COURT FILE NO.: CR-19-44 DATE: 20200327 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – TAHIR ALI Defendant
Counsel: Sarah Tarcza and Amber Meiners for the Crown Richard Stern and Amanda Warth for the Defendant
HEARD: February 3-6, 10, 11, 13, 14, 18, 19 and 21, 2020.
Reasons for Judgment
BOSWELL J.
I. Overview
The Death of Shawn Kelly
[1] Shawn Kelly was 23 years old and worked in construction. He lived with his parents and younger sister in Innisfil. On April 10, 2017 he failed to get out of bed for work. His mother knocked on his door but he did not respond. She gave him another ten minutes, then knocked again and opened his door. Shawn was sitting on his bed, slumped over. He had died in the night from an opioid overdose.
[2] The Crown asserts that Mr. Kelly bought .3 grams of a mix of heroin and furanyl fentanyl from his friend, Ryan Walker, in the early evening of April 9, 2017. That much is not really in dispute. The Crown also asserts, however, that Mr. Walker was just a middleman. The drugs, they say, were supplied by Tahir Ali. And it was the ingestion of these drugs, they claim, that caused Mr. Walker’s death.
The Arrest of Tahir Ali
[3] It did not take officers of the South Simcoe Police Service (the “SSPS”) long to connect Mr. Kelly to Mr. Walker. Text messages contained on Mr. Kelly’s cell phone provided clear evidence that he had arranged to buy drugs on April 9, 2017 from Mr. Walker.
[4] Mr. Walker was questioned by the police on April 13, 2017 and he told them that the drugs sold to Mr. Kelly had come from someone named “Sasha”. The police later determined that “Sasha” was the accused, Mr. Ali. They began an investigation into Mr. Ali.
[5] On April 28, 2017 the South Simcoe Police conducted a surveillance operation on Mr. Ali, with the assistance of officers from the Barrie Police Service. A take-down was called at 8:37 p.m. and Mr. Ali was arrested without incident. His car – a black, Toyota Prius – was seized and subsequently searched by the police. Officers found quantities of a number of illicit drugs in his car, including marijuana, cocaine, and a mix of heroin and furanyl fentanyl.
The Charges
[6] Mr. Ali is charged with possessing a mixture of heroin and furanyl fentanyl for the purpose of trafficking on both April 9, 2017 and April 28, 2017. He is further charged with actually trafficking in it on both those dates. Finally, he is charged with manslaughter in the death of Shawn Kelly for having supplied the drugs that killed him.
The Essential Elements
[7] To establish that Mr. Ali possessed heroin and furanyl fentanyl for the purpose of trafficking, Crown counsel must prove, to the reasonable doubt standard, that he knowingly possessed the drugs and that the purpose of his possession was to traffic in them.
[8] To establish that Mr. Ali trafficked in heroin and furanyl fentanyl, the Crown must prove, to the reasonable doubt standard, that he intentionally trafficked substances he knew to be heroin and furanyl fentanyl. To “traffic” means to sell, give, distribute, transfer, send or administer.
[9] To establish that Mr. Ali is guilty of manslaughter in the death of Mr. Kelly, Crown counsel must prove to the reasonable doubt standard that he caused Mr. Kelly’s death by an illegal act that was objectively dangerous.
The Live Issues
[10] Not every one of the essential elements of each offence is in issue.
[11] With respect to the charges arising on April 9, 2017, the central issues for determination are:
(i) Whether the Crown has established, to the reasonable doubt standard, that the drugs provided to Mr. Kelly by Mr. Walker came from Mr. Ali; and,
(ii) If the answer to question (i) is yes, whether the Crown has established, to the reasonable doubt standard, that the drugs provided to Mr. Kelly by Mr. Walker caused his death.
[12] With respect to the charges arising on April 28, 2017, Mr. Ali seeks to have any evidence seized from his Toyota Prius excluded on the basis that he was unlawfully arrested and his car unlawfully searched. If his arrest was lawful, then he concedes that the evidence located in his vehicle is sufficient to ground a conviction for possession of heroin and furanyl fentanyl for the purpose of trafficking in it. He maintains, however, that there is insufficient evidence to establish that he was trafficking in those substances on the date in question. The additional issues arising from events on April 28, 2017 are, therefore:
(iii) Should the evidence found in Mr. Ali’s car be excluded under s. 24(2) of the Charter? And,
(iv) Has the Crown established to the reasonable doubt standard that Mr. Ali trafficked in heroin and furanyl fentanyl on April 28, 2017?
[13] I will review the four live issues in turn.
II. Analysis
Issue One: Did Tahir Ali supply the drugs sold to Shawn Kelly by Ryan Walker?
[14] Officer Graeme Harbottle was a scenes of crime officer with the South Simcoe Police Service in April 2017. He attended the Kelly residence on the morning of April 10, following the discovery of Shawn Kelly’s body. He located, on a night table beside Mr. Kelly’s bed, a 1” x 1” plastic baggie – popularly known as a “dime bag” – with a small amount of white, powdery substance in it. It was underneath an open pack of batteries.
