COURT FILE NO.: CR-23-0244-00 DATE: 2024-04-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Haque, for the Federal Crown

- and -

BRIAN KELNERIC J. Danto-Clancy, for the Accused Accused

HEARD: March 14, April 19, 2024, at Thunder Bay, Ontario

Regional Senior Justice W. D. Newton

Criminal Application

Overview

[1] Brian Kelneric was arrested on December 22, 2021, and charged with five offences:

a. being unlawfully in a dwelling with intent to commit an indictable offence;

b. possessing cocaine for the purpose of trafficking:

c. possessing oxycodone for the purpose of trafficking;

d. possessing cannabis for the purpose of trafficking; and

e. possessing money less than $5,000 knowing that the property was obtained by crime.

[2] This is a pretrial application to exclude the following evidence:

a. cars keys and $960 cash found in Mr. Kelneric’s pockets;

b. 14.44 grams of cocaine,15.95 grams of crack cocaine, five oxycocet pills, and 3 cell phones located in a fanny pack found within arm’s length of where Mr. Kelneric was hiding in an apartment;

c. scale, dime bags and two cellphones found in a bedroom in the apartment; and

d. 260 grams of cocaine and $8,510 cash found within a vehicle rented by Mr. Kelneric.

[3] Mr. Kelneric seeks to exclude this evidence on several grounds:

a. evidence found on his person and in the apartment was obtained by an unlawful search of the apartment in which he was located;

b. this evidence should be excluded from the information used to obtain the search warrant for the rental vehicle thereby leaving no grounds to search the vehicle;

c. his rights under 10(a) and 10(b) of the Charter were violated.

[4] For the reasons that follow, the application to exclude this evidence is dismissed.

The Facts

[5] The evidence on this application consisted of an affidavit and testimony from Mr. Kelneric, transcripts of testimony from police officers from the preliminary inquiry, occurrence reports prepared by police officers, five body cam videos from various officers (160 minutes of video), and the information to obtain (ITO) the search warrant for the rental car.

[6] At about 7 a.m. on December 22, 2021, police officers spoke to Suzette Peters who reported that there were several unwanted people in her apartment. She said that her son, Justice Andy, had brought four unknown drug dealers into her home and that they were selling drugs there. She did not know these persons and she wanted them removed as she was the sole renter of the apartment. She gave permission to the police to enter her apartment and to kick in the door if necessary.

[7] At 8:16 a.m. police attempted to enter the apartment after loudly announcing their presence, but the door was barricaded. About two minutes later the door opened and three persons, including Ms. Peters, came out. All occupants were taken into custody and handcuffed. Ms. Peters said she did not know how many people were left in the apartment. Officers then began to search the apartment for other occupants. Mr. Andy was located on a bed. There did not appear to be any other occupants. However, at about 8:20 a.m., Mr. Kelneric was found hiding underneath a shelf in the closest/pantry covered by various containers and clothing. It was only upon a close, repeat inspection that Mr. Kelneric was found.

[8] Mr. Kelneric was handcuffed to the rear and frisked. A car key fob on a red lanyard was found in his right pocket. Also found in his pockets was $960 cash. When told he was under arrest for being unlawfully in a dwelling at 8:22 a.m., Mr. Kelneric replied that he lived there but refused to identify himself. When asked for his name again, he said he needed a lawyer at 8:23:35 a.m.

[9] In plain view on a table in one of the bedrooms, there was a scale and other drug paraphernalia including baggies and glass pipettes, “crack pipes”. In searching the storage room area directly underneath where Mr. Kelneric had been laying on the floor, there was a blue Ziplock bag containing a large amount of a powdery substance. That bag was not directly in plain view but was observed when the objects that Mr. Kelneric used to cover himself were shifted. The blue bag was discovered at 8:24:50 a.m.

[10] As a result of their observations, officer Creary decided to charge all occupants of the apartment with possession for the purpose of trafficking. At 8:26 a.m., he radioed officer Falkowski, who had custody of Mr. Kelneric, to tell him to charge Mr. Kelneric with possession for the purpose of trafficking. It was however officer Meiring who promptly informed Mr. Kelneric of the additional reasons for his arrest, including possession of the proceeds of crime, and read him his right to counsel and caution at 8:27 a.m. Mr. Kelneric continued to insist that he lived in the apartment but refused to give officers his name.

