COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2015 ONCA 800

DATE: 20151123

DOCKET: C58681

Hoy A.C.J.O., Weiler and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Barrington Thompson

Appellant

Mark Halfyard, for the appellant

Vanita Goela, for the respondent

Heard: October 8, 2015

On appeal from the conviction entered on January 29, 2014 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting without a jury.

Weiler J.A.:

A. OVERVIEW

[1] The appellant was charged with possession of cocaine and marihuana for the purpose of trafficking and possession of the proceeds of crime.

[2] The appellant brought two applications pursuant to the Canadian Charter of Rights and Freedoms. The first was for an order for a stay of proceedings pursuant to s. 24(1) on the basis that the proceedings amounted to an abuse of process. In the alternative, the appellant sought an order excluding the admission into evidence of the drugs seized pursuant to s. 24(2) because he alleged his right to be secure from unreasonable search and seizure under s. 8 had been violated.

[3] The grounds for the applications were that the police obtained a search warrant for the appellant’s restaurant based on allegedly false information that Mr. Simpson was in possession of cocaine after leaving the restaurant. The police used this information to corroborate the tip from the confidential informant that the appellant was selling drugs from his restaurant.

[4] The parties agreed that resolution of the Charter applications turned on two factual questions:

1. Did the police fabricate seeing Mr. Simpson coming out of the restaurant?

2. Did the police fabricate the claim that Mr. Simpson was in possession of crack cocaine?

[5] The trial judge answered “no” to both questions and convicted the appellant of possession of cocaine for the purpose of trafficking. The other two counts were stayed on consent.

[6] The appellant submits that the trial judge erred in misapprehending the evidence, in weighing the evidence, and in considering certain oath-helping evidence while assessing the credibility of the Crown witnesses.

[7] I would dismiss the appeal for the reasons that follow.

B. Factual Background

[8] Det. Sgt. Correia testified that he received a tip from a confidential informant that the appellant was trafficking drugs from his restaurant packaged in takeout food containers. The police needed corroboration of the tip to obtain a search warrant for the restaurant, located near Queen and Lansdowne in Toronto.

[9] On March 28, 2011, Det. Sgt. Correia and Det. Cst. Cameron held a briefing with their crew at 1:15 p.m. that Cst. Armstrong attended. The purpose of the briefing was to set up observations and to build grounds for a search warrant. The briefing concluded at 1:20 p.m. and Det. Sgt. Correia was in the area to begin surveillance of the restaurant at 1:25 p.m.

[10] Det. Cst. Cameron was the road boss and central notetaker. As the road boss, he deployed officers to conduct observations at the restaurant and decided whom to arrest.

[11] At 1:39 p.m., Det. Sgt. Correia observed a man walk into the restaurant and leave a few minutes later with his hand in his left pants pocket. He relayed this information to Det. Cst. Cameron.

[12] Csts. Armstrong and Fairclough observed the man described by Det. Sgt. Correia, who turned out to be Mr. Simpson, a cousin of the appellant. Det. Cst. Cameron directed the officers to arrest him.

[13] Cst. Fairclough’s evidence was that he identified himself as a police officer and tried to arrest the man as he walked northbound on Lansdowne. A struggle ensued. When the officers gained control of the man, Cst. Fairclough arrested him for possession of cocaine. Cst. Fairclough was standing beside Cst. Armstrong, who advised him he had located crack. Cst. Fairclough did not see the drug and did not hear Mr. Simpson state that he had purchased it from the appellant.

[14] Cst. Armstrong testified that during the struggle he saw Mr. Simpson drop something and then attempt to push or jam it into the muddy ground. He testified that he found a plastic baggie twice knotted containing crack cocaine, which he put in the pocket of his jacket. He told his partner that he had found crack.

[15] Cst. Armstrong arrested Mr. Simpson but released him on a promise to appear. He recorded the time as 1:15 p.m. on the Appearance Notice. This time conflicted with his and Cst. Fairclough’s evidence that they received information that Mr. Simpson had entered the restaurant at 1:39 p.m.