[15] The dime baggie was covered with a printed pattern – little yellow cartoon cars. It was weighed by Officer Harbottle, who testified that it weighed 13.3 grams. He did not weigh the contents of the baggie separately. Later, those contents were removed by an identification officer, Detective Constable Terri McCallum, and placed into a little bottle. They were then forwarded to Health Canada for testing. DC McCallum did not weigh the contents.
[16] The substance in the dime bag was determined by Health Canada to contain heroin, furanyl fentanyl, dimethylsulphone and caffeine. No indication was provided as to what proportions each substance was present in.
[17] On December 7, 2018, Ryan Walker pleaded guilty before Justice C.M. Harpur of the Ontario Court of Justice, to one count of trafficking in fentanyl and to one count of criminal negligence causing death. He agreed that he was a “low level” drug dealer and that he had supplied furanyl fentanyl and heroin to Mr. Kelly on April 9, 2017.
[18] The Crown asserts that Mr. Walker was really nothing more than a mule on April 9, 2017 and that the drugs sold to Mr. Kelly came from Mr. Ali. The evidence offered in support of that assertion was both direct and circumstantial. The direct evidence came from the testimony of Mr. Walker who said that Mr. Ali supplied him with the drugs he provided to Mr. Kelly. By way of circumstantial evidence, the Crown adduced photographs that show Mr. Walker arriving and leaving in Mr. Ali’s vehicle at the time he sold the drugs to Mr. Walker. Moreover, less than three weeks later, Mr. Ali was arrested and found to be in possession of drugs of a similar constitution to those sold to Mr. Kelly.
[19] I will begin my analysis of the evidence tendered by the Crown with the testimony of Ryan Walker.
[20] The Crown must take its witnesses as it finds them. In Mr. Walker’s case, that means an opioid addict, who has trafficked in opioids to support his addiction. He has admitted to trafficking the opioids that killed Shawn Kelly. These characteristics, in themselves, would not lead me necessarily to reject Mr. Walker’s testimony on credibility or reliability grounds. But Mr. Walker is also a liar. And while some of what he testified to might be true, I find that there is just as much chance that any or all of it is false.
[21] Defence counsel urged me to self-instruct with a Vetrovec warning. A Vetrovec warning is the strongest caution a trier of fact can be given about the danger of relying on the testimony of a particularly unsavory witness.
[22] It is unnecessary for me to determine whether a Vetrovec warning is appropriate in this case. There are so many inconsistencies and obvious lies in Mr. Walker’s evidence that it is simply impossible to rely upon it. Here is a list of some of its shortcomings:
(a) He testified that he was an opioid addict, not a drug dealer. His text messaging conversations with Mr. Kelly make it clear that he was, in fact, a drug dealer. Moreover, he admitted to Justice Harpur that he was a “low level” drug dealer with 3-10 customers;
(b) He said that Mr. Kelly texted him a hundred times, “fiending” for drugs, on April 9, 2017. The phone records reflect that there were nowhere even remotely near that number of communications between them;
(c) He testified that Mr. Kelly asked him to message “Sasha” about getting drugs. The phone records obtained from Mr. Kelly’s phone reflect no such message. At no time was there any indication that Sasha was to be involved in the supply of the drugs;
(d) He testified that Sasha did not want to deal directly with Mr. Kelly. He said Sasha urged him to come along and even offered to drive him to the methadone clinic in Barrie after the deal if he came. This testimony is nonsensical on a number of levels.
First, Mr. Walker said that Mr. Ali had some problem with Mr. Kelly such that he would not deal directly with him. But according to Mr. Walker’s version of events, Mr. Ali was nevertheless prepared to pick up Mr. Walker, deliver him to a gas station across the street from Mr. Kelly’s house, wait for him while he conducted business with Mr. Kelly, then drive him to and from Barrie to attend the methadone clinic, all for free and all to facilitate what was, by any account, a low level deal. That is an awful lot of effort and expense Mr. Ali was purportedly prepared to go through to deliver a little packet of drugs to a person he did not care for.
Second, Mr. Walker said he did not end up going to the methadone clinic because he had already been out too long and was worried his parents would be suspicious. A search warrant was executed at Mr. Walker’s residence on April 13, 2017. In plain view on Mr. Walker’s dresser were drugs and drug paraphernalia, including a mortar and pestle used to crush pills. I do not believe he was particularly concerned about his parents’ suspicions.
Third, Mr. Walker said that he was in the methadone program in April 2017. He had to go to the clinic every day. In other words, he was not yet trusted to take carries. Mr. Walker, as a recovering addict, would need that daily methadone. He would not have skipped a day because of a worry about his parents’ suspicions, nor would he have planned to attend the clinic after 6:00 p.m. when, in all likelihood, it would no longer have been open;
(e) The deal struck between Mr. Kelly and Mr. Walker was three points of powder for $110. Detective Constable Kai Johnson, an expert in drug investigations, including pricing, testified that “three points” means .3 grams. In 2017 a point of heroin cost about $40, as did a point of fentanyl. Mr. Walker said he did not look in the packet that Mr. Ali gave him. He said it felt like it was only one point. He claimed he “ripped off” Mr. Kelly by selling him one point and charging him for three. He then “ripped off” Mr. Ali by giving him only $40 or $60 of the $110 he got from Mr. Kelly.
There is, again, a good deal about this part of Mr. Walker’s testimony that makes no sense.
