



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Merelles, 2016 ONCA 647

DATE: 20160829

DOCKET: C59948

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alberto Merelles

Appellant

Richard A. Fedorowicz, for the appellant

Ghazala Zaman, for the respondent

Heard: May 27, 2016

On appeal from the convictions entered on October 3,
    2014, by Justice W. Low of the Superior Court of Justice.

Pepall J.A.:

Overview

[1]

The appellant was convicted of possession of heroin for the purpose of
    trafficking, possession of cocaine for the purpose of trafficking, and
    possession of the proceeds of crime.

[2]

The appellant challenged the validity of search warrants executed on
    three Toronto properties: his residence on Delaware Avenue, a home under renovation
    on Brunswick Avenue, and the garage of the home of his girlfriends mother on
    Columbine Avenue.

[3]

The trial judge concluded that the appellant did not have standing to
    challenge the search warrants for the Brunswick and Columbine properties, as he
    did not have a reasonable expectation of privacy. Although the trial judge
    found that the appellant had standing to challenge the warrant for the
    appellants Delaware residence, she concluded that the search warrant was valid
    as there were reasonable grounds to believe that drugs would be located there. Accordingly,
    the trial judge dismissed the application to quash the search warrant for the Delaware
    residence.

[4]

At trial, the appellant called no evidence. He was convicted and
    sentenced to 10 years imprisonment, less six months credit on account of pre-trial
    custody.

[5]

On appeal, the appellant argues that the trial judge erred in: (1)
    concluding that the appellant did not have standing to challenge the search of the
    Columbine property; and (2) finding that the search warrant for the Delaware
    residence was valid.

[6]

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

Facts

[7]

In August 2010, the Ontario Provincial Police received information from
    a confidential informant that the appellant was dealing in large amounts of
    heroin. The confidential informant provided information about the appellant,
    including his personal attributes, the location of properties frequented by him,
    a description of his truck and licence plate, and the kind of heroin in the
    appellants possession.

[8]

The police conducted three days of surveillance on the appellant. They noted
    four apparent hand-to-hand drug transactions between the appellant and unknown
    individuals, one of which occurred at the Brunswick property and another at the
    Delaware residence. The appellant also appeared to engage in
    counter-surveillance driving techniques.

[9]

The police obtained search warrants for the three properties.

[10]

Police seized 189.19 grams of cocaine from the Columbine property. Police
    also seized 983.51 grams of heroin, 29.36 grams of cocaine, $19,850 in Canadian
    currency and $150 in United States currency from the appellants Delaware residence.

[11]

Finally, police found 6.41 grams of heroin, including 20 decks of 0.15
    grams each, and 1.88 grams of cocaine, on the appellants person.

Trial Judges Decision

[12]

The appellant brought an application to quash the search warrants and to
    exclude the drugs found on execution of those warrants. The appellant filed no
    affidavit nor did he give any
viva voce
evidence.

[13]

In finding that the appellant lacked standing to challenge the search
    warrant for the Columbine property, the trial judge relied on
R. v. Edwards
,
    [1996] 1 S.C.R. 128, to determine whether the appellant had a reasonable
    expectation of privacy.

[14]

There was no evidence of the appellant having an ownership, leasehold or
    possessory interest in the Columbine property. The appellant only had a key to
    the garage. The agreed statement of facts stated that he had the key in
    September 2010 (the month the search was executed) and stored machinery and
    tools there with consent. There was no evidence of historical use or other connection
    with the property before September 2010. The trial judge was not prepared to
    draw an inference of a subjective expectation of privacy.

[15]

The trial judge accepted that the appellant had a reasonable expectation
    of privacy in the Delaware residence, as it was his home. However, she concluded
    that the information obtained from the confidential informant and police surveillance
    created reasonable grounds to believe that drugs and related property would be
    located there. The confidential informants information was highly detailed and
    compelling. Further, the apparent hand-to-hand transactions were consistent
    with the confidential informants information that the appellant was trading in
    illicit drugs.

Issues on Appeal

[16]

First, the appellant submits the trial judge erred in finding that the appellant
    did not have a reasonable expectation of privacy with respect to the garage at
    the Columbine property.

[17]

Second, the appellant submits that the trial judge erred in finding that
    the search warrant of his Delaware residence was valid.

Issue #1: Standing to Challenge the Search of the Columbine
    Property

[18]

The right to be secure from unreasonable search and seizure under s. 8
    of the
Charter
protects a reasonable expectation of privacy: see
Edwards
,
    at para. 30. A reasonable expectation of privacy is to be determined on the
    basis of the totality of the circumstances. A non-exhaustive list of factors to
    be considered includes (
Edwards
, at para. 45):

1.     presence at the time of the
    search;

2.     possession
    or control of the property or place searched;

3.     ownership of the property or
    place searched;

4.     historical
    use of the property or item;

5.     the
    ability to regulate access, including the right to admit or exclude others from
    the place;

6.     the
    existence of a subjective expectation of privacy; and

7.     the
    objective reasonableness of the expectation.