[16] At 1:48 p.m., Det. Cst. Cameron learned that the police had recovered crack cocaine and that Mr. Simpson was in custody. He directed his team to enter the restaurant to arrest the appellant.

[17] When Det. Cst. Cameron entered the restaurant, Det. Sgt. Correia had already taken the appellant into custody. Det. Cst. Cameron observed plastic baggies of marihuana and what appeared to be crack cocaine. He ordered the scene to be “frozen” by preventing people from coming in and out of the restaurant while they waited for a search warrant.

[18] The police obtained a search warrant for the appellant’s restaurant and executed the warrant at 6:33 p.m. They seized 44.95 grams of cocaine, 198.67 grams of marihuana and cash consisting of $665, US$1015, £40 and €50.

[19] The Supplementary Record of Arrest prepared by Det. Sgt. Correia stated that Mr. Simpson advised he had purchased crack cocaine from the appellant.

[20] Mr. Simpson acknowledged that he sometimes traffics in cocaine but he denied being in possession of cocaine on the date in question. His evidence was that he went to the restaurant to buy salt fish and was told none was available at that time. He returned to his home, which was nearby. He was on his way back to the restaurant to see if the salt fish was ready when he was arrested.

[21] Mr. Simpson testified that after he attended court three or four times, he still had not received disclosure of the Crown’s case against him. The Crown withdrew the charges.

[22] The appellant testified that he does not sell drugs to Mr. Simpson because he is known to the police. The appellant admitted that he is also known to the police. He testified that Det. Sgt. Correia had arrested him one year earlier. On that occasion, the appellant had turned his back on Det. Sgt. Correia, when he cried out for his help during a struggle with a woman he was arresting inside the appellant’s restaurant.

[23] The appellant submits that the police fabricated evidence of finding drugs on Mr. Simpson to obtain the warrant to search his restaurant, and that they had a motive to fabricate, because Det. Sgt. Correia held a grudge against the appellant for not assisting him in his struggle with the woman. She bit Det. Sgt. Correia’s finger during his struggle and instead of helping him, the appellant shepherded his 10-year-old son into the kitchen area.

[24] Following the woman’s arrest, the police searched the restaurant and found a small quantity of drugs. The appellant was arrested, charged and later given a fine.

C. reasons of the trial judge

[25] The trial judge began her reasons by observing that the appellant and Mr. Simpson both had criminal records for trafficking in cocaine and that she could use this fact to assist her in deciding how much to rely on their testimony.

[26] She considered inconsistencies in the evidence of the police officers. Specifically, at the time of his arrest, Mr. Simpson was not carrying drugs in a takeaway food container as specified by the confidential informant. Moreover, the officers’ evidence regarding the time of Mr. Simpson’s arrest and the subsequent seizure was inconsistent with the Appearance Notice and the property report.

[27] The trial judge rejected the appellant’s submission that the property report prepared by Cst. Armstrong, which recorded the time of the seizure as 1:00 p.m., called into question the entire sequence of events surrounding the investigation. She observed that Cst. Armstrong’s own notes indicated that he was attending a briefing at 1:15 p.m. The notes of other officers stated that Cst. Armstrong advised the other officers over the radio that he had found crack cocaine and that he had Mr. Simpson in custody at 1:48 p.m.

[28] Cst. Armstrong testified that the Appearance Notice should have recorded the time releasing Mr. Simpson as 2:15 p.m. The trial judge accepted his explanation that the discrepancy was due to him looking at the clock in his police car and that the time may not been changed to Daylight Saving Time in the absence of any other explanation.

[29] The individual notes of Det. Cst. Cameron, whose responsibility it was to record the timing of events, were missing, but the central notes were available. The trial judge did not place much weight on the loss of the original notes.

[30] The trial judge also reviewed the evidence of Det. Sgt. Correia, who filled out a Supplementary Record of Arrest in relation to the appellant. He typed the following synopsis in part: “[A male] was arrested a short distance away. Located on the male was a quantity of cocaine. The male advised that he had just purchased the crack cocaine from the accused, Barrington THOMPSON.”