[11] At 8:31 a.m. Ms. Peters was returned to the apartment and her handcuffs were removed. Officer Creary asked for her permission to allow the officers to search her apartment. Initially, she did not consent but after it was explained to her that the search would be only of the bedroom that was used for trafficking and the closet/pantry in which Mr. Kelneric was hiding, she gave oral and written consent to search those areas.

[12] In subsequently searching the closet/pantry, within arm’s reach of where Mr. Kelneric was hiding, was a plastic bin. Inside that bin was a fanny pack. That fanny pack contained the drugs and three cell phones listed above.

[13] While in officer Falkowski’s cruiser at about 8:30 a.m., Mr. Kelneric was again asked for his name and, instead of providing his name, Mr. Kelneric said that he did not “feel good” and asked to go to the hospital. He felt that he was dying and that his insides were burning. Officer Falkowski called for an ambulance. As there was a delay in getting an ambulance, he called dispatch again and after learning that there would be a further delay, he received permission to transport Mr. Kelneric to emergency. They arrived at emergency at 9:04 a.m. Mr. Kelneric had not identified himself to officers up to this point. Mr. Kelneric was cleared at the emergency, and then enroute to the police station at 10:58 a.m.

[14] Mr. Kelneric was processed in the booking room at police headquarters at 11:11 a.m. His residence was recorded as 3434 Eglinton Avenue East, Scarborough Ontario. It was recorded that he spoke to his lawyer, Mr. Tse, at 11:18 a.m.

[15] Mr. Kelneric’s vehicle was identified by activating the key fob. An application for a search warrant of the vehicle was obtained and executed on December 24, 2021. The vehicle had been rented by Mr. Kelneric in Scarborough. Found in the trunk were 260 grams of cocaine and $8,510 cash.

[16] According to his affidavit and testimony, Mr. Kelneric came to Thunder Bay to visit a long-time girlfriend, Jasmine Star. When he arrived on December 20, he picked up Ms. Star and her friend, Justice Andy. He said that they drove around looking for a hotel room. He was unable to find a hotel room that “fit into my budget” and Mr. Andy offered to let Mr. Kelneric and Ms. Star stay at his apartment for $60/night. When cross-examined, Mr. Kelneric said that he is unemployed and is receiving Ontario Works. He said the cash in his possession was a birthday gift from his parents. He did not know Ms. Star’s birthday or address. He said that she did not have a specific address. He said that he hid when the police came to the apartment because he did not know it was the police coming in.

The Arguments

Section 8 – the right to be secure against unreasonable search and seizure

[17] Mr. Kelneric argues that his section 8 Charter rights have been violated by the unlawful search of the apartment and the unlawful seizure of the cash and key fob found on his person. As such, the evidence obtained from the search and the seizure of the key fob (which identified the vehicle to be searched) should be excised from the ITO leaving no grounds for the search of his vehicle.

[18] He argues that he had a reasonable expectation of privacy in the apartment - his “home away from home.” He argues that the Edwards factors favour a finding that he had an objectively reasonable expectation of privacy in the circumstances of this case. The Crown disagrees and also relies also upon Edwards, and upon R. v. Sangster.

[19] Even if I accepted Mr. Kelneric’s evidence that he paid Mr. Andy to stay in the apartment, I would not find that he had an objectively reasonable expectation of privacy in this case. Objective reasonableness is assessed in the “totality of the circumstances.” While he was present (hiding) at the time of the search, his historic use was limited to a few days. He was not a guest of the lawful tenant, Ms. Peters. I find that he had no control over the premises and no right to regulate access even if he had paid money to Mr. Andy. However, I do not accept his evidence that he did pay. I do not accept that he was present in Thunder Bay to see a girlfriend, Ms. Star. Ms. Star was not located in the apartment at 8:16 a.m. Nor do I accept his evidence that he was at this residence because it was an accommodation that fit his modest budget. I conclude that this is a fabrication to cover up his real purpose for being in that apartment, and in Thunder Bay. I do not accept his evidence that he did not know that it was the police who were entering the apartment. Having watched all the body cam footage I am satisfied that all the occupants knew that it was the police who wanted entry. Three persons came to the door in response to the police announcements. Mr. Andy did not because it was obvious that he was barely conscious, appearing to be “high”. The fact that Mr. Kelneric hid indicates that he knew that it was the police who had entered. This is obvious from the body cam footage.

