COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ralph, 2014 ONCA 3

DATE: 20140103

DOCKET: C55294

Laskin, Rosenberg and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Atiba Ralph

Appellant

Carlos Rippell, for the appellant

John North and Brian Puddington, for the respondent

Heard: November 1, 2013

On appeal from the conviction entered on July 8, 2011 by Justice Edward P. Belobaba of the Superior Court of Justice, sitting without a jury, with reasons on pre-trial motions reported at 2011 ONSC 3407, reasons for judgment reported at 2011 ONSC 3558, and reasons on the entrapment application reported at 2011 ONSC 4125.

Rosenberg J.A.:

[1] The appellant, Atiba Ralph, appeals from his conviction by Belobaba J. on multiple charges of trafficking in cocaine and possession of the proceeds of crime, one count of possession of cocaine for the purpose of trafficking and one count of offering to transfer a firearm. The appellant argues that the trial judge erred in refusing to stay the charges for unreasonable delay contrary to the guarantee in s. 11(b) of the Canadian Charter of Rights and Freedoms, erred in finding that the appellant had been reliably identified as the perpetrator, erred in failing to exclude evidence seized from a house where the appellant was staying because of violations of ss. 8 and 10(b) of the Charter and erred in his analysis of credibility. Finally, the appellant argues that the trial judge erred in failing to stay the charges because of entrapment. For the following reasons, I would dismiss the appeal.

A. FACTS

[2] The charges against the appellant arise out of an undercover operation initiated by a tip that a person with a particular telephone number was selling drugs. The undercover officer called the number and 41 minutes later received a call back. The exact words of the telephone conversation are important for the entrapment issue and I will set them out later when I deal with that issue. As a result of the conversation, the undercover officer met with the perpetrator and purchased a quantity of cocaine. In all, the officer met with the appellant on seven separate occasions, purchasing drugs on six occasions. On one occasion, the two spent several hours together at a strip club. The officer identified the appellant as the person he met on these occasions. During these meetings, the appellant sold the officer increasingly large amounts of crack and powder cocaine. He also offered to sell a firearm to the officer. When the appellant was arrested at the home of the mother of his child, the police seized a quantity of cocaine. The appellant testified and denied that he was the person who had met with the undercover officer.

B. ANALYSIS

(1) Unreasonable Delay

[3] The trafficking offences occurred over the period between August and November 2007. The appellant was arrested on September 4, 2008 and released on bail a week later. His trial did not begin until May 30, 2011, a delay of 33 months. The trial judge accepted the appellant’s characterization of the delay with some minor differences and found that 26 months of the delay should be attributed to institutional and Crown delay. The trial judge found that the delay exceeded the guidelines set down in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, by 8 to 12 months. However, he found that there was no evidence of actual prejudice and only a modest amount of inferred prejudice. He was therefore satisfied that, balancing the amount of delay and the prejudice against society’s interest in having the serious charges tried, the charges should not be stayed.

[4] The appellant submits that the trial judge made several errors in his analysis. He failed to give sufficient weight to the inferred prejudice, failed to give sufficient weight to the delay caused by the inability of the trial court to reach the case on the first time it was set for trial and placed undue weight on the seriousness of the offences. Crown counsel responds by submitting that the trial judge did not make any of the alleged errors and, to the contrary, erred to the appellant’s benefit in his treatment of some of the time periods. Dealing with these submissions requires an assessment of the various periods of the 33 months between the charge and the trial.

(a) The standard of review

[5] The characterization of periods of delay and the ultimate decision on an application for a stay of proceedings on the basis of unreasonable delay are reviewable on a standard of correctness: R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19. The underlying facts are reviewed on a standard of palpable and overriding error: Tran, at para. 19. My disagreement with the trial judge’s reasons on the s. 11(b) application relate to the characterization of the periods of delay, not the underlying facts.

(b) From charge to preliminary inquiry

[6] The appellant was arrested on September 4, 2008. His preliminary inquiry was completed in a single day on March 1, 2010, thus 18 months after the arrest. The trial judge assigned approximately 6 months of this time to neutral or intake and 12 months to Crown or institutional delay. I agree with the trial judge’s analysis except for two periods.

