 2014 ONSC 1637, at para. 112.

[83] Reasonable grounds is a fact-sensitive inquiry with two components: was there a subjective honestly held belief on the officer’s part of imminent threat to public safety and was such belief objectively reasonable in the particular circumstances: see; R v Tim, 2022 SCC 12, at para. 24.

[84] Reasonable grounds is nevertheless a somewhat modest standard – a confidence level that need not rise to the level of a balance of probabilities. Accordingly, not all innocent possibilities need be ruled out and an officer may still be wrong about inferred factual circumstances and still be possessed of reasonable grounds: see R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at para. 57; R. v. Ilia, 2023 ONCA 75, at paras. 17-18.

[85] In this case, the police officers testified that, when responding to domestic violence calls, it was their practice to interview the involved parties separately. This general practice, in and of itself, would be insufficient to justify a warrantless entry into the Room 808.

[86] Beyond general policy considerations, at trial the officers provided compelling, case-specific evidence of why they believed exigent circumstances existed that justified their entry into Room 808 without a warrant, including: a. information received from 911 dispatch of a domestic dispute. b. information received from hotel staff that the guest in Room 809 had called twice reporting a violent altercation in the next room, including a female begging a male to “stop”. c. information received from Mr. Hethington that the male occupant of Room 808 reported his girlfriend was drunk and emotional, which was the cause of the noise. d. information received from Mr. Hethington that, after he attended at Room 808, he heard a female crying and saying “leave me alone”. e. the delay in Ms. Lalonde opening the hotel room door. f. Ms. Lalonde appeared to be in distress when she opened the hotel room door and was crying, with red and puffy eyes. g. the story Ms. Lalonde told police, that she was just engaged in loud sexual intercourse, was inconsistent with other information police received. h. the fact that Mr. Samuel did not voluntarily come to the door when Ms. Lalonde was speaking to police. i. the officers’ experience dealing with domestic disputes.

[87] The officers testified that while Ms. Lalonde may have been safe when she was at the door talking to them, they would not have allowed her to go back in the room without speaking with Mr. Samuel, given the information they had and their own observations. Further, they testified that they also had a responsibility to make sure Mr. Samuel was safe.

[88] It is not necessary for me to resolve what actually occurred between Mr. Samuel and Ms. Lalonde in Room 808. I need only determine whether the officers had the subjective belief that entry into the room was necessary in the execution of their duty to protect the public, and whether their belief was reasonable, when viewed objectively.

[89] I accept and find credible the evidence of Ms. Shah and Mr. Hethington that they heard sounds consistent with someone in distress in Room 808. I accept Mr. Hethington’s evidence that, when he went to Room 808, he did not see Ms. Lalonde. In doing so, I reject Ms. Lalonde’s evidence that she went to the door with Mr. Samuel and engaged in a conversation with hotel staff.

[90] The police officers’ evidence was consistent with one another. I accept and find credible the evidence of the officers as to their reliance on Mr. Hethington’s information, their own observations, and the sequence of events. I accept and find credible the evidence of the officers as to their frame of mind at the material time. The officers were not compelled to accept Ms. Lalonde’s explanation for the noise emanating from Room 808 and her denial of any physical abuse. I accept that, given the information they had, the observations they made, and their collective policing experience, that it was reasonable for the officers to reach the conclusion that a violent altercation had occurred in Room 808 and they were duty bound to make a warrantless entry to continue their investigation and to ensure that both parties were safe and would remain safe. I find that this conclusion was objectively reasonable in the totality of the circumstances.

[91] I find that the Crown has demonstrated that exigent circumstances existed and that these circumstances necessarily justified the warrantless entry into the hotel room where Mr. Samuel had been an occupant. I find that Mr. Samuel’s s. 8 Charter rights were not infringed. Accordingly, police observations of Mr. Samuel’s absence from Room 808 and his unlawful presence on the Room 809 balcony, and the drug seizure that followed were constitutionally compliant. In turn, Mr. Samuel was not unlawfully detained. The Charter application is dismissed.

c. Section 24(2) analysis

[92] I will go on to alternatively consider whether, had I found a Charter violation, the toiletry bag of drugs should be excluded from evidence pursuant to s. 24(2).