[20] The police officers had the permission of Ms. Peters to enter the apartment. They had the authority to arrest those who were unlawfully in that dwelling. Despite not identifying himself to officers, Mr. Kelneric asserted that he lived there when he did not.

[21] His “pat down” search incident to arrest was lawful. While the seizure of the cash and keys was not seizure of evidence [4] at 8:22 a.m., the seizure of those items was evidence by 8:26 a.m. when the decision was made to charge him with possession for the purpose of trafficking.

[22] The search of the area in which Mr. Kelneric was found resulted in the discovery of the blue bag containing a powdery substance. [5] This was a lawful, plain view search in the circumstances of this case, even though items had to be shifted for the bag to become visible. The bag was found directly beneath Mr. Kelneric who had covered himself over with containers and clothing. This search was limited to the area within Mr. Kelneric’s physical control at the time he was discovered [6] and, as such, was a search incident to arrest in a dynamic situation.

[23] The search of the containers in the pantry/closet and the bedroom used for drug trafficking was pursuant to the consent of the tenant, Ms. Peters. While the words first used by officer Creary to Ms. Peters were that she would take responsibility for the things found if she did not consent, I am satisfied, from reviewing the body cam footage, that when the officer explained to her that the search would only be of the area where Mr. Kelneric was found and the bedroom that was used for trafficking, Ms. Peters understood the scope of the proposed search and consented to the search. The search of the closet/pantry led to the discovery of the bin with the fanny pack containing drugs and cellphones.

[24] If I am incorrect in my conclusion that the search resulting in the discovery of the blue bag and fanny pack were lawful, then, following the Grant factors, these searches would be very serious Charter-infringing state conduct. However, as I determined that Mr. Kelneric did not have an objectively reasonable expectation of privacy in the apartment, then these searches had no impact on his Charter-protected interests. Society has a strong interest in the adjudication of cases like this on the merits. The large quantity of drugs found in the fanny pack is “hard”, reliable evidence important to this case. While if a breach, it is a serious breach, the other Grant factors favour inclusion of this evidence.

Sufficiency of ITO to Issue Search Warrant

[25] I am also satisfied that even if the blue bag and the contents of the fanny pack were excised from the ITO, there was still sufficient information contained in the ITO to support the issuance of the search warrant. The ITO contained information from Ms. Peters that there were “unwanted” people in her apartment who were dealing drugs. Upon entry to the apartment, officers found, in plain view on a table, a digital scale with white powdery residue on it, several rubber bands, two cell phones, a 200-count box of clean crack pipes with approximately 12 remaining, and several small plastic dime baggies. Mr. Kelneric had $960 cash on his person plus the key fob for the vehicle that was found nearby. Accordingly, I am satisfied that the excision of the blue bag and the contents of the fanny pack would not affect the issuance of the search warrant.

Section 10(a) – the right on arrest or detention to be informed promptly of the reasons therefor

[26] As confirmed by the body cam footage, Mr. Kelneric was found hiding at about 8:20 a.m., and was told at 8:22 a.m. that he was under arrest for being unlawfully in a dwelling.

[27] Shortly thereafter, by 8:27 a.m., Mr. Kelneric was told that he was also under arrest for possession for the purpose of trafficking, for possession of proceeds of crime, and was read his right to counsel and caution.

[28] As observed through the body cam footage, this was a fluid and dynamic situation and I find no breach of Mr. Kelneric’s s. 10(a) rights in the circumstances of this case. The five-minute delay was not unreasonable. [8] That was the time required to remove Mr. Kelneric from the apartment and transport him to a cruiser where he could sit out of the cold.

Section 10(b) – the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right

[29] The informational component of his s. 10(b) right was formally given at 8:27 a.m. However, as early as 8:23 a.m., Mr. Kelneric announced that he needed a lawyer. This was in response to the officer’s request that he identify himself when he asserted that he lived in the apartment.

