



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Garabet, 2017 ONCA 139

DATE: 20170217

DOCKET: C59880

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Haig Robert Garabet

Applicant/Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Howard Piafsky, for the respondent

Heard: January 30, 2017

On appeal from the conviction entered on June 26, 2014 by
    Justice D. Halikowski of the Ontario Court of Justice.

By the Court:

[1]

The appellant, self-represented at trial, challenged the admissibility
    of evidence seized from his residence and his vehicle pursuant to search
    warrants. He was granted leave to cross-examine the police officer who swore
    the information to obtain (ITO) in support of the search warrants. The
    cross-examination revealed that the central fact implicating the appellant in
    the ITO was false. However, the trial judge dismissed the appellants s. 8
Charter
application to set the warrants aside and, on the basis of the evidence found
    at the residence and in the vehicle, convicted the appellant of possession of
    controlled substances and possession of controlled substances for the purpose
    of trafficking.

[2]

Before this court, the appellant submits that the trial judge erred in
    refusing to set aside the warrants and in failing to find a s. 8 breach. He
    further submits that in the circumstances of the case, evidence obtained as a
    result of the warrants should be excluded pursuant to s. 24(2) of the
Charter
.

The ITO

[3]

In the course of an investigation into the activities of an alleged
    cocaine trafficker (not the appellant), the police learned that two officers,
    PC Tara Kramp and PC Basil Odei, were likely implicated in illicit drug
    dealing. The appellants former business partner, Nelson DaSilva, also appeared
    to be implicated. The police intercepted a text message forwarded by Odei to
    Kramp that appeared to set up a drug transaction for controlled substances, specifically
    steroids and GHB, at one of the stores owned by the appellant. The ITO alleged
    that the appellant was the person who had initiated that text message. It was
    conceded by the Crown at trial that the appellant had not sent the text message,
    and that it had been sent instead by an employee who worked at one of his
    stores.

[4]

The only other evidence in the ITO relating to the appellant was that
    two years earlier there had been a break-in at one of his stores. When the
    police investigated they found white powder believed to be cocaine on the
    surfaces of two digital scales, along with empty dime bags and a debt lists.  For
    reasons unexplained, they neither seized anything nor laid any charges as a
    result. The ITO also indicated that Tara Kramp had stated, based on a
    conversation she had had several months earlier, that she believed the
    appellant was engaged in cocaine trafficking.

Execution of the search warrants

[5]

The appellant resided with his wife and child in the basement of the
    home owned by his in-laws. Knowing that the appellant was not present at the
    residence at the time, and having no information that he had firearms or other
    weapons at his home, the police executed a dynamic entry. A tactical squad of
    eleven officers wearing goggles, helmets and balaclavas used a battering ram to
    bash in the door. The appellants father-in-law was handcuffed. He asked
    repeatedly to see the search warrant, and the trial judge accepted his evidence
    over that of the police officers in finding that he was never shown a copy of
    the warrant, contrary to s. 29(1) of the
Criminal Code
.

[6]

The search was not restricted to the appellants basement apartment. The
    entire house was searched.

[7]

The police found a quantity of cocaine at the appellants residence, and
    then obtained a warrant to search his car, where they found a variety of
    controlled drugs, drug paraphernalia, and items associated with drug
    trafficking. Search warrants for the appellants two stores were also obtained
    and executed. No drugs or related items were found at the stores.

Analysis

Validity of the warrants

[8]

In our view, the trial judge misapprehended the evidence in relation to
    the text message. He failed to appreciate that the text message formed the
    basis of the case made out in the ITO for a search warrant of the appellants
    residence. The trial judge characterized the appellants position as being that
    the police officer who swore the ITO had failed to specify clearly why he
    believed the third-party text message had originated from the appellant. With
    respect, that fails to recognize the significance of the error as to the
    originator of the text. The officers mistaken belief that the appellant had
    sent the text message setting up a drug transaction was the central fact upon
    which he relied when he stated that there were reasonable grounds to believe
    that there was a quantity of controlled substance at the appellants residence.

[9]

We do not agree with the respondents position that even if the
    incorrect information regarding the text message is removed from the ITO there
    remains sufficient evidence to justify the warrants.

[10]

The
    evidence relating to the appellants alleged cocaine trafficking was dated,
    imprecise and inconclusive, and insufficient to sustain the warrant.

[11]

The
    search of the appellants two stores was justified by the ITO, as the text
    message indicated that a drug transaction was planned to take place at one of
    the stores. However, in our view, the ITO failed to provide a basis to justify
    a search of his residence. There is no suggestion in the ITO that the appellant
    kept drugs in his residence. No surveillance was conducted of the residence.
    The suggestion advanced in oral argument on this appeal that the burglary two
    years earlier at one of the appellants stores might have prompted him to keep
    drugs at his residence is entirely speculative, and was not advanced in the ITO
    or at trial. The statement in the ITO that drug dealers often use stash
    houses to store their drugs was made in relation to Nelson DaSilva and not the
    appellant.

[12]

We
    also agree with the appellants submission that the search warrant was
    overbroad. It authorized the search and seizure of a long list of items, including:
    banking and financial documents; telephone records; photographs; documents
    relating to the occupancy or ownership of the place; and any data stored in
    electronic devices such as computers, mobile phones, blackberry devices, or any
    other devices with memory capable of storing data. Justification for the search
    of the appellants car was based entirely on the fruits of the unlawful search
    of his residence.

Section 24(2)

[13]

Since t
he trial judge concluded that
    the searches of the appellants residence and vehicle did not violate s. 8 of
    the
Charter
, he did not consider s. 24(2). This court is in a position
    to conduct the analysis under
R. v. Grant
, [1993] 3 S.C.R. 223. The
    court is to determine whether admitting the evidence would bring the
    administration of justice into disrepute, taking into account: (i) the
    seriousness of the
Charter
-infringing state conduct; (ii) the impact
    of the breach on the
Charter
-protected interests of the appellant; and
    (ii) societys interest in an adjudication on the merits.

[14]

There
    are several factors in this case that impact the seriousness of the
Charter-
infringing
    state conduct. The search of the appellants home was based on an ITO which the
    Crown admitted was not well put together. The offence being investigated was
    conspiracy to traffic, yet the wiretaps demonstrated that the appellant was not
    communicating with the alleged co-conspirators. There was no evidence that
    there would be drugs at the appellants home. The suggestion that it was a
    stash house was speculation. The officer who swore the ITO testified that the
    police did not have to have information that drugs were in the appellants
    home. As stated by Juriansz J. in
R. v. Jones
, 46 C.R. (5th) 318 (Ont.
    S.C.), at para. 31: The Charter violation is exceedingly serious in that it
    involves the search of a persons home [] on the basis of speculation.

[15]

Further,
    the way the warrant for the residence was executed aggravated the seriousness
    of the state conduct. The dynamic entry, while not illegal, was unnecessary, as
    the appellant had been arrested and was in custody at the time of the search.
    The police knew that the appellant lived with his wife, child and in-laws. There
    was no suggestion that they were part of any illegal activity. Although the
    trial judge found that the warrant was present during the search, it seems
    clear that it was never shown to the appellants father-in-law, who was
    handcuffed by the police and initially told he was under arrest. The warrant
    itself was overbroad. It included the entire home, cellphones, data,
    photographs and financial documents.

[16]

The
    breach had a significant impact on the
Charter
-protected interests of
    the appellant in that it involved entry into his private residence.

[17]

While
    society has an interest in having the matter adjudicated on the merits, the
    court must also consider the impact of admitting the evidence on the
    administration of justice. As stated in
Jones
, at para. 32: the
    regular admission of evidence obtained from peoples homes, where there is not
    a proper basis for a search would bring the administration of justice into
    disrepute.

[18]

A
    combination of all of these factors leads us to conclude that s. 24(2) of the
Charter
must be applied to exclude the evidence.

Disposition

[19]

Without
    the evidence seized pursuant to the search warrants, there is no basis for
    these convictions. Accordingly, the appeal is allowed, the convictions are set
    aside, and acquittals are entered.

Released: February 17, 2017

Robert J. Sharpe
    J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.