[93] The onus is on Mr. Samuel to establish on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. To determine whether evidence should be excluded following a Charter breach, the following factors must be considered: (i) the seriousness of the conduct; (ii) the impact of the breach on the accused’s Charter protected interests; and (iii) society’s interest in the adjudication of the case on its merits: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[94] While the seizure of the drugs occurred some minutes after police entered Room 808, one can consider that the drugs were “obtained by” the earlier warrantless entry as there is at least a temporal or contextual nexus between the two: see R. v. Davis, 2023 ONCA 227, at paras. 28-33, 42-43.

(i) Seriousness of the conduct

[95] Warrantless, non-consensual entry by police into a private dwelling in the absence of exigent circumstances is a serious infringement of an individual’s reasonable expectation of privacy.

[96] In this case, I am of the view that there are factors that reduce the seriousness of the police conduct. There is no evidence that the police were acting in bad faith. Indeed, it is the opposite. The police had a master key that gave them entry into any hotel room. They did not use it. The police executed a proper “knock and announce” approach and waited for some time for Ms. Lalonde to open the door.

[97] It cannot be disputed that reasonable suspicion existed that Ms. Lalonde may have been the victim of violence at the hands of the male occupant of Room 808. The police entry was far from groundless.

[98] The police had no advance knowledge or hunch that they would find evidence of drug trafficking in Room 808. They did not know that Mr. Samuel was inside the hotel room. After entering the hotel room, the officers did not look through drawers or go through any personal belongings. There was no behaviour contemptuous of Charter principles. The police objective, following receipt of credible information of a possible physical confrontation in Room 808, was to locate the male occupant to ensure he was safe and to investigate reports of a domestic incident in which Ms. Lalonde may have been victimized. It was only after finding Mr. Samuel unlawfully positioned on the next-door balcony that P/C Miller observed the toiletry bag that was subsequently thrown to the street by Mr. Samuel.

[99] In these circumstances, on a continuum of unconstitutional faults, I would not find the conduct of the police to be serious nor offensive such that it undermines the administration of justice.

(ii) Impact on Charter protected interests of the accused

[100] This second element of the Grant test requires a court to examine the extent to which the breach undermines the Charter right itself. Although it was Pat Cosgrove, not Mr. Samuel, that was the registered guest of Room 808, Mr. Samuel’s s. 8 constitutional protection against unreasonable search and seizure was impacted when police entered the hotel room without a warrant. I find, however, Mr. Samuel’s reasonable expectation of privacy was significantly reduced given his trespass on the balcony of the neighbouring hotel room and by throwing the toiletry bag onto the public street.

[101] The abandonment of an item is relevant to the depth of any asserted privacy interest in the s. 24(2) calculus: see R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510, at para. 73. Further, it is a touch rich to speak of Mr. Samuel’s serious expectation of privacy in the bag and its contents when the defence position is that the bag belonged to Mr. Snyder. This factor, in my view, if favouring exclusion does so only very modestly past neutral.

(iii) Society’s interest in the adjudication of the case on the merits

[102] I accept the Crown’s submission that the hard drugs found in the toiletry bag is highly reliable, real evidence, without which the Crown’s case would be gutted. In Grant, the Supreme Court of Canada noted that the exclusion of relevant and reliable evidence “may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: at para. 81.

[103] In R. v. Nunn, 2018 ONSC 3929, this court recognized the seriousness of the fentanyl pandemic and the high societal interest in having cases involving trafficking in fentanyl adjudicated on the merits: Nunn, at paras. 114-116; see also R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389.

[104] I find that the items seized from the toiletry bag constitute real and reliable evidence of drug trafficking, for which there is a significant societal interest in adjudication. This favours inclusion of the evidence.

Conclusion: balancing Grant factors

[105] When the Grant factors are weighed, I find that Mr. Samuel has not demonstrated that the admission of the evidence would bring the administration of justice into disrepute. The police conduct is not serious given their motivation, the impact on Mr. Samuel’s Charter protected interests is minimal because he had a reduced expectation of privacy after trespassing onto the neighbouring balcony and throwing away the bag of drugs, and the societal interest in adjudicating the case on its merits is high. Admission of the evidence would not injure the long-term repute of the administration of justice. I decline to exclude the evidence.

III. Trial

Presumption of innocence and reasonable doubt

[106] An accused is presumed innocent until the Crown has discharged its burden to prove the accused’s guilt beyond a reasonable doubt. A reasonable doubt is “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 30. I am obligated to self-instruct on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, having regard to the whole of the evidence regardless of Mr. Samuel’s election not to testify: see R. v. Marki, 2021 ONCA 83, at paras. 18-28; R. v. Orton, 2019 ONCA 334, at paras. 3, 17-20.

