Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2021 08 17 COURT FILE No.: Toronto 18-29180
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SHEMAR NELSON
Before: Justice Peter N. Fraser
Heard on: February 23-26, 2021, April 19, 2021, July 7 & 9, 2021
Reasons for Judgment released on: August 17, 2021
Counsel: A. Schultz & C. Otter......................................................................... counsel for the Crown R. Mwangi........................................................ counsel for the defendant Shemar Nelson
1Shemar Nelson stands charged with possession of cocaine for the purpose of trafficking and possession of property obtained by crime under $5000. He was investigated in connection with a large-scale police operation dubbed “Project Patton” on March 14, 2018. The Crown alleges that Mr. Nelson possessed 46 grams of cocaine and $570 in cash in a satchel he was wearing upon arrest. The defence seeks the exclusion of this evidence on the basis of alleged breaches of Mr. Nelson’s rights under sections 8, 9 and 10(b) of the Charter. In the alternative, the defence argues that the continuity of these items has not been proved and a reasonable doubt remains that the cocaine and money actually came from Mr. Nelson’s satchel. The trial proceeded before me by way of a blended voir dire.
Background Facts
2Project Patton was run by the Organized Crime - Major Projects Unit of the Toronto Police Service beginning in March of 2018. A wiretap authorization was obtained in connection with certain targeted individuals on March 6 and a series of phone lines were monitored through to June 21. Mr. Nelson was not a target of the investigation. The intercepted communications revealed that two wanted people, Akua Page and Donovan Hines, were located somewhere in Scarborough. The two men had been implicated in a shooting in Hamilton.
3On March 14, 2018, a surveillance team was assembled to locate the two men and arrest them. Page and Hines were eventually found near Sandhurst Circle in Scarborough, where they were seen entering a blue Mazda along with three unknown males (later identified as Blagrove Robinson, Caanan Newton and Shemar Nelson before the court). The surveillance team followed the Mazda to the area of Kennedy Road and Eglinton Avenue and executed a takedown in front of 99 Foxridge Drive. Mr. Nelson was seated on the passenger side of the Mazda when police stopped the car. He fled eastbound on foot in the direction of Kennedy Road.
4DC Mantle was one of several officers from the Firearms Enforcement Unit of the Toronto Police providing support to the Major Projects surveillance team. He was driving north on Kennedy road when the takedown was executed. Moments later, he saw a male (later identified as Mr. Nelson) running eastbound on Foxridge from the area of the takedown. Mr. Nelson was trying to remove a satchel from over his shoulder as he ran. DC Mantle pulled his vehicle into oncoming traffic, exited the car and ordered Mr. Nelson to stop. Mr. Nelson kept running and DC Mantle tackled him to the ground.
5DC Mantle handcuffed Mr. Nelson and conducted a pat down search of his person. He opened the satchel and saw what appeared to be cocaine and a digital scale. Officer Mantle testified that he placed Mr. Nelson under arrest at that point and advised him of the reason for the arrest and of his rights to counsel.
6Mr. Nelson was taken to a nearby police station and the satchel was turned over to DC Dance. A subsequent search of the satchel is alleged to have revealed 46.08 grams of cocaine and $570 cash. At that time, the police decided to release Mr. Nelson without charges in order to protect the integrity of the wiretap investigation. DC Dance testified that Mr. Nelson declined to speak to counsel once he was told he would be released.
7The charges before this court were laid several weeks later, after the wiretap authorization had expired.
Section 9 – Initial Detention
8Section 9 of the Charter guarantees everyone the right not to be arbitrarily detained. The burden of proving an alleged breach of this right is on the applicant. The standard of proof is on a balance of probabilities.
9The defence submits that the circumstances surrounding the initial detention, specifically the application of handcuffs, amounted to a breach of Mr. Nelson’s rights under section 9 of the Charter. The Crown argues that Mr. Nelson was subjected to a lawful investigative detention.
10In order to effect an investigative detention, police must have a reasonable suspicion that the individual is involved in a particular crime and the detention must be reasonably necessary in the totality of the circumstances: R. v. Mann, 2004 SCC 52 at paras. 34, 45; R. v. McGuffie, 2016 ONCA 365 at para 35. A valid detention requires, “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation: R. v. Simpson, [1993] O.J. No. 308 (C.A.) at para. 61; R. v. Ahmad, 2020 SCC 11 at para. 46.
11An individual’s reaction to seeing police and any attempt to conceal items are properly considered as part of the totality of the circumstances underpinning an investigative detention: R. v. Plummer, 2011 ONCA 350 at paras. 20-23.
