



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labelle, 2016 ONCA 110

DATE: 20160208

DOCKET: C58138

Watt, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Larry Labelle

Appellant

Michael Davies and Meaghan McMahon, for the appellant

Brian G. Puddington and Zoe Oxaal, for the respondent

Heard: January 26, 2016

On appeal from the convictions entered on April 19, 2013
    and the sentence imposed on July 12, 2013 by Justice Giovanna Toscano Roccamo
    of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of cocaine for the purpose of
    trafficking, possession of marihuana for the purpose of trafficking, and two counts
    of possession of the proceeds of crime under $5,000. He was sentenced to three
    and one-half years imprisonment and a two-year period of probation. He appeals
    his convictions and seeks leave to appeal sentence.

[2]

The appellants arrest was part of a broader
    investigation undertaken by the Ottawa Police Services Drug Unit (OPSDU) as a
    consequence of information received from confidential informants that Yianni
    Papadolias was a high-level drug dealer. The OPSDU conducted a lengthy
    investigation that included surveillance of Mr. Papadolias. He was observed
    making frequent visits to a condominium building in Ottawa. Mr. Papadolias
    employee, Merith White, resided in a unit of that building.

[3]

In December 2010 and January 2011 the
    OPSDU entered the condominium building on three separate occasions without a
    warrant and without permission from building management or any condominium unit
    owner. On the third occasion, on January 21, 2011, an officer observed Mr.
    Papadolias enter Mr. Whites unit and, while positioned in a stairwell, the
    officer heard conversations about an impending drug transaction. The officer
    also noted hearing sounds from within the apartment, which he believed to be
    from the use of packing tape. He then observed Mr. Papadolias exit the unit carrying
    a white and blue box and go down the stairs. These observations were reported by
    radio to the OPSDU team.

[4]

When Mr. Papadolias exited the
    condominium building, an OPSDU surveillance team observed him place the white
    and blue box in his vehicle and drive away. The surveillance team followed Mr.
    Papadolias to the parking lot of a nearby mall where he parked his vehicle,
    remaining in the drivers seat. The appellant approached Mr. Papadolias
    vehicle carrying a yellow plastic bag and entered the front passenger seat.
    Seven minutes later, the appellant exited the vehicle without the yellow
    plastic bag. The appellant moved to the back of the vehicle, opened the hatch,
    and removed the white and blue box that Mr. Papadolias had brought from the
    condominium building. The appellant carried the white and blue box to a nearby
    van, entered the van, and drove away.

[5]

The OPSDU arranged for the O.P.P. to
    stop the van and arrest the appellant for possession for the purposes of
    trafficking. The O.P.P. made the arrest and found the blue and white box in the
    van, which contained approximately 2.6kg of marihuana and 166g of cocaine.

[6]

Following the arrest of the appellant,
    the OPSDU arrested Mr. Papadolias and Mr. White. They obtained a search warrant
    for Mr. Whites condominium unit and found 1.7kg of cocaine and 7kg of marihuana
    in the apartment.

[7]

During Mr. Whites trial, Justice
    Lalonde found that Mr. Whites s. 8
Charter
rights had been violated and excluded all evidence
    gathered in the condominium building during the OPSDUs entries. This court
    upheld that decision: see
R. v. White
,
    2013 ONSC 1823, 281 C.R.R. (2d) 329, affd 2015 ONCA 508, 127 O.R. (3d) 32.

[8]

At trial in the present case, the
    appellant brought an unsuccessful
Charter
application to exclude the evidence found in the blue and
    white box
, or in the alternative, stay
    the proceedings as an abuse of process. Defence counsel and Crown counsel
    agreed that they would be bound by Justice Lalondes findings in
White
and that all evidence gathered during the
OPSDUs
three entries
    into the condominium would be excluded.

[9]

The appellant advances two primary
    arguments on appeal. First, he submits that when the impugned evidence obtained
    from the observations made inside the condominium building is excluded, the
    police did not have reasonable and probable grounds to arrest him. Because the
    arrest was illegal, the search incident to arrest was also illegal. Second, the
    appellant submits that if there were insufficient evidence independent of the
    impugned evidence to establish reasonable and probable grounds, it would be an
    abuse of process to rely upon that impugned evidence to establish reasonable
    and probable grounds. Instead, that evidence should be excluded from the
    analysis pursuant to s. 24(1) of the
Charter
.

[10]

With respect to the appellants first
    argument, we do not accept the submission that the police lacked reasonable and
    probable grounds for the arrest independent of the evidence illegally obtained
    at the condominium building. When considering the objective reasonableness of
    the subjective grounds for arrest, a court must look to the totality of the
    circumstances, and it is not appropriate to consider each fact in isolation: see
R. v. Lawes
, 2007 ONCA 10, 72 W.C.B.
    (2d) 487, at para. 4;
R. v. Italiano
,
    2015 ONCA 179, 120 W.C.B. (2d) 19, at para. 8.

[11]

We agree with the trial judges
    conclusion that, even after excluding the information gathered during the
    entries into the condominium building, the combined information from the
    informants, the totality of the investigation of Mr. Papadolias (minus the
    entries into the condominium building), the OPSDUs collective observations of
    the appellants vehicle and location, and the interaction between Mr.
    Papadolias and the appellant, were enough to satisfy both the subjective and
    objective components of the test for reasonable and probable grounds for
    arrest.

[12]

The appellants second argument is
    premised on a finding that there was insufficient evidence independent of the
    impugned evidence to establish reasonable and probable grounds. Given our
    conclusion above, it is unnecessary to consider this argument.

[13]

The Crown conceded that the sentence is
    illegal pursuant to s. 731(1)(b) of the
Criminal Code
and that the probation order must be quashed.

[14]

The conviction appeal is dismissed. Leave
    to appeal sentence is granted and the probation order is quashed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