Possession for the purpose of trafficking

[107] To prove Mr. Samuel is guilty of possession for the purpose of trafficking, contrary to s. 5(2) of the CDSA, the Crown must prove: a. Identity; b. Jurisdiction; c. That Mr. Samuel possessed a substance included in one of the Schedules of the CDSA; and d. That Mr. Samuel intended to traffic.

[108] Due to the admissions made at the outset, the only element left for the Crown to prove is that Mr. Samuel was in possession of the cocaine and fentanyl.

[109] The definition of possession found in s. 4(3) of the Criminal Code applies to s. 5(2) of the CDSA, specifically:

4(3)(a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[110] The essence of possession is knowledge of the contraband and the ability to exercise control over it: see R. v. Terrence, [1983] 1 S.C.R. 357.

[111] In this case, the drugs were concealed in a toiletry bag that was first spotted on the floor of the balcony of Room 809, where Mr. Samuel was discovered. I agree with the inference drawn by P/C Miller that it appeared that Mr. Samuel was on the neighbouring hotel room balcony to avoid being found by police. Mr. Samuel then picked up the bag containing drugs and threw it onto the public street.

[112] The defence submits that, given Mr. Snyder’s evidence that he stashed the drugs on the balcony unbeknownst to Mr. Samuel, there is necessarily a reasonable doubt that Mr. Samuel had knowledge that the bag contained drugs. Mr. Snyder testified that he spoke to a lawyer a few weeks after Mr. Samuel was arrested to clear the air and accept responsibility, but that he did not end up telling police that the drugs were his because he had a lot going on in his life at the time.

[113] There are serious credibility issues with Mr. Snyder’s testimony, including: a. Mr. Snyder has a lengthy criminal record that includes several convictions of crimes of dishonesty. b. He is potentially facing a lengthy penitentiary sentence, as he is awaiting trial for second degree murder. c. His description of the toiletry bag was somewhat accurate, in that it was light coloured with a clear plastic window. However, he was incorrect about the size of the bag when he testified that it could hold clothing. d. Mr. Snyder could not remember many events of the night, including exactly when it was or the name of the hotel he visited. e. He recalled the toiletry bag containing older paper bills but testified that there was $700 in cash when police recovered $170. f. Despite his many memory issues, he purported to recall almost the precise amounts of drugs stashed in the bag. g. He could not recall what colour the fentanyl was, but that it was likely blue or purple. h. He testified that he has spoken to Mr. Samuel about this case, that Mr. Samuel is one of his best friends, and that he is currently on the same range as Mr. Samuel at Quinte Detention Centre. i. He testified that he decided to stash the bag on the neighbouring hotel room balcony as the room appeared to be empty. j. He testified that the drugs in the bag were worth between $20,000 - $25,000, but that, when he left, he and his wife forgot the drugs on the neighbouring balcony. k. His evidence was inconsistent with Ms. Lalonde’s evidence as to who was present at the hotel room.

[107] I reject Mr. Snyder’s evidence that the toiletry bag, and drugs discovered therein, belonged to him. Nor, considering the totality of the evidence accepted by the court, does it rouse a reasonable doubt. In particular, I do not accept that both Mr. Snyder and his wife would have forgotten the valuable commodity of $20,000 - $25,000 worth of illicit drugs allegedly deposited in an unsecured location. I find that Mr. Snyder was being dishonest to the court when he testified that the drugs were his. Put more bluntly, Mr. Snyder’s evidence was a transparently weak attempt to deflect blame from his friend.

[108] Ms. Lalonde’s evidence was not particularly helpful on the issue of the toiletry bag. Ms. Lalonde denied any knowledge of any drugs being in the hotel room on the night in question. Ms. Lalonde testified that she was very intoxicated and struggled to have a clear memory of that night.

[109] The toiletry bag of drugs was found beside Mr. Samuel at 5:00 a.m. after he climbed, uninvited, onto the balcony of a neighbouring hotel room on the 8th floor. When P/C Miller asked about the bag, Mr. Samuel denied it was his, denied knowing what was in it, but then tossed it over the balcony – a bizarre act unless Mr. Samuel well knew what the bag contained. I do not believe Mr. Samuel’s assertions that the bag was not his and that he was unaware of its contents, nor does it leave me with reasonable doubt.

