) ) Her Majesty the Queen ) ) ) C. Leafloor v. W.Houtmeyer, 2010 ONSC 2483

CITATION : R. v. Allan, 2010 ONSC 2483 COURT FILE NO.: 243/09 DATE: 2010/04/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen ) ) ) C. Leafloor and W.Houtmeyer for the Crown ) ) ) - and - ) ))) ) Craig Allan ) ) ) D. Landesman for the Accused, Craig Allan ) Accused ) ) ) ) HEARD: April 12 – 16 and April 26, 2010 BACKHOUSE J.: Ruling on

Section 8 and 9 of the Charter delivered April 28, 2010 [ 1 ] Craig Allan seeks to exclude evidence of 4 papers containing cocaine found on his person at the time of his arrest on the basis that his arrest was arbitrary and the search of him unreasonable, contrary to sections 9 and 8 of the Charter . Allan further seeks to exclude evidence of 10 ounces of cocaine, one pound of dried marijuana, cash and debt lists seized from 1705 Bayview Avenue on the basis that the search was conducted prior to the issuance of the search warrant. He contends that the admission of the evidence would bring the administration of justice into disrepute. Detective Constable Crooker’s Evidence

[ 2 ] Detective Constable Crooker testified that on March 21, 2007, she was part of the drug team conducting surveillance on Stewart Smith. The drug team had information that an undercover officer Sardella was going to meet Smith at 8 p.m. to conduct a drug transaction. After nightfall, at 7:36 p.m., from inside her vehicle parked north of 1705 Bayview on the opposite side of the street, D.C.Crooker observed Smith and an unknown male go up to the entrance to 1705 Bayview Avenue, the door to the street open and a second unknown male hand a bag to Smith and return inside the door to the street of 1705 Bayview.

The entire transaction took place within a few seconds. She transmitted the following description of the second unknown male to her fellow officers: white male in his late 20’s, skinny, balding, around 5 foot 10 inches and wearing a beige jacket. She did not observe a beard. She did not observe anything being given back by Smith. She could not recall the type of bag Smith was handed or how big the bag was.

D.C.Crooker was the only officer who observed this event. [ 3 ] Other officers testified to information they received based on D.C.Crooker’s observations about the unknown male’s description which included brown hair. Brown hair was not part of D.C.Crooker’s description. [ 4 ] Smith was followed back to his residence at 110 Erskine Avenue. After offering ½ kilo of cocaine for sale to Sergeant Sardella, he was arrested. D.C. Crooker was involved in the arrest of Smith and was not further involved in the arrest of the unknown male she had observed hand a bag to Smith.

When Allan was arrested, she was not asked to identify him as the unknown male she had observed. One and a half years later at Allan’s preliminary inquiry where he was one of 2 accused, she identified him as the person she had seen hand the bag to Smith at 1705 Bayview Avenue. [ 5 ] D.C.Crooker attended a debriefing at 11:10 p.m. on March 21, 2007 for which there are no notes. No one was able to recollect what was discussed. She testified that she learned later in the evening of March 21, 2007 that a substantial seizure of drugs was made at 1705 Bayview Ave. She booked off at 1 a.m. on March 22, 2007.

She made her notes the following day with the benefit of the central notes taken by Officer Leduc. She made no notes contemporaneous with the events. Detective Birrell’s Evidence [ 6 ] Detective Birrell was the road boss of a team of officers from the drug squad that was directed to attend at 1705 Bayview Avenue on March 21, 2007 to secure that address pending the issuance of a search warrant and to arrest the second unknown male observed by Detective Crooker, should he show up.

By running some checks, Detective Birrell was aware that there were at least 2 apartments above the storefront at 1705 Bayview Avenue. [ 7 ] Detective Birrell testified that at 9:45 p.m. on March 21, 2007, a vehicle stopped in front of 1705 Bayview Avenue. A male exited from the passenger side of the vehicle and entered 1705 Bayview Avenue. Detective Birrell transmitted over the radio a description of the person as a white male in his 20’s, wearing a hoodie, a jacket and a ballcap. Detective Birrell made the decision that the male matched D.C.

Crooker’s description and directed his team to arrest him when he exited 1705 Bayview Avenue. He acknowledged that he could not tell if he was balding because of the baseball cap and that D.C. Crooker’s description did not include a beard and Allan had a beard. He agreed that D.C. Crooker’s description was relatively generic and that many people in the Bayview/Eglinton area would match it. [ 8 ] Detective Birrell testified that a light was observed going on in the upstairs window facing Bayview Avenue of 1705 Bayview Avenue.

One minute later, the light went off and the unknown male exited from 1705 Bayview Avenue carrying 2 garbage bags. Upon getting back into the vehicle in which he had arrived, he was arrested and was subsequently identified as the accused, Craig Allan. [ 9 ] Officer Birrell directed that the driver of the vehicle should also be arrested for possession of cocaine for the purpose of trafficking. He testified that the basis for this was that he was in the same vehicle with the person who was believed to have supplied the cocaine to Smith that evening. He was identified as Allen Beach.

Beach stated that he was giving Allan a lift to the laundromat. The garbage bags were found to contain laundry. [ 10 ] Detectives Birrell, Robinson and Nicolle used the keys taken from Allan to open the main door of 1705 Bayview and enter Apartment A. Detective Birrell testified that this was done to ensure that there was no one else in the apartment who could destroy evidence. He testified that arresting Allan in front of 1705 Bayview Avenue created an officer safety concern. After ensuring that the apartment was empty and without conducting any search, they left after approximately one minute.

