



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Reid, 2016
    ONCA 944

DATE: 20161215

DOCKET: C59985

Epstein, Pepall
    and van Rensburg JJ.A.

BETWEEN

Her Majesty the
    Queen

Respondent

and

Troy Reid

Appellant

Andrew Stastny, for the
    appellant

Lucas Price, for the
    respondent

Heard: May 9, 2016

On appeal from the
    convictions entered by Justice Ramez Khawly of the Ontario Court of Justice on
    December 8, 2014.

Epstein J.A.:

A.

Overview

[1]

In the early hours of May 24, 2014, police officers entered a small
    apartment unit. There, they discovered the appellant, Troy Reid, with
    approximately 38 grams of crack cocaine. Mr. Reid was convicted of possession
    of cocaine for the purpose of trafficking and two counts of breach of
    recognizance, one based on his possession of drugs and the other based on his
    being in violation of his curfew.

[2]

At trial, Mr. Reid challenged the admissibility of the drugs, arguing
    that the evidence was discovered in breach of his rights under ss. 7, 8, 9,
    10(a) and 10(b) of the
Canadian Charter of Rights and Freedoms
.
[1]
The trial judge found no
Charter
breaches and went on to conclude that
    if he had found a
Charter
breach, he would not have excluded the
    evidence under s. 24(2) of the
Charter
. The trial judge convicted Mr.
    Reid of all three counts and sentenced him to 21.5 months in jail.

[3]

Mr. Reid appeals from conviction only. He submits that the trial judge
    erred in law by failing to find that: (i) he had standing to assert a claim
    under s. 8; (ii) his arrest and detention violated his rights under s. 9; (iii)
    his ss. 10(a) and 10(b) rights were violated; and (iv) the evidence obtained in
    connection with the breach of his
Charter
rights should be excluded
    under s. 24(2). He asks that all evidence flowing from the unlawful entry into
    the dwelling and his unlawful detention and arrest be excluded, and that
    acquittals be entered on all charges.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

Facts

[5]

Just before midnight on May 23, 2014, the police received a 911 call
    about an assault in progress. Sergeant Robin Dey arrived at the scene to find a
    distraught female who said her ex-boyfriend, Troy Reid, had assaulted her. The
    woman indicated to Sergeant Dey that Mr. Reid was inside a rooming house at 51
    Mutual Street, and that he was in possession of drugs and in breach of his
    curfew.

[6]

Sergeant Dey went to 51 Mutual Street to investigate. Officers
    Hinchcliffe and ODonnell arrived to assist. A man in the lobby of the building
    told them that there was a black man on the second floor dealing drugs and directed
    them to unit 202. The man in the lobby added that it was crazy up there, as people
    were coming in and out of the unit constantly.

[7]

The three police officers went to the second floor. There was
    conflicting evidence at trial as to what happened next, but the trial judge
    accepted Sergeant Deys testimony that he heard a woman inside the apartment, knocked
    on the door and requested that the door be opened. Sergeant Dey had a brief
    conversation with the woman, later identified as Catherine Coleman. She told
    Sergeant Dey that she needed time to get dressed. Sergeant Dey could hear
    people shuffling around inside the apartment. Ms. Coleman then attempted to
    open the door but it was jammed by fabric on the floor that had bunched up
    under the door. Sergeant Dey pushed on the door to help Ms. Coleman open it while
    she pulled it from inside the apartment.

[8]

Finally, the door was opened wide enough to enable Sergeant Dey to make
    his way into the apartment. While part way through the door, Sergeant Dey asked
    Ms. Coleman and a Caucasian man who was also in the apartment if they lived
    there. They answered that they did not live in the apartment and did not know
    who did. They also advised the police that no one else was in the unit.

[9]

Sergeant Dey testified that, at that point, he suspected that this was
    an apartment takeover situation and became concerned for the well-being for
    the true resident of apartment 202.
[2]


[10]

Sergeant Dey then noticed a closed door in the unit.  Based on safety
    concerns, he opened the door. Inside was a very small bathroom, with only
    enough room for a toilet. Mr. Reid was sitting on the toilet.  Sergeant Dey
    told Mr. Reid to stand up and pull up his pants. Sergeant Dey put his hand on
    the small of Mr. Reids back, effectively guiding him out of the bathroom. As
    Mr. Reid moved out of the bathroom, Sergeant Dey looked in the toilet and saw a
    cellophane bag in the water. The bag contained what was later determined to be approximately
    38 grams of crack cocaine.

