



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saciragic, 2017 ONCA 91

DATE: 20170202

DOCKET: C58368

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Denis Saciragic

Appellant

Todd B. White and Philip Norton, for the appellant

Brendan Gluckman, for the respondent

Heard: June 10, 2016

On appeal from the conviction entered by Justice Bonnie
    L. Croll of the Superior Court of Justice, sitting with a jury, on December 5,
    2013.

B.W. Miller J.A.:

A.

Overview

[1]

The appellant appeals his conviction for drug trafficking. On a
    pre-trial application, he persuaded the trial judge that an absence of exigent
    circumstances meant that a warrantless search of his apartment was unreasonable
    and infringed his rights under s.8 of the Charter. He was unsuccessful,
    however, in his challenge of a subsequent search of the apartment, authorized
    by a search warrant, which yielded evidence including bricks of cocaine and
    drug packaging material. The appellants application to exclude that evidence under
    s.24(2) of the Charter was dismissed and the appellant was convicted of drug
    trafficking and possession for the purpose of trafficking.

[2]

On appeal, the appellant argues the trial judge erred in not excluding
    the evidence, as well as in her findings relating to the grounds for the
    appellants arrest and subsequent searches and seizures. The appellant asks
    that his convictions be quashed and a new trial ordered.

[3]

For the reasons that follow, it is my view that the trial judge made no
    errors and that the appeal should be dismissed.

B.

Background

[4]

The appellant came to the attention of police through a drug
    investigation initially focused on other parties, and he subsequently became a
    target of surveillance himself. On the third occasion of surveillance, police observed
    him engage in counter-surveillance manoeuvres while driving from his residence
    to the underground garage of an apartment complex at Sherway Gardens Road. They
    were unable to continue surveillance after he entered the garage, but continued
    to follow him when he drove away from the garage 23 minutes later. Police
    observed him pulling up to a waiting Lexus near the loading docks at a HomeSense
    store across from the Sherway Gardens Mall, an isolated area where no other
    vehicles or persons were present.

[5]

The appellant removed a small box from the hatch of his car and handed
    it to the driver of the Lexus. The two drivers exchanged a fist-bump, returned
    to their vehicles, and began driving off. At this point, the police moved in
    and blocked the exit of the Lexus with their unmarked cruiser. The appellant
    swerved around the two cars and drove off quickly. The driver of the Lexus fled
    on foot and was ultimately apprehended and arrested for drug trafficking.
    Police recovered a one kilogram box of cocaine from his trunk, the same box
    police had witnessed the appellant give to the Lexus driver. The appellant temporarily
    evaded police by weaving in and out of traffic. He was caught five minutes
    later, hidden between two parked transport trailers, and was arrested for
    trafficking in cocaine.

[6]

In a search of the appellants vehicle incidental to the arrest, police
    recovered a cell phone, a set of keys beneath the drivers seat, and a key fob
    by the floor pedals.

[7]

Operating on the theory that the appellant operated a stash house at the
    Sherway Gardens apartment complex that he visited immediately prior to the
    meeting behind Sherway Gardens Mall, police attended at the apartment complex. Detective
    Constable Reid met with the property manager in his office. DC Reid asked the property
    manager to identify the key fobs that had been used to access the secure
    parking garage from 11:25-11:40 AM, the time frame in which the appellant had
    entered. He also provided the property manager with a description of the
    appellant.

[8]

The property manager advised DC Reid that the privacy policy of the
    complex did not permit him to show the surveillance video to police without a
    warrant. However, he provided DC Reid with the information that two key fobs had
    been used during the time period specified, one registered to unit 304 and the
    other to unit 1107. He also advised (whether from his own review of the surveillance
    video or from someone elses) that a person matching the appellants
    description had exited the elevator on the 11th floor during the relevant time
    frame, and shortly thereafter returned to take the elevator down to the parking
    garage.

[9]

From this information, DC Reid concluded that the appellants stash
    house was likely unit 1107. Police entered the unit, using one of the keys that
    had been seized from the appellants car, for the purpose of clearing it of
    occupants and preserving evidence. Once inside, police went into the bathroom,
    pulled back the shower curtain, and saw what appeared to be drug packaging in
    the bathtub and smelled a strong odour of cocaine. They also observed a closed
    briefcase behind the bathroom door. Police did not seize the packaging or open
    the briefcase.

[10]

After this warrantless entry, DC Stevenson prepared an Information to
    Obtain (ITO) for a search warrant for unit 1107. The warrant was granted
    later that day. On executing the warrant at unit 1107, the police seized items
    including nine kilograms of cocaine from the briefcase and the drug packaging
    from the bathtub.