Detective Birrell testified that none of the 3 officers who entered 1705 Bayview Avenue prior to the search warrant being issued were there longer than 1 minute and none of them went back in again.

While waiting for the search warrant, they kept the door leading to Bayview Avenue open and officers were positioned at the top of the stairs outside the door to Apartment A. [ 11 ] Detective Birrell denied that the officers brought anything out of the apartment or had anything to do with investigating Glenn Levine that evening. [ 12 ] Detective Birrell testified that on his instructions, Allan’s roommate, Charles Gagnon, was arrested outside 1705 Bayview on Gagnon’s return to his apartment. He testified that the basis for this was that cocaine was believed to be inside the apartment. Central Notes [ 13 ] D.

C.Nicol was designated as the central note taker for the team of officers directed to do surveillance at 1705 Bayview. D.C.Nicol escorted Allan to 53 Division and was absent from 1705 Bayview from 11 p.m. on March 21, 2007 to 2:25 a.m. on March 22, 2007. No contemporaneous notes were made during this time by Nicol or any of the officers who remained at 1705 Bayview pending the arrival of the search warrant. No one else was designated central note taker at 1705 Bayview Avenue. [ 14 ] A debriefing was held at 53 Division for which there are no notes. The officers made their individual notes the following

day with the assistance of the central notes. The following chronology emerged from the officers’ testimony: Chronology March 21, 2007 Stephen Smith transaction [ 15 ] 3:30 p.m.- Sergeant Sardella (a detective constable at March, 2007),was wearing an Officer Protection kit and was wired so that the substance of his calls with Smith was relayed to the other members of the drug squad involved in this matter. Where their information about what transpired in telephone calls between Smith and Sardella differs from Sardella’s evidence, I have relied on Sardella’s evidence as the person directly involved.

Sergeant Sardella called Stephen Smith on his cellphone. He asked Smith if he was ready to do the deal they had previously discussed of selling Sardella 18 ounces of cocaine. Smith said he had to pick up the cocaine from his guy. Sardella said he had the money. [ 16 ] 4:30 p.m.- Smith called Sardella. Both calls were conducted on cellphones. They agreed upon the price of $15,750 for ½ kilo if Sardella wanted it today or if he could wait until the following day, $15,250. [ 17 ] 4:35 p.m.- Sardella called Smith on his cellphone to say he wanted to complete the deal that day.

Smith said he was going to contact his guy to pick up the product. [ 18 ] 4:40 p.m.- Smith texted Sardella to say that he would be at 110 Erskine at 8 p.m., to have the money and he would supply the product. [ 19 ] 5:22 p.m- D.C. Crooker observed Smith and an unknown male go into a Fido store in the Yonge and Eglinton area. [ 20 ] 6:42 p.m..- D.C. Crooker observed them going into a Puma store. [ 21 ] 7:26 p.m.- D.C. Crooker observed them going into a Shoppers Drugmart on Bayview Avenue. [ 22 ] 7:36 p.m.- D. C.

Crooker observed them at nightfall from inside her car on the opposite side of the street go up to the entrance to 1705 Bayview Avenue, the door to open and a second unknown male hand a bag to Smith and the unknown male return inside 1705 Bayview. [ 23 ] 7:39 p.m.-Smith called Sardella and said he wanted to change how they were going to complete the deal. Smith said he was doing another deal in the area and he would send Mike down to do the deal with Sardella.

Sardella said he was not comfortable with that. [ 24 ] 8:05 p.m.-Sardella called Smith and it was agreed that Smith would meet with Sardella [ 25 ] 8:10 p.m.-Sardella left 53 Division to meet Smith at 110 Erskine. Smith entered his car and handed him a 9 inch Fido bag containing ½ kilo cocaine. [ 26 ] 8:25 p.m.-Smith arrested, a search warrant is executed at 110 Erskine and several more people are arrested. Craig Allan [ 27 ] 8:40 p.m.- Detective Sawyer directed D.C. Birrell, Detrective Robinson, Sergeant Nicolle, D.C.

Nicol and Sergeant Dury to attend at 1705 Bayview Avenue to secure the address and to arrest the unknown male described by D.C. Crooker, if he appeared. [ 28 ] 9:45 p.m.- A vehicle stopped in front of 1705 Bayview Avenue. A person described as a white male in his 20’s, wearing a hoodie, jacket and a ballcap exited from the passenger side of the vehicle and entered 1705 Bayview Avenue. D.C.Birrell felt he matched D.C. Crooker’s description and directed that he be arrested. [ 29 ] 9:47 p.m.- Upon exiting 1705 Bayview, the male is arrested for trafficking and identified as Craig Allan.

He is described as in his late 20’s, slim, 5 foot 10, with a beard, wearing a beige jacket, black hoodie, baseball cap and running shoes. Upon being searched, 4 packs of folded paper containing a total of 1.85 grams of cocaine in his right jacket pocket, a cellphone and $235 were found and seized. The driver of the vehicle, Allen Beach, is arrested. [ 30 ] 9:47 p.m.- Allan stated that he lived at 1705 Bayview, apartment A, provided a description of his roommate, Charles Gagnon and stated Gagnon was not in the apartment. D.C.

Birrell, Detective Robinson and Sergeant Nicolle used the keys taken from Allan to open the main door of 1705 Bayview and to enter Apartment A. [ 31 ] 10:15 p.m.- Allan taken to 53 Division. [ 32 ] 10:20 p.m.- Beach searched and upon no drugs being found, released.