[31] Det. Sgt. Correia could not recall whether someone had told him about the admission. It was possible he assumed Mr. Simpson made the admission because drug addicts often tell the police where they buy their drugs. Det. Sgt. Correia acknowledged that he “cuts and pastes” from other synopses when preparing Records of Arrests. He admitted that despite becoming aware before trial that the statement attributed to Mr. Simpson was false, he did not inquire into the source of the admission.

[32] The trial judge found that Det. Sgt. Correia’s statement was “not substantiated” and that he was negligent in assuming that Mr. Simpson said he obtained the drugs from the appellant.

[33] The fact that Cst. Armstrong did not show Cst. Fairclough the crack found on Mr. Simpson was unfortunate but did not affect her ultimate conclusion.

[34] There was no evidence to support the appellant’s assertion that Cst. Armstrong took the crack attributed to Mr. Simpson from the restaurant because there was no evidence that he went inside the restaurant. After Mr. Simpson’s arrest and before the search warrant was obtained, Cst. Armstrong returned to the police station after being told that he was not needed at the restaurant.

[35] The trial judge rejected Mr. Simpson’s evidence as it required her to believe one of two implausible theories: either the officers followed him to his home without arresting him, waited outside in the hope that he would come out again soon, and then arrested him on his way back to the restaurant, or they did not know that he had been to the restaurant earlier, but encountered him after he left his house and arrested him anyway. The police evidence that he was arrested on his way home from the restaurant was more logical and persuasive.

[36] The trial judge was not satisfied that the police fabricated either seeing Mr. Simpson leaving the appellant’s restaurant or that Mr. Simpson had crack in his possession at the time of his arrest.

[37] She answered “no” to both questions.

D. The appellant’s submissions

[38] The appellant makes three submissions on appeal:

1. The trial judge materially misapprehended the evidence in explaining away problems in the timing of Mr. Simpson’s arrest and the impact of the false statement in the Supplementary Record of Arrest;

2. The trial judge erred in placing no weight on the fact that the original central notes went “missing” and erroneously held that the consistency of the officers’ individual notes, prepared off of the central notes, alleviated any concerns about timing and inconsistencies; and

3. The trial judge erred in finding that the risk to the officers’ careers cut against the theory that they fabricated their grounds of arrest.

E. analysis

(1) Misapprehension of the evidence

[39] A misapprehension of the evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 60. This court described a stringent standard for setting aside a conviction on the basis of a misapprehension of evidence in Cloutier, at para. 60:

The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge's reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge's treatment of the evidence does not constitute a reversible error. [Citations omitted.]

[40] As stated by Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541, if an appellant can demonstrate that the conviction rests on such a misapprehension, the appellant has not received a fair trial: “This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.”

[41] With this definition in mind, I will now address the misapprehensions of evidence alleged by the appellant.

(a) Problems with respect to the time of Mr. Simpson’s arrest

[42] As previously mentioned, the officers received information that Mr. Simpson entered the restaurant at 1:39 p.m. Cst. Armstrong recorded the time of Mr. Simpson’s release as 1:15 p.m. in the Appearance Notice but it was also his evidence that he received information that Mr. Simpson entered the restaurant at 1:39 p.m. and that the arrest would have been made around 1:46 p.m. He prepared a property report that indicated the time of seizure as 1:00 p.m.

[43] The appellant submits that the trial judge’s failure to address timing discrepancies amounted to a failure to give effect to the substance of the evidence. Further, it was unsurprising that the officers’ evidence was consistent on important times, since they made notes after the debriefing and after Det. Cst. Cameron typed the central notes for their collective use.

[44] The trial judge considered the timing contradictions and was entitled to accept the police evidence, including Cst. Armstrong’s explanation that he relied on the clock in the police car when recording the time in the Appearance Notice.

[45] In any event, these timing discrepancies do not assist the appellant because the exact time of Mr. Simpson’s arrest and seizure of cocaine was a matter of detail rather than substance. The appellant submits that the officers fabricated their evidence in relation to whether Mr. Simpson was arrested on his way home from the restaurant or going from his home to the restaurant. As the trial judge pointed out, quite apart from the police evidence, it was unlikely that the officers would follow Mr. Simpson home from the restaurant and wait around for an indefinite period hoping to arrest him if, and when, he came out.