[11]

Sergeant Dey told Officer Hinchcliffe to arrest Mr. Reid for possession
    of cocaine for the purposes of trafficking. Mr. Reid was arrested and read his
    rights to counsel.

C.

Reasons for Conviction

[12]

The trial judge, following the leading authority of
R. v. Edwards,
[1996] 1 S.C.R. 128, held that Mr. Reid had no reasonable expectation of
    privacy in Ms. Colemans apartment and therefore no standing to assert a s. 8
Charter
breach. The trial judge held that Ms. Coleman had tailored her evidence to
    create the impression that Mr. Reids connection to her apartment was greater
    than it actually was and that she lacked credibility. The trial judge noted a
    number of issues with Ms. Colemans evidence. For example, Ms. Coleman waffled
    in her evidence concerning Mr. Reids contribution to the rent. The trial judge
    also found that Ms. Colemans apartment was small and appeared to be set up for
    one person. He also noted that there was only one key to the unit. Moreover, Mr.
    Reid maintained other residences and his bail conditions included a requirement
    that he live with his surety, not with Ms. Coleman.

[13]

The trial judge further held that although Sergeant Dey, an experienced
    and senior police officer, should have obtained a warrant and searched police
    databases for information about Mr. Reid before he entered unit 202, there was
    no violation of Mr. Reids s. 9, 10(a) or 10(b)
Charter
rights arising
    out of his brief investigative detention when he was directed to exit the
    bathroom by Sergeant Dey. He held that any detention that occurred was for a
    mere instant in a fluid situation. Finally, the trial judge briefly considered
    s. 24(2). He indicated that he would not exclude the evidence in issue even if
    he had found a
Charter
breach.

D.

Analysis

(1)

The Section 8 Issue

[14]

Mr. Reid argues that the trial judge erred in his application of
Edwards
in failing

to look at the totality of
    the circumstances, including the factors set out in
Edwards.
Specifically, Mr. Reid argues that even after

rejecting
    Ms. Colemans testimony, the trial judge was required to apply the
Edwards
factors
    to make a determination on standing, including the accuseds: (i) presence at
    the time of the search; (ii) possession or control of the property or place
    searched; (iii) ownership of the property or place; (iv) historical use of the
    property; (v) ability to regulate access; (vi) subjective expectation of
    privacy; and (vii) objective reasonableness of the expectation. Mr. Reid further
    argues the trial judge erred in finding that his testimony was insufficient to
    establish standing without confirmatory evidence.

[15]

Mr. Reid points to the uncontroverted evidence that he and Ms. Coleman
    were in an intimate relationship and the fact that he was able to regulate
    access to the apartment. Even if the apartment was more Ms. Colemans than
    his, he still had a subjective and objective expectation of privacy in her
    apartment when he was in it, with the door locked.

[16]

Mr. Reid distinguishes his case from
Edwards
, where the Supreme
    Court, in concluding the accused had no standing, found that the accused could
    prove only one of the relevant factors. Unlike in
Edwards
, Mr. Reid
    was present in his partners dwelling at the time of the search and the police
    did not obtain Ms. Colemans consent to enter the dwelling.

[17]

The Crown argues that there was no palpable and overriding error in
    the trial judges factual findings. The trial judge acknowledged that
Edwards
was the governing precedent and a holistic reading of his reasons
    demonstrates that he applied the
Edwards
factors.

[18]

I see no reason to interfere with the trial judges conclusion that Mr.
    Reid lacked standing to advance an argument based on a breach of s. 8 of the
Charter
.
    Although the trial judge did not refer to the
Edwards
factors
    individually, counsel made extensive reference to
Edwards
throughout
    their submissions and the trial judge acknowledged the governing principles set
    out in
Edwards
in his analysis. It was open to the trial judge, based
    on his credibility findings, to conclude that Mr. Reids subjective expectation
    of privacy was not objectively reasonable. His evidentiary findings are
    entitled to deference: see
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621,
    at para. 10.