[110] Mr. Samuel was using a cell phone when he was arrested. User accounts belonging to Mr. Samuel were accessed with the cell phone that was in his hand. The cell phone extraction report includes text messages from June 10, 2021 that refer to the sender being in Room 808 at the Four Points Sheraton. I find that the cell phone belonged to Mr. Samuel.

[111] The cell phone extraction report includes text message communication between Mr. Samuel and others that I find are consistent with illicit transactions. This evidence is not admissible to establish propensity or disposition to be a drug dealer, but rather as a circumstance contributing to the drugs being Mr. Samuel’s property, not Mr. Snyder’s: see R. v. LePage, [1995] 1 S.C.R. 654, at paras. 33-38.

[112] I accept the evidence of P/C Miller that when he drew Mr. Samuel’s attention to the bag, which was on the balcony floor, Mr. Samuel’s eyes went wide, and he became incommunicative before ultimately throwing the bag to the street. In the context of the evidence as a whole that I do accept, I find that Mr. Samuel was in possession of the toiletry bag when he climbed onto the balcony of the neighbouring hotel room. I find that Mr. Samuel climbed to the neighbouring balcony to avoid being caught with his drugs.

[113] I accept the evidence of the police witnesses that the streets were empty at this time of night and that it was a matter of only minutes before police were able to get to the street to retrieve the bag. I find that there were no items added to or removed from the bag before or after police seized it as evidence.

[114] Given the admissions made previously and having found that Mr. Samuel did indeed possess the toiletry bag of fentanyl and cocaine, fully knowing its contents, before he threw it to the street, I find Mr. Samuel guilty beyond a reasonable doubt of possessing cocaine and fentanyl for the purpose of trafficking.

Remaining Counts

Count #1 - Did Mr. Samuel willfully obstruct Ian Miller, a peace officer in the execution of his duty, contrary to Section 129 (a), of the [Criminal Code of Canada](https://laws-lois.justice.gc.ca/eng/acts/c-46/).

[115] The Crown submits that Mr. Samuel intentionally mislead P/C Miller when he reported that he was the occupant of Room 809 and was on the balcony that morning to pray. I have accepted the evidence of P/C Miller as credible and reliable as to what he observed and was told by Mr. Samuel. There is no evidence to the contrary.

[116] Mr. Samuel was not the registered guest of Room 809. He was not invited onto the balcony. The lie was a deliberate attempt to deceive the officer, thereby impeding a lawful police investigation. I am satisfied that the Crown has proven Mr. Samuel’s guilt beyond a reasonable doubt on this count.

Count #2 - Did without lawful excuse enter a dwelling-house situated at 809-285 King Street East, with intent to commit an indictable offence therein, contrary to Section 349(1) of the [Criminal Code of Canada](https://laws-lois.justice.gc.ca/eng/acts/c-46/).

[117] Mr. Samuel brought illegal fentanyl and cocaine onto the balcony of Room 809 lawfully accessible only to Ms. Shah, the registered guest of that room. In these circumstances, I am satisfied that the balcony is a dwelling-house and that Mr. Samuel was there uninvited and without lawful excuse: Criminal Code, s. 2. I find that Mr. Samuel was on the balcony of Room 809 intending to commit CDSA possession crimes. I am satisfied that the Crown has proven Mr. Samuel’s guilt beyond a reasonable doubt on this count.

Summary

[118] I find Mr. Samuel guilty on Counts 1, 2, 3, 4.

[119] Count 5 is dismissed.

[120] I find Mr. Samuel guilty on Counts 6, 7 and 8. [1]

Muszynski J.

Released: June 30, 2023

Addendum

[1] The original oral reasons for judgment reflect a finding of not guilty on Counts 6, 7, and 8 on the indictment, which are alleged breaches of a release order and probation order. I made this original finding because there was no evidence of the release order conditions and no evidence that Mr. Samuel was on probation at the material time. Immediately following the delivery of my reasons, the Crown and Mr. Samuel confirmed that there was an earlier agreement that it was unnecessary for the Crown to lead evidence to prove the release order conditions or that Mr. Samuel was on probation. On consent, the request was made that I vacate my not guilty findings on these counts and, given my factual findings otherwise support convictions, enter findings of guilty.