12A reasonable suspicion to detain is a credibly based possibility that the individual is involved in a crime. This is distinct from reasonable and probable grounds to arrest, which means a credibly based probability of the suspect’s involvement in a crime. Courts must be cautious to avoid conflating these different standards: R. v. Ahmad, supra, at paras. 45-49; R. v. MacKenzie, 2013 SCC 50 at paras. 71-73, 84-86; R. v. Chehil, 2013 SCC 49 at paras 22-36; R. v. Stewart, 2020 ONSC 4571 at paras. 69-70.
13In the instant case, DC Mantle suspected that Mr. Nelson was concealing a firearm in his satchel and detained him accordingly. He identified the following factors as the basis for the investigative detention:
- Mr. Nelson was fleeing the area of the police takedown.
- DC Mantle had information that two of the occupants of the Mazda were wanted in connection with a shooting and might be armed.
- DC Mantle could not determine if Mr. Nelson was one of the two shooting suspects or not.
- Mr. Nelson was trying to remove a satchel from his body as he ran.
- In D.C. Mantle’s experience, people sometimes carry concealed firearms in satchels.
- The accused did not stop when ordered to do so by D.C. Mantle (who was wearing a police vest and identified himself as a police officer).
14I find that DC Mantle’s suspicion that Mr. Nelson had a gun was objectively reasonable. Defence counsel ultimately conceded that an investigative detention would have been lawful in these circumstances, but continued to take issue with the fact that Mr. Nelson was handcuffed. He relies on R. v. Mann, supra, at para. 35, R. v. McGuffie, supra, at paras. 37-38 and R. v. Campbell, 2016 ONCJ 236 at para. 124 for the proposition that handcuffing a detained person may, in some cases, amount to a de facto arrest thereby violating the individual’s section 9 rights.
15In my view, DC Mantle was justified in applying handcuffs to Mr. Nelson in these circumstances. He had reason to suspect that Mr. Nelson was armed with a gun. Mr. Nelson had fled the police takedown and refused to stop in response to commands to do so. The investigative detention was exceedingly brief, as the subsequent search revealed drugs and lead quickly to an arrest. The overarching principle from the cases referred to above is that the duration and nature of the investigative detention must be tailored to the investigative purpose and circumstances in which the detention occurs: see R. v. McGuffie, supra, at para. 37. In view of DC Mantle’s reasons for detaining Mr. Nelson and the circumstances of the case, I find the detention here was lawful.
16Accordingly, I find no breach of Mr. Nelson’s rights under section 9 of the Charter arising from the initial detention.
Section 8 – Search of the Satchel
17Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. As the search in this case was conducted without a warrant, the burden is on the Crown to show, on a balance of probabilities, that the search was reasonable: R. v. Shepherd, 2009 SCC 35 at para. 16. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable, and it is conducted in a reasonable manner: R. v. Grant, 2009 SCC 32, at para. 56; R. v. Fearon, 2014 SCC 77, at para. 12.
18The Crown submits that DC Mantle’s brief search of the satchel was authorized as a safety search incident to the investigative detention. The defence argues that there were no safety concerns justifying the search and, alternatively, the search of the satchel exceeded the scope of a permissible safety search.
19The Supreme Court of Canada set out the four criteria for a lawful safety search incident to investigative detention in R. v. Mann, 2004 SCC 52 at paras. 40-45:
- First, the investigative detention itself must be lawful.
- Second, the police officer must have a reasonable belief that his safety or the safety of others is at risk.
- Third, the search must be conducted in a reasonable manner.
- Fourth, the investigative detention should be brief.
20A safety search is not an automatic adjunct to an investigative detention. It is a search anchored in safety concerns and confined to locating weapons. As the Supreme Court directed in R. v. Mann, supra, at para. 40:
The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.
21In my view, a safety search was clearly justified in this case. I have already found that the investigative detention was lawful. I further find that DC Mantle had a reasonable belief that his safety or the safety of the others was at risk. This follows directly from my conclusions above that he had reason to suspect Mr. Nelson was armed with a gun and, to the extent he was fleeing from police, was not compliant. The search in question and the investigative detention itself were very brief.
22The remaining question is whether the safety search in this case should properly have extended to Mr. Nelson’s satchel.
