COURT FILE NO.: CR-22-07
DATE: 2023-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Sunil Marcellin
Applicant/Accused
COUNSEL:
R.A. Bellows / J.S. Piszczek, for the federal Crowns
A.P. Newman, for the applicant
HEARD: February 6, 2023, virtually at Parry Sound
PUBLICATION RESTRICTION NOTICE:
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, BY ORDER OF JUSTICE A.D. KURKE
DECISION ON APPLICATION FOR DISCLOSURE
A.D. KURKE, J.
Overview
[1] The applicant was charged jointly with Nicole Contin and Garnet Seraphine on an indictment with possessing fentanyl for the purpose of trafficking, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act (Count 1), and with possessing the proceeds of crime contrary to s. 354(1)(a) of the Criminal Code of Canada (Count 3). He faces his own charge of breaching a release order by not remaining in his residence unless in the presence of his sureties, contrary to s. 145(5)(a) of the Criminal Code (Count 5). All three offences are alleged to have occurred on February 24, 2021 in Parry Sound, Ontario, the date of the applicant’s arrest.
[2] The evidence to support the allegations comes from or relates to the police execution of a search warrant on that date at the apartment of Contin, where the applicant and Seraphine were allegedly staying and out of which the Crown alleges they were dealing drugs.
[3] On December 12, 2022, I ruled (2022 ONSC 6840), with respect to the applicant, that:
a. …the application for standing to seek relief pursuant to s. 24(2) of the Charter for an alleged breach of the applicant’s s. 8 Charter right with respect to the search by warrant of Contin’s apartment is dismissed.
b. However, the applicant has standing to challenge the seizure of drugs and money from his person or near him on the ground at the place of his arrest.
[4] In his factum on that application, the applicant sought disclosure of material that mostly related to the preparation of the Information to Obtain in this case (the “ITO”). The applicant’s disclosure requests appeared to look to the Supreme Court’s decision in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696 and its ratio that an applicant for standing can rely on facts alleged by the Crown to seek to establish that fact. In my earlier ruling, I declined to entertain the applicant’s disclosure request, which was not properly before the court.
[5] The applicant brings a disclosure application, again essentially for items relating to the preparation of or background to the ITO and argues that they are “relevant to the issue of whether the seizure of drugs and money from his person or near him on the ground at the place of his arrest was in breach of section 8 of the Charter.” The applicant now asserts that the requested disclosure relates to the grounds of the officers involved in the case to arrest the applicant. It will be argued that if the officers on scene did not have grounds to arrest the applicant, then their seizure of things from him or from around him is unreasonable.
[6] The following reasons explain why I find that the applicant is not entitled to the items requested as disclosure.
Facts
[7] In this application, as in the application on standing, the parties rely on an agreed statement of fact. In my earlier decision I produced an overview of those facts, to provide a context for this application. I reproduce it here, edited down to reduce extraneous material.
[8] On February 24, 2021, members of the Ontario Provincial Police applied for and were granted a CDSA telewarrant to search the residence of Nicole Contin at 78A Bowes Street, apartment 10, in the Town of Parry Sound.
[9] The ITO alleges that two or three males from the greater Toronto area were trafficking cocaine and fentanyl at the residence of Contin on various dates. From the ITO, it could be inferred that they had been invited there by Contin’s son, David Contin. At least one of these males was described as a “black kid”. The males were staying at Contin’s apartment.
[10] The confidential sources in the ITO describe purchasing drugs at Contin’s apartment on a date or dates in February 2021. One source indicated that unknown males were selling drugs from the apartment sometime in January.
[11] The author of the ITO summarized that he believed that three unknown males were staying at Contin’s apartment and were in possession of cocaine and fentanyl for the purpose of trafficking and were selling the drugs.
[12] At about 3:42 p.m., police attended the residence. The residence door was locked, and a ram was used by the police to gain entry. Police located five persons in the residence and one outside. Officers inside and outside the apartment had observed the applicant exiting the apartment through the second storey dining room window. The applicant was arrested in a snowbank outside the residence, below the open window.
[13] Seraphine was located inside the apartment in the dining room, attempting to exit a window. Contin was located in the first bedroom, which was identified as being her bedroom. She was observed sticking her head out of her bedroom door upon police entry into the apartment.