[ 33 ] 10:42-Allan booked at 53 Division by Sergeant Nicol. [ 34 ] 11:27, 11:28, 11:28 &11:49 p.m.-telephone calls from D.C. Birrell at 1705 Bayview to D.C. Nicol.at 53 Division [ 35 ] 11:31 p.m.-CPIC search of Glenn Levine by D.C. Nicol at 53 Division. [ 36 ] 11:50 p.m.- Upon returning home, Charles Gagnon, Allan’s roommate, was arrested outside 1705 Bayview Avenue for trafficking. He was searched-no drugs found. March 22, 2007 [ 37 ] 2:05 a.m.- D.C. Birrell, Detective Robinson, Sergeant Nicolle, D.C.

Nicol and Sergeant Dury relieved by Detective Matthews and Training Constable Poranganel. [ 38 ] 2:49 a.m.-search warrant issued for 1705 Bayview Avenue, Apartment A. [ 39 ] 3:15 a.m.-search warrant executed and a seizure reported of 289.9 grams of powder cocaine, 586.9 grams of marijuana, digital scales, debt lists and cellphones. Sergeant Sardella’s Evidence [ 40 ] Sergeant Sardella testified that in all his communications with Smith he used his TPS issued cellphone paid for by TPS. His undercover operation with Smith began on February 15, 2007.

He made several smaller purchases from Smith prior to March 21, 2007, all of which Smith had conducted personally with the exception of one on March 1, 2007 when Smith sent Lorne Martin to conduct the sale. The first time Smith mentioned that he was working with “another guy” was March 21, 2007, although on 2 prior occasions he had said that he “sat” on 10 ounces of cocaine. Sergeant Sardella had never seen Allan prior to his arrest. Detective Constable Nicol’s Evidence [ 41 ] D.C.Nicol was not sure if the door to Allan’s apartment was open or closed while they were waiting for the search warrant.

He testified at the preliminary inquiry that he had not used a cellphone in regard to 1705 Bayview. Cellphone records have now been produced pursuant to court order. He agreed on cross-examination that he had been incorrect at the preliminary inquiry and had in fact used his cellphone. He did not remember officers coming out of 1705 Bayview or officers carrying something out of the apartment. Sergeant Dury’s Evidence [ 42 ] Sergeant Dury testified that D.C. Birrell, Detective Robinson and Sergeant Nicolle were in Allan’s apartment for more than 1 minute and less than 5 minutes.

He advised Allan of his right to counsel, his expectation being that he would be afforded that opportunity when he got to the station. When they searched Beach, he was under arrest and they were looking for drugs. Detective Robinson’s Evidence [ 43 ] Detective Robinson was the Detective in Charge of operations at 1705 Bayview. He testified that D.C. Birrell, Sergeant Nicolle and he were inside Allan’s apartment for less than 1 minute to secure it before exiting. They did not conduct a search and they brought nothing out of the apartment.

He testified that the officers may have been wearing bullet proof vests and they were armed. [ 44 ] Detective Robinson’s team had their debriefing at 2:45 a.m. on March 22, 2007. There are no notes of who was present or what was discussed. Sergeant Nicolle’s Evidence [ 45 ] Sergeant Nicolle (a police constable at March, 2007) testified that when he went into Allan’s apartment with D.C. Birrell and Detective Robinson, he was not really concerned that anyone was in there because they had just seen the light turned on when Allan went in and then turned off when he left. They did not go in with their weapons drawn.

After one minute or so, he testified that he was told to go back downstairs. He could not recall being told why he was asked to go downstairs ahead of D.C. Birrell and Detective Robinson. He was confident when he left Allan’s apartment that there were no civilians in it. He had no independent recollection of D.C. Birrell and Detective Robinson coming down from Allan’s apartment. He was not really watching so did not observe if they brought anything with them. Detective Brammall’s Evidence

[ 46 ] Detective Brammall testified that he was the case coordinator and part of the surveillance team on Smith. He prepared the Information to Obtain the search warrant for 110 Erskine Avenue and was involved in executing that search warrant. He could not recall if the search was videotaped but expected that it would have been. Although there was nothing in his notes to confirm this, he testified that he attended at 1705 Bayview Avenue sometime after 10:05 p.m. on March 21, 2007. He is not sure why he went there. He returned to 53 Division just before the debriefing at 11 p.m. (in regard to 110 Erskine).

He prepared the Information to Obtain a search warrant for 1705 Bayview Avenue in which he disclosed that after Allan was arrested, officers entered the apartment to secure it of any suspects that may have seen the arrest of Allan on the street. [ 47 ] Detective Brammall’s signature appears on the Report to Justice prescribed by the Criminal Code after the search on 1705 Bayview Avenue was completed although he was not sure that he prepared it. It stated that the search was conducted at 3:10 a.m. and completed at 3:15 a.m. on March 22, 2007.

He testified that he received information from the officers executing the search warrant at 1705 Bayview Avenue at 4:10 a.m. on March 22, 2007 that they had seized 10 oz. of cocaine, 1 pound of dried marijuana and cash from that address. Sergeant Sawyer’s Evidence [ 48 ] Sergeant Sawyer was the top ranking officer involved in both the 110 Erskine Avenue and 1705 Bayview investigations. He testified that there were grounds to believe that a person inside 1705 Bayview provided drugs to Stuart Smith which were sold to Officer Sardella and that more drugs could be found inside 1705 Bayview.