23A safety search is not, in all cases, limited to a pat-down or frisk search. In R. v. Plummer, supra, at paras. 51-59, 77-79, the Ontario Court of Appeal found the search of a bag under the seat of a car incident to investigative detention did not violate section 8 of the Charter. In R. v. Ellis, 2016 ONCA 598 at par 25-31 the Court of Appeal found that a search of a detainee’s pockets was lawful. And in R. v. Lee, 2017 ONCA 654, at paras. 27-65, 91, the Court sanctioned the search of the trunk of a car incident to investigative detention. In her concurring reasons in Lee, Pardu J.A. cited with approval the case of R. v. Sheck, 2015 BCCA 471 from the British Columbia Court of Appeal. In Sheck the police searched a bag hanging from the accused’s shoulder. The Court found the search to be lawful, and concluded that the permissible scope of searches incident to investigative detention had been “modestly expanded” to include fanny packs: R. v. Sheck, supra, at para. 54.
24In the instant case, DC Mantle’s safety concerns justified the search of the satchel. Mr. Nelson’s attempt to remove the satchel as he ran reasonably focussed the officer’s suspicions upon that item. I find no breach of the accused’s rights under section 8 of the Charter.
Section 10(b) – Rights to Counsel
25Section 10(b) provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.
26In R. v. Suberu, 2009 SCC 33 at para. 2, the Supreme Court held that police officers are required to inform a detainee of his or her rights to counsel immediately upon arrest or detention. The immediacy of this obligation is, however, “subject to concerns for officer or public safety.” This exception follows from a long line of cases from the Supreme Court which recognize the very real dangers that police officers confront in the execution of their duties: see R. v. Mann, supra, at para. 43.
27The defence submits that, contrary to his testimony, DC Mantle never provided rights to counsel to Mr. Nelson (though other officers did). Counsel further submits that DC Dance’s claim that Mr. Nelson declined to speak to counsel when he was told he would be released is false. The Crown asks me to accept the evidence of the two officers and to find no breach of Mr. Nelson’s Charter rights.
28I find that DC Mantle was a credible witness. The defence highlighted differences between his evidence and that of DC Tan, surrounding the detention and arrest of Mr. Nelson. Most prominently, DC Tan did not recall hearing DC Mantle inform the accused of his rights to counsel though he was standing nearby. This was a dynamic situation in which a fleeing suspect was tackled to the ground and police officers had reason to suspect the presence of firearms. It is not surprising that DC Tan would fail to hear, record and remember everything that another officer said in these circumstances. He was not the arresting officer and, therefore, was not tasked with the delivery of Mr. Nelson’s 10(b) rights. Nor do the other discrepancies identified by counsel lead me to conclude that either officer was lying.
29Defence counsel further challenges DC Mantle’s evidence on the basis that the police wished to protect the integrity of the wiretap investigation and, he argues, they never intended to allow Mr. Nelson to speak to a lawyer. DC Mantle was assisting with the takedown of the vehicle, but was not otherwise involved with Project Patton. The suggestion now advanced was not put to him in cross-examination and, as such, it is not clear that he even knew there was a wiretap investigation. The defence submission is further undermined by the fact that DC Vanderkraben and Staff Sergeant Kurtz advised Mr. Nelson of his rights to counsel, on video, while he was being booked in at 41 Division station.
30DC Mantle testified that he tackled Mr. Nelson to the ground and searched him immediately after. He conducted a pat down search, a search of Mr. Nelson’s pockets and a search of the satchel he was wearing. DC Mantle acknowledged that he did not advise Mr. Nelson of the reason for his detention or his rights to counsel at this time, as his primary concern was making sure there was no firearm.
31When DC Mantle found the substance believed to be cocaine inside the satchel, he placed Mr. Nelson under arrest. At this point, he advised Mr. Nelson of the reason for his arrest and his rights to counsel.
32I accept the officer’s evidence that sections 10(a) and 10(b) of the Charter were complied with. I find that the brief delay in informing Mr. Nelson of his rights was justified by the need for DC Mantle to take control of him and search for a gun. This conduct falls squarely within the exception created by the Supreme Court in Suberu.
33I find that DC Dance was also a credible witness. He testified that he advised Mr. Nelson he would be released without charge and that he could call whomever he wished. Mr. Nelson did not want to speak to anyone – he didn’t want anyone to know about the arrest as he was concerned that his apprenticeship might be imperilled by it. Defence counsel argues again that, because the police wished to protect the wiretap investigation, DC Dance never intended to facilitate Mr. Nelson’s access to counsel and his testimony was untrue. I find no merit to this submission. The decision to release Mr. Nelson had been made. He would be free to speak to anyone he wished as soon as he left the station. There was nothing to be gained by denying him access to counsel while he remained at the station.