First, he testified that he and Mr. Kelly were the closest of friends and had been since they were little. It seems highly unlikely he would rip off his closest friend in the way he described.
Second, Mr. Kelly was not a naïve drug purchaser. Mr. Walker said Mr. Kelly had purchased this same substance many times. He would undoubtedly have been able to tell the difference between one and three points. Mr. Walker would have me believe that he could tell that a packet had only one point in it just by the feel of it. Mr. Kelly would have not only felt the packet, but would have had an opportunity to view it both before and after the purchase. He did not, at any time, raise a complaint about being ripped off. I find that he paid $110 and got three points, not one.
Finally, there is Mr. Walker’s evidence that he ripped off Mr. Ali by paying him only $40 to $60. I find this simply unbelievable.
(f) In a statement he made to DC Johnson on August 30, 2017, Mr. Walker said he put pregabalin in the baggie he sold to Mr. Kelly, thereby ripping him off. He admits that was a lie; and,
(g) He testified under cross-examination that he could not recall what the term “stickers” meant. He had used the term in text conversations with Mr. Kelly. “Stickers” is coded language for fentanyl patches. I have no doubt that Mr. Walker recalled what the term meant. Indeed, later in his examination he agreed that it meant fentanyl patches.
[23] I generally do not put much stock in a witness’ demeanour. Mr. Walker is a special case. He was reasonably polite and responsive to Crown counsel’s questions. With defence counsel he was argumentative, rude, frequently insulting and often non-responsive. His conduct was completely beyond the pale.
[24] Like any witness, I may choose to accept and rely upon some, all or none of Mr. Walker’s evidence. I suspect that some of what he said was true. But so much of what he said was not true that I cannot have any confidence in the truth of the really important part – the part where he said Mr. Ali supplied him with the drugs that he sold to Mr. Kelly.
[25] I turn now to the circumstantial evidence tying Mr. Ali to the sale of drugs to Mr. Kelly.
[26] First, the Crown adduced photographic evidence that suggests that Mr. Ali drove Mr. Walker to the PetroCanada gas station across the street from Mr. Kelly’s home on the 25th sideroad of Innisfil on April 9, 2017. I accept that he did. I accept that Mr. Ali had an opportunity to supply Mr. Walker with the drugs he subsequently sold to Mr. Kelly.
[27] Second, the Crown adduced evidence, which I will come to in more detail momentarily, that on his arrest on April 28, 2017, Mr. Ali was found in possession of a number of prohibited substances, including 6.8 grams of a mixture of furanyl fentanyl, heroin, caffeine and dimethylsulphone. Recall that this is the same combination of substances found in the dime baggie in Mr. Kelly’s bedroom.
[28] Given that I am not prepared to accept Mr. Walker’s evidence regarding the source of the drugs he sold to Mr. Kelly, the Crown’s assertion that Mr. Ali supplied those drugs hinges on the strength of the circumstantial evidence I have just described. I must, of course, consider that evidence in the context of the evidence as a whole. And, I must apply the reasonable doubt standard to that evidence. In cases, like this one, where proof of one or more elements of an offence depends exclusively, or even largely, on circumstantial evidence, I must be satisfied that Mr. Ali’s guilt is the only reasonable inference that the circumstantial evidence permits. See R. v. Villaroman, 2016 SCC 33, at para. 30.
[29] In my view, the circumstantial evidence is not capable of pulling the necessary freight to support a conviction on any of counts 1, 2 or 3. There are too many other reasonable inferences available from the evidence. For instance:
(a) While I conclude that Mr. Ali was certainly engaged at times in dealing drugs from his cab, he was also, at other times, actually operating as a cab. Mr. Walker testified that he had used Mr. Ali as a cab driver many times. It may well be that Mr. Ali was dealing drugs out of his cab on April 9, 2017. It may also be that he simply drove Mr. Walker to and from the Petro Canada;
(b) While Mr. Ali may have been one source of opioids for Mr. Walker, I think it likely that he had other sources as well; and,
(c) The drugs found in Mr. Ali’s possession appear similar in composition to those found in Mr. Kelly’s bedroom. The significance of that similarity depends on the Crown’s ability to reduce or eliminate the chance of coincidence. In this case, I have no idea how common that particular mixture of drugs was on the streets of Simcoe County in April 2017. It might have been very commonly available, or it may have been rare, or something in between. I also have no evidence of the proportions of the drugs in the mixtures found in Mr. Kelly’s room and in Mr. Ali’s car. They may have been identical or markedly different. The chance of coincidence remains in play and reduces the probative strength of the inference that the drugs found in Mr. Ali’s cab are the same as the drugs found in Mr. Kelly’s bedroom.
[30] All things considered, I have a very strong suspicion that Mr. Ali supplied Mr. Walker with the drugs he sold to Mr. Kelly on April 9, 2017. But a strong suspicion is not the same as proof beyond a reasonable doubt.
[31] I am not satisfied, in the result, that the Crown has proven to the reasonable doubt standard that Mr. Ali either possessed heroin and furanyl fentanyl for the purpose of trafficking or trafficked in furanyl fentanyl or heroin on April 9, 2017. Consequently, I find Mr. Ali not guilty of counts one and two. Moreover, since the “unlawful act” of the manslaughter charge in this case is the trafficking of furanyl fentanyl and heroin on April 9, 2017, Mr. Ali is necessarily acquitted of count three.