[30] Mr. Kelneric was not given an opportunity to speak to his lawyer until after he was processed at the police headquarters’ booking room and placed in a private room to have the call with a lawyer. He spoke to his lawyer at 11:18 a.m., almost three hours after his arrest.

[31] Immediately after Mr. Kelneric had been informed of the three charges against him and read his right to counsel and caution, officer Falkowski, while holding the large amount of cash seized from Mr. Kelneric, asked Mr. Kelneric how much money he had and what he did to make the money. Mr. Kelneric responded that he wanted to speak to a lawyer. No further questions were asked. Officer Falkowski was under a duty to hold off questioning. [9] Crown counsel correctly concedes that this was a breach of Mr. Kelneric’s s. 10(b) right.

[32] This is a serious breach, but no information was obtained from Mr. Kelneric and, as such, there is no impact on his Charter-protected rights. There is no evidence to exclude nor is there any causal connection to the items seized through the searches.

[33] The delay in having Mr. Kelneric brought to the police station where he could have exercised his right to counsel was caused by Mr. Kelneric’s request to be taken to the hospital. Mr. Kelneric was at the hospital for under two hours before he was released. Within seven minutes of being processed at the police station Mr. Kelneric spoke to his lawyer.

[34] As noted by Fairburn A.C.J.O in R. v. Keshavarz, realistically, the police are under no obligation to implement the right to counsel until an accused was in a safe and secure location where a private call with counsel could be facilitated. While the evidence is that officer Falkowski made no attempt to facilitate the call, it was not unreasonable to wait until Mr. Kelneric was returned to the police station for the call. This was a relatively short attendance at the hospital. While calls have been facilitated when an accused will be required to stay at the hospital for longer periods when a private and secure space was available, I recognize that this is not always possible at an emergency room in the daytime. No further attempt was made to elicit information from Mr. Kelneric after he was asked about the cash.

[35] In the circumstances, I do not find that Mr. Kelneric’s s. 10(b) rights to speak to counsel without delay were breached. If I am incorrect, applying the Grant factors, if a breach, this was a serious breach of Mr. Kelneric’s Charter rights. The impact on his rights was negligible as no information was obtained and because the delay was caused by the police taking Mr. Kelneric’s to the hospital as he requested. Had he not claimed to need medical assistance then the delay would have been much shorter. Although there is a temporal connection to the evidence seized, if a breach, this breach had no causal connection to the seizure of the evidence. The Grant factors favour inclusion of the evidence.

Conclusion

[36] Mr. Kelneric’s application to exclude evidence is dismissed. This matter is to be spoken to on April 30, 2024, at 9 a.m. via zoom to determine trial readiness for the trial sittings commencing May 13, 2024.

“originally signed”

The Hon. Regional Senior Justice W. D. Newton

Released: April 25, 2024

COURT FILE NO.: CR-23-0244-00 DATE: 2024-04-25 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Crown - and – BRIAN KELNERIC Accused CRIMINAL APPLICATION Newton R.S.J. Released: April 25, 2024

[1] R. v. Edwards , [1996] 1 S.C.R. 128 , [1996] S.C.J. No. 11 (“ Edwards ”) . [2] R. v. Sangster, 2021 ONCA 21 (“ Sangster ”) . [3] R. v. Mills, 2019 SCC 22 , at para. 13 (“ Mills ”) ; Edwards at paras. 31 and 45 . [4] At this point, the seizure was to protect property as it would have been stored separately for him when booked at the station. [5] The contents of this bag were determined to be a cutting agent, phenacetin, and not drugs. [6] See R. v. Stairs, 2022 SCC 11 (“ Stairs ”) . [7] R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (“ Grant ”) . [8] R. v. Pileggi, 2021 ONCA 4 (“ Pileggi ”) ; see also R. v. Ahmed, 2022 ONCA 640 , at paras. 37-39 (“ Ahmed ”) . [9] Pileggi at para 71 . [10] R. v. Keshavarz, 2022 ONCA 312 , at para. 67 (“ Keshavarz ”) .