[11]

Prior to trial, the appellant brought several applications to exclude evidence
    pursuant to s.9 and s.8 of the Charter.

[12]

The trial judge rejected the appellants argument that there were
    insufficient grounds for the arrest in violation of his s.9 rights, and found
    that the seizure of the keys and fob in the appellants car incidental to
    arrest was lawful. She also concluded that the search of access information
    from the use of the fob did not violate the appellants s.8 rights.

[13]

The trial judge found one breach of s.8: the warrantless entry and
    search of unit 1107 in the absence of exigent circumstances. However, after
    excising certain information from the ITO, she held that the search warrant for
    unit 1107 was not issued contrary to s.8. The trial judge did not order that
    any of the evidence obtained be excluded at trial pursuant to s.24(2). The
    appellant was ultimately convicted by a jury on all counts and sentenced to ten
    years imprisonment.

C.

Issues

[14]

The appellant raises the following issues on appeal:

1.       whether
    the trial judge erred in finding the police had reasonable grounds to arrest
    the appellant;

2.       whether
    the trial judge erred in not finding that the search and seizure of the fob
    data and video surveillance violated s.8;

3.       whether
    the search warrant would not have been issued but for the s.8 violation of the
    warrantless search of unit 1107;

4.       whether
    the trial judge erred in not excluding evidence under s.24(2) of the Charter.

D.

Analysis

(1)

Reasonable grounds for arrest

[15]

A peace officer can, pursuant to s.495(1)(a) of the
Criminal Code
,
    arrest without warrant a person whom the officer believes on reasonable grounds
    has committed an indictable offence.

[16]

The reasonable grounds requirement has two elements. First, the
    arresting officer must subjectively believe there are reasonable grounds to
    make the arrest. Second, there must be an objective basis for that subjective
    belief:
R. v. Storrey
, [1990] 1 S.C.R. 241, at pp. 250-251.

[17]

The trial judge identified several factors that Detective Zeleny
    considered in reaching the conclusion that he had reasonable grounds to arrest
    the appellant:

1.       the
    appellant drove in a suspicious manner consistent with counter-surveillance;

2.       the
    appellant drove to a deserted parking area by the loading dock of a shopping
    mall;

3.       the appellant
    met up with a person in a vehicle already parked at that location;

4.       there were no other vehicles in that area;

5.       the
    two drivers engaged in a trunk-to-trunk transaction;

6.       the
    two drivers looked around during the exchange;

7.       the
    size of the box that was exchanged was sufficient to hold a kilogram of
    cocaine;

8.       the two men shook hands and drove off;

9.       the exchange took less than two minutes.

[18]

To these grounds, the trial judge added another: the appellants subsequent
    flight from police.

[19]

The appellant argues that the trial judge erred in concluding that there
    were sufficient grounds for the arrest. He identifies two errors: (1) none of
    the arresting officers relied on the appellants flight from police as a ground
    for arrest; and (2) the trial judge failed to consider the appellants actions
    in the context of his previous innocent commercial behaviour while he was under
    surveillance.

[20]

Neither of these arguments assist the appellant.

[21]

With respect to the first argument, even if we accepted that it was an
    error to take the appellants flight from police as a ground for arrest, it
    would in no way disturb the conclusion that there were reasonable grounds for
    arrest, which were provided in the facts set out above.

[22]

I would also reject the appellants second argument that his prior
    conduct negated whatever reasonable grounds for arrest might otherwise have
    existed. The context of that argument is this. On October 6, 2010, police witnessed
    two open air transactions in which the appellant handed over packages to
    unknown persons. On the second of these, police arrested the recipient of the
    package but released him unconditionally. The appellant makes much of the fact that
    the exchange was a cash payment to purchase a ring from the recipient who was,
    by trade, a jeweler. The appellant argues that the fact that the police
    witnessed him engaging in a legal (though highly suspicious) commercial
    exchange on this occasion should have given them reason to believe that what
    otherwise had all the markings of a drug transaction was also a legal, though
    suspicious, transaction. In other words, the police ought to have viewed the
    appellants activities on March 1, 2011 through the lens of his previous conduct,
    having observed that exchanging commodities for cash in brief, clandestine
    transactions is simply the mode in which the appellant tends to carry out his
    lawful business.