Issue Two: Did the drugs Mr. Walker sold to Mr. Kelly cause his death?
[32] In view of my conclusions regarding Issue One, it is, strictly speaking, unnecessary for me to address this second issue. I will make a few brief comments, however, because in my view, even if I had been satisfied that Mr. Ali supplied the drugs that Mr. Walker sold to Mr. Kelly, I would still have had a reasonable doubt about causation.
[33] The causation issue is, of course, only relevant to the charge of manslaughter. Recall that the first essential element of the offence of manslaughter is that the accused did something to cause the death of another person.
[34] In my view, the drugs sold to Mr. Kelly by Mr. Walker probably caused his death. In fact, I would say there is a substantial likelihood that they did. But again, a substantial likelihood is not proof beyond a reasonable doubt.
[35] Doubt arises in my mind for several reasons.
[36] First, there is a lack of credible evidence about the difference between what the drugs weighed at the time they were purchased by Mr. Kelly and how much they weighed at the time they were seized by the police.
[37] Officer Harbottle said he weighed the baggie with the drugs in it, at 13.3 grams. Later the drugs were taken out of the baggie and sent to Health Canada for investigation. But they were not weighed separately at that time.
[38] There is simply no way that the drugs and baggie weighed 13.3 grams. At a later date a little plastic prescription pill bottle with white powder in it was seized from Mr. Ali’s car. It weighed 13.9 grams. The drugs inside were weighed separately at 6.8 grams, meaning the pill bottle weighed 7.1 grams. There is no way an empty dime baggie weighs more than a plastic pill bottle. The upshot is that the contents of the baggie found in Mr. Kelly’s bedroom had to weigh more than 6 grams, which strikes me as highly unlikely. If it is accurate, then those clearly were not the drugs supplied by Mr. Walker.
[39] Given the state of the evidentiary record, there is no means of determining how much of the substance supplied by Mr. Walker was ingested by Mr. Kelly.
[40] Second, toxicology reports prepared on samples of Mr. Kelly’s femoral and heart blood, as well his urine, revealed a fairly wide range of drugs in his system. While they included furanyl fentanyl and derivatives of heroin, they did not include dimethylsulphone or caffeine.
[41] Third, an expert toxicologist – Dr. Lamparter – testified that morphine was detected in Mr. Kelly’s femoral blood and urine. In addition, 6-monoacetylmorphine (“6-MAM”) was detected in his urine.
[42] Heroin, she said, is only detectable in the bloodstream for about 30 minutes. After that, it is metabolized into 6-MAM, which is in turn metabolized into morphine. Morphine may be present in the blood for up to a day. She further testified that the fact that Mr. Kelly had 6-MAM in his urine, meant that he had ingested heroin at some point. She could not say whether he ingested it more than once. But it can be detected in the blood for only about 3 hours. The fact that it was detected in his urine, but not his blood, suggests that he ingested heroin at least 3 hours prior to death.
[43] Based on the evidence of the toxicologist and the forensic pathologist, Dr. Herath, I conclude that Mr. Kelly died of an overdose of furanyl fentanyl. The packet of drugs identified as having been sold by Mr. Walker to Mr. Kelly, included both heroin and furanyl fentanyl. While the concentrations of each may not have been distributed equally in the baggie, I think it likely that both drugs would have entered Mr. Kelly’s system at the same time, regardless of the means of ingestion he employed. The upshot is that it seems unlikely that any of the contents of that particular packet were ingested by Mr. Kelly within 3 hours of his death.
[44] While Dr. Lamparter said that death from a fatal overdose of opioids could take hours, she was not aware of any case studies where a person took a fatal dose of fentanyl and lived for hours. Mr. Kelly clearly lived for hours after taking heroin. That means that either the mix of heroin and furanyl fentanyl in the baggie beside his bed killed him more than three hours after ingestion, or he had another source of furanyl fentanyl.
[45] Mr. Kelly was an opioid addict. Although there were no other packets of furanyl fentanyl or heroin found in his room, it is possible that he had drugs from sources other than Mr. Walker and possible that he ingested them on the night of his death.
[46] Again, while I think it very probable that the drugs provided to Mr. Kelly by Mr. Walker are the ones that killed him, I cannot be entirely sure. That means that I must acquit Mr. Ali of manslaughter.
[47] I will move on now to the charges arising from the events of April 28, 2017.
Issue Three: Should the drugs found in Mr. Ali’s car be excluded from evidence?
[48] Mr. Ali was arrested at 8:37 p.m. on April 28, 2017 at the side of the road in the south end of Barrie. His car was later searched and it contained, amongst other things, 6.8 grams of a mixture of furanyl fentanyl and heroin. In addition, there were digital scales, dime baggies and large amounts of cash – all consistent with drug trafficking.
[49] Mr. Ali concedes that if the evidence found in his car is admissible, the Crown has made out the offence of possession for the purpose of trafficking.
[50] Mr. Ali takes the position, however, that anything seized from him personally or from his vehicle on April 28, 2017 (the “impugned evidence”) should be excluded from evidence in this trial. He claims that the evidence seized after his arrest was obtained in a manner that infringed his Charter right to be free from unreasonable search and seizure. Its admission into evidence would, he contends, bring the administration of justice into disrepute.