34In light of the foregoing, I find no breach of Mr. Nelson’s section 10(a) or 10(b) Charter rights arising out his interactions with DC Mantle at the roadside or with DC Dance at 41 Division police station.
Overholding – Section 9
35As stated above, section 9 of the Charter guarantees everyone the right not to be arbitrarily detained. The defence alleges a section 9 breach as a result of the delay in releasing Mr. Nelson after the decision had been made not to charge him.
36Mr. Nelson was arrested shortly after 1:00 pm on March 14. He was booked in at 41 Division police station at 3:01 pm. The police made the decision to release him without charge at 4:21 pm. However, Mr. Nelson was not actually released from the station until 9:07 pm that night, almost five hours later. He was held in a locked interview room with a steel chair and table. The Crown submits this delay was justified on account of the many other duties the police had to deal with at 41 Division that night.
37Counsel for Mr. Nelson provided no authority for the proposition that a delay of this duration constitutes a section 9 Charter breach.
38As a matter of principle, it would seem obvious that an uncharged party should be released from police custody in a reasonably expeditious manner. And I would observe that section 498 of the Criminal Code directs a police officer to release persons who are charged with an offence “as soon as practicable” if they are not being taken before a justice for a show cause hearing.
39The question of “overholding” at police stations has been considered in connection with impaired driving investigations. In that context, a wide range of circumstances and delays (some ranging from three to eleven hours in length) have been found to violate section 9 of the Charter: see, for example, R. v. Isleler, [2004] O.J. No. 4332 (C.A.); R. v. Weaver, 2005 ABCA 105, [2005] A.J. No. 235 (C.A.); R. v. Price, 2010 ONSC 1898; R. v. Cheema, 2018 ONSC 229; R. v. Farquharson, [2019] O.J. No. 6107 (O.C.J.); R. v. Lorenzo, 2016 ONCJ 634.
40These decisions tend to turn on the detainee’s level of sobriety, the range of options available for the detainee’s safe release, and any unexplained periods of delay.
41In the instant case, the Crown lead evidence explaining the delay. DC Dance was the only officer from the Major Projects section at 41 Division on March 14. As a result, he was responsible for dealing with all five arrested parties and with all of the property seized during the takedown. After it was decided that no charges would be laid at 4:21 pm, Officer Dance attended to the following tasks:
- 4:30 pm – He met with Mr. Nelson and told him he would be released.
- 4:33 pm – He met with Mr. Robinson and told him he would be released.
- 4:47 pm – He similarly met with Mr. Newton.
- 5:03 pm – He worked on cataloguing the drugs.
- 5:30 pm – He put the seized property into the trunk of his vehicle and started to work on the synopsis for the case.
- 5:50 pm – He arranged for Mr. Page to speak to a lawyer.
- 6:15 pm – He arranged a personal call for Mr. Hines.
- 5:50 - 6:39 pm – He worked to coordinate the transfer of Mr. Page and Mr. Hinds to the Hamilton Police Service, as the two men had outstanding warrants in that jurisdiction.
- 9:07 pm – Mr. Nelson was released.
42As can be seen, there is a period of about two and half hours at the end of this chronology that is unaccounted for. However, Mr. Nelson also had to be paraded before Staff Sergeant Kurtz in order to be released. She testified that March 14 was particularly busy at 41 Division, with more than six people booked in over the course of the evening. Incoming detainees were prioritized over releases in order get people out of the squad cars and in contact with their counsel as quickly as possible. Staff Sergeant Kurtz also described an incident at 8:00 pm in which a prisoner tried to hang himself with a t-shirt. She acknowledged that she was able to deal with Mr. Nelson as soon as she was advised that he was ready for release just after 9:00 pm.
43Ultimately, it fell to DC Dance to see that Mr. Nelson was released in a timely manner. Clearly much was asked of this officer on March 14. Arguably, he could have prioritized Mr. Nelson’s release over some of his other responsibilities. However, I would observe that some of those tasks, including providing rights to counsel and bringing detainees before a justice, involved their own constitutional imperatives. Even if DC Dance had arranged for Mr. Nelson’s release earlier, it is likely the congestion in the booking hall and the incident with the other prisoner would have still caused some delay.
44In all the circumstances, I am not persuaded that the delay in this case amounted to an arbitrary detention. I find no breach of Mr. Nelson’s rights under section 9 of the Charter.