[23]

I would reject this argument. The appellants previous actions  even if
    they can bear the innocent characterization that the appellant attaches to them
     cannot launder his actions on March 1, 2011. The fact that the appellant was
    not charged when engaging in conduct that bore some of the same marks of
    illegality does not render his conduct on March 1, 2011 any less suspicious and
    cannot immunize him from reasonable suspicion on future occasions.

[24]

The trial judge therefore made no error in not adverting to the October
    6, 2010 transaction in concluding both that there were reasonable and probable
    grounds to arrest the appellant and that a reasonable person in the position of
    Detective Zeleny would also conclude that there were reasonable and probable
    grounds for the arrest. There was no violation of the appellants s.9 Charter
    rights.

(2)

Section 8

[25]

The trial judge held that the warrantless entry into unit 1107 was a
    breach of the appellants rights under s.8. However, the appellant argues that
    the trial judge ought to have also found that the police breached his s.8
    rights in obtaining information from the property manager that enabled them to
    ascertain the unit number of his apartment. Given the reasonable expectation of
    privacy in his municipal address, the appellant argues, questioning the
    property manager constituted a warrantless search which violated his rights
    under s.8. Furthermore, the appellant argues that the property manager engaged
    in an unlawful search as agent of the state, committing an additional s.8
    violation. The appellant argues that these infringements of s.8 are significant,
    necessitate a fresh analysis under s.24(2) of the Charter, and ought to result
    in the exclusion of the physical evidence seized from unit 1107.

[26]

For the reasons set out below, I would not give effect to these
    submissions.

[27]

Section 8 of the Charter guarantees the right to be secure against
    unreasonable search or seizure. This right contains internal limits: its scope
    is limited to circumstances in which there is a reasonable expectation of
    privacy:
Hunter v. Southam
, [1984] 2 S.C.R. 145, at p. 159. In the
    circumstances of this appeal, if the appellant had a reasonable expectation of
    privacy in the information provided to the police by the property manager, the
    acquisition of the information by the police constitutes a search for the
    purposes of s.8, even though the information was provided voluntarily:
R.
    v. Ward
, (2012) 112 O.R. (3d) 321 (C.A.), at para. 64.

[28]

The factors that inform the analysis of whether there is a reasonable
    expectation of privacy have been grouped under four broad headings: (1) the
    subject matter of the alleged search; (2) the claimants interest in the
    subject matter; (3) the claimants subjective expectation of privacy in the subject
    matter; and (4) whether this subjective expectation of privacy was objectively
    reasonable, having regard to the totality of the circumstances:
R. v.
    Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.

[29]

In the informational context, s.8 of the Charter protects a
    biographical core of personal information that tends to reveal intimate
    details of the lifestyle and personal choices of the individual:
R. v.
    Plant
, [1993] 3 S.C.R. 281,
at pp. 292, 293. To determine whether the appellants right to protection
    against unlawful search and seizure is engaged, it is therefore necessary to
    consider the nature of the information that the police obtained and how they
    obtained it.

[30]

With respect to the nature of the information, the police were told: i)
    two key fobs were used during the specified time frame to enter the parking
    garage, associated with units 304 and 1107; and ii) from a review of video
    surveillance, someone matching the appellants description on one occasion
    attended the 11th floor of the apartment complex from the elevator, exited, and
    then later re-entered the elevator. Here, no intimate details of the
    appellants life were revealed by the provision of the information that, on a
    single occasion, the appellant exited and re-entered the elevator at the 11th
    floor. This information did not yield any information about the nature of the
    appellants activities in unit 1107, or even whether he used unit 1107 as a
    residence. Similarly, no intimate or biographical details were revealed by the
    fact that the fob he used when police observed him enter the parking garage was
    assigned to unit 1107.

[31]

Of course, in assessing whether an individual has a reasonable
    expectation of privacy, it is necessary to look not only at the immediate
    information sought by the police (the address corresponding to the fob, the attendance
    on the 11th floor), but the further information that it ultimately reveals:
Spencer
,
    at para 31. In this instance, the ultimate information sought by the police is
    the particular unit the appellant accessed: the appellants municipal address.

[32]

Did the appellant have a reasonable expectation of privacy in his
    municipal address? The appellant did not advance any authority in support of the
    proposition that, categorically, there is a reasonable expectation of privacy
    in ones municipal address. A physical address does not, of itself, reveal
    intimate details about ones personal choices or way of life, and, ordinarily,
    it is publicly available information to which many people have access.