[51] Mr. Ali brought an application to exclude the impugned evidence under s. 24(2) of the Charter. The application was opposed by the Crown. It was agreed for reasons of efficiency that the Charter application would be blended with the trial.
The Legal Framework
[52] Section 24(2) of the Charter provides as follows:
Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[53] Mr. Ali asserts that the drugs found by the police in his car were obtained by the police in a manner that infringed his rights under s. 8 of the Charter. That section provides that everyone has the right to be secure against unreasonable search and seizure.
[54] The purpose of s. 8 is to protect the privacy of individuals against the intrusive conduct of the state. It is well settled that that purpose is best served by requiring prior judicial authorization, in the form of a search warrant, before a search is carried out, as opposed to conducting after-the-fact inquiries. See Hunter v. Southam, [1984] 2 S.C.R. 145 at page 160.
[55] For this reason, warrantless searches are viewed by the law as prima facie unreasonable. Where the police conduct a warrantless search, the onus is on them to establish that it was, nevertheless, reasonable. See R. v. Collins, [1987] 1 S.C.R. 265 at para. 22; and R. v. Mann, 2004 SCC 52 at para. 36. Generally, this requires the Crown to establish that (1) the search was authorized by law; (2) the authorizing law is itself reasonable; and (3) the search was carried out in a manner that was reasonable.
[56] The common law authorizes the police to conduct searches of accused persons and their immediate surroundings incident to their arrests. The right to search incident to arrest has been recognized as a reasonable one, not because detained persons necessarily have a reduced expectation of privacy, but because at the time of an arrest the police have a heightened need to gain control of evidence as well as any items that may compromise officer safety. At the moment of an arrest, the needs of law enforcement outweigh the individual’s interest in privacy.
[57] The right to conduct a search incident to arrest depends for its validity on the lawfulness of the underlying arrest. To effect a lawful arrest without a warrant, a police officer must have reasonable and probable grounds to believe that the person being arrested has committed, or is about to commit, an indictable offence. See s. 495(1)(a) of the Criminal Code.
[58] The reasonable and probable grounds for the arrest then serve as a proxy for the reasonable and probable grounds to search. See R. v. Caslake, [1998] 1 S.C.R. 51 at para. 13.
[59] The “reasonable” prong of the reasonable and probable grounds standard requires the arresting officer to hold a subjective belief that the accused committed, or was about to commit, an indictable offence. That subjective belief must be objectively reasonable in all the circumstances. See R. v. Storrey, [1990] 1 S.C.R. 241 at para. 17.
[60] The “probable” part of the reasonable and probable grounds standard requires a “credibly-based probability” that the accused committed, or was about to commit, an indictable offence. See for instance, R. v. Sanchez, [1994] O.J. No. 2260 (Gen. Div.).
[61] A police officer may form his or her grounds to arrest or detain an individual based on information or instructions he or she has received from another officer. If a detective, for instance, forms the necessary grounds to arrest a suspect, he or she may instruct a constable to proceed to effect the arrest. The constable may rely on the grounds as formulated by the detective, without having to form his or her own individual grounds. See R. v. Debot, [1989] 2 S.C.R. 1140 at para. 50; [R. v. Awalu, [1997] O.J. No. 5539 (S.C.J.), at para. 17]; and [R. v. Kassa, [2006] O.J. No. 2952, at para. 26].
The Parties’ Positions
[62] The Crown’s position is that Mr. Ali was lawfully arrested. They say the police had the right to search his car incidental to his arrest and did so in a reasonable manner. They also say that the police actually obtained a warrant before conducting a fulsome search of the vehicle.
[63] The defence position is that the Crown has not produced in evidence a copy of the warrant and must therefore rely on the common law right of search incident to arrest. In this instance, however, the police were not entitled to search Mr. Ali’s vehicle because he had not been lawfully arrested. In particular, there is no evidence that any of the officers who participated in his arrest actually formed the subjective grounds to arrest him.
[64] Mr. Ali submits that the police took a cavalier approach to his rights and to the rights of others arrested along with him. He says the breaches were serious and that admitting the drugs seized from his car into evidence would tend to bring the administration of justice into disrepute.
[65] The Crown argues that, should the court conclude that Mr. Ali’s s. 8 right was breached, the breach was minor or technical in nature and does not warrant the exclusion of any of the evidenced seized from his car. The evidence is real and reliable. It supports the conclusion that Mr. Ali was trafficking in fentanyl – arguably the most dangerous drug on the streets. The exclusion of this evidence, rather than its inclusion, would tend to bring the administration of justice into disrepute.
The Grounds for Mr. Ali’s Arrest
[66] It is necessary that I provide a somewhat detailed overview of the surveillance that led to Mr. Ali’s arrest in order to provide the context needed to understand the parties’ positions and my disposition.
[67] Detective Constable Adam Walther was an investigator in the drug unit of the SSPS in the spring of 2017. He testified that he learned from a confidential informant, sometime in March 2017, that Mr. Ali was trafficking in the South Simcoe area. On April 13, 2017 he monitored a video-recorded statement made to the police by Mr. Walker after his arrest on trafficking charges. During that statement, Mr. Walker implicated someone named “Sasha” in drug dealing. “Sasha” is a pseudonym used by Mr. Ali.