[19]

The burden is on the appellant to establish a reasonable expectation of
    privacy:
R. v. Simpson
, 2015 SCC 40, [2015] 2 S.C.R. 827, at para. 47.

[20]

The appellant did not testify. The agreed statement of facts only addressed
    the Columbine property, stating that: (1) the appellants girlfriend lived at the
    residence with her mother; (2) in September 2010, the appellant had a key to
    the garage and was permitted to store tools and machinery there; and (3) the
    appellant only had a key to the garage, not the rest of the house. The
    appellant admitted that the drugs found in the garage were his.

[21]

In my view, the trial judge did not err in concluding that the appellant
    had no standing with respect to the Columbine property. While the appellant had
    a key, there was no evidence that the appellant regulated access to the garage.
    Nor was there any evidence of historical use of the property  only that he
    used it in September 2010. The appellant was not present at the time of the
    search and he did not possess, control or own the garage. Although one could
    infer that he could admit people to the garage, there was no evidence to
    suggest that he could exclude entry.  There was no evidence about others in
    possession of a key. There was also no evidence of any subjective expectation
    of privacy or evidence supporting an inference of a subjective expectation of
    privacy. As in
Edwards
, the appellant was no more than a privileged
    guest.

[22]

I also reject the appellants argument that a garage in these circumstances
    is akin to a rental locker. There was no evidence that the appellant rented the
    garage space or that he had exclusive access to it. From the evidence before
    the trial judge, the appellant was simply permitted to use the garage to store
    tools. The totality of the circumstances did not give rise to a reasonable
    expectation of privacy.

[23]

The trial judge was correct in concluding that the appellant did not
    have standing to challenge the search warrant for the Columbine property.

Issue #2: Validity of the Search of the Delaware Residence

[24]

Second, as mentioned, the appellant submits that the trial judge erred
    in concluding that the search warrant for the appellants home was valid. The
    appellant submits that the trial judge erred in: (1) treating the confidential
    informant as a proven source; (2) treating the confidential informants
    expectation of monetary compensation as an enhancement of his credibility; and
    (3) concluding that the police investigation confirmed the appellants
    connection with the Delaware residence.

[25]

A warrant is presumed to be valid: see
R. v. Campbell
, 2010
    ONCA 588, 261 C.C.C. (3d) 1, at para. 45, affd 2011 SCC 32, [2011] 2 S.C.R.
    549, at para. 14. In reviewing the sufficiency of a search warrant, the test is
    whether there was reliable evidence that might reasonably be believed on the
    basis of which the authorization could have issued: see
R. v. Araujo
,
    2010 SCC 65, [2000] 2 S.C.R. 992, at para. 54; and
R. v. Morelli
, 2010
    SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[26]

Evidence of a tip from an informant by itself is insufficient. When
    assessing the reliability of a tip from a confidential informant, the court is
    to consider the totality of the circumstances. The court must look to a variety
    of factors including: (1) the degree of detail of the tip (including the time,
    place, participants involved, and nature of the alleged activity); (2) the
    informants source of knowledge (whether it is first-hand or obtained from
    others); and (3) indicia of the informants reliability such as past performance
    or confirmation from other investigative sources:
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421, at para. 68.

[27]

Turning to the appellants submissions, I accept that the confidential
    informant had only provided information on one previous occasion that resulted
    in charges as opposed to a conviction, and that the trial judges comments on
    monetary compensation were misplaced. That said, the information provided by
    the informant was detailed and first-hand and there was no information given in
    the past to the police that turned out to be unreliable.

[28]

Furthermore, the police investigation and surveillance established a
    strong link between the appellant and the Delaware residence and included the observation
    of an apparent hand-to-hand transaction in the residences well-lit garage. The
    appellant then was observed to have left the premises and to have participated
    in another apparent hand-to-hand transaction. The police surveillance
    observations amplified, and were consistent with, the rest of the information
    provided by the informant.

[29]

In my view, there was ample evidence for the trial judge to conclude
    that there were reasonable and probable grounds for the issuance of the search
    warrant for the Delaware residence.

[30]

Given my conclusions, there is no need for a s. 24(2)
Charter
analysis.

Disposition

[31]

For these reasons, I would dismiss the appeal.

Released:

SEP                                                  S.E.
    Pepall J.A.

AUG 29 2016                          I agree M. Tulloch
    J.A.

I agree
    M.L. Benotto J.A.