45Even if this conduct did constitute a Charter breach, I would not have excluded the evidence under section 24(2). 1 There is some debate about whether a remedy is available under section 24(2) at all in these circumstances: see R. v. Pino, 2016 ONCA 389, R. v. Cheema, supra; R. v. Farquharson, supra. Assuming that it is, the analysis set out by the Supreme Court in R. v. Grant, 2009 SCC 32, would clearly favour admission of the evidence in the circumstance of this case.
Trial Proper
46Having found no breaches of Mr. Nelson’s Charter rights, I turn to the trial proper and the elements of the two offences charged. The central issue here concerns the continuity of the items seized during the investigation, namely the satchel worn by Mr. Nelson and the substance alleged to be cocaine.
47Mr. Nelson is presumed innocent. The Crown must prove the essential elements of the offence beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and never shifts to the defence. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320.
48The defence alleges frailties in the handling of evidence once in police custody and argues that the Crown has failed to prove that the substance which ultimately tested as cocaine was actually that which was possessed by the accused.
49The possibility of contamination exists because the police seized another satchel from the trunk of the Mazda, which also contained what appeared to be cocaine. The officers who seized the satchel from Mr. Nelson were not able to identify it in court. No photographs were taken of any items at the scene or at the police station. The contents of the satchel attributed to Mr. Nelson are described differently by the various officers who handled it. And in respect of other items seized, some of which ended up in a property bag with Mr. Nelson’s satchel, there is no evidence of where they came from at all.
50DC Mantle first seized the satchel. He took only a brief look inside and saw what appeared to be cocaine and a digital scale. He described the substance as white powder wrapped in clear plastic. He gave the satchel to DC Tan. In court, DC Mantle was not able to identify the satchel that was ultimately entered into evidence. DC Mantle also searched Mr. Nelson’s person incident to arrest and found some other items. He was not asked what these items were or what he did with them.
51DC Tan confirmed that he received the satchel from DC Mantle. He looked inside, moved items around, and saw what appeared to be cocaine, cash, a cell phone, a digital scale and lip balm. He was not asked to identify the satchel in court. DC Tan could not recall the consistency of the substance in question, but described the packaging as clear plastic. He gave the satchel to DC Ross.
52DC Ross testified that he received the satchel from DC Mantle or DC Tan, but he could not remember which. It contained what appeared to be cocaine, $570 in cash, an LG cell phone, lip balm and a scale. DC Ross described the substance in question as being white, wrapped in plastic and about the size of a baseball. He secured the satchel in his police vehicle, where it was not accessible to anyone. He later attended 41 Division and turned the satchel over to DC Dance. DC Ross testified that he received no other property from anyone.
53During cross-examination, DC Ross incorrectly identified another satchel, from a different investigation entirely, as being the one belonging to Mr. Nelson. This came about as photographs of this other satchel had been inadvertently disclosed to counsel in a manner that made it appear they were related to this case. This issue was later clarified by way of an agreed statement of facts. The satchel given to DC Ross at the roadside was most likely the item he turned over to DC Dance. However, this misidentification significantly undermines the reliability of his evidence. As discussed below, the assertion that he received no property apart from the satchel appears to be incorrect as well.
54DC Dance was the exhibits officer for this event. He set up at a desk in the youth bureau of 41 Division. He received items from three different officers: DC Ross, DC Arulanandam and DC Campbell. At 3:50 pm, he received the property from DC Ross that was attributed to Mr. Nelson. This property included a black satchel, $570 cash, a black digital scale, a set of keys, two gold rings, a white iPhone and four separately wrapped quantities of white powder he believed to be cocaine.
55There is no clear explanation for why four quantities of cocaine were being attributed to Mr. Nelson at this point, when the preceding three officers had only observed one. I note that DC Mantle had taken only a quick look inside the satchel. DC Tan, however, looked inside and moved the items around. DC Ross also appeared to have conducted a more thorough search, as he described the phone as an LG, the cocaine as being about the size of a baseball and testified there was $570 in cash.
56I have considered the possibility that DC Dance conducted an even more thorough search of the satchel and found the four separate packets of drugs that the other officers missed. But there is no evidence of this. DC Dance did not even recall whether or not the drugs and other items were inside the satchel when he received them.
57There is no explanation for the set of keys, the two gold rings or the white iPhone that DC Ross gave to DC Dance. None of the first three officers who handled the satchel noted any of those items. It is possible they were among the unspecified items found by DC Mantle on Mr. Nelson’s person but, if so, there is no evidence of that. Nor is there any evidence as to how they came to be in DC Ross’s possession. It is possible the iPhone was found in the blue Mazda. PC Younger testified that he found four cell phones in the car, including an iPhone, but there is no evidence as to how it may have come to DC Ross. In the result, I find it difficult to determine exactly which items were in the satchel worn by Mr. Nelson.