[7] The appellant submits that the trial judge assigned too much time to neutral intake. He argues that given the time that elapsed between the time when most of the offences were committed and the arrest, only a very short time (one month) should be allotted to neutral intake. He submits that the several months of delay that followed because the Crown was still making disclosure should count as Crown delay. The trial judge assigned a total of three months to neutral intake. I agree with the trial judge. This was a complex case involving a considerable amount of disclosure and while most of the offences were committed during the course of the undercover operation, a further offence of possession of narcotics for the purpose of trafficking was committed on the date of the arrest. Allowing three months for neutral intake is a relatively modest amount.

[8] My first disagreement with the trial judge is his decision to assign almost all of the time following the intake period until a date was set for the preliminary inquiry to either Crown or institutional delay. In my view, at least a further four months should be considered neutral. Much of the time was taken in scheduling a judicial pre-trial because of the anticipated length of the preliminary inquiry. Some of the delay was as a result of a defence adjournment request. There was no evidence that the defence was ready to commence the preliminary inquiry before the judicial pre-trial or even within several weeks thereafter. In fact, there is no evidence as to when the defence would have been ready to conduct the preliminary inquiry. At least some of the delay has to be attributed to the time necessary for the defence to review the disclosure and prepare for the preliminary inquiry. In my view, at least four months of the delay from the end of the intake period until the first date for the preliminary inquiry must be considered either neutral or defence delay.

[9] My second disagreement with the trial judge concerns his assignment of responsibility for the delay in proceeding with the preliminary inquiry. The preliminary inquiry was originally set for two days to commence on December 1, 2009. On that day, Crown counsel indicated that she would be seeking committal for trial on the drug and proceeds charges in the information and on a further charge of offering to sell a firearm, which was not included in the information. Defence counsel was surprised and requested an adjournment to consider his position. The preliminary inquiry judge granted the adjournment and adjourned the preliminary inquiry to March 1, 2010. In the result, less than one day was required to complete the preliminary inquiry. The trial judge dismissed the allegation that the defence had been ambushed by the Crown’s position and assigned two of the three months as neutral. He seems to have considered the remaining month as Crown or institutional delay.

[10] The fact that the perpetrator allegedly committed a firearms offence was apparent from the disclosure, which had been made months earlier. That an accused may be committed for trial for offences other than those contained in the information in respect of the same transaction is contemplated by the Criminal Code, s. 548(1)(a) and is not unusual. If the appellant nevertheless required time to consider his position, that is not the fault of the Crown or the system. In my view, the entire three months should be considered either neutral or defence delay.

(c) From preliminary inquiry to trial

[11] The preliminary inquiry began and was completed on March 1, 2010. The appellant first appeared in the Superior Court of Justice on March 31, 2010, at which time a judicial pre-trial was set for April 28, 2010. The trial judge assigned one month of this time to intake and assigned one month to institutional delay. I disagree; this was all neutral intake time. The parties contemplated a seven-day jury trial with several pre-trial motions. Some delay is reasonable to deal with the issues that would take this much court time, including the scheduling of a judicial pre-trial. The entire two months from March 1 to April 28, 2010 is neutral intake.

[12] On April 28, 2010, the court set a date of October 25, 2010 for the seven-day jury trial. The trial judge assigned this entire six months to institutional delay. When the date was set, defence counsel said that he had earlier dates but did not indicate when he was ready for trial. At least one month of the six months should be considered neutral in those circumstances: see Tran, at paras. 32-40.

[13] On October 25, 2010, the case could not be started because there was no judge available. The case was adjourned to October 26, 2010 to see if a judge would become available. The transcript on that day shows that it was possible that the trial could proceed if the appellant re-elected trial by judge alone. The appellant insisted on a jury trial. The case was adjourned to May 30, 2011, which was the first available trial date. The trial judge assigned this period to institutional delay. The appellant was ready for trial in October 2010, but the system could not accommodate him.

[14] As it turned out, on June 3, 2011, the appellant did re-elect trial by judge alone. Crown counsel submits that all of this period should be considered neutral because, had the appellant re-elected judge alone back in October 2010, his trial could have gone ahead. I do not accept this submission. First, it is not at all clear that a judge-alone trial could have proceeded in October. The transcript shows that the trial court was under considerable pressure and there was only a possibility that a judge-alone trial would have proceeded. Second, the appellant was not required to give up his Charter right to a jury trial to vindicate his Charter right to a trial within a reasonable time. There is nothing on the record that in any way supports a suggestion that the refusal to re-elect in October was for tactical reasons to try and run the s. 11(b) clock. Third, as counsel for the appellant points out, the decision to re-elect judge alone in June was part of the parties’ negotiations, which included agreeing on a statement of facts to simplify the trial. There was no suggestion by Crown counsel at trial that any of the delay caused by the adjournment was anything other than institutional delay.