Accordingly, he felt that there were reasonable grounds to obtain a search warrant for 1705 Bayview and grounds to arrest a person matching the description of the unknown male observed by D.C.Crooker. He testified that if they did not contain 1705 Bayview, there was a concern that evidence would be lost. [ 49 ] Sergeant Sawyer testified that he did not participate in drafting the ITO for 1705 Bayview and he did not know if officers at 1705 Bayview had gone into the apartment.

He testified that securing the apartment could take many forms, depending on whether one heard anyone inside, creating a potential for evidence to be lost or whether it was quiet and dark and no one appeared to be there in which case watching the door would be sufficient. He testified that he attended at 1705 Bayview Avenue at 10 p.m. and met with Road Boss Birrell who confirmed that Allan had been arrested and the apartment frozen.

At 10:25 p.m., he and D.C.Nicol transferred Allan to 53 Division. [ 50 ] Sergeant Sawyer agreed on cross-examination that the allegations in the affidavits of Allen Beach and Glenn Levine are serious but testified that he was not implicated in anything alleged in the affidavits and that the allegations did not involve him. He testified that he was not sure whether he returned to 1705 Bayview much later in the evening. He had no notes that he had done so. [ 51 ] Sergeant Sawyer testified in his evidence in chief that the purpose of all the officers attending a debriefing was to coordinate and to correct errors.

On cross-examination, he said that to “coordinate” was not the best description but said that he would stand by it. Evidence of Detective Matthews, Training Constable Poranganel, Detective Constable Prentice and Officer Caccavale [ 52 ] Detective Matthews and Training Constable Poranganel (a detective constable at the time) were directed to relieve the team of officers at 1705 Bayview Avenue and did so at 2:05 a.m. on March 22, 2007. When they arrived, Detective Matthews had a brief discussion with the officers who they were relieving.

Detective Matthews testified that the officers he spoke to gave no indication of the layout of the apartment or that they had had a chance to go through the apartment. He testified that this is information that he would absolutely want to know, if it was available, before he went in to perform a search. [ 53 ] Detective Matthews and Constable Poranganel then stood by until approximately 3:10 a.m. when D.C. Prentice and D.C. Caccavale arrived with an endorsed search warrant. The officers then entered 1705 Bayview Avenue, Apartment A and conducted a search of the premises.

Within a few minutes of entering, they found a bag of cocaine under the sink containing 289 grams, 3 ziplock baggies of marijuana in the refrigerator containing 586 grams, a digital scale, debt lists, $2145 in cash and 2 cellphones. [ 54 ] The search was not videotaped or photographed, unlike the search which this team had conducted earlier in their shift. D.C. Prentice conceded that this was a significant oversight. Charles Gagnon’s Evidence [ 55 ] Charles Gagnon was subpoenaed to attend court by the Crown. He testified that he was the lessee of and had lived at 1705 Bayview Avenue Apartment A since June, 2004.

He did not keep drugs or deal with drugs in the apartment. The only persons who had keys other than Allan were his stepmother and the landlord. He had known Allan for 20 years and they had become chums in the last 6 years. Allan needed a place to stay and starting in the late fall of 2006, Alan slept on Gagnon’s living room couch 4 to 5 nights per week. Gagnon supplied him with a small dresser in the living room where Allan kept a change of clothes and personal things like a towel. [ 56 ] On the night of March 20 th , 2007, Gagnon slept at his girlfriend’s home.

The following day, he went to work, then out for dinner and returned home late in the evening. He was approached by 2 plainclothed officers who asked him to identify himself and then was immediately placed under arrest for trafficking. He was searched and no drugs were found. [ 57 ] Gagnon was initially denied bail and spent 6 nights in jail before being released on bail. He learned that a large amount of cocaine and marijuana was found in his apartment. He had many conversations with Allan who said to him that they were not Gagnon’s

drugs, Gagnon had not done anything wrong and that Allan would take the blame so Gagnon could walk away. Gagnon testified that this never happened. He went to court many times, went through a week long preliminary inquiry and had spent years waiting. He then decided to provide a statement to the Crown which was videotaped.

The Crown and/or the police then had more questions and he was videotaped again after which, in October, 2009, the charges were withdrawn. [ 58 ] Gagnon testified that while his arrest was very shocking to him and he did not remember all the details such as whether the officers told him he was charged with trafficking or possession or the sequence of events, he remembers the officers saying he was under arrest for marijuana and cocaine. He also remembered the officers asking him if he knew someone named Glenn. The booking video shows that when he was booked, he was told he was charged with trafficking in cocaine.

Allen Beach’s Evidence [ 59 ] Allen Beach swore an affidavit dated January 18, 2010 and was called as a witness on Allan’s behalf. He has been friends with Allan since grade school. He is 31 years of age and works in the TV and film industry in Toronto. He has no criminal record. He estimated that he had been in the apartment at 1705 Bayview Avenue between 8 to 13 times before March 21, 2007 and that he had visited Charles Gagnon there prior to when Allan started to stay there.

He knew Charles Gagnon because they went to the same high school and also from McSorley’s where Gagnon had worked for a long time. [ 60 ] Beach testified that around 8:30 p.m. on March 21, 2007, Allan called him. Beach had been having dinner with friends to celebrate his getting a job and was on his way home. Allan was at McSorley’s, a local pub on Bayview, and asked if Beach would drop him at the laundromat. Beach agreed to pick Allan up from McSorley’s, drive down the street to 1705 Bayview and wait while Allan retrieved his laundry and then drop Alan at the laundromat.

