Court of Appeal for Ontario
Date: January 29, 2019 Docket: C61797
Judges: Rouleau, Pepall and Huscroft JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Alexsander Budimirovic Appellant
Counsel
Anil K. Kapoor and Dana C. Achtemichuk, for the appellant
Tanit Gillian and Kelvin Ramchand, for the respondent
Hearing
Heard: November 29, 2018
On appeal from: The conviction entered on February 12, 2016 by Justice Robert E. Charney of the Superior Court of Justice, sitting with a jury.
Decision
Rouleau J.A.:
Overview
[1] The appellant was apprehended while attempting to facilitate a drug transaction with an undercover officer. Upon arrest, the appellant immediately claimed to be working with the police. Officers did not locate any drugs on the appellant's person, but they found heroin and marijuana inside the vehicle in which he had arrived at the scene. The appellant was charged with i) trafficking, ii) possession for the purpose of trafficking, and iii) breach of recognizance.
[2] At trial, the appellant maintained that he had been acting as a police agent under the direction and control of a detective whose name he could not remember. He brought a third-party disclosure application to obtain police records that, in addition to those that had been disclosed to him, might corroborate his version of events. The trial judge dismissed the application, finding that the records sought were not likely relevant to the proceedings. The trial judge also found that the appellant's actions had been the result of his own planning and initiative. He ruled that the appellant's police agent defence lacked an air of reality and refused to put it to the jury.
[3] On appeal, the appellant argues that the trial judge erred with respect to the third-party records application and the air of reality finding. He also contends that the jury charge was inadequate and that the Crown's closing submissions were improper.
[4] For the reasons that follow, I would dismiss the appeal.
Facts
[5] On November 25, 2009, Detective Constable Salhia of the York Regional Police Service, acting undercover, contacted the appellant inquiring about buying drugs. He indicated he wanted samples before purchasing a larger amount. After some back and forth, they settled on a deal for two ounces of heroin for $4,500 to be effected at a LCBO parking lot in Markham.
[6] The appellant arrived at the agreed upon location in a red pickup truck, accompanied by two friends, Mr. Christie and Mr. Davolio. When the appellant reached officer Salhia's car, he asked to get in. The officer was hesitant and it was at this point that other officers appeared and arrested the appellant.
[7] The appellant immediately claimed that he was working with 52 Division. No drugs were found on the appellant's person, but in the pickup truck police found a package containing seven grams of heroin and 0.2 grams of marijuana. Two additional packages were found under the seat, each containing approximately one ounce of heroin.
[8] The defence sought to be advanced at trial was that the appellant arranged and was carrying out the drug deal as an agent of the police. Pursuant to Regulations SOR/97-234 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), he was protected from prosecution. In the course of a voir dire and again later at trial, the appellant explained that his drug addiction had brought him into frequent contact with the police. Over time, he became a police informant and ultimately a police agent. Three incidents were said to be noteworthy: 1) a September 29, 2008 arrest for theft of a bicycle involving the