[14] Nathan Nanibush and Kyle Jackson were located in the kitchen and the apartment hallway, respectively. They were known to reside in Parry Sound and were later released unconditionally. Minelius Raphael was arrested in the living room and charged. He was discharged following the preliminary inquiry.
[15] Police seized $1,995 Canadian from the left inside pocket of a Moose Knuckle parka found and seized in the living room. A further $480 was seized from Seraphine’s left front jacket pocket, and $685 was located in the snow under the body and/or hands of the applicant upon his arrest and was seized.
[16] Various drugs were found on Seraphine’s person and were seized. There were three separate bags in his left front pocket: one containing 4.0 grams of cocaine (Health Canada Certificate: 2040937T); another containing 8.9 grams of white powder identified as phenacetin (Health Canada Certificate: 2040936T); and a third with 0.1 grams cocaine and phenacetin (Health Canada Certificate: 2040946T). There was a further 9.9 grams of fentanyl in Seraphine’s left front jacket pocket (Health Canada Certificate: 20 40946T).
[17] Three separate quantities of fentanyl were seized from the applicant upon his arrest, specifically: 1 gram in his right front pants pocket (Health Canada Certificate: 2040942T); 14 grams and a further 12.3 grams in the snow directly under his torso (Health Canada Certificate: 2040943T and Health Canada Certificate: 2040944T, respectively).
[18] Two further quantities of fentanyl: 11.2 grams (Health Canada Certificate: 2040945T) and 3.4 grams (Health Canada Certificate: 2040941T), were found in plastic bags in the apartment itself on the floor under a futon in the living room and were seized by police.
[19] Police seized 5.7 grams of white powder later identified as sodium bicarbonate (Health Canada Certificate: 2040938T) from Contin’s bedroom and a further 16.2 grams of sodium bicarbonate (Health Canada Certificate: 2040940T) from a brown purse in that bedroom.
[20] Three digital scales – two located in the kitchen and one in Contin’s bedroom – were seized by police. A Samsung cellphone and an Apple iPhone on the floor in the living room were seized. Another cellphone on the bed in Contin’s bedroom was also seized.
Law relating to disclosure
[21] Accused persons have the right to disclosure of all fruits of the investigation in the Crown’s possession that are relevant to the charge(s) against them to permit them to make full answer and defence: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at p. 336. However, what is clearly irrelevant need not be disclosed: Stinchcombe, at p. 339. The test for relevance looks to whether there is a reasonable possibility that the item would be useful to the defence: R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, at para. 22.
Discussion
[22] In this case, the applicant has already received a copy of the search warrant, a copy of a redacted ITO, redacted notes of the affiant and redacted notes relating to confidential informants. In my earlier decision, I determined that the applicant does not have standing to challenge the validity of the search warrant.
[23] In this context I find that the additional materials sought by the applicant – materials accumulated by the police in preparation of the ITO or related to that exercise – are clearly irrelevant, as there is no reasonable possibility that they would be useful to the defence.
[24] Concerning the particular requests of the applicant, counsel has attached a “Disclosure Letter” from December 15, 2022 as “Appendix A” to his factum. In this letter, counsel sets out 13 disclosure requests that he had made to the Crown. With respect to requests other than items 7, 8, 9, and 10, the Crown had provided answers and/or made disclosure, but the applicant requested further or additional disclosure.
Request 1: Items in the “investigative file”
[25] The applicant seeks “[a] list of all items in the investigative file related to the investigation and the preparation of the ITO in this case.” The term “investigative file” has been defined as “all materials accumulated by the investigating police agency in its investigation and relied upon in the search warrant materials targeting the accused”: R. v. McKenzie, 2016 ONSC 242, [2016] O.J. No. 293 (S.C.J.), at para. 30.
[26] The Crown response was that full disclosure had been provided, but the Crown would consider a particularized request. This response aligns with the direction given by the Ontario Court of Appeal in R. v. Girimonte (1997), 1997 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.), which seeks to discourage blanket demands for disclosure of masses of material, much of which may have no relevance to the issues before a court.
[27] The applicant by this open-ended request appears to seek material used in the production of the ITO over and above what has been disclosed by the Crown pursuant to its general disclosure obligation. Such a wide-ranging request amounts to little more than a fishing expedition. Without a greater level of particularity to show the relevance of additional material, this request must be rejected.
Requests 2 and 3: copies of all database searches and related paper or electronic records examined in the preparation of the ITO, whether used in the ITO or not
[28] No explanation has been offered by the applicant to explain how this information relates to the grounds for his arrest, as opposed to grounds to challenge the warrant. The database searches and electronic records are clearly irrelevant.
