Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANDRE WILLIAMS
Before Justice Mara Greene
Reasons for Judgement released November 07, 2022
I. Glasner and J. Geiger for the Crown
R. Rusonik for Mr. Williams
1Almost one year ago, Mr. Williams entered a plea of guilty to one count of possession of cocaine for the purpose of trafficking. The imposition of sentence was adjourned for a short period of time for Mr. Williams to get his affairs in order as both counsel for Mr. Williams and Crown counsel were recommending a period of incarceration in the penitentiary. After entering his plea of guilty, but before sentencing, Mr. Williams filed a motion for a stay of proceedings as a remedy under s.24(1) of the Charter for an alleged violation of his section 7 Charter rights. Upon receipt of the motion, the sentencing was further delayed so that I could hear the motion.
2Mr. Williams has alleged that one or more of the officers involved in his arrest stole $45,000.00 from him. At the time of his arrest, Mr. Williams was carrying a green Sobeys bag with money in it. It is Mr. Williams’ evidence that there was $79,000.00 in this bag while the officers state that only $34,000.00 was in it. Mr. Williams argued that the only remedy for a theft of this nature by police officers is a stay of proceedings.
3Crown counsel took the position that no money was stolen from Mr. Williams. Crown counsel further argued that even if I satisfied on a balance of probabilities that money was stolen from Mr. Williams, there is insufficient evidence of a nefarious act by any officer involved in this case to warrant a stay of proceedings. Crown counsel did concede, however, that if I find that Officer Chase, or some other officer, stole money from Mr. Williams and then attended court and lied about it, a stay of proceedings should be granted.
Evidence on the Charter Application
4The evidence presented by Mr. Williams in support of his application was as follows:
i) Mr. Williams’ viva voce evidence
ii) Text messages allegedly between Mr. Williams and his supplier from the day of his arrest
iii) Videos and stills from the arrest of Mr. Williams and the search of his residence, and
iv) Demonstration photographs produced by counsel for Mr. Williams
5Crown counsel only called one witness at the hearing, Officer Chase as he was the sole officer who was in meaningful possession of the money and had any opportunity to steal the money.
(i) Mr. Williams’ evidence
6Mr. Williams testified that at the time of his arrest he was a drug dealer and that he had been dealing drugs for two years. Mr. Williams further testified that as a drug dealer, he attempted to avoid keeping drugs or money at his residence for long periods of time as a means of reducing his risk of being caught selling drugs. By the time of this hearing, Mr. Williams had left the drug trade and had obtained a certificate in heavy equipment operation and his truck driver’s license. Mr. Williams now runs his own dump truck company.
7According to Mr. Williams on May 12, 2021, he was walking on Queens Quay on his way to meet a person connected to his supplier to hand over $79,000.00 as payment for the two kilograms of cocaine he had sold on consignment the day earlier. Mr. Williams explained at trial that he had a buyer that wanted three kilograms of cocaine, so Mr. Williams obtained the three kilograms from his supplier. His buyer, however, was dissatisfied with the quality of the cocaine, so only purchased two kilograms. The plan, as I understand it from Mr. Williams’ evidence, was that he was going to first drop off the money from the sale of the 2 kilograms of cocaine and then later return the unsold kilogram of cocaine. The money and the drugs were handed over separately in an attempt to reduce liability if arrested.
8Mr. Williams testified that at the time of his arrest, the $79,000.00 was inside two plastic bags which in turn were inside a green reusable Sobeys bag. This was to ensure that the contents of the bag were concealed. Mr. Williams was surprised when he later learned from his lawyer that the police notes reflected that only $34,000.00 was found in the green Sobeys bag.
9During his evidence, Mr. Williams produced an electronic document that, according to Mr. Williams, was a copy of a series of text communications that took place between Mr. Williams and his supplier on the morning of May 12, 2021. The electronic document appears to be a screen shot, or camera phone picture of a series of text messages between a person identified as “too quick” and a person identified as “Dplug”. Mr. Williams testified that he was “too quick” and his supplier was “Dplug”. In this text message exchange, there is discussion about two kilograms of cocaine being sold and that Too Quick was to give Dplug $79,000.00. The Crown strongly objected to the admissibility of these purported text messages. For the reasons I outline below, I agree with the Crown that this electronic document is not admissible, and I have placed no weight on this document in deciding this case.