(2)

The Sections 9, 10(a) and 10(b) Issue

[19]

Mr. Reid argues that even if he has no standing to challenge the entry
    into the apartment, his arrest was unlawful because it occurred inside a
    dwelling without a
Feeney
warrant. Mr. Reid asserts that Sergeant Dey
    approached the apartment with the intention to find grounds to arrest and then
    search him for narcotics. Relying on
R. v. Adams
, [2001] O.J. No. 3240
    (C.A.), Mr. Reid argues that a
Feeney
warrant is required for an
    arrest in any dwelling, not merely the accuseds dwelling. Mr. Reid further
    submits that the fact that none of the individuals in the apartment claimed possession
    of the unit did not alter the unlawfulness of the police entry into the unit.

[20]

Mr. Reid contends that the investigative detention preceding his arrest
    was also illegal because it was tainted by the unlawful entry into the
    apartment by the police. This unlawful detention led to the discovery of the
    drugs in the bathroom.

[21]

Finally, Mr. Reid argues that the trial judge erred in concluding that
    because of the fluidity of the situation, his s. 10(a) and 10(b) rights were
    not engaged. Once the detention crystallized, the s. 10 requirements became
    immediate.

[22]

The Crown distinguishes the
Adams
case on the basis that Mr.
    Reid had no reasonable expectation of privacy in the apartment toilet where the
    drugs were located, unlike in
Adams
where the accuseds own s. 8
    rights were engaged when he was searched incident to arrest. Moreover, if some
    form of consent was required to enter the unit, the law of implied invitation
    recognized by this court in
R. v. Mulligan
, [2000] O.J. No. 59 (C.A.),
    satisfied such a requirement. Given the presence of what seemed like unlawful
    occupants, and given that Sergeant Dey was told drug dealing was taking place
    in the unit, it was in the interests of the property owner or lawful resident
    that the police be granted entry.

[23]

The Crown further argues that any investigative detention was either
    proportional to the concern the police had regarding the security of the unit or,
    at worst, was a
de minimis
violation of Mr. Reids liberty.

[24]

Finally, the Crown asserts that given the imminence of Mr. Reids arrest
    upon locating the drugs in the toilet, it was unnecessary and impractical to
    provide reasons for detention and rights to counsel prior to the arrest. The
    trial judge was correct in his conclusion that there was no breach of s. 10(a)
    or 10(b) arising from Mr. Reids detention before arrest.

[25]

In my view, the facts do not support Mr. Reids assertion that Sergeant
    Dey entered the unit to arrest him. Rather, and as the trial judge found,
    Sergeant Dey was investigating various possible criminal acts. As such, this
    case is distinguishable from those cases recognizing that a
Feeney
warrant
    is required where police enter a dwelling for purposes of arresting an
    occupant.

[26]

Because I would reject Mr. Reids starting premise that Sergeant Dey
    needed a
Feeney
warrant before entering the apartment, the balance of
    his argument that his detention and arrest were illegal because they flowed
    from the officers illegal entry into the apartment, cannot stand.

[27]

In any event, I accept the trial judges implicit finding, in preferring
    Sergeant Deys evidence over that of Ms. Colemans, that the officer entered
    the apartment on consent. Further, I see no reason to interfere with the trial
    judges finding that Sergeant Dey, on being informed by Ms. Coleman and the
    other occupant that neither was the owner of the unit, sought entry based on
    concerns for the safety and security of the true owner. It is implicit in the
    trial judges reasoning that this concern is what motivated Sergeant Dey to
    proceed in entering the unit.

[28]

Moreover, Sergeant Dey's direction to Mr. Reid to leave the bathroom while placing his hand on his back, in my view, did not amount to a detention. Not every interaction between a person and the police constitutes a detention within the meaning of the Charter, even where there is an investigation ongoing:
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19. Mr. Reid may have been momentarily under the officer's control when Sergeant Dey guided him out of the bathroom, but Mr. Reid was not subject to the type of physical or psychological restraint that amounts to a detention within the meaning of the
Charter: R. v. Suberu
, 2009 SCC 33,  [2009] 2 S.C.R. 460, at para. 7.

[29]

But even if Sergeant Deys momentary direction to Mr. Reid before his
    arrest amounted to a detention within the meaning of the
Charter,
his
    detention was neither arbitrary nor unreasonable. In
Mann
, at paras.
    23-35, the Supreme Court recognized that individuals may be detained for
    investigative purposes if the police are acting in furtherance of their duties,
    which include the preservation of the peace, the prevention of crime and the
    protection of life and property and further, that the detention is justified
    based on a constellation of objectively discernible facts giving rise to the
    detaining officers suspicion that the suspect is criminally implicated in the
    activity under investigation:
Mann,
at para. 27.

[30]

Proactive community policing, while an effective approach to crime prevention in high-crime areas, must be carried out in a manner that does not diminish individual rights and freedoms:
Brown v. Durham Regional Police Force
(1988), 43 O.R. (3d) 223 (C.A.). When the police investigate and detain citizens, they must do so only when they believe, on reasonable grounds, that the detention is necessary, and the detention is not more intrusive to liberty than reasonably necessary to address risk:
R. v. Clayton
, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 21. This standard does not change depending on where one lives.

[31]

However, here, Sergeant Dey had reason to detain Mr. Reid. Sergeant Dey
    had information that Mr. Reid had committed an assault, was dealing drugs, and
    could be found at 51 Mutual Street. On arriving at the Mutual Street building,
    Sergeant Dey received additional information that a male matching Mr. Reids
    description was on the second floor dealing drugs out of unit 202. When
    Sergeant Dey arrived at unit 202 and received information from the occupants
    that neither was the rightful occupant of the unit, he became concerned for the
    rightful occupants well-being. In attempting to ascertain who was in the
    apartment, and for his own safety, he opened the door that turned out to be a
    bathroom, found a person (who turned out to be Mr. Reid) inside, and asked him
    to step out.

[32]

In my view, this was a reasonable request, given that Sergeant Dey had
    just been told that there was no one else in the apartment, his concerns about
    an apartment takeover, and his ongoing investigation into possible drug dealing
    and an assault. There was no violation of s. 9 of the
Charter.

[33]

Moreover, Mr. Reids actual detention only crystallized when Sergeant
    Reid saw the bag of drugs in the toilet, which coincided with his immediate
    arrest. He was given his rights to counsel under s. 10(a) and 10(b) of the
Charter
at that time. In the circumstances, as the trial judge noted, given the
    fluidity of the situation, it was impractical to provide rights to counsel
    prior to the arrest. There was no violation of s. 10(a) or 10(b) of the
Charter.

[34]

Finally, in my view, Sergeant Deys decision to look in the toilet and
    retrieve the drugs from the toilet bowl did not constitute a search of Mr.
    Reid. A search is only subject to constitutional review where the search
    intrudes on a reasonable expectation of privacy. As previously noted, Mr. Reid
    had no privacy interest in the apartment. Further, the drugs were found without
    any interference with Mr. Reids interest over his own personal privacy. He was
    not searched: the toilet was searched.

(3)     Exclusion of Evidence  Section 24(2) of the Charter

[35]

Having concluded that Mr. Reids rights under the
Charter
were
    not violated in this case, I find it unnecessary to analyze the admission of
    the evidence under s. 24(2) of the
Charter
.

E.

DISPOSITION

[36]

Based on this analysis, I would dismiss the appeal.

Released: December 15, 2016 (KMVR)

Gloria Epstein J.A.

I agree S.E. Pepall J.A.

I agree K.M. van Rensburg J.A.





[1]

While Mr. Reid argued that the evidence was discovered in
    breach of his rights under s. 7 of the
Charter

at trial, he did not appeal the trial judges disposition of this
    issue.



[2]

Apartment-takeovers occur where tenants are forcibly displaced
    from their homes. Often, the apartment is subsequently used to carry out
    illegal activity.