58It is also unclear what happened to the LG Phone that DC Ross observed inside the satchel. As noted above, the item turned over to DC Dance was a white iPhone. It is clear the officers did not simply misdescribe the same phone, because DC Dance can be seen on video retrieving an iPhone from a police property bag and returning it to Mr. Nelson upon his release later that night. An LG phone appeared sometime later, but DC Dance did not know where it had come from. He sealed it in the property bag with other items attributed to Mr. Nelson.
59Compounding the confusion, Mr. Nelson was also given batteries, cigar rolling papers and a Blackberry phone upon his release. Officer Dance had no explanation for these items. He believed he was the only officer to have placed items into property bags, but did not know where these items came from.
60Whatever the origin of the additional items, the lack of clear documentation creates further concern over the continuity of the exhibits.
61At 4:00 pm, DC Dance received another satchel from DC Arulanandam, along with five bundles of what appeared to be cocaine. He testified that the packets from this satchel did resemble at least one of the packets from the satchel attributed to Mr. Nelson; however, he kept the items from the two officers separate on the desk. They were not put into property bags or otherwise secured at this time. DC Dance left these items unattended at various times as he dealt with other responsibilities connected to the investigation. He did not direct anyone else to watch over them. And he acknowledged there was no system in place to ensure they were not disturbed. DC Dance did not believe anyone touched these items, but he could not know for sure.
62It would seem unlikely that anyone would disturb these items in a police station, where officers and civilian support staff would know the importance of maintaining the integrity of evidence. However, these items were not in property bags or otherwise clearly designated as evidence from an investigation. Nor would it necessarily be apparent to others that the positioning of items on the desk had any special significance (when in fact it was of critical importance). And as detailed above, additional items were added to the property attributed to Mr. Nelson at some point along the way.
63At 4:05 pm, DC Dance received another quantity of cash from DC Campbell, which was attributed to Mr. Robinson. He testified that this money was kept separate from the other items on the desk. At 5:30 pm, he put all the items received into property bags and secured them in the trunk of his police vehicle. He put the property from the three officers in different areas of the trunk. Later that night, he drove to his own police station where he placed the property into the locker system. On March 28, 2018, Officer Dance removed the items from storage. He took samples of the four substances alleged to have come from Mr. Nelson’s satchel and submitted them to Health Canada for analysis. While there were additional discrepancies identified in the property reports, property receipts and notes created by DC Dance, I have fewer concerns about the continuity of the exhibits during this period of time.
64A Certificate of Analyst was filed in connection with each submitted sample. Three contained cocaine and the fourth contained phenacetin, which is not a scheduled substance. There is no dispute over the continuity of the substances submitted to Health Canada.
Conclusion
65I am concerned by the many discrepancies outlined above. The items described by the officers at the scene are materially different from those submitted to the exhibits officer at 41 Division. No detailed record was made of the physical evidence at the point of seizure. No photographs were taken at any point in the investigation. The officers from the scene were not able to identify the exhibits in court and one misidentified them completely.
66In these circumstances, the Crown was forced into a painstaking account of the chain of custody, at least up until the point when the seized items were put into property bags and secured in the trunk of Officer Dance’s vehicle. In these circumstances, careful attention to the continuity of the evidence and accurate documentation would have to be demonstrated in order to meet the high threshold of proof beyond a reasonable doubt. I find there was neither. The documentation was poor. The measures taken to keep the evidence separate were inadequate. And items appeared and disappeared from the property alleged to be Mr. Nelson’s at various points in time.
67I am aware that the first three officers who handled the satchel observed a substance they believed to be cocaine inside. However, I cannot safely exclude the possibility that the packet they saw was the one containing phenacetin – which would not make out the offence before the court. I am also aware that Mr. Nelson’s flight from police and his attempt to remove the satchel might well indicate his possession of illegal drugs. However, these considerations cannot overcome the many concerns I have over the continuity of the seized items.
68Cumulatively, the issues identified in these reasons leave me with a reasonable doubt that Mr. Nelson possessed cocaine for the purpose of trafficking on March 14, 2018. This in turn leaves me with a reasonable doubt that the cash, if he possessed it at all, was property obtained by crime.
69I find Shemar Nelson not guilty of the offences charged.
Released: August 17, 2021 Signed: Justice Peter N. Fraser