When Allan came out of 1705 Bayview Avenue with his laundry, 2 vehicles moved in to block Beach’s vehicle and 2 guns were pointed at him. At first he thought he was being carjacked but the persons identified themselves as officers and he was told he was under arrest for possession of cocaine. He did not have any drugs on him and told the officers that. He was told to remain in his car with his hands on the wheel and not to move. Allan was removed from Beach’s car. He saw Allan being handcuffed, searched and placed in the back of a van.

He observed 2 officers, one of whom was a Black man, take Allan’s keys from the hood of the van, use the keys to open the door leading up to Allan’s apartment and go up the stairs. The officers had nothing in their hands but the keys. Beach testified that he observed 2 officers coming out 2 to 4 minutes later, one of whom was the Black officer and he looked like he was carrying something in his arm the size of a football. He had a big smile on his face and 5 or 6 of the officers present then grouped around him and had a discussion. [ 61 ] Beach testified that he sat in his car for just under an hour.

He was never handcuffed or told his rights. He asked an officer why it was taking so long and the officer said that they were getting a judge out of bed to get a warrant. The officer searched Beach and having found nothing, told him he could go. [ 62 ] All the members of the drug team directed to attend at 1705 Bayview Avenue on March 21, 2007 consisting of D.C. Birrell, Detective Robinson (the only Black member of the team), Sergeant Nicolle, D.C.Nicol and Sergeant Dury, denied seeing an officer carrying a package out of the apartment.

Glenn Levine’s Evidence [ 63 ] Glen Levine swore an affidavit dated January 18, 2010 and was subpoenaed by Allan to give evidence. Levine is a 49 years old musician who was employed at McSorley’s Bar in March, 2007. He knew Allan as a customer of McSorley’s and on occasion, during his off hours had watched games with him there. Levine had also been to the apartment at 1705 Bayview with Allan on one or two occasions prior to March 21, 2007. Levine also knew Gagnon from McSorley’s and because his fiancée at the time and Gagnon’s girlfriend were friends.

Levine knew Allan was staying at Gagnon’s apartment. [ 64 ] Levine testified that he had spoken to Allan earlier in the day on March 21, 2007 and they had made a casual arrangement to meet at McSorley’s in the evening. Levine then called Allan later but was unable to reach him. Levine had made an arrangement to meet up with a friend who he liked to play videogames with until the early hours of the morning after the friend finished bartending at 1 a.m. He drove up Bayview past Allan’s apartment and noticed that the outside door was propped open. He decided to drop in on Allan before meeting his friend.

He went upstairs and knocked on the door. No one answered. He knocked again. The door opened but no one appeared. He thought Allan was playing a joke. A second later, someone from inside the apartment grabbed him, pulled him into the apartment and closed the door. This person who turned out to be an officer threw him roughly up against the wall in the hallway and was very physically aggressive with him. He was very scared. There were 3 or 4 officers in the apartment wearing bullet proof vests and what appeared to be combat gear. They asked him what he was doing there and who he had come to see.

They accused him of having something to do with drugs. An officer took away his wallet and went into another room. He assumed they were checking to see if he had a criminal record which he does not. From his position in the hallway, he could see into the kitchen. He could see that the refrigerator door was open and what looked like a large bag of marijuana inside. On cross-examination, he testified that he was not sure that the marijuana was inside the fridge. He was sure that the fridge door was open but agreed that he could be mistaken as to the position of the refrigerator.

He was searched and they found $20 and a single rolling paper on him. They assumed from this that he was there to buy a nickel or dime of weed which he denied and they said that if he had told them this, they would not have roughed him up.

The officer came back with his wallet and he was allowed to leave. [ 65 ] Levine initially estimated that this incident occurred between midnight and 1 a.m. but having been advised by defence counsel that the CPIC search conducted by the police on him occurred at 11:31p.m. on March 21, 2007, he now believes that this is the correct time. [ 66 ] Levine testified that he heard a couple of days later that Allan and Gagnon had been arrested that night. He subsequently told Allan what happened. At that time, he did not know that the police claimed not to have been in the apartment at 1705 Bayview

Avenue at the time he was there. [67] Levine was cross-examined on whether he had a bias against the police. He testified that eight days after the incident at1705 Bayview, police illegally searched his apartment and criminal charges were laid against him. These charges were withdrawn inJune, 2008. After the delivery of his January 18, 2010 affidavit, he learned that the police wanted to interview him. A picture of amarijuana leaf was left on his facebook with a message which said: “Contact Officer Ray Fortin”. He found this very upsetting.

Hetestified that he believed the incident at 1705 Bayview and the search of his apartment were connected. He testified that as a result of thesearch and charges against him, his whole life was pretty much ruined. He lost his fiancée and his reputation was ruined. He testifiedthat he respects the police and hates to think of a society without police but that he was angry at those particular officers when he foundout that they claimed not to be at 1705 Bayview at the time he was there. [68] It was suggested to Levine on cross-examination that he had fabricated his story to help his friend.

He testified that whilehe liked Allan, he would not lie for him. Levine testified on cross-examination that what happened to him at 1705 Bayview Avenue wasa traumatic experience and that it was not possible that he was confused about what occurred or that his encounter with the police tookplace outside the apartment. [69] All the members of the drug team directed to attend at 1705 Bayview Avenue on March 21, 2007 consisting of D.C.Birrell, Detective Robinson, Sergeant Nicolle, D.C.Nicol and Sergeant Dury, denied having any involvement with Glenn Levine thatnight.