[68] DC Walther developed a three-pronged investigation into suspected drug dealing by Mr. Ali. His plan involved physical surveillance, the use of undercover officers and the execution of search warrants on Mr. Ali’s car and residence.
[69] Nothing came of the use of undercover officers.
[70] The surveillance was scheduled to take place on April 28, 2017. Officers of the Barrie Police Service (“BPS”) were brought in to assist. Detective Sergeant David Luce was the officer in charge of the surveillance operation.
[71] DC Walther testified that he held a briefing at the north division of SSPS at 2:00 p.m. on April 28. The BPS officers were instructed to commence surveillance as soon as they could locate Mr. Ali. They were told they could make an arrest under the instruction of D/Sgt Luce if they formed the necessary grounds to do so.
[72] DC Johnson testified that he was the officer in charge of what morphed into a three part investigation. Part one was the investigation into Shawn Kelly’s sudden death. Part two was the investigation into Mr. Walker’s drug dealing and the execution of a warrant at his residence. Part three was the investigation into Mr. Ali’s drug dealing. He said that he was actively investigating Mr. Ali between April 21 and 27, 2017 and in that time he formed the grounds to arrest him.
[73] A decision was nevertheless made to attempt to get more evidence against Mr. Ali. Accordingly, DC Johnson filed an Information to Obtain two warrants on April 28, 2017 – one for Mr. Ali’s home and the other for his vehicle. In addition, Mr. Ali was placed under surveillance to be conducted by officers of the BPS.
[74] DC Johnson said the warrant to search Mr. Ali’s home was obtained at about 3:00 p.m. Execution of the warrant was held off until after Mr. Ali had been arrested and secured in custody. In other words, nothing that came out of the execution of the warrant informed any officer’s grounds to arrest Mr. Ali.
[75] D/Sgt Luce testified that he and other BPS officers attended a briefing with the SSPS on Friday April 28, 2017. They were tasked with conducting surveillance on Mr. Ali and their objective, he said, was to obtain grounds to arrest him. He was to participate in the surveillance and he was also the “road boss”.
[76] In addition to D/Sgt Luce, the surveillance team included DC Brad Breedon, DC Jonathon Barnes, PC Stuart Fehrman, DC Kelk and PC Anthony Forrest, all of the BPS. DC John Ellis of SSPS was assigned as the central notetaker. Each testified about their observations save for DC Kelk.
[77] DC Breedon was the first to locate Mr. Ali. He observed him in his driveway at 2031 Inglewood Drive in Innisfil at 4:59 p.m. Mr. Ali pulled into the driveway and went into the residence. He was mobile again by 5:30 p.m. I note that Mr. Ali was, at all relevant times, driving a black Toyota Prius, with license no. CBAD 911.
[78] D/Sgt Luce testified that he observed Mr. Ali pull into a No Frills parking lot in Innisfil at 5:22 p.m. Two minutes later he was northbound on the 20th Sideroad of Innisfil.
[79] DC Barnes testified that he first observed Mr. Ali on the 20th Sideroad at 5:48 p.m. He followed Mr. Ali all the way into Barrie where he observed Mr. Ali turn into an Esso gas station at the corner of Bayview Drive and Mapleview Drive. He lost contact with him at that point.
[80] D/Sgt Luce said that he observed Mr. Ali pull into the same Esso gas station at 6:06 p.m. He watched as a gray-haired white male exited a gray pick up truck and approached Mr. Ali’s vehicle. There was a brief interaction between Mr. Ali and the white male. D/Sgt Luce recognized the white male as a known drug user. He formed the opinion that he had witnessed a hand-to-hand drug transaction.
[81] At 6:09 p.m., Mr. Ali was, according to D/Sgt Luce, northbound on Bayview Drive. At 6:12 p.m. he was near the intersection of Bayview Drive and Baldwin Lane. DC Barnes observed Mr. Ali stop at a residence on Baldwin Lane at 6:12 p.m. He testified that he saw a male come out of the residence, approach Mr. Ali’s vehicle and lean into the window. Within twenty seconds, he put his hand through the window, then pulled his hand back out. He then went back into the residence.
[82] At 6:18 p.m., PC Ferhman observed Mr. Ali’s vehicle on Patterson Road in Barrie. PC Forrest and D/Sgt Luce also reported seeing Mr. Ali on Patterson Road at the same time. PC Ferhman said that Mr. Ali’s vehicle left Patterson Road by 6:19 and headed westbound on Ardagh Road.
[83] DC Barnes again observed Mr. Ali heading westbound on Ardagh Road. Mr. Ali did a U-Turn and headed eastbound instead. He then did another U-Turn and went westbound again. He stopped on the south side of Ardagh Road near its intersection with Batteaux Street, facing east.