[46] Similarly, the time of the seizure, erroneously recorded in the property report, is only relevant because of the appellant’s submission that the police planted drugs obtained from the restaurant on Mr. Simpson after his arrest. The trial judge found that there was no evidence that Cst. Armstrong went inside the restaurant after Mr. Simpson’s arrest. The evidence is that he returned to the police station.

[47] The timing of Mr. Simpson’s arrest and the seizure was therefore peripheral to the trial judge’s reasoning. She did not misapprehend the evidence or its significance.

(b) The false statement in the appellant’s Supplementary Record of Arrest

[48] The appellant essentially submits that because Det. Sgt. Correia’s statement in the Supplementary Record of Arrest was false, the trial judge should not have characterized it as “unsubstantiated”. She should have inferred that Cst. Armstrong’s evidence that he found cocaine on Mr. Simpson was also false and part of a plot to frame the appellant. The appellant does not suggest that the statement was used in the Information to Obtain the search warrant. The appellant points out that Cst. Armstrong did not say anything to Cst. Fairclough about Mr. Simpson dropping something on the ground or trying to hide anything in the mud and he did not make a notation to that effect.

[49] The appellant invites this court to infer that the Crown’s withdrawal of the charges against Mr. Simpson without reasons means that the police fabricated evidence that Mr. Simpson had crack cocaine in his possession.

[50] Drawing a negative inference from the withdrawal of charges against Mr. Simpson would require this court to engage in speculation, because the Crown is not obliged to give reasons for the exercise of its prosecutorial discretion: see R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 410-11. Such speculation cannot establish arbitrary or improper motives for which a s. 24 Charter remedy would lie: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36.

[51] The trial judge’s characterization of Det. Sgt. Correia’s evidence does not mean that she erred in rejecting the inference that Cst. Armstrong planted cocaine on Mr. Simpson. Her finding that Mr. Simpson had crack cocaine on him when he was arrested is supported not only by the evidence of Cst. Armstrong, but also by evidence that he was ordered to return to the police station after the arrest and the absence of evidence that Cst. Armstrong entered the restaurant. The trial judge was alive to the appellant’s position and commented that it was unfortunate that Cst. Armstrong did not show the crack cocaine he had located to Cst. Fairclough.

[52] Portions of Mr. Simpson’s evidence support the trial judge’s conclusion. Mr. Simpson acknowledged that he sometimes traffics in cocaine when he is out of work or when he wants a bit of extra money for the horse races. On the day in question, he was planning to go to the races.

[53] In summary, although the trial judge characterized Det. Sgt. Correia’s statement as being “not substantiated” rather than false, in the circumstances, her characterization does not constitute a reversible error.

(2) The missing notes

[54] As the central notetaker, it was Det. Cst. Cameron’s responsibility to prepare rough central notes. He testified that he attended a briefing the day after the appellant’s arrest during which he would have made any corrections to his rough notes. The officers involved could have suggested changes and corrections to his notes based on their observations. He would have made these in the rough notes. After the debriefing, he believed he typed the central notes. Det. Cst. Cameron testified that the unit’s practice is to type the central notes and then for the officers to write their own notes from the central notes.

[55] The appellant submits that the trial judge erred in placing little weight on the loss of the entire spare Crown brief including Det. Cst. Cameron’s original notes from the day of the investigation. Without his original notes, Det. Cst. Cameron could not say what information was added, altered or deleted at the debriefing, prior to typing the central notes. The appellant further submits that the loss of this evidence undermines the trial judge’s conclusion that discrepancies in the individual officers’ versions of events is of no import because their notes, produced from the central notes, were consistent on important times.

[56] In support of this submission, he relies on Wood v. Schaeffer, 2011 ONCA 716, 107 O.R. (3d) 721, rev’d on other grounds 2013 SCC 71, [2013] 3 S.C.R. 1053, for the proposition that when notes are used to refresh an officer’s memory at trial, it is vital that the notes used record the officer’s own independent recollection of the events in question.

[57] The issue here is that the appellant could not compare the rough handwritten central notes with the typed version, not that each officer failed to prepare individual notes or that the notes were made in a group, as in R. v. Jinje, 2015 ONSC 2081, [2015] O.J. No. 1590.

[58] I appreciate that the quality of the record-keeping and the adequacy of an officer’s notes are important, as noted in R. v. Odgers, 2009 ONCJ 287, [2009] O.J. No. 2592. In the post-Stinchcombe era, a police officer’s notes are more than an aide memoire and a potential source of fruitful cross-examination; they are a source against which to check the Crown’s disclosure.

[59] The purpose of central notes was discussed by Pattillo J. in R. v. Thompson, 2014 ONSC 250, 111 W.C.B. (2d) 181, at para. 18:

The evidence establishes that the purpose of central notes is to enable the officers engaged in a real time police exercise to be able to concentrate on the task at hand without having to worry about noting down times, observations and actions during their involvement…At the end of the surveillance, the information in [the central notetaker’s] handwritten notes [are] canvassed with each officer and the observations [are] confirmed to reflect each officer’s recollection. [The central notetaker] then type[s] up his notes…

[60] Pattillo J. held, at para. 19, that when central notes are relied upon it is important that every officer involved in the investigation review them as soon as possible after the event to ensure that the observations or actions attributed to them have been accurately recorded.

[61] This appears to have occurred in this case. The appellant received disclosure of the typed report concerning the surveillance of his restaurant. The typed notes were a copy of the handwritten notes. The fact that the additions or deletions on the handwritten notes are not shown on the typed copy does not mean that the quality and adequacy of the central notes is lacking.

[62] After reviewing the central notes, the officers made separate notes of their own participation. The officers involved that day testified and each testified that he had an independent recollection of the events in question. Each officer was subject to cross-examination.

[63] In the circumstances, the trial judge did not err in placing little weight on the lost handwritten central notes.

(3) The risk to the officers’ careers

[64] In rebutting the appellant’s suggestion that the police fabricated evidence and were motivated to do so because of a grudge from a year earlier, the Crown elicited evidence from Det. Sgt. Correia that if he were caught lying in an investigation he would lose his job.

[65] The trial judge stated, at para. 61, that she was “not persuaded that there was a hidden agenda surrounding the arrest of the [appellant] and Mr. Simpson, or that the officers were complicit in [Det. Sgt.] Correia’s plan which would necessarily involve jeopardizing their own reputations and careers.”

[66] The appellant submits that the trial judge found Det. Sgt. Correia to be more credible because of the professional consequences he faced as a police officer if he lied.

[67] I do not read the trial judge’s reasons as engaging in forbidden oath-helping.

[68] In rejecting the appellant’s position that the police fabricated evidence that Mr. Simpson was in possession of cocaine, the trial judge was entitled to state a countervailing fact; namely, that if a police officer engaged in fabrication, he and those complicit with him would necessarily be jeopardizing their careers. The risk involved was a legitimate consideration to be weighed against the alleged satisfaction of “getting” the appellant for refusing to assist Det. Sgt. Correia in his struggle with the woman at the restaurant.

(4) Overall

[69] The decision whether or not to grant a stay is a discretionary remedy of last resort that must meet the “clearest of cases” standard: R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, at para. 44. An appellate court may only intervene “if the court below ‘misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice’”: United States of America v. Mathurin, 2015 ONCA 581, [2015] O.J. No. 4487, at para. 38. That is not the situation here.

[70] The trial judge did not make any material error in her assessment of the credibility of the witnesses, in weighing the evidence, or engage in oath helping. The trial judge’s use of logic in finding that the police did not fabricate seeing Mr. Simpson come out of the appellant’s restaurant is sound. In addition to the evidence of the officers who were alleged to have engaged in fabrication, there is independent support in the record for her finding that Mr. Simpson was in possession of crack cocaine. As a result, the search of the appellant’s restaurant did not violate his right to be free from unreasonable search and seizure under s. 8 of the Charter.

F. DISPOSITION

[71] For the reasons I have given, I would dismiss the appeal.

Released: (A.H.) November 23, 2015

“Karen M. Weiler J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree Grant Huscroft J.A.”