[33]

Neither, on the record before the court, were there particular
    circumstances that would indicate a reasonable expectation of privacy in the
    appellants connection to unit 1107. The appellant made use of an apartment
    unit in a relatively large apartment complex with common areas and video
    surveillance. There was no evidence to suggest a reasonable expectation that
    his comings and goings would not be observed by others or recorded digitally, or
    the fact of these observations divulged to police.

[34]

In summary, I would hold that the trial judge made no error on the facts
    before her in concluding that the appellant had no reasonable expectation of
    privacy in the fob data, the fact that the appellant attended at the 11th floor,
    or the ultimate information that the police were able to conclude from this
    data: the appellants use of unit 1107.

[35]

The appellants further argument is that the trial judge erred in not
    concluding that the property manager acted as an agent of the state in
    obtaining the fob and viewing the surveillance video, and the property managers
    acts therefore violated the appellants s.8 rights.

[36]

The trial judge found that the police knew they were unable to obtain
    the appellants address from the property manager without a warrant, and that
    they were also told that they were unable to view the surveillance video
    without a warrant. The appellant argues that the police sought to circumvent
    the warrant requirement by having the property manager do indirectly what they
    themselves could not do directly. Accordingly, the appellant argues, by
    providing the fob information and confirmation from the video surveillance that
    the appellant exited the elevator at the 11th floor, the property manager was
    acting as a state agent. As a state agent, the property managers actions would
    be held to the same standard as the police, and constituted a warrantless
    search and breach of s.8.

[37]

I do not agree with the appellants submissions.

[38]

First, I do not accept that the property manager, in responding to
    police inquiries, was acting as a state agent. Adapting the test given in
R.
    v. Broyles
, [1991] 3 S.C.R. 595, at p. 608, one asks whether the dealings
    as between the property manager and the appellant would have been different but
    for the intervention of the police. The fob data and the surveillance video
    were both recorded in the ordinary course, and not at the behest of police. The
    only difference is in the property managers viewing of the video and fob data,
    which he may otherwise have had no reason to do. This act of retrieval in
    response to a narrow and specific request from the police does not, on this
    record, make the property manager a state agent:
Ward
, at para. 96;
R.
    v. Webster
, 2015 BCCA 286, 326 C.C.C.
    (3d) 228,
at paras. 70-71, leave to appeal refused, [2015] S.C.C.A.
    No. 376.

(3)

Issuance of the search warrant

[39]

The trial judge made no error in finding that, even after excising the
    ITO of the information obtained from the initial warrantless search of the
    unit, there was a basis on which the warrant could have been issued: as the
    trial judge noted, minutes before trafficking a kilogram of cocaine in a trunk-to-trunk
    exchange in a remote area of a parking lot, it was probable that the appellant
    briefly attended at this apartment unit. These facts amounted to reasonable
    grounds to believe that there was evidence in the unit related to the
    commission of an offence.

[40]

In argument, the appellant also asserted, for the first time, that
    police use of the key (obtained in the search incidental to arrest of the
    appellant) to unlock the unit door was a further infringement of s.8 as it
    confirmed that unit 1107 was under the appellants control. The appellant
    argues that any reference to use of the key ought to have been excised from the
    ITO.

[41]

Again, this argument is of no assistance. Some, but not all, references
    to the key were excised from the ITO, and it was an error not to excise them
    all. Nevertheless, evidence of the use of the key to open the door of unit 1107
    was not needed to tie the appellant to that unit: the fob data and video
    surveillance information was sufficient and the warrant could have been issued
    without any reference to the key. Any reference to the key was therefore superfluous.

(4)

Section 24(2)

[42]

The appellant has not identified any errors with respect to the trial
    judges s.24(2) analysis. The trial judge properly applied the relevant test
    given in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, noting that
    unit 1107 was not the appellants principal residence, that the police were
    inside the unit for less than five minutes, and the purpose of the entry was to
    clear the premises of occupants and not to search for evidence. There is no
    basis upon which we could interfere with the trial judges finding that the
    administration of justice is served by the admission of the nine kilograms of
    cocaine into evidence.

[43]

The appellant argues that multiple additional breaches of s.8 and s.9
    aggravate the s.8 breach that the trial judge found, and necessitate a fresh
    s.24(2) analysis. However, as I would not give effect to any of the appellants
    arguments with respect to s.8 or s.9, there is no basis on which to undertake this
    analysis.

E.

Disposition

[44]

I would dismiss the appeal.

Released: KNF FEB 2 2017

B.W. Miller J.A.

I agree. K. Feldman
    J.A.

I agree. M.L.
    Benotto J.A.