10According to Mr. Williams, he has always maintained that this Sobeys bag contained $79,000.00. In communication with his first lawyer at the time of his bail hearing, Mr. Williams indicated that his lawyer could use the $100,000.00 seized at the time of his arrest to cover his legal expenses. Mr. Williams made similar comments to his present counsel when he took over this file. Moreover, at the time of the guilty plea back in December 2021, Mr. Williams did not make any admission about how much money was seized from him as he disagreed with the amount alleged by the Crown. All this evidence was admitted at trial to rebut an allegation made by the Crown of recent fabrication by Mr. Williams to avoid criminal responsibility. In relation to the $100,000.00 figure referenced by Mr. Williams to his lawyers, Mr. Williams testified that most of this was with him when arrested, but some $20,000.00 was in his residence and seized by police when they searched his residence.
11Mr. Williams further testified that he delayed bringing a motion in relation to the stolen money until after he pled guilty because he did not think that the court would believe him. It was his word against an officer. It was Mr. Williams’ belief, confirmed by his counsel, that absent corroboration he would not be believed. It was only after he obtained the text messages referenced above that he felt he could make this argument.
12Mr. Williams admitted at trial that while on release he violated conditions of his release by having a cell phone. Mr. Williams also admitted that he has a criminal record.
(ii) Video evidence and demonstrative evidence
13At the time of Mr. Williams’ arrest, numerous officers, both uniform and plainclothes, were present. The officers that were in uniform were all wearing cameras which captured the arrest of Mr. Williams and the actions of the officers. In these videos, Officer Chase is clearly seen carrying the Sobeys bag with the money in it and then leaving with that bag.
14Counsel for Mr. Williams and his articling student made fake bundles of money and then took photographs of the student carrying a green re-usable Sobeys bag (like the one seized from Mr. Williams on May 21) in positions similar to what was seen on the body worn camera videos. The demonstration photos mirrored Officer Chase’s positioning and hold on the Sobeys bag. Two sets of photographs were taken, one where the bag had fake $34,000.00 in it and one where it had fake $79,000.00 in it. The purpose of this evidence was to show that the photos with $79,000.00 in it best resembled what is seen in the actual arrest videos. Crown counsel argued that this tactic backfired on Mr. Williams as the demonstration photos with the fake $34,000.00 in it looked more like what is seen on the arrest videos.
(iii) Officer Chase’s evidence
15The final witness at trial was Officer Chase, a member of the Toronto Drug Squad who had been an officer for 19 years at the time of Mr. Williams’ arrest.
16According to Officer Chase, the arrest of Mr. Williams was planned and there was a briefing that took place prior to the arrest. After the briefing, his unit and a number of uniformed officers arrived at Queens Quay and saw Mr. Williams walking with this Sobeys bag in his hand. Det. Awad then arrested Mr. Williams and a uniformed officer seized the Sobeys bag. This officer then handed the bag over to Officer Chase.
17Officer Chase testified that upon receiving the Sobeys bag, he believed that it had money it because of the weight and shape of it. At this point he determined that the contents of this bag would be seized. According to Officer Chase, a short time later, at 12:14pm, he alerted Det. Awad to the fact that there was money in the bag.
18Officer Chase remained on scene until transport officers were able to secure Mr. Williams and take him to a police station for processing. Officer Chase then went to his motor vehicle and drove to 38 Queens Quay East to help his fellow officers execute a search warrant at Mr. Williams’ residence.
19Officer Chase arrived at 38 Queens Quay East at 12:22 pm but did not actually arrive at the apartment unit until 12:33 pm. According to Officer Chase, upon his arrival at the building, he parked his car in the main parking level and then quickly looked and checked inside the Sobeys bag to ensure that nothing other than money was in it. Officer Chase then closed the bag and put it in his backpack for safe keeping. According to officer Chase, searching the bag and placing it in his backpack took less than minute as he only looked and felt for a few seconds. He made no attempt to determine how much money was in the bag.
20Officer chase testified once he exited his vehicle, he saw Officer Benevides outside, and they walked together towards the vestibule. It then took five to ten minutes to get access to the lobby. Officer Chase and Officer Benevides then went to the 8th Floor where the rest of their team was awaiting their arrival.
21Officer Chase went inside the unit and took a video of how the unit looked prior to the search. He also helped search the unit. During the search, exhibit boxes were placed on a table. Officer Chase did not put the money in these exhibit boxes. Instead, he kept the Sobeys bag with the money in it in his backpack.
Legal Principles
22Section 7 of the Charter provides,
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principals of fundamental justice.
23Pursuant to section 24(1) of the Charter, as a remedy for a Charter breach, a court can impose any remedy that the court deems appropriate and just in the circumstances. A stay of proceeding can be an appropriate and just remedy, but it is the most drastic remedy. The Supreme Court of Canada has consistently stated that a Stay of Proceedings is a remedy that should only be resorted to in the clearest of cases given society’s interest in having matters tried on their merits. In R. v. Babos, [2014] S.C.C. 16, the Supreme Court of Canada summarized the relevant legal principles as they relate to a stay of proceedings:
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para 54).
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.
24Where, as in the case at bar there is no issue about trial fairness, the question is whether the state has engaged in conduct that is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system (R. v. Babos, supra, at para 35, R. v. Somerville, [2017] ONSC 3311 at para 115).
25As noted in R. v. Somerville, supra, at the second stage the question is whether a remedy short of a stay of proceedings is capable of redressing the prejudice. At the third stage, the court must assess whether “the integrity of the administration of justice is better protected by a stay or by a trial, despite the impugned conduct”. (R. v. Somerville, supra, at paragraph 118)
Analysis
(i) The text messages
26Before making any findings of fact, I must first address the admissibility of the text messages that Mr. Williams sought to admit as evidence in this case. Mr. Rusonik, counsel for Mr. Williams, argued that Mr. Williams explained the origin of the purported text messages and identified them. This is sufficient to make them admissible at trial. Crown counsel argued that the document with the purported text messages, while authenticated by Mr. Williams were still not admissible as the integrity of the electronic system used to store and capture the electronic document has not been established. I agree with Crown counsel that the text messages are not admissible as independent corroboration of Mr. Williams’ evidence.
27Mr. Williams testified that he received the electronic document in question from a third party who had in turn received them from Mr. Williams’ supplier. Mr. Williams then described what he believed to be the process for saving and producing the electronic document. Mr. Williams made reference to the phone system used by his supplier and information he received from the person who ultimately provided the document. There was no non-hearsay evidence about how the document was produced. Moreover, while Mr. Williams was able to identify the name of the program used to send the text messages and explain how he stored the messages, he had no firsthand knowledge of how his supplier stored his messages. When I look at all the evidence, there is insufficient evidence to allow me to conclude that the document provided to the court was accurate and reliable. I do not know how it was stored, how it was extracted, or whether it can be or has been altered. In my view, this does not meet the test for admission of documentary evidence under section 33.1 of the Canada Evidence Act.
28It is also my view that these text messages, even if admissible, are not corroborative of Mr. Williams’ evidence. This is because I only have Mr. Williams’ word about the source of these purported texts. The other party to the conversation was not identified nor did he/she testify. Moreover, the person who actually provided this document to Mr. Williams did not testify nor was he identified. The only evidence I have that the text messages i) accurately reflect the conversation with the supplier and ii) are in fact a true copy of the conversation with the supplier is from Mr. Williams. For the electronic conversations to be able to independently corroborate Mr. Williams’ evidence, there must be independent evidence about when the messages were made, how they were stored and how they were extracted.
(ii) Factual findings:
(a) Mr. Williams
29Counsel for Mr. Williams urged me to believe Mr. Williams evidence while Crown counsel argued that Mr. Williams was not an honest witness, and his evidence is not capable of belief.
30In support of his position that I should believe Mr. Williams, Mr. Rusonik highlighted the following pieces of evidence:
Mr. Williams told counsel early on, before he had disclosure, that approximately $100,000 was seized by police
The videos from the arrest and the demonstration photos support the conclusion that more than $34,000.00 was in that Sobeys bag at the time of the arrest
Officer Chase had opportunity to steal the money
Mr. Williams was consistent and forthright in his evidence
31In relation to the fact that Mr. Williams told his lawyer very early on in the process that $100,000.00 was seized, a number that only makes sense if there had been $79,000.00 in the Sobeys bag, this is not evidence that Mr. Williams is telling the truth. It is only admissible to rebut an allegation of recent fabrication. In other words, the fact that Mr. Williams has consistently said he had more money than the officers claim he had at the time of arrest, does not make his assertion true. It does, however, rebut any suggestion that Mr. Williams only made this up recently to avoid prosecution for this offence. To the extent that the Crown urges me to reject Mr. Williams’ evidence because it was fabricated to avoid liability, the earlier emails contradict this assertion, since it was raised prior to Mr. Williams having any information about how much money the police said they seized from him. In other words, this is not a reason to believe Mr. Williams.
32I have looked closely at the demonstration photographs produced by Mr. Rusonik and his student. I have compared them to the videos from Mr. Williams’ arrest and the still photographs from those videos. I also have the bag with fake money in it that was used for the demonstration photos. Counsel for Mr. Williams argued that these demonstration photos prove that there had to have been more than $34,000.00 in the Sobeys bag when Mr. Williams was arrested. Interestingly, Crown counsel walked me through the same photos and argued that this was corroborative of the Crown’s case. Having looked at the material, while I am inclined to agree with Mr. Rusonik that at times the bag as seen in the arrest videos/stills looks like it has more than $34,000.00 in it, there are too many unknown variables for me to use this as a basis to accept Mr. Williams’ evidence. While I applaud Mr. Rusonik for his inventive approach to defending his client, it is my view that it would be very dangerous to put any weight on this evidence.
33In relation to Mr. Rusonik’s argument that I should accept Mr. Williams’ evidence because Officer Chase had an opportunity to steal the money, it is my view that this is not a basis to accept someone’s evidence. Merely because one has an opportunity to do something, does not mean that it was done.
34Counsel for the prosecution made numerous arguments for why I should reject Mr. Williams’ evidence. First, they reminded me that Mr. Williams has a criminal record, is an admitted drug trafficker and violated the terms of his release. This suggests a lack of interest in complying with the law and a willingness to mislead the court. I am mindful of his record and his past criminal acts. I accept that these facts can affect a witness’ credibility. In this case, I heard Mr. Williams describe his past criminal acts and his willingness to admit his breach of his release. Given the way he testified about his past and his recent breaches, it is my view that he was being honest when he testified.
35Crown counsel also argued that I should reject Mr. Williams’ evidence because the text messages he ultimately produced seemed fake and Mr. Williams did have a motive to fabricate them, as without them there was no corroboration for his allegation against the police. I appreciate that Mr. Williams had a motive to fabricate the text messages, but this does not mean that he did fabricate them. I do not know enough about the software or program used to create and store the text messages to make a finding one way or another if they are genuine. This is why they were not admissible. This is not proof, however, that they were fabricated.
36I was also urged to reject Mr. Williams’ evidence because he refused to identify his supplier and the intermediary that assisted with obtaining the text messages. In my view, given the facts of this case, this does not lead me to reject Mr. Williams’ evidence. It is completely understandable why Mr. Williams would not be willing to give up the name of his fellow drug dealers. The entire body of case law on confidential informants is founded on an understanding that identifying other criminals puts one’s life at risk. Mr. Williams’ failure to identify other criminals does not lead met to reject or doubt his evidence.
37Crown counsel further argued that Mr. Williams’ failure to mention having $20,000.00 in his residence prior to testifying should also impact his credibility. Respectfully, I disagree. Mr. Williams has always maintained that he had a significant amount of money that was seized by the police. I was advised, and there appears to be no disagreement, that a decision was made by Mr. Williams and his counsel to only raise the missing $45,000.00 due to the absence of corroboration for any money seized from his residence. It therefore only makes sense that Mr. Williams focused on the money in the Sobeys bag. Moreover, while Mr. Williams only specifically referenced the money in the suitcase at this hearing, there is evidence that he mentioned very early on that $100,000 was seized by police. If $79,000 was in the Sobeys bag, it stands to reason that other money was seized from his residence. I therefore do not find that Mr. Williams recently fabricated that money was seized from his residence.
38The final reason argued by the Crown to reject Mr. Williams’ evidence is because he made another statement to his lawyer that was not provided to the Crown or the court. Respectfully, I do not draw an adverse inference from this. There could be many legitimate reasons why this statement was not adduced, the first of which is that it may be a consistent statement. It could not be used to rebut recent fabrication, because that was already addressed by email communications with his client. It would be seen as nothing other than a self-serving statement that is worthy of no weight. It could only be used to his detriment. It is purely speculative that something inconsistent or unhelpful is in this prior statement.
39After considering all the evidence, it is my view that Mr. Williams was an honest and reliable witness. I appreciate that there is no independent evidence that corroborates his testimony, but this is not required. I am permitted to look at the entirety of the evidence and make a credibility assessment. In the case at bar, Mr. Williams testified at length about his employment in the drug trafficking world. He explained how the system works and why he had $79,000.00 on his person. He made no effort to put himself in a better light or minimize his criminal acts. In fact, he admitted to engaging in drug trafficking over an extended period of time, something I would not have known but for his evidence. I have no reason to reject his evidence, other than the fact that Officer Chase’s evidence contradicts it. As I explain in more detail below, in my view, Officer’s Chase was not sufficiently credible or reliable so as to cause me to reject Mr. Williams’ evidence.
40When I consider all the evidence in this case, I find Mr. Williams to be credible and reliable and I believe and accept his evidence that when he was arrested, he had $79,000 in the Sobeys bag.
(b) Officer Chase
41Crown counsel argued that I should believe Officer Chase. Crown counsel took the position that Officer Chase was cross-examined at length and came out unscathed. He was consistent on all major issues and was corroborated by other evidence. Crown counsel conceded that there was one area where Officer Chase’s evidence was inconsistent, but the prosecution urged me to put no weight on this inconsistency. The officer made a reasonable mistake and had nothing to gain from this evidence.
42Counsel for Mr. Williams on the other hand strongly argued that Officer Chase lied to this court and identified nine times where he submits Officer Chase lied or was inconsistent on a material point.
43The first issue that arose in argument was that Officer Chase should not be believed because he went out of his way to NOT document the contents of this Sobeys bag in a timely fashion, did not show it to any of his colleagues and, kept it on his person instead of putting it in an exhibit/property bag. Counsel further argued that Officer Chase’s explanation for his actions is not credible. To understand this argument, it is necessary to review some additional evidence.
44Officer Chase seized the Sobeys bag with the money in it at the time of Mr. Williams’ arrest. Many officers were around at this time and remained present for some time. Some uniform officers even had property/exhibit bags on them and can be seen on video putting other items seized from Mr. Williams into those bags. Officer Chase, however, at no time showed any of his fellow officers the contents of the Sobeys bag, did not put it in an exhibit bag and did not document the contents of this Sobeys bag. He also denied even looking inside this bag while at the scene of the arrest (although this part of his evidence was inconsistent).
45Officer Chase testified that it was not feasible to look in the bag at the scene because they were in public and exposing that much money was dangerous. I appreciate his concern, but there were a host of other options available to him that would have allowed for independent confirmation of the contents of this Sobeys bag without putting him and others at risk. Firstly, there were other officers present, a number of which were wearing cameras. Officer Chase and another officer could have stepped aside and looked into the bag. The contents could have been captured by one of the body worn cameras. Officer Chase also could have given it to the uniform officers who were placing other items into exhibit bags to return to the station with it, or at a minimum asked one of those officers for an exhibit bag as they seemed to have them at the scene. Officer Chase testified that he did not secure the money in an exhibit bag because he did not notice that the other officers even had property bags with them, and he had no exhibit bags on his person. In his mind, it was best to keep the bag with him. It is difficult to understand how or why an officer heading out with the sole purpose of arresting someone would not have property/exhibit bags with him.
46It is most unfortunate that Officer Chase made the choice he did. He had the ability to document the contents of this bag in a timely fashion so that there could be no dispute about its contents and failed to do so. I appreciate the cynical view that this was done on purpose to provide an opportunity to steal, but there is also a potentially innocent explanation for this. It could be that Officer Chase did not turn his mind to these other options and truly did what he thought was best in the circumstances. As such I do not view this as a reason to reject his evidence.
47There were, however, other issues with Officer Chase’s evidence that put me in a position where I do not accept his evidence. The first inconsistency of note is Officer Chase’s evidence about when he first saw the money in the Sobeys bag. When first asked about the money, Officer Chase testified that upon grabbing the bag he felt the weight and shape of it. At that point he knew it was Canadian currency. Officer Chase later specifically stated that he did not open the bag while on scene. Any reasonable understanding of Officer’s Chase’s evidence up to this point is that he did not open the Sobeys bag and only knew there was money inside because of its weight and shape.
48Much later in his evidence, however, when asked about what, if anything, he told Det. Awad about the Sobeys bag, Officer Chase testified that he could see there was currency in the bag when he opened it and he could see bundles of money in the bag. This took place while still at the scene of the arrest. When questioned about this apparent inconsistency in his evidence, Officer Chase testified that he opened the Sobeys bag and looked inside but did not open the plastic bags that had the money in it. Officer Chase testified that there was a “small space where you could see there’s lines of currency there”. He went on to testify “I could see that it was currency, I could see what state it was in, I could not see how it was packaged but yes, I could see and identify between feeling, the weight, the small amount that I could see though that knot from the plastic bag, yes, I could see and identify the currency”. Officer Chase was then asked about a notation in his memo book where he wrote about what he saw at the time of arrest. He wrote “I observe several bundles of cash inside of bag wrapped in separate plastic bags”. Officer Chase agreed that this is what he wrote about what he saw at the scene of arrest.
49When questioned further about the above inconsistencies, Officer Chase testified that in his opinion his evidence was not inconsistent. He was able to see a bit of the money through a gap in the plastic bags and he felt the bag and could tell the money was in bundles. Respectfully, I disagree. Having heard the entirety of Officer Chase’s evidence, it is my view that he was not consistent on whether he opened the bag, about what was opened and about what he could and did see of the money in that bag. Moreover, I do not accept his evidence that he was able to see the money through a small gap in the knot in the plastic bag. This is just not believable. The money was hidden inside two plastic bags knotted at the top and then put inside the Sobeys bag. It is inconceivable that Office Chase would have been able to see anything through the knot of the plastic bag when one is just glancing inside the Sobeys bag.
50I also reject Officer Chase’s evidence that he was only alone in his vehicle with the money for a minute or less. His evidence on this point is inconsistent with other evidence. Officer Chase testified that when he left the scene, it took a minute or two to arrive at Mr. Williams’ apartment building. He parked his vehicle, took a moment to open the Sobeys bag and the plastic bags with the money, felt inside to confirm that there was only money in the bag and then retied the bag and secured it in his backpack. Officer Chase then testified that he saw Officer Benevides outside, and they walked to the vestibule of the building together. Having watched the videos, it is clear to me that if Officer Chase was only parked in his vehicle with the money for a minute, Officer Benevides could not have been in the parking lot when Officer Chase exited his vehicle. According to the videos from the arrest site, Officer Benevides would still have been at the arrest location at this time. As such, the events could not have unfolded as Officer Chase described.
51I appreciate that this could have been an innocent mistake on timing. Events often take longer than we perceive them to take. In this case, however, I do not view this as a simple mistake. This is because, Officer Chase, later in his evidence, changed his evidence about when and where he first saw Officer Benevides. In other words, Officer Chase’s original evidence on this point was inconsistent with other evidence presented at the hearing and inconsistent with other portions of his own evidence.
52As noted above, when first asked, Officer Chase testified that after putting the money in his backpack, he exited his vehicle, saw Officer Benevides and together they walked to the vestibule area of the apartment building. When confronted about the timing of his arrival at the building, Officer Chase, in my view, changed his evidence. Officer Benevides was no longer present when he exited the vehicle, instead, he testified that he did not see Officer Benevides until after he walked towards the building and realized that he could not access the lobby.
53In my view, the above inconsistencies are meaningful and affect Officer Chase’s credibility in this case. These inconsistencies all involve Officer Chase attempting to distance himself from the Sobeys bag both by knowledge of its contents and time alone with it. As this Sobeys bag is at the heart of this motion, his attempts to distance himself from it are troublesome and lead me to view that Office Chase was not being forthright with the court about his access to and knowledge of the contents of the Sobeys bag.
54Mr. Rusonik, in his written argument highlighted a host of other alleged “lies” or inconsistencies in Officer Chase’s evidence. While I agree that there were other suspicious components of his evidence, I cannot find that that the other alleged lies are in fact lies. There is, however, one other area that counsel focused on that I will briefly address. At one point at the scene of arrest, Officer Awad can be seen approaching Officer Chase and it looks like he is reaching for the Sobeys bag and Officer Chase steps back and pulls the bag out of reach of Det. Awad. Officer Chase acknowledged that this is what it looks like on the video, but he could not recall what was happening in that moment. Counsel for Mr. Williams argued that this is further proof that Officer Chase was planning to take the money as he did not want anyone else to see what was in the bag. Respectfully, I appreciate that this looks suspicious, but in my view, this exchange was far too brief to allow me to conclude that this proves that Officer Chase was planning on stealing money from that Sobeys bag at that time.
55Having looked at the entirety of the evidence in this case, I have real concerns about Officer Chase’s credibility. His evidence changed on important issues relating to his knowledge of the money at the scene, and his opportunity to take the money while alone with it in his vehicle at 38 Queens Quay East. Crown counsel argued that the inconsistency about being alone with the money is not a basis to reject Officer Chase’s evidence, because he derived no benefit from this lie/inconsistency. Officer Chase conceded that it would take mere seconds to take money from the bag and hide it under his seat. Respectfully, I disagree, Officer Chase appears to have taken great effort to distance himself from being alone with that money in a case where the sole issue is whether he took money from this bag. Crown counsel also urged me to find that Officer Chase’s evidence was corroborated at times, in particular that he testified that he put the money in a backpack, and on one of the videos the officer is seen wearing a backpack. I accept that Officer Chase was wearing a backpack. I also do not doubt that Officer Chase put the Sobeys bag in his backpack. What I do not accept is his assertion that he did not know how much money was in the bag, that he barely looked at the contents of the bag and that he did not take some of the money out of that bag.
56When I consider the whole of the evidence, it is my view that Office Chase intentionally tried to mislead the court about his knowledge of the contents of the Sobeys bag, his sole access to that bag and his handling of that bag. I reject his evidence about what he knew about the contents of the Sobeys bag and how long he was alone with that bag.
Application of facts to the law.
57As noted above I accept Mr. Williams’ evidence that there was $79,000.00 in the Sobeys bag when he was arrested. Given the credibility issues I noted above in relation to Officer Chase, his evidence does not lead me to reject Mr. Williams’ evidence. There appears to be no issue that when the exhibits officer recorded the amount of money in the Sobeys bag, he only recorded $34,000.00. I have no other evidence about this money. Given this factual backdrop, I am satisfied on a balance of probabilities that $45,000.00 went missing from that Sobeys bag sometime after Mr. Williams was arrested. Officer Chase denied taking that money. My rejection of his evidence is not a basis for me to find that he did in fact steal that money. This is not a case, like that in R. v. Somerville, where the theft was captured on camera. I have no direct evidence that Officer Chase took this money. Having said that, on the evidence before me, the money disappeared while it was in police custody. The only available inference is that an officer took this money. I further note that Officer Chase was the only officer that had opportunity to take this money. The obvious inference is that Officer Chase took this money.
58I want to be clear that I am not able to find beyond a reasonable doubt that Officer Chase took the money. Officer Chase was not on trial before me, did not have his own counsel and was not put in the same position as a defendant is at a trial. I, however, can only make a decision based on what evidence is before me. On the evidence before me, it is my view that Officer Chase is not credible about what happened with the money in Sobeys bag. It is my view that Mr. Williams’ evidence about how much money was in the bag is credible, and I accept his evidence. As such, on the record before me, someone involved in this prosecution took $45,000.00.
59Regardless of who took the money, I am satisfied that Mr. Williams has met his burden that one or more of the officers involved in this case took $45,000.00 from the Sobeys bag. I therefore find a violation of section 7 of the Charter.
60In relation to the appropriate remedy in this case. I note that this is not a case where trial fairness is impacted by the Charter breach. Mr. Williams, in fact, has admitted guilt for this offence. Mr. Williams is relying on the impact of the police conduct on the integrity of the justice system. The focus then is on whether a remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct (R. v. Babos, supra, at para 39).