[15] I also agree with the appellant’s counsel that in balancing the various factors, the trial judge erred in failing to consider the Crown’s obligation to give this case priority when it had to be adjourned because of the unavailability of a court to try the case in October. By October 2010, this case was in some danger already due to delay. More attention should have been paid to giving the appellant’s case priority rather than adjourning it for over seven months. One positive factor is that Crown counsel agreed to remove the curfew bail condition, thus reducing the prejudice to the appellant.

(d) Prejudice

[16] The appellant submits that the trial judge failed to give sufficient weight to the prejudice suffered by the appellant. The appellant adduced no evidence of actual prejudice. The trial judge accepted that inferred prejudice had to be taken into account but he described the inferred prejudice as a “modest amount of inferred prejudice”. When an accused has had to wait almost three years for trial, even a trial as relatively complex as the appellant’s, it is proper to infer significant prejudice: see R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3. On the trial judge’s findings a substantial amount of that time, some 26 months, was either Crown or institutional delay. If that finding held and given the failure to give the case priority when it was adjourned in October, I might well have found a violation of s. 11(b) requiring a stay of proceedings.

(e) Conclusion

[17] To summarize, four of the months following the intake period until the preliminary inquiry should be considered neutral, rather than Crown institutional delay. One month of the delay when the preliminary inquiry is neutral rather than institutional or Crown delay. All of the 2 months from the completion of the preliminary inquiry to the date of the pre-trial was neutral intake, not just the one month assigned by the trial judge. One month of the time from the pretrial to the first trial date was neutral. Thus, rather than 26 months of institutional and Crown delay, in my view, there was only 19 months of such delay. While this is still a significant delay, it is a delay that only slightly exceeds the upper range if the Morin guidelines, of 14 to 18 months of institutional delay, see Morin at para. 55. There is inferred prejudice but no actual prejudice. The failure to give the case priority in October increased the prejudice to the appellant. On balance, however, the appellant has not shown that his s. 11(b) rights were infringed taking into account the societal interest in a trial on the merits and the other circumstances including the inferred prejudice and the seriousness of the charges. I would not give effect to this ground of appeal.

(2) The Search at the time of arrest

[18] The appellant submits that the trial judge erred in failing to find that the appellant’s rights under ss. 8 and 10(b) of the Charter were infringed at the time of the arrest. The relevant facts are as follows. On September 4, 2008, two police officers knocked on the door of a Toronto residence belonging to the mother of the appellant’s child. Although the appellant apparently lived in the town of Ajax, the officers had information that the appellant might be staying at the Toronto address and intended to arrest the appellant on an outstanding arrest warrant. The door was opened by the owner and the appellant. Just at that moment, a cat ran out and the appellant, in stocking feet, chased after it. The officers arrested the appellant outside the house. They informed him of the reason for the arrest and informed him of his right to counsel. The appellant stated that he had a lawyer and would call him. The officers informed him that he would be allowed to call his lawyer at the police station.

[19] The appellant then told the officers that he wanted to resolve the matter and asked to speak privately with one of the officers, Sergeant Singh. The officer agreed and the two went to a bench on the front porch. The appellant asked the officer, “What is this all about?” The officer explained the drug investigation. The appellant then said that he did not want to stress his child’s mother. He said he had “some stuff” in the house and did not want the mother or the children finding it. The officer asked him, “Where and what?” The appellant asked the officer to come with him so the appellant could give it to him. The appellant repeated that he did not want to stress the child’s mother after he left. He did not tell the officer what the “stuff” was, but rather led him to the basement and directed him to a leather box that he said contained cocaine. There was cocaine and almost $1200 in the box. This led to a charge of possession of a narcotic for the purpose of trafficking and one of the charges of possession of proceeds of crime. The trial judge convicted the appellant of only the drug charge.

(a) The right to counsel argument

[20] At trial, the appellant argued that his right to counsel was infringed because the officers did not give the appellant one of their cell phones when he asked to speak to counsel. The trial judge rejected that argument. He noted that the appellant was content to wait until he was at the station and that there were practical difficulties with the officer giving up his cell phone, including difficulty in keeping control of the appellant and assuring him privacy while he spoke to counsel. I see no basis for interfering with this decision, which, in any event, was not pressed in argument in this court.

[21] On appeal, the appellant makes an entirely different argument. He submits that the police should not have engaged the appellant in conversation, even conversation that he initiated, until he had been afforded an opportunity to speak to his lawyer. I would not give effect to this argument for two reasons. First, and most important, it was not raised at trial. In the result, the trial judge was not called upon to make the factual findings necessary to assess the argument. Second, the fact that the officer engaged the appellant in conversation after he requested counsel does not automatically result in a Charter violation. As held in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, and a long line of earlier cases, the implementation obligation under s. 10(b) “requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so” (emphasis added). On the evidence of the police officers, which was not contradicted, it was the appellant who initiated the conversation. And the findings made by the trial judge as part of the voluntariness ruling, a ruling not contested on appeal, tell against any finding that the police elicited incriminating information. The trial judge found as follows, at para. 24 of his reasons on the various pre-trial motions before him:

The uncontroverted evidence of the police officers, which I accept, is that Mr. Ralph wanted to speak in private to Sgt. Singh. He was calm and relaxed. Singh did not initiate the conversation and had no idea what Ralph would say. It was Ralph who initiated the conversation and, in essence, asked Singh if he could do him a favour and remove something from the house. Ralph obviously knew he was under arrest and would shortly be taken to the police station and he didn't want to leave something in the basement that the kids could get into or that would stress out his baby-mother. There were no threats, promises or inducements. [Emphasis added.]

[22] I would not give effect to this ground of appeal.

(b) The Search

[23] The appellant submits that the warrantless search of the house and seizure of the cocaine violated his rights under s. 8 of the Charter. The Crown at trial argued that this was a consent search and therefore there was no violation of s. 8. The trial judge did not firmly conclude whether or not there was a violation. He noted the strict requirements for finding a consent search as laid down by this court in R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337 (C.A.). The trial judge said as follows, at paras. 32-33 of his reasons on pre-trial motions:

I am inclined to accept Sgt. Singh's description of what was said and why he did what he did. For all he knew, he might have been going into the house to remove a stash of pornography or some other illicit or embarrassing subject-matter. My hesitation, however, stems from the following: one, I am not completely persuaded that it would never enter the mind of a police officer, who had just explained the drug investigation and the drug charges that the accused was facing, that the property that the accused wanted help in removing may well be drug-related; and two, PC Nijjar in his testimony recalled that his partner Singh told [him] they were going down to the basement because Mr. Ralph had "consented."

In short, there is some basis for defence counsel's submission that the police were in fact proceeding on the basis of a "consent search" and they were therefore obliged to ensure that the consent was informed which meant access to legal advice. This is, to be sure, a close call - so close that even if s. 8 was breached, the breach in my view was at most quite minor, even technical. There is no basis for suggesting bad faith on the part of the arresting officers or that they recklessly disregarded Charter rights. If there was a breach of s. 8, it was a de minimis breach.

[24] The trial judge went on to find that even if there was a violation of s. 8, the evidence should not be excluded under s. 24(2) of the Charter. I adopt the same approach. Even if there was a violation of s. 8, the evidence should not be excluded. The trial judge properly applied the framework set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353,and the trial judge’s decision is entitled to deference. I agree with the trial judge that if there was a breach, it falls at the less serious end of the spectrum. The police were not indifferent to the appellant’s rights or reckless in their approach. While this was a search of a residence, the appellant’s association with the residence was unclear and he invited the police into the basement and pointed out what he wanted them to seize. I agree with the trial judge that the impact on the appellant’s Charter-protected rights was not significant. Finally, the reliability of the evidence strongly favoured admissibility. For the reasons given by the trial judge, I would not give effect to this ground of appeal.

(3) The Identification evidence and Credibility Assessment

[25] After the third drug purchase, the undercover police officer was shown a photo line-up. By this time, based on things the appellant had told the officer, the police believed they knew the identity of the trafficker. An officer put the line-up together with the assistance of computer technology and then had an officer unconnected to the investigation actually conduct the line-up procedure with the undercover officer. Each picture was shown to the officer one at a time until he identified the perpetrator (the appellant). The line-up was then halted. The undercover officer continued to deal with the appellant and, as I have said earlier, on one occasion spent several hours with him at a strip club.

[26] The appellant’s submission on identity centres on the fact that the line-up procedure was not videotaped. The trial judge considered this fact and accepted the explanation that the line-up was not videotaped because of officer safety reasons. All of the other procedures for conducting a proper photo line-up were followed. Further, as detailed in the trial judge’s careful reasons, there was abundant evidence to support the identification of the appellant by the undercover officer.

[27] And, contrary to the submission by the appellant, the trial judge properly applied the standard of proof beyond a reasonable doubt. The trial judge referred to the analysis of credibility as set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The trial judge explained in detail why he accepted the identification evidence of the undercover officer beyond a reasonable doubt, despite the potential frailties of identification evidence. His acceptance of the officer’s evidence and the other circumstantial evidence explained why the appellant’s denial did not raise a reasonable doubt. I would not give effect to these grounds of appeal.

(4) Entrapment

[28] The final submission is that the trial judge erred in failing to stay the proceedings because the appellant was improperly entrapped into committing the offences. The appellant submits that what occurred was random virtue testing, an investigative technique prohibited by the Supreme Court of Canada in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903. I agree with the trial judge that entrapment was not made out in this case.

[29] The facts leading up to the initial communication with the appellant are as follows. The police received information about a drug dealer who could be reached at a particular number. The undercover officer called the number and left a message for the person to call him back. Forty-one minutes later a male called back and the following conversation took place:

Officer: Hello?

Appellant: You called me and left a message.

Officer: Yeah, what’s going on?

Appellant: Who’s this?

Officer: [gives his undercover name].

Appellant: Okay, how’d you get my number?

Officer: I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up ... I need product [meaning I’m looking to buy drugs.]

Appellant: Okay, so what are you looking for? What do you need?

Officer: I need a half [meaning one half of an eight-ball of crack cocaine.]

Appellant: Okay, the small thing, that’s it?

Officer: Yeah, hard, white [meaning crack cocaine] ... where are you?

Appellant: I’m at Weston Road. Meet me at Scarletwood.

Officer: I’ll call you back at 7:30. How much?

Appellant: A bill [meaning $100.]

Officer: What’s your name?

Appellant: Blacus.

[30] The appellant eventually met with the officer later that night and purchased 1.6 grams of cocaine. The appellant submits that entrapment was made out because the officer did not have a reasonable suspicion before giving the appellant an opportunity to commit an offence. The appellant submits that the opportunity to commit an offence occurred when the officer said:

I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up ... I need product.

[31] The appellant submits that at that point the officer did not have a reasonable suspicion that the appellant was involved in drug trafficking. I agree with the trial judge that this part of the conversation was part of the investigation and not an opportunity to commit the offence. The facts of this case are almost indistinguishable from the facts in R. v. Imoro, 2010 ONCA 122, 251 C.C.C. (3d) 131, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62. What the court said in Imoro at paras. 14-16 applies to this case:

I accept the trial judge’s finding that when the officer asked Mr. Imoro, “Can you hook me up?” he did not have reasonable suspicion that Mr. Imoro was engaged in drug trafficking.

However, I cannot accept the trial judge’s companion finding that the officer’s question provided Mr. Imoro with an opportunity to sell drugs. That view of the evidence mischaracterizes what occurred. This mischaracterization stems from a failure to properly distinguish between legitimately investigating a tip and giving an opportunity to commit a crime: see R. v. Townsend, [1997] O.J. No. 6516 (Gen. Div.).

By the question “Can you hook me up?” all the officer really asked Mr. Imoro was whether he was a drug dealer. The question was simply a step in the police’s investigation of the anonymous tip. It did not amount to giving Mr. Imoro an opportunity to traffic in drugs.

[32] The officer’s statement in this case, “I was at Jane and Finch and a kid said that if I want anything to call this number and this guy would link me up ... I need product” is similar to the “Can you hook me up?” question in Imoro. As found by the trial judge, it was a legitimate investigative step. When the appellant responded as he did, this response together with the anonymous tip was, as found by the trial judge, sufficient to provide the officer with reasonable suspicion and justify the further statements from the officer. This was not a case of random virtue testing and entrapment was not made out.

C. DISPOSITION

[33] Accordingly, I would dismiss the appeal from conviction.

Released: “JL” January 3, 2014

“M. Rosenberg J.A.”

“I agree. J.I. Laskin J.A.”

“I agree. G. Epstein J.A.”