[84] DC Breedon testified that just after 6:30 p.m. a black GMC Jimmy pulled up behind Mr Ali’s car on the side of Ardagh Road. A female got out of the truck and approached Mr. Ali’s car. She leaned in through the passenger side of the vehicle and, about a minute later, returned to the Jimmy and left the area. Immediately after that a silver Toyota pulled up behind Mr. Ali’s cab. A male with a long ponytail entered the rear of the cab. At about the same time, another male walked up McIntyre Road towards Ardagh and he too got into the back of the cab. The Toyota pulled away, turned down McIntyre Road and parked. Mr. Ali also pulled away from the curb. He also turned down McIntyre Road. He pulled into a driveway, where the second male to have entered the cab exited it and went into a residence. Mr. Ali then left the area.
[85] PC Forrest testified that he observed Mr. Ali pull into an Esso station at the corner of Anne Street and Dunlop Street at 6:58 p.m. D/Sgt Luce made a similar observation, which he situated at 6:57 p.m. He said he saw a male exit the cab, go into the Esso, then return to the cab. It went across the street and entered a Tim Horton’s parking lot. A male came out of Tim Horton’s, got into the cab and moments later got back out. He formed the opinion that this was a drug transaction.
[86] At 7:17 p.m. D/Sgt Luce observed Mr. Ali to be on Penetang Road in Barrie. He pulled into a driveway. A person got into the cab, then moments later got back out. D/Sgt Luce admitted he did not actually see the person get back out of the cab, but the cab was under continual surveillance after this point and no one ever saw the male get out. He deduced therefore that the male had been in the cab for only a minute.
[87] A short time later, at roughly 7:35 p.m., both D/Sgt Luce and PC Fehrman observed Mr. Ali parked in a driveway on Golfdale Road in the north end of Barrie. Mr. Ali left that location and drove to the rear of the Bayfield Mall. He parked near a pick up truck with two males in it. The two males exited the truck and got into Mr. Ali’s cab. They sat in it for a few minutes, then exited and returned to their truck.
[88] At 8:13 p.m. PC Fehrman tracked Mr. Ali on Innisfil Beach Road in Innisfil. By 8:30 p.m. he was back in Barrie and on Ardagh Road again. PC Fehrman observed a young male run down a side street called McIntyre Dr. He got into the back seat of the cab. He said that at this time he considered the conditions were safe for a take-down to occur.
[89] There is conflicting evidence about who actually initiated the take-down. PC Fehrman said in direct examination that he and D/Sgt Luce made the call together. Under cross-examination he agreed that he had testified at the preliminary hearing that he called the take-down himself and was not instructed by any other officer to do so. He adopted that earlier testimony as his trial evidence.
[90] DC Breedon testified that PC Fehrman initiated the take-down. He said D/Sgt Luce had the authority to overturn the call but did not.
[91] DC Barnes said he had been told by DC Kelk at 8:12 p.m. that a take-down was going to be called at the next instance of presumed drug dealing. He said D/Sgt Luce called the take-down at 8:37 p.m. while Mr. Ali was stopped on the side of Ardagh Road.
[92] DC Ellis was the central note-taker during the surveillance. He said his notes reflect that D/Sgt Luce called the take-down at 8:37 p.m.
[93] D/Sgt Luce testified that it was PC Fehrman who called the take-down, with his approval.
[94] At any rate, as a result of the take-down call, three police vehicles converged on Mr. Ali’s location. DC Breedon said he pulled his car up beside Mr. Ali’s cab. He approached the driver’s side of the cab and opened the door. He advised Mr. Ali that he was under arrest for possession of a controlled substance for the purpose of trafficking.
[95] DC Barnes said he pulled his police vehicle directly in front of Mr. Ali’s cab – nose to nose – and jumped out and assisted DC Breedon with the arrest of Mr. Ali.
[96] PC Fehrman attended at the passenger side door and arrested a female - Jade Clark - who was unexpectedly in the passenger seat. D/Sgt Luce arrested a male named David Kozera who was in the rear of the car. Both Ms. Clark and Mr. Kozera were also charged with possession for the purpose of trafficking.
[97] I am satisfied on the whole of the testimony of the surveillance officers that a number of them, if not all, formed a subjective belief that Mr. Ali was trafficking in controlled substances. DC Breedon, who actually arrested Mr. Ali, said his belief was the result of the totality of what he had seen and heard throughout the day. D/Sgt Luce, who was the road boss, described the decision to initiate a take-down being the result of a determination by everyone involved in the surveillance that they had gathered enough evidence to form the grounds to arrest Mr. Ali.
[98] As DC Ellis said, the officers involved in the surveillance called out their observations as they occurred and he did his best to record them. Each was a part of a global conversation. I accept that there was a shared belief that Mr. Ali was involved in drug trafficking and was arrestable, even though no witness specifically articulated that he had formed the subjective grounds to arrest Mr. Ali and then proceeded to do so, or to instruct another officer to do so.
[99] I am satisfied that when he arrested Mr. Ali, DC Breedon had formed the subjective grounds to do so. The next question is whether those grounds were objectively reasonable.
[100] Mr. Ali’s counsel made it clear through cross-examination of the surveillance officers that they did not actually see drugs being exchanged, nor did they follow up with investigation of any of the individuals that Mr. Ali purportedly trafficked to on April 28, 2017. He also made it clear that there were gaps in the surveillance and there are lingering questions about when certain individuals may have gotten into or out of Mr. Ali’s cab. All that is to say, he may have been conducting legitimate taxiing services at times while under surveillance.