None of the officers had anything in their notes about investigating Glenn Levine. They had no explanation for how the CPICsearch on Glenn Levine came to be conducted by D.C. Nicol at 53 Division at 11:31 p.m. shortly after D.C. Birrell, who was at 1705Bayview Avenue, telephoned him. D.C. Birrell could not recall why he called D.C.Nicol at 11:27, 11:28, 11:28 &11:49 p.m. on March21, 2007, which calls were disclosed on the cellphone records. He denied asking D.C.Nicol to do a CPIC search on Glenn Levine.

While D.C.Nicol conceded that he obviously did the CPIC search on Glenn Levine and that someone may have asked him to, he wasunable to shed any further light on the matter. Sergeant Dury denied that what Glenn Levine said was true but conceded on cross-examination that if it was true, it was their team that would be implicated. Submissions Defence submissions Search of the apartment [70] Allan submits that there were no exigent circumstances to enter the apartment before the warrant was issued.

He alsosubmits that having entered the premises improperly, an illegal search was conducted. [71] As to the admitted entry, reliance is placed on the fact that the police officers saw the lights go on and off and a person(Allan) leave. They heard no noise in the apartment. There was no reason to believe the apartment was occupied.

Sergeant Sawyer inhis evidence supported the view that there was no legitimate reason for entry. [72] With reference to the illegal search, reliance is placed on the evidence of Glenn Levine who testified that the officerswere inside the apartment, the refrigerator door was open, there was marijuana in the fridge or in plain view and he was roughly handledand investigated.

As well, Allen Beach observed an officer coming out of the apartment with a big smile on his face carrying a footballsized packing and the officers then grouping around him and a discussion taking place. [73] Additionally, the evidence discloses a failure to advise the top ranking officer involved and the officers who executed thesearch warrant that the premises had been entered earlier. The evidence also discloses that 2 officers remained on the premises, afterasking a third officer to leave. Counsel also submits that the officers’ failure to recall Levine’s presence on the site is incredible.

Theabsence of any notes after 11 p.m. on March 21, 2007 is also suspicious he argues. There is also no explanation for the CPIC enquiry. In disregard of standard operating procedures, no photographs or videotape of the search were made. Allan’s arrest [74] Defence counsel submits that the description relied on was generic. It could fit many persons. Moreover, Allan did notmatch the description because he had a beard and the hat he wore when arrested concealed whether he was bald. Accordingly, the arrestwas in breach of the Charter. In support he referred to R. v.

Chartier, (SCC), 48 C.C.C.(2d) 34 (S.C.C.) and R. v. Charley1993 CanLII 17040 (ON CA), 22 C.R.(4th)297 (Ont.C.A.) . Section 24(2) [75] As for the search of the apartment, the Crown concedes that the results should be excluded if the Court finds that thepolice illegally entered and searched the premises. [76] As for the arrest, Allan submits that it amounts to a serious Charter breach which would bring the administration ofjustice into disrepute if the evidence it yielded was admitted.

Crown submissions Search of the apartment [77] The Crown submits that Levine is not a credible witness because he is a friend of the accused, he equivocated onobserving marijuana in the refrigerator and he was mistaken in his placement of the refrigerator. Beach, also a friend, is not credible inhis testimony of observing officers carrying something out of the apartment the size of a football. The Crown attempts to explain thepolice officers’ memory failure because of their lack of notes.

The Crown submits that, at least inferentially, a finding that an illegalsearch occurred is tantamount to a finding that many police officers conspired to breach the Charter and to be untruthful in their

evidence. Allan’s arrest [ 78 ] In the Crown’s submission, the combination of a description which fit, in part, and the location of the arrest combine to provide reasonable and probable grounds for the arrest. The Crown referred to R. v. Williams , 2009 ONCA 35 . S.24(2) [ 79 ] The Crown submits that if a breach of

Section 9 is found, it was made in good faith. At worst, it was a close call. The evidence should be admitted and the administration of justice would not be brought into disrepute. Analysis and Findings Evidence Seized from 1705 Bayview Avenue [ 80 ] All of the officers on the drug team doing surveillance at 1705 Bayview Avenue on March 21, 2007 denied having any involvement with Glenn Levine that night. None of the officers were able to explain why D.C. Nicol ran a CPIC search of Glenn Levine at 11:31 p.m. on March 21, 2007, including D.C.Nicol.

Neither Detective Birrell nor D.C.Nicol had any explanation for the telephone calls from Detective Birrell’s cellphone to D.C.Nicol’s cellphone at or around the time Nicol ran the CPIC search. [ 81 ] Regrettably, I did not find the officers who testified credible witnesses. For professional witnesses who presumably had no personal interest in this matter, many of them appeared visibly nervous. Their complete denial of any involvement with Glenn Levine on the night of March 21, 2007 is contradicted by the CPIC search performed by D.C.Nicol and the cellphone records.

The CPIC and cellphone records lend support to Levine’s evidence that the police were in Allan’s apartment at a time when they deny that they were there and had no reason to be in there. The failure to remember by so many police officers is astonishing and suspicious. [ 82 ] It should be noted that there was persistent police resistance to the disclosure of the CPIC and cellphone records sought by the defence from the date of the judicial pretrial in June, 2009. Many court attendances and court orders were required before the records were produced.

