R. v. Minialoff, 2020 ONCJ 296

CITATION: R. v. Minialoff , 2020 ONCJ 296 DATE: March 9, 2020 COURT FILE No.: 0611-998-19-80 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — michelle minialoff Before Mr. Justice Richard H.K. Schwarzl at Orangeville Heard on January 15 and 24, 2020 Reasons for Judgment released on March 9, 2020 Ms. Brandi Neil...................................................................................................... for the Crown Ms.

Carrie Bellan........................................................................................... for the Defendant SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] In December 2018, Michelle Minialoff’s nephew found her passed out in her car. Thinking she might be dead due a drug overdose, he called 911. Paramedics and police responded promptly. While the paramedics dealt with her, Sgt. Kachik went to her car. He looked inside and saw what appeared to be drugs and paraphernalia. The officer opened the door and seized what turned out to be cocaine, fentanyl, and methamphetamine. As a result, Ms.

Minialoff faces three drug charges. Of those three charges, the Crown withdrew count 3, being the charge of possession of cocaine. [ 2 .] She asserts that the search and seizure of the property from her car was unconstitutional and that it should be excluded from the evidence. If she is right, then the charges must be dismissed.

If she is wrong, then she must be found guilty of each offence. 2.0: RELEVANT FACTS [ 3 .] Upon considering the totality of the evidence as well as the submissions of counsel regarding both the facts and credibility, I find the following relevant facts. [ 4 .] On December 7, 2018 the Defendant’s nephew, Dustin Minialoff, found her unconscious and slumped over the steering wheel of her car which was parked in the publicly accessible lot of her apartment building.

When he looked through the windows on both the driver and passenger sides, he saw some drug paraphernalia in the front including a small crack pipe like the one photographed in Exhibit 8, some steel wool, and a butane torch. Fearing that his aunt was dead from a drug overdose he called 911 and waited for emergency services who arrived a short time later. [ 5 .] Leah Branch and Matthew McCleary were the ambulance attendants who came to the scene. Dustin Minialoff, who was very upset, described to them the situation as he found it. When the paramedics tapped on the driver’s window the Defendant woke up immediately.

She was responsive, but also appeared somewhat dazed and confused. The paramedics escorted her into the rear of their

ambulance for assessment. [ 6 .] When they went to the car, the paramedics were focussed on tending to Ms. Minialoff. Ms. Branch did not have a good vantage point from which to peer into the car beyond the Defendant’s body. She noticed only clutter when she glanced around quickly to ensure that there was nothing that could undermine her safety. Ms. Branch recalled the Defendant denied using drugs, so she had no reason to look for any. Similarly, Mr. McCleary did not look around the interior of the car because he was focussed on the patient.

The ambulance report noted that while the patient denied drug use, meth was found on her person. Neither of the paramedics could recall seeing any drugs. Ms. Branch thought the police told them that drugs were found, whereas Mr. McCleary had no memory of the basis of the note. [ 7 .] Two police officers, P.C. Dellelce and Sgt. Kachik, arrived separately while the Defendant was inside the ambulance. The dispatcher reported to the officers that a person was slumped over the steering wheel of a parked car and that there might be drugs involved.

One or both officers spoke with Dustin Minialoff who said that he found a crack pipe in his aunt’s car. At the time, he did not mention the torch or the steel wool to police because he thought the crack pipe was most significant. He told the police that he was afraid that drugs had killed his aunt that day. [ 8 .] Sgt. Kachik walked directly to her car after he told the Defendant to allow the medical personnel to assess her. Nothing in her demeanour caused the officer to think that she was high at the time of his arrival. The Defendant was upset that the police were searching her vehicle and said so. If Sgt.

Kachik heard her protests, he ignored them as he went to the closed driver’s door and looked through the window. Standing outside, he had a view of the interior similar to that depicted in the photograph marked as Exhibit 9. From his position he made several observations consistent with those of Dustin Minialoff including: (

a) most of a plastic tube with a metal tip stuffed with metal mesh laying the floor in front of the driver’s seat (Exhibit 8, photo F); (

b) a butane torch on the passenger seat (Exhibit 8, photo F); and (

c) an open black and white purse between the front seats in which he could see more metal mesh and a small plastic baggie containing a white crystal material he believed to be methamphetamine (Exhibit 8, photos B, E, and F). [ 9 .] Based on Sgt. Kachik’s knowledge and police experience he believed that the metal mesh/steel wool is used as a filter when smoking drugs, the butane torch is used to convert solid drugs into consumable gas, and a tube like the one he saw is used to smoke the drugs. Given the information he received and upon making his observations, Sgt.

Kachik had grounds to arrest the Defendant because he reasonably believed that a drug offence had occurred or was going to occur inside her car. [ 10 .] He did not arrest her right away because she was with the paramedics and he did not want to interrupt their assessment. Neither attendant expressed any concerns about her health but nevertheless they decided to take her to the hospital as a precaution. Instead of arresting the Defendant at the scene, Sgt. Kachik opened the driver’s door and seized the bag, torch, and pipe.

The officer agreed that prior to entering the car he could have sealed it and applied for a search warrant, having the grounds to do so. These grounds were the same as his reasonable belief that he could arrest the Defendant. [ 11 .] After removing the items from the car, Sgt. Kachik searched the bag and found the following additional evidence: (

a) another butane torch (Exhibit 8, photo E), (

b) another small container with drugs in it (Exhibit 8, photo D), (

c) a crack pipe (Exhibit 8, photo C), and (

d) a contact lens case, each side containing solid pieces of drugs (Exhibit 8, Photo A). [ 12 .] After inspecting everything he seized, the officer decided to arrest the Defendant who by that time had already left for the hospital with the paramedics. Sgt. Kachik showed Dustin Minialoff the bag that he had removed from the car, stating that he had found drug paraphernalia. Sgt. Kachik did not recall doing this but said that he might well have, although he acknowledged that this was against policy. Sgt. Kachik also showed P.C. Dellelce the bag he seized from the Defendant‘s car, but P.C.

Dellelce was not interested or paying much attention to its contents because, in his words, “I’m not a drug guy”. [ 13 .] Within minutes of the Defendant’s departure by ambulance, Sgt. Kachik drove to the hospital where he arrested her and then released her on an Appearance Notice. After that, he drove to the police station where he photographed and lodged everything he had seized. An analysis of the drugs showed that there was a small amount of fentanyl, less than one gram of methamphetamine, and about 5

grams of cocaine. 3.0: WAS THE WARRANTLESS SEARCH LEGAL? 3.1: Positions of the Parties [14.] The Defendant submits that the warrantless seizure of the drugs from her car by the police was not authorized either as incidentto arrest or as subject to plain view and as such violated

section 8 of the Canadian Charter of Rights and Freedoms. The prosecutionsubmits that the seizure was lawful both as plain view and incident to arrest. 3.2: Preliminary Observations [15.] As a starting point, I find that Sgt. Kachik’s visual inspection of the interior of the Defendant’s car was not a “search” thatengaged

section 8 of the Charter. The act of looking through the window of a car parked in a place readily accessible to the public doesnot trigger the Charter: R. v. Lotozky (2006), (ON CA), 81 O.R. (3d) 335 (C.A.) at paragraph 13; R. v. Mohamed,[2008] O.J. No. 3145 (S.C.J.) at paragraphs 96-108; R. v. Squires, [2016] N.J. No. 351 (C.A.), at paragraphs 50 – 57; R. v. Bollers,[2017] O.J. No. 2740 (S.C.J.) at paragraph 17. [16.] In this case, members of the public would have been able to see the pipe, bag, and torch had they been looking through thewindows at the car’s contents.

The paramedics peered into the car but did not see the evidence because their attention was focussed on aperson, not the contents of the car. In addition, the Defendant’s body obstructed the paramedics’ view of the console and seat to herright. Dustin Minialoff, who was not focussed on his aunt’s care, looked through both the driver’s and passenger’s windows and wasable to see contraband without difficulty. Unlike everyone else, Sgt. Kachik looked through the window while the car was unoccupied.

The photo of the interior of the car (Exhibit 9) illustrates how easily one could see the areas of the car and the things observed by theofficer from outside without the need to intrude into the space. [17.] Even though looking into the car did not involve

section 8 of the Charter, seizing the items without a warrant needed to be basedon legal authority, whether incident to arrest or in accordance with the plain view doctrine, or both. 3.3: Does the Plain View Doctrine apply to this case? [18.] “Plain view” seizure is a common law power. In R. v. Jones (2011), 2011 ONCA 632 , 107 O.R. (3d) 241 at paragraph56, the Ontario Court of Appeal expressed the doctrine as follows: (

i) The officer must be lawfully in the place where the search is being conducted ("lawfully positioned", in the language of theauthorities); (ii) the nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) the evidence must have been discovered inadvertently; (iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit anexploratory search to find other evidence of other crimes. [19.] In this case, Sgt. Kachik was lawfully positioned at the car.

He was acting in accordance with his duties as a peace officer toassist with a 911 call concerning an unconscious citizen. [20.] The crack pipe, open bag with steel wool and small baggie with white powder in it lying on top, and the butane torch werecumulatively and immediately apparent as likely constituting a crime. [21.] As I have already found, the steel wool and baggie of drugs in the open bag, the pipe, and the torch were all visible withouthaving to enter the car. Sgt. Kachik did not conduct any exploration other than with his unaided eye from outside the space being

observed. [22.] The central issue concerning “plain view” is whether the discovery of the drugs was “inadvertent”. It was the position of Ms.Minialoff that the officer’s discovery of the drugs by looking through the window was not inadvertent in the sense that it was neitherunintentional nor accidental. She relies on the admission by Sgt. Kachik that when told drugs might be involved, he went to the car forthe purpose of determining their presence if possible. I agree with the Defendant that looking through the window was intentional andthus not inadvertent within the ordinary meaning of that word.

However, for reasons I will explain, the defence submission is too narrowa view of the legal meaning of “inadvertent” in relation to the plain view doctrine. [23.] The meaning of “inadvertence” has been addressed by high appellate courts across Canada. The Supreme Court of Canadafound that in the context of the plain view doctrine, “inadvertent” means immediately obvious through the unaided use of the senses: R.v. Law, 2002 SCC 10 , [2002] S.C.J. No. 10 at paragraph 28.

The Saskatchewan Court of Appeal held that the plain doctrineview applied where the police believed the evidence would be found because that evidence was clearly visible not only to them but tomembers of the public who might also have been present: R. v. Spindloe, 2001 SKCA 58 , [2001] S.J. No. 266 (C.A.). TheNewfoundland Court of Appeal held that “inadvertent” means the officer must not have certain knowledge of the evidence in advance,but may have a hunch, suspicion, or even belief that evidence may be found: R. v. Chaisson, [2005] N.J. No. 227 (C.A.)[1] at paragraph33.

The British Columbia Court of Appeal found that the “inadvertence” element can met by the police in two ways: first when anunexpected item is found other than by doing something that reveals the item to one’s sight; and second when something expected isseen, but that thing is obvious to anybody where the police are lawfully present: R. v. Gill, 2019 BCCA 260 , [2019] B.C.J. No.1308 (C.A.), at paragraphs 40 to 52. [24.] Here, Sgt.

Kachik’s discovery of the evidence was legally inadvertent because even though he had information there might bedrugs and he fully expected to see some, he had nothing that amounted to certain knowledge that there would, in fact, be drugs in thecar.

Furthermore, he only used his eyes to see the contraband; he did not open, move, or manipulate anything to discover the evidencewhich was clearly visible to anyone who was looking. [25.] I therefore conclude that in this case, the evidence of drugs and paraphernalia were lawfully seized pursuant to the plain viewdoctrine. 3.4: Was the Search and Seizure Incidental to Arrest? [26.] The prosecution argued that the seizure of the drug evidence was also lawful as being incident to the Defendant’s arrest.

TheDefendant took a contrary position. [27.] The power of search incident to arrest is well entrenched in the common law. As noted by the Supreme Court of Canada thirtyyears ago in Cloutier v. Langois (1990), (SCC), 53 C.C.C. (3d) 257: "… [T]he law as recognized and developed inCanada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession orimmediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape, or provide evidence againsthim".

A search of the arrestee, or their immediate surrounding area including motor vehicles, before an arrest is valid as incident to thatarrest where, prior to the search, there existed reasonable and probable grounds for the arrest: R. v. Ellis, 2016 ONCA 598 at paragraph33. Where the search is incidental to arrest, either before or after the actual arrest, there is no set time limit for the search, but it must bereasonably proximate in time to the arrest: R. v. Caslake, (SCC), [1998] 1 SCR 51 at paragraph 24. [28.] Given the facts as I have found them, Sgt.

Kachik’s reasonable grounds to arrest the Defendant for possession of illegal drugswere fully established once he looked into her car and saw the drugs and paraphernalia. Had he arrested her at the scene there is nodoubt that his search of the car and seizure of the evidence would have been justified as incident to that arrest. However, he did notarrest her immediately because she had been taken to the hospital before he seized the evidence from her car. Once he secured theevidence, Kachik did not delay the arrest for any longer than was needed to drive directly to the hospital.

I find that the seizure wasincidental to the arrest because it happened within a reasonable time of it and it was done only after he had reasonable grounds to believethe Defendant had committed a drug offence. [29.] Therefore, I find that the seizure of the evidence was lawful as being incidental to the Defendant’s arrest. 3.5: Conclusion on the Legality of the Search and Seizure of Evidence [30.] In conclusion, I find that the seizure of the drugs and paraphernalia from the Defendant’s car was legal and not a violation of her

constitutional rights. 4.0: SHOULD THE EVIDENCE SEIZED DURING THE SEARCH BE EXCLUDED? [31.] If I am wrong and that the conduct of the police violated the Defendant’s right to be free from unlawful search and seizure, Iwould not exclude the evidence. [32.] If there was a breach, it fell on the low end of the scale of seriousness. In the circumstances any breach was modest at best. Thepolice did not act with any lassitude about their duties. The impact on the Charter protected interests were not great given that there is amuch lower expectation of privacy in a motor vehicle.

Lastly, there is a significant public interest in litigating the case on the meritswhere as here, the evidence is highly reliable and central to the prosecution. On balance, all these factors favour inclusion of theevidence, not its exclusion. I am not persuaded in the circumstances of this case that on a balance of probabilities that admitting theevidence sought to be excluded could bring the reputation of the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] S.C.J.

No. 32 (SCC). 5.0: CONCLUSIONS AND VERDICTS [33.] For the reasons set out, I find that the seizure of the evidence by the police was lawful. If the Defendant’s right under

section 8of the Charter was breached by police conduct, I would not exclude the evidence for the reasons stated. [34.] As a result, verdicts of guilty will be registered on counts 1 and 2 on Information19-80. _______________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice