ONTARIO COURT OF JUSTICE
CITATION: R. v. Graham, 2024 ONCJ 592
DATE: 2024 10 28
COURT FILE No.: Central East - Newmarket 4911-998-22-91101656-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
RAYAN GRAHAM
Before Justice Marcella Henschel
Heard on August 19, 20, 21, 22, 2024 and October 11, 2024
Reasons for Judgment released on October 28, 2024
Ms. Liis Jakobsen.............................................................................. counsel for the Crown
Ms. Mahvash Mirza...................................... counsel for the defendant Rayan Graham
HENSCHEL J.:
A. Introduction
[1]
Introduction
Rayan Graham is charged with one count of possession of cocaine for the purposes of trafficking, and one count of possession of fentanyl for the purposes of trafficking. Mr. Graham was also arraigned on charges of break and enter, mischief, assault, and theft. At the request of the Crown, those charges were dismissed at the end of the trial because the complainant, Shavonne Arnold, did not attend the trial and there was insufficient evidence to support a conviction on those counts.
[2]
Factual Background
On February 23, 2022, at approximately 5:08 a.m., police were dispatched to an apartment building on Jane Street in York Region to respond to a 911 domestic violence call. Several officers responded to the call including PC Taylor, PC Farrow, PC Sanderson, and Sgt. Milne. Dispatch informed the officers that Shavonne Arnold called 911 and advised that her former boyfriend, Rayan Graham, was throwing her belongings off her apartment balcony. Dispatch advised that Ms. Arnold was in the lobby of her apartment building and that Mr. Graham was cautioned as being violent, armed, and dangerous and may be in possession of a firearm.
3PC Sanderson, PC Farrow, and PC Taylor arrived at the apartment complex at approximately 5:15 a.m. PC Farrow spoke with Ms. Arnold who alleged that her ex-boyfriend, who was in her apartment, threw her belongings off the balcony. The officers followed her to the back of the building in their cruisers. The complainant’s property, including clothing, paperwork, and electronics, was strewn all over a large area outside the back of the building. Her clothing and property were on the ground of the shipping and receiving area and was hanging in the branches of trees.
4A few minutes later, at approximately 5:19 a.m., a male, later determined to be Mr. Graham, exited the building holding a bottle of Hennessy in one hand and a gift basket in the other. He appeared intoxicated. PC Sanderson asked him if he was Rayan and he said he was. He was arrested for mischief to property.
5After he was arrested, the officers brought Mr. Graham to the front of PC Sanderson’s cruiser and PC Sanderson activated his In-car Camera (ICC) recording system. The officers searched Mr. Graham incident to arrest in front of the cruiser. The ICC video captured the officers’ interactions with Mr. Graham. During the search, the officers located fentanyl and cocaine.
[6]
Seizure of Controlled Substances
In respect of the seizure of the controlled substances, shortly after Mr. Graham was placed under arrest PC Sanderson saw a large plastic Ziploc bag hanging out of Mr. Graham’s front pants’ pocket. He removed it incident to arrest. It contained a white powdery substance he believed to be cocaine. After examining the bag with his flashlight, and more closely in the cruiser, PC Sanderson informed the other officers, in the presence of Mr. Graham, that he was also under arrest for possession of a controlled substance.
7During the search incident to arrest, PC Farrow also seized several items. He located two cell phones and the victim’s keys. He found a small scale, which he believed could be used for weighing drugs, in Mr. Graham’s front left pocket. He found a purse that he believed belonged to Ms. Arnold and a baggie containing a dark substance he believed to be fentanyl. PC Farrow determined Mr. Graham was wearing two pairs of pants and located two additional baggies of a white substance he believed to be crack cocaine or cocaine in Mr. Graham’s inner pants’ pocket. He also located a quantity of cannabis.
[8]
Rights to Counsel and Caution
In respect of the rights to counsel and caution, PC Taylor testified that he informed Mr. Graham of his right to counsel from memory while the search incident to arrest was taking place. After the search incident to arrest was complete, at approximately 5:25 a.m., Mr. Graham was placed in the rear of PC Sanderson’s police car. PC Sanderson told Mr. Graham he was under arrest for possession of a controlled substance and mischief and read Mr. Graham the rights to counsel and caution from his notebook. Mr. Graham advised PC Sanderson that he understood and said he wanted to talk to his lawyer, Christian Levine. At 5:30 a.m., Mr. Graham was rearrested for possession for the purpose of trafficking and PC Sanderson read him the rights to counsel and caution again.
9At 5:36 a.m., Mr. Graham was driven in the police cruiser from the scene to the police station. He arrived at the station at 5:40 a.m. There was some delay in Mr. Graham being taken before the booking sergeant because another person was in the booking area. A drug recognition test was being conducted.
10At 5:56 a.m., Mr. Graham was taken before the booking sergeant and during the booking process PC Sanderson conducted a second search of Mr. Graham. No items were located at that time.
11At approximately 6:09 a.m., PC Sanderson asked Sgt. Kozak whether a strip search should be conducted, and Sgt. Kozak authorized a strip search. PC Sanderson conducted the strip search and PC Trichilo observed. Nothing was located during the strip search. Mr. Graham was placed in the cells at approximately 6:25 a.m.
12At 6:30 a.m., PC Sanderson placed a call to Mr. Graham’s counsel of choice, Mr. Levine. After an hour, when PC Sanderson did not hear back from Mr. Levine, he placed a second call to Mr. Levine at approximately 7:25 a.m. At 7:27 a.m., Mr. Graham spoke with Mr. Levine in private. He completed his call at 7:45 a.m.
[13]
Analysis of Substances
The substances believed to be cocaine and fentanyl were taken to 4 District and processed by PC Panacci. A sample of the substance believed to be fentanyl was sent to Health Canada by PC Panacci and the Health Canada Certificate of the Analyst confirmed the substance was fentanyl and contained etonitazene, flualprazolam and etizolam, also controlled substances within the meaning of the Controlled Drugs and Substances Act (CDSA).
14PC Panacci took a sample from one of two Ziploc bags with a green strip believed to contain cocaine seized by PC Sanderson and submitted it to Health Canada.[1] The Certificate from Health Canada established that the sample contained cocaine. PC Panacci also took a sample from another large clear Ziploc bag believed to contain cocaine. The Certificate of Analyst from Health Canada indicated that the sample did not contain an identified controlled substance under the CDSA.
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Released: October 28, 2024
Signed: “Justice Marcella Henschel”