When the CPIC records were produced, the police denied that the searches had any relevance to Allan. [ 83 ] The police retained counsel to oppose the production of the cellphone records on their behalf on the basis that there was an issue of officer safety. This was done notwithstanding that the cellphones were issued and paid for by the Toronto Police Service, the cellphones were used while on duty during the surveillance of 1705 Bayview Avenue and the defence was not seeking the actual cellphone numbers.

The resistance by the police to the disclosure sought, I believe, was motivated by their knowledge that disclosure would establish that they investigated Levine that night, a fact the police officers had denied at the preliminary hearing. The lack of memory at trial is belied by their awareness of what the disclosure would reveal. [ 84 ] I found Levine to be a credible witness because his evidence is consistent with the CPIC and cellphone records. I accept his evidence that he would not have come to court to lie for Allan.

Levine’s evidence that the door leading to the street at 1705 Bayview Avenue was propped open is consistent with Detective Birrell’s evidence. Levine readily conceded on cross-examination that he was not sure that he had seen marijuana inside the refrigerator and may have been mistaken about where the refrigerator was located but he was quite certain that he saw the fridge door open. His evidence was more in accordance with the objective facts and probabilities that occurred and there is no basis upon which to conclude that he was not truthful. [ 85 ] D.C.Crooker went off shift at 1 a.m. on March 22, 2007.

She learned before going off shift that there had been a substantial seizure of drugs made at 1705 Bayview Avenue. The search warrant for 1705 Bayview Avenue was not issued until 2:49 a.m. and it was not executed until 3:15 a.m. on March 22, 2007. The obvious inference is that D.C.Crooker was informed of a substantial seizure of drugs before the search warrant was issued because the drugs were found at 1705 Bayview prior to the issuance of the search warrant. [ 86 ] Sergeant Nicolle, Detective Robinson and D.C.

Birrell acknowledged entering 1705 Bayview Avenue, Apartment A at 9:47 p.m. on March 21, 2007 using the keys removed from Allan. Sergeant Nicolle testified that he did not really think anyone was in there. They had observed the light being turned on when Allan went into the apartment and turned off when he left. The information they had from Allan was that no one was in the apartment.

Sergeant Sawyer’s evidence suggested that in these circumstances, it should not have been necessary to enter 1705 Bayview Avenue and that watching the door was sufficient. [ 87 ] Even assuming that the officers had a basis for entering to secure the premises, there is no explanation for why Sergeant Nicolle was asked to leave the apartment ahead of Detectives Robinson and Birrell. Robinson and Birrell testified that they secured the premises and left after a minute. There was no suggestion in their evidence that they stayed behind or that they asked Nicolle to leave ahead of them.

Nicolle testified that it was clear there were no civilians in the apartment when he was asked to leave by Robinson and Birrell. The inference that arises from Sergeant Nicolle’s evidence which I find credible and the inconsistency between his evidence and that of Officers Robinson and Birrell is that Robinson and Birrell remained behind to conduct an illegal search. This is also consistent with Alan Beach’s evidence that he observed a Black officer coming out of 1705 Bayview carrying something the size of a football. Robinson was the only Black officer on the team at 1705 Bayview.

I find Beach to be a credible witness. He did not overstate his evidence. His evidence stood up on cross-examination. His evidence is consistent with the objective facts. [ 88 ] There is also no credible explanation for why the search was not photographed or videotaped. It is the norm to photograph or video the search. The search warrant package (Exhibit 11) presumes that the search will be recorded. D.C. Prentice testified that it was a significant oversight to not take pictures at the scene.

In all the circumstances, I infer that this was deliberately not done to conceal the fact that an earlier, illegal search had been conducted. It also seems odd why Sergeant Sawyer, the top ranking officer involved in the 1705 Bayview investigation, was not told and the officers who relieved the original team and executed the search warrant, were not told that officers had gone into the apartment prior to the issuance of the search warrant. This was information that Detective Matthews

testified that he would absolutely want to know, if it was available, before he went in to perform a search. [89] The Report to Justice signed by Detective Brammell stated that the drug squad entered the premises at 3:10 a.m. andconcluded their search at 3:15 a.m. The inference that arises from a search of such brief duration is that the drugs in 1705 Bayview hadbeen found earlier in the evening and the search that took place after the search warrant was issued was staged.

It also suggests that the3 officers who were in the apartment by their evidence for between 1 to 4 minutes earlier in the evening, had sufficient time to search andfind the drugs. [90] The most reasonable inference that arises from the recollection of Charles Gagnon, Allan’s roommate, that the officerstold him prior to the issuance of the search warrant that he was being arrested for marijuana and cocaine, is that the police knew aboutthe marijuana in the apartment. The only way they knew about this is because they had searched the apartment illegally.

His evidencethat he was asked if he knew “Glenn”, confirms Levine’s evidence that he had been there shortly before. I also find Gagnon to be acredible witness. Conclusion [91] I find on a balance of probabilities that the police first entered the apartment illegally because there were no exigentcircumstances to justify such an entry. Once there, I also find on a balance of probabilities that they conducted a search and found thedrugs. They subsequently lied in Court to cover it up.

The officers involved showed contempt for the rights protected by the Charter.The fact that this occurred in Allan’s home where a higher expectation of privacy exists is also an aggravating factor. This court mustdisassociate itself from the serious and deliberate state misconduct that led to the Charter violation in this case. Having found that therewas an illegal entry and search of 1775 Bayview, there can be no other conclusion and indeed the Crown concedes on these findings thatthe evidence should be excluded.

The Law relevant to the arrest and search of Allan [92] While Allan has the burden of establishing a Charter breach, the Crown has the burden of establishing that Allan’s arrestwas lawful. [93]

Section 9 of the Canadian Charter of Rights and Freedoms provides: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [94]

Section 8 of the Charter states: 8. Everyone has the right to be secure against unreasonable search and seizure. [95]

Section 495 of the Criminal Code defines a police officer’s powers of arrest: 495. A police officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence; (

b) a person whom he finds committing a criminal offence. [96] The reasonable grounds requirement has 2 elements:

i) the arresting officer must subjectively have reasonable andprobable grounds on which to base the arrest; and (ii) a reasonable person placed in the position of the officer must be able to concludethat there were reasonable and probable grounds for the arrest. While a police officer must possess, both subjectively and objectivelyreasonable and probable grounds to arrest an accused, the officer is not required to establish a prima facie case for conviction beforemaking the arrest. The standard of proof is one of “reasonable probability.” (R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241) [97] The legal review of reasonable and probable grounds for an arrest should be sensitive to the context in which the officermakes the determination. As Doherty J.A. stated in R. v. Golub at paragraph 18: “Mr. Harris’ reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness ofthe information available to them before acting.

It does not follow, however, that information which would not meet the reasonablenessstandard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether thereasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. Thedynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, theofficer’s decision to arrest must be made quickly in volatile and rapidly changing situations.

Judicial reflection is not a luxury the officercan afford. The officer must make his or her decision based on available information which is often less than exact or complete. Thelaw does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced withan application for a search warrant.”

(R. v. Golub (1997), (ON CA), 34 O.R.(3d) 743 (C.A.)) [98] Once a person has been lawfully arrested, the police may search him incident to that arrest, so long as that search iscarried out in a reasonable manner and for a valid objective (safety of the police and public, protection of evidence from destruction anddiscovery of evidence). (R. v. Caslake, (SCC), [1998] 1 S.C.R.51). Were there reasonable and probable grounds to arrest Allan? [99] Smith told undercover officer Sardella at 4:35 p.m. on March 21, 2007 that he had to pick up cocaine from his guy. Thecocaine sale was set for 8 p.m. on March 21, 2007.

The police had Smith under surveillance and he was observed receiving a bag froman unknown male at 1705 Bayview Avenue at 7:36 p.m. The police had reasonable grounds to believe that a person at 1705 BayviewAvenue matching the description provided by D.C.Crooker had provided cocaine to Smith who sold it to undercover Officer Sardella. Itis conceded that the description was relatively generic. Allan met part of the description but was wearing a hat so whether he was baldwas not apparent. Moreover, he had a beard and D.C.Crooker did not observe a beard.

Allan arrived and went into 1705 BayviewAvenue at 9:45 p.m. on March 21, 2007, the address where the handoff had been observed 2 hours earlier. He emerged 2 minutes latercarrying 2 garbage bags and re-entered the vehicle in which he arrived. A decision whether to arrest had to be made quickly. In my viewthere were reasonable and probable grounds to arrest Allan in the context in which it occurred.

It follows that there was a right to searchhim incident to that arrest. [100] If I am wrong and the grounds fall short of constituting reasonable and probable cause, I turn to consider whether theevidence found on Allan’s person should be excluded pursuant to s.24(2) of the Charter. The Section 24(2) Analysis of the evidence found on Allan [101] In R. v.

Grant, (2009) 2009 SCC 32 , 245 C.C.C.(3d) 1 (S.C.C.), the Supreme Court sets out the followinganalytical framework at para.71: “71 When faced with an application for exclusion under S.24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests ofthe applicant (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of thecase on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry todetermine whether considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute.”

(1) Seriousness of the breach [102] At the first stage of the inquiry, the court must consider the seriousness of the offending conduct by state authorities thatinfringed the Charter. If there were not reasonable and probable grounds to arrest Allan, there was no right to search him. However, ifthere were not the grounds to arrest Allan, the grounds fall just short and the decision to arrest him was made in good faith. The arrestcould not be said to be capricious or arbitrary. I find that if there was a Charter breach, its seriousness was at the low end of the scale.

This factor supports inclusion. (2)Impact on Allan [103] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interestsprotected by the infringed right. The impact on Allan was serious because when he was searched, drugs were found on him. This factorsupports exclusion.

(3) Society’s interest in the Adjudication of the Case on its Merits [104] The third stage of the inquiry requires the court to consider whether the truth-seeking function of the criminal trial processwould be better served by admission of the evidence or by its exclusion. The mistake, if there was one, was relatively minor and made ingood faith. The truth-seeking function of the criminal trial process would be better served by admission of the evidence. Society’slegitimate interest in adjudicating drug trafficking offences on their merits is seriously undercut where reliable and important evidence isexcluded.

Admitting the evidence will not have a negative effect on the public confidence in the rule of law or risk bringing theadministration of justice into disrepute. Conclusion [105] In weighing the various factors, I conclude that admitting the evidence found on Allan would not bring the administrationof justice into disrepute and the evidence should be included. Released April 28, 2010 _________________________________ Backhouse ,J.

CITATION : R. v. Allan, 2010 ONSC 2483 COURT FILE NO.: 243/09 DATE: 2010/04/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen - and - Craig Allan Ruling on

Section 8 and 9 of the Charter delivered April 28, 2010 Backhouse J.

Released: April 28, 2010