[101] While all of that is true, the police had information from Mr. Walker that implicated Mr. Ali in drug dealing. During the course of their surveillance, they observed the following brief interactions that are certainly consistent with hand-to-hand drug transactions:
(a) A brief interaction with a male at an Esso gas station in the south end of Barrie at 6:06 p.m. The male was known to D/Sgt Luce as a drug user;
(b) A brief interaction with a male through the window of the car in a driveway on Baldwin Lane at 6:12 p.m.;
(c) Two brief interactions – one with a female and the other a male – on the side of Ardagh Road at roughly 6:30 p.m. The interaction with the female was through the passenger side window. The male, on the other hand, got into the car, but then was driven around the corner and exited the car and went into a residence;
(d) A brief interaction with a male at a Tim Horton’s at approximately 6:58 p.m.;
(e) A brief interaction with a person in a driveway on Penetang Road at 7:17 p.m.; and,
(f) A brief interaction with two males behind the Bayfield Mall at 7:35 p.m.
[102] In my view, the interactions observed by surveillance officers were consistent with drug trafficking from Mr. Ali’s vehicle. They are perhaps not exclusively consistent with drug trafficking, but they are more than consistent enough to satisfy me that the police had reasonable and probable grounds to arrest Mr. Ali on April 28, 2017 at 8:37 p.m.
[103] I noted earlier that the police arrested two others at the same time Mr. Ali was arrested. They were both charged with possession for the purpose of trafficking. I do not believe that the police had sufficient grounds to arrest them at that time. Obviously they are not before the court. The significance of the groundless arrests is their tendency to demonstrate that the Barrie Police were prepared to make arrests that night without sufficient grounds. I have given that factor serious consideration, but remain satisfied that the police had more than sufficient grounds to arrest Mr. Ali when they did.
[104] I conclude that the arrest of Mr. Ali was lawful. The police therefore had a common law right to search him and his cab incident to his arrest. There is no issue taken with respect to the manner in which the roadside search of Mr. Ali was carried out, nor with the subsequent search of his cab. I therefore conclude that his s. 8 right to be secure against unreasonable search and seizure was not breached.
[105] I need not determine whether the Crown had a valid warrant to search Mr. Ali’s cab when they did so. The warrant was not filed in evidence. I have not relied on it in reaching my conclusion that the search of the Prius was lawful.
[106] The evidence seized from Mr. Ali and his vehicle included, as I set out earlier, 6.8 grams of a mixture of heroin and furanyl fentanyl as well as other drugs and drug paraphernalia, such as a digital scale and dime baggies. He also had significant cash in his possession at the time of his arrest.
[107] Defence counsel concedes that the evidence seized from Mr. Ali and his vehicle is sufficient to support the offence of possession of furanyl fentanyl and heroin for the purpose of trafficking and I agree. I am satisfied beyond a reasonable doubt on a consideration of the evidence as a whole that Mr. Ali possessed furanyl fentanyl and heroin on April 28, 2017 and that the purpose of his possession was to traffic in it.
[108] In the result, I find Mr. Ali guilty on count five.
[109] I turn now to the final question:
Issue Four: Was Mr. Ali trafficking in heroin and furanyl fentanyl on April 28, 2017?
[110] Considering the illicit pharmacy located in the centre console of Mr. Ali’s cab and the observations of the Barrie Police surveillance team, I have no reasonable doubt that Mr. Ali was trafficking in controlled substances on April 28, 2017.
[111] Mr. Ali is specifically charged, however, with trafficking in a mixture of heroin and furanyl fentanyl on that date. His vehicle contained marijuana, almost 60 grams of cocaine and 6.8 grams of a mixture of furanyl fentanyl, heroin, dimethylsulphone and caffeine.
[112] What is not clear to me is which of the substances found in his car he actually trafficked on April 28, 2017. The police did not conduct further investigation on any of the parties who they observed interacting with Mr. Ali, for entirely valid reasons. Consequently, there is no evidence as to what substances were purchased.
[113] As I said, there were two passengers in Mr. Ali’s cab at the time of his arrest. Jade Clark was found to be in possession of a dime baggie that contained a mixture of furanyl fentanyl, heroin and dimethylsulphone. This is very similar to the mixture found in a pill bottle in Mr. Ali’s console. But not identical. Specifically, it did not test positive for caffeine. I have no way of knowing if the absence of caffeine in the small amount of substance found in Ms. Clark’s possession precludes a finding that it came from Mr. Ali. But it might. And that is enough to raise a reasonable doubt in my mind about whether she purchased that substance from Mr. Ali.
[114] The second passenger, David Kozera, was arrested by D/Sgt Luce, who transferred custody to PC Forrest. PC Forrest conducted a pat down search of Mr. Kozera and seized only cigarettes and a lighter.
[115] In the result, while I am satisfied beyond a reasonable doubt that Mr. Ali was trafficking in illegal substances on April 28, 2017, I am not satisfied beyond a reasonable doubt that he was trafficking in the substance he is charged with. An acquittal is therefore registered on count 4.
Conclusion
[116] In conclusion, Mr. Ali is convicted on count 5, of possession of a mixture of furanyl fentanyl and heroin, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. He is acquitted of the charges reflected in counts 1, 2, 3 and 4.
Boswell J.