Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Shayne Morasse
Judicial Officer and Counsel
Before: Justice G.P. Renwick
Heard on: 14 and 15 November 2018
Reasons for Judgment released on: 19 November 2018
Counsel:
- M. Dykstra — counsel for the Public Prosecution Service of Canada
- T. Rodocker — counsel for the defendant Shayne Morasse
Judgment
Introduction
1The Defendant is charged with one count of possession of Fentanyl, a Schedule I drug, contrary to section 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Defendant brought an application alleging that his detention and arrest were unconstitutional and the search that resulted therefrom was unreasonable, contrary to ss. 9 and 8 of the Charter, respectively. The parties agreed at the outset of the trial to have all of the evidence taken together on both the trial and the Charter application during a "blended voir dire."
2This was a strict factual trial. The parties agreed both on the applicable law and how the law should be applied. The sole factual issue in this trial is whether the Defendant threw down a baggie of fentanyl when he got out of the car he was driving. If I find that this happened, the arrest of the Defendant was lawful, the search of the Defendant and the car he drove was lawful, and it will be established that he was in possession of fentanyl.
The Evidence and Findings of Fact
3I listened carefully to all of the evidence and took careful notes. As well, I have reviewed portions of the digital audio recordings of the evidence taken during the Charter applications and the trial. I do not propose to repeat much of the evidence, except where it is necessary to understand my factual findings.
4As with any proceeding, I am entitled to accept some, none, or all of what a witness said. The role of the witness in the proceedings does not enhance nor detract from the value of the witness' testimony. Simply put, I cannot deem the evidence of a police witness to be more credible and reliable than a non-police witness. Nor can I presume that the Defendant is less credible than any other witness just because he is on trial.
5Instead, I have considered factors related to the credibility of each witness (balance, candour, honesty, and demeanour) and factors related to reliability (memory, perception, ability to communicate, and motive while testifying). It is only after I have considered all of the evidence in this trial that I am able to attribute the value of the testimony I heard.
6This was not an easy trial to adjudicate. There were aspects of each witness who testified that were satisfactory, consistent, credible, plausible, and reasonable. As well, the testimony of each witness had limitations. For the most part, the evidence of Constable Richard Rice and Jeremy Dearing played a small part in my decision-making. Neither Constable Rice nor Mr. Dearing could assist with what happened between Constable Adhya and the Defendant.
The Charter Application
7The Defendant has the onus, on a balance of probabilities, to establish that his detention and arrest contravened the Charter. If a s. 9 Charter violation is established, then the search of the Defendant and the Dodge Dart were certainly unreasonable, without lawful authority, and contrary to s. 8 of the Charter. The prosecution conceded that if the Charter violations are established, the evidence against the Defendant would be excluded and the Defendant would be entitled to an acquittal.
8The Defendant concedes that the initial stopping of the Defendant's vehicle was appropriate. To quote counsel during submissions: "Stopping their vehicle in front of Mr. Morasse's, I have no complaint about that. But, their steps thereafter went quickly beyond what was lawful and appropriate." The Defendant argues that everything that happened after the police blocked his vehicle is constitutionally suspect. If I accept that the Defendant did not throw any drugs to the ground I agree that there was no basis to arrest the Defendant, to place him in handcuffs inside the police car, and to search his car.
9There were two main prongs to the Charter application: Constable Adhya was not reliable or credible when he testified about how things unfolded; and the Defendant was compelling and credible, and he ought to be believed.
10On the whole, I have little difficulty with Constable Adhya's testimony. I accept that there were issues with his note-taking and his recollection of ancillary details, but by and large, I believed him. I found this witness to be conscientious, reasonable, and generally aware of the limits of his authority. Constable Adhya was always clear and consistent with his testimony of how things unfolded. His evidence of the chronology of events was not contradicted by the Defendant, because for much of his evidence, the Defendant was uncertain and imprecise. Several examples prove the point.
11First, during his examination in chief, when the Defendant described the officer searching his pockets, he said he was unaware from which pocket the officer pulled his money. He testified that he "usually" kept money in his left front pocket, but admitted that "maybe" the officer did find the $120 in his right pocket.
12Second, when asked if the Defendant recalled the arresting officer reading him his rights to counsel or sitting in the front of the police car after the Defendant had been placed into the rear, the Defendant did not say that these things never happened, rather, he did not recall.
13Third, when asked how much money the Defendant had concealed in his socks, which he claimed he found in Shawna's car, the Defendant said "If I can remember correctly, I think it was $2600." From my review of the evidence, the police did not ever say how much money was seized from the defendant's socks, but during the cross-examination of Constable Rice, counsel put to the witness that property bag 1228225 contained, "a large amount, approximately $2000 in cash," and the witness agreed. There was no suggestion that the police had miscounted or misappropriated any of the Defendant's money. I accept that the police seized less than $2000 from the Defendant's socks and the Defendant had a poor memory of the actual amount of money he had.
14There are also other areas of the Defendant's testimony that belied his credibility.
15The Defendant claimed that he had not been arrested, but he had been searched, handcuffed, and then he was placed into the back of the police car. At this point of his examination in chief, the following exchange occurred:
Q: So, ah, take us from there, then. You have been just placed in the back of his vehicle, you are cuffed to the rear, and you said he closes the door on you. What happens next?
A: I'm left alone in the back of the cop car for quite some time. And I was just thinking, like, they got, this guys have me under arrest, I don't want to go to the police station. I didn't do anything. And like, oh shoot, I remembered I had something tucked into my, my drawers of my pants, inside my pants and my underwear [emphasis added].
This completely contradicted the Defendant's earlier testimony that he had asked about being arrested and he was told he was only being detained.
16Several questions later, the Defendant also testified:
Q: So, you're in the back of the cruiser, you're turning your mind to what you say is something secreted in the, your undershorts. What, what happens next?
A: Well, I didn't want like for it to be discovered, if I get strip searched, so I was stressing out thinking I had to get rid of it [emphasis added].
Again, if the Defendant had never been arrested, why would he think that he had been, and why would he fear being strip searched?
17The Defendant claimed that the .15 g of crack cocaine found in the arm rest of the driver's door was his, but he had no idea how that piece of crack cocaine got there. Also, the Defendant admitted that the tin foil in the Jones candy container found in the cup-holder was his, but he denied knowing anything about the single white rock of fentanyl found inside the Jones container.
18Overall, the Defendant's evidence with respect to the drugs he had in the car was inconsistent with what was recovered, both in terms of the amounts and the types of drugs and where they were found. I have no hesitation accepting Constable Adhya's evidence with respect to what he found and where he found it.
19Consequently, on the basis of all of the evidence, I am not satisfied on a balance of probabilities that the Defendant did not attempt to discard the 2.85 g piece of fentanyl by throwing it to the ground and stepping on it. Instead, it seems quite likely that this is how the Defendant acted to conceal evidence, similar to his decision to hide a half gram of heroin by swallowing it.
20The Defendant has failed to establish any violation of his rights and his Application for Charter relief is dismissed.
The Trial
21As always, a burden rests upon the prosecution to satisfy the court that the allegations and all necessary elements of each offence have been proven beyond a reasonable doubt. If the prosecution fails in any respect, the defendant is not the beneficiary of some privilege, but with the prosecution's failure to displace the presumption of innocence beyond a reasonable doubt, he must be acquitted and restored to his pre-charge status.
22In assessing the credibility of the witnesses in this case, I must apply the principles articulated by the Supreme Court of Canada in R. v. W.D., as applied by subsequent cases and explained by academic commentary:
i. I cannot properly resolve this case by deciding which conflicting version of events is preferred;
ii. If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused;
iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;
iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt, and
v. Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.
23Proof beyond a reasonable doubt lies much closer to proof to an absolute certainty than it does to proof on a balance of probabilities.
24Fortunately for the Defendant, he changed his mind half-way through his cross-examination. When we began the evidence on the second day of the trial, counsel for the Defendant advised that his evidence could be applied to the trial proper. The prosecution agreed. Consequently, the Defendant gained the advantage of the last part of the traditional W.D. analysis.
25Counsel for the Defendant took great pains to advance the theory that the arresting officer, Constable Adhya, was not credible, that he would say anything while testifying, that his evidence shifted over time and because of his poor note-taking and lack of an independent recollection, he was an unreliable witness who ought not to be believed. I reject these characterizations of Constable Adhya and the value of his evidence.
26However, that is not the end of the matter. Despite my misgivings of the Defendant's testimony, I must ask whether on all of the evidence I am left with a reasonable doubt.
27The Defendant completely admits that he is a heroin addict who has also used crack cocaine in the past. Indeed, the Defendant admitted that he used heroin on the morning of the start of his trial. To be clear, the Defendant presented as lethargic, slow, and mentally absent during some of his testimony. During his cross examination on the first day, at one point he put his head down on the witness box, as if to take a nap.
28However, the Defendant had a good memory of some of the events of the night in question and he performed surprisingly well during an extensive and vigorous cross-examination.
29In the end, I am left in doubt about what occurred. There is a small, but reasonable doubt in my mind that the officer did not observe what he says he did. My doubt lies in the fact that the officer's notes were poorly organized and somewhat incomplete. The chronology of what occurred, according to the officer's testimony and what the officer recorded was different. There is also an issue of timing.
30Constable Adhya stopped in front of the Defendant's car at approximately 9:45 p.m. He testified that at 10:00 p.m. he provided the rights to counsel. By 10:07 p.m., the officer noted the apparent medical issue, which we now know was the Defendant overdosing in the back of his cruiser. There was never any explanation of what took place between 9:45 p.m. and 10:00 p.m. This gap in the evidence is more consistent with a search of the Defendant's car and the recovery of drugs than simply handcuffing, searching, and lodging the Defendant into his car. On all of the evidence, I cannot find that the officer is mistaken, or that he has misled the court, but the unexplained gap in time troubles me to the point of residual uncertainty.
31Officer Adhya had been a police officer for only 16 months when he dealt with the Defendant. While his actions were reasonable in stopping the Defendant's vehicle, his evidence lacked the precision and certainty of why this car and its two occupants matched the information he had been given and what he saw and did at all times. Better note-taking and trial preparation may well have extinguished any lingering doubt in this case.
Conclusion
32Proof beyond a reasonable doubt is a high standard. I am fairly certain of what occurred between Constable Adhya and the Defendant, but I have struggled to find this level of certainty after several days of considering the evidence and reviewing my notes and the digital audio recordings of the trial. This level of certainty is not enough. Within me remains a niggling doubt that is reasonable. Consequently, it must be resolved in the Defendant's favour.
33Shayne Morasse, I am not satisfied of your guilt beyond a reasonable doubt. Accordingly, you are acquitted of the charge against you.
Released: 19 November 2018
Justice G. Paul Renwick
Footnotes
1The Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982, Enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
2Initially, at the conclusion of the prosecution's case, the Defendant indicated an interest to testify solely on the Charter application. During his evidence, the Defendant agreed that all of his evidence could be applied to the trial proper, as well.
3R. v. W.D., 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26.
4The Honourable Mr. Justice David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31, at p. 72.
5R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.