Request 4: all police notes that have not yet been disclosed, including notes for “sub-affiants”
[29] Pursuant to this request, the notes of D/Sgt Perreault for February 18, 2021 were disclosed. However, the applicant also seeks the officer’s notes from February 17, 2021, the date on the front cover of the officer’s notebook. Notes from the day on which the officer’s notebook begins do not become relevant to anything in this case just because the officer had some dealings with the case the following day. These notes relate to a date that is a week prior to the applicant’s arrest. The requested additional notes are irrelevant, and at the hearing of this application, the applicant indicated that he was no longer seeking this disclosure.
Request 5: all notes from the affiant in relation to any date that he worked on the ITO or received information in relation to the investigation
[30] In relation to this request, the applicant apparently received notebook entries and redacted CI notes. However, the applicant complains that the ITO refers to information from “Source 1 or 2” that was not in the CI notes; the applicant requests notes relied upon for those entries.
[31] The applicant offered no indication in his written or oral argument how this information could be relevant to the arresting officer’s grounds to arrest the applicant. I have already determined that the applicant does not have standing to attack the warrant, and information provided by informants for the purpose of the ITO and warrant is clearly irrelevant and protected by informant privilege.
Request 6: handler notes in relation to the confidential sources
[32] Although some notes relating to confidential sources were redacted and provided to the applicant, the applicant requests also the notes in relation to request “5”. As with respect to that request, this request is also for items whose relationship to the applicant’s arrest is speculative and irrelevant.
Requests 7-10: CI information
[33] Of the requests in the Disclosure Letter, items 7, 8, 9, and 10 involved information that, according to the Crown, had “the potential to identify the source”, or over which the Crown invoked confidential informant privilege. In the Disclosure Letter the applicant appeared no longer to be seeking that information by his response, “Okay”, to the Crown’s assertion of the privilege for each request. However, on the hearing of this application, the applicant disavowed only requests 4, 11, part of 12, and 13.
[34] In my view, additional details concerning information provided by the confidential sources could only go to the validity of the warrant and have no bearing on the grounds to arrest. Accordingly, the requested disclosure is clearly irrelevant.
Request 11: the stop of a black Hyundai in February 2021
[35] In the ITO the affiant referred to a traffic stop of a black Hyundai motor vehicle in February 2021 by Cst. Holloway. The applicant wanted to know the date of the stop and wanted the officer’s notes in relation to the stop. Once the applicant received that disclosure, the applicant requested notes from Cst. Holloway in relation to a vehicle with a certain licence plate in a parking lot of Contin’s apartment building on Bowes Street on January 11, 2021.
[36] In my view, the presence of a certain vehicle in January 2021 in Contin’s parking lot is clearly irrelevant to the applicant’s charges from late February 2021, and I note that the applicant is no longer seeking this disclosure.
Request 12: database searches performed by the affiant in relation to Nicole Contin and the potential theft of methadone and a stabbing incident that could be drug-related
[37] This request derives from statements in the ITO and I am unable to see any relationship between what is requested and the charges before the court. These items are clearly irrelevant.
Request 13: notes of all days on which the affiant attended at Contin’s address on unrelated matters
[38] The Crown provided the affiant’s notes for a 2017 occurrence, but the officer was unable to access an earlier 2015 occurrence. Unrelated and dated occurrences have no relevance to the charges before the court.
Conclusion
[39] The applicant’s standing to challenge the seizure of items from his person or from near his person outside Contin’s apartment does not mean that everything related to the production of the ITO that grounded the warrant to search that apartment is relevant. While to this point the Crown had honoured the practice encouraged in Stinchcombe to err on the side of over-inclusivity of disclosure, what the applicant still seeks is not relevant. The applicant has ample disclosure to enable him to challenge his arrest.
[40] For the above reasons, the application for disclosure is dismissed.
The Honourable Mr. Justice A.D. Kurke
Released: February 7, 2023
COURT FILE NO.: CR-22-07
DATE: 2023-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Sunil Marcellin
Applicant/Accused
DECISION ON APPLICATION FOR DISCLOSURE
PUBLICATION RESTRICTION NOTICE:
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, BY ORDER OF JUSTICE A.D. KURKE
A.D. Kurke, J.
Released: February 7, 2023