61The first question I must consider is whether the conduct of the police was so offensive to societal norms of fair play and decency that proceeding to trial would be harmful to the integrity of the justice system. As Justice Woollcombe noted in R. v. Somerville, “police officers are entrusted to execute search warrants in accordance with the terms upon which they are granted. They are required to carefully document what they seize during the execution of any warrant”. Similarly, police officers are required to carry out arrests in accordance with our laws and carefully document all items seized during the course of an arrest.
62In the case at bar, $45,000.00 has gone missing. The only inference is that an officer took it. There is no doubt in my mind that this breach of trust prejudiced the integrity of the justice system. While I have not been able to find beyond a reasonable doubt that Officer Chase stole the $45,000.00. It is clear that an officer had to have taken that money as the money remained in police custody at all times. I have also found that Officer Chase mislead this court in relation to his knowledge and observations of the money in an attempt to distance himself from that money. In my view, when an officer misleads the court, no matter the reason, the integrity of the justice system is undermined.
63In R. v. Somerville, Justice Woollcombe found that the combination of the theft and the lies to the court seriously undermined the integrity of the justice system. She stated at paragraphs 146 and 147,
It is hard to imagine conduct on the part of police that more seriously undermines the integrity of the justice system that officers who steal during the execution of a search warrant and then, with the intent to mislead the court, lie about their own conduct. I cannot say what their motivation was. I cannot say why none of these officers had the courage to admit the truth about what had happened. I do say that their conduct at the storage unit and in court is not only profoundly disappointing, but shocking. It is shocking to the court and, I have no doubt, is shocking to the community. The community expects better from their police.
In my opinion, police officers who breach the community’s trust by taking advantage of an opportunity to steal while executing a search warrant, and then perpetuate their wrong-doing by lying about in court truly undermine, by their conduct, the integrity of the justice system.
64In some respects the facts in the case at bar are not as egregious as those in Somerville. Firstly, only one officer testified in this case. I do not have an entire search team misleading the court. Secondly, the Crowns prosecuting this case have done so responsibly and have, from the beginning handed the material in their possession to police standards so this matter can be properly investigated. Thirdly, I do not have a video of any officer stealing the money, so I cannot be certain who took that $45,00.00. Nonetheless, it is my view that the conduct in the case at bar significantly undermines the integrity of the justice system. Officers are entrusted to carry out their duties honestly. They are allowed to search people incident to arrest and seize evidence of offences. The entire justice system is undermined when officers abuse their position of trust for their own personal gain. Moreover, while I cannot find that Officer Chase did steal the money, in my view, he was not honest with this court about this money. His self interest was more important that helping the court get to the truth.
65The next question I must address is whether there is a remedy short of a stay of proceedings that would redress the prejudice to the justice system caused by the theft and Office Chase’s misleading the court. In my view, there is no remedy short of staying these proceedings that would adequately dissociate with justice system with the impugned police conduct. I have turned my mind to whether other remedies, like a sentence reduction or a criminal or civil complaint would be adequate remedies, but in my view, they are not. A sentence reduction may help Mr. Williams but it does not address the overall harm to the justice system. Moreover, civil, or criminal remedies may lead to a personal consequence to the officer involved, it again does not repair the harm done to the administration of justice in this case. In my view, the only way to address the overall harm caused by the officers’ conduct is for the court to distance itself from the egregious police conduct by staying the proceedings.
66I am mindful that Mr. Williams is charged with a very serious offence, that he has already admitted guilt, and that there is a strong societal interest in this case proceeding on its merits. Having said that, the police conduct is very serious. Even though there is no evidence of widespread police theft, the theft of $45,000.00 from an accused person by a state actor is behaviour that shocks the community’s conscience. Officer Chase’s unwillingness to be forthright with this court in its attempt to determine exactly what happened to the money exacerbates the issue and is also an affront to the justice system. In my view, the only way to properly distance the justice system form this gross misconduct in this case is to permanently stop the proceedings. I am satisfied that this is one of the clearest of cases for the granting of a stay of proceedings.
67I grant a stay of proceedings under ss. 7 and 24(1) of the Charter.
Released November 7, 2022
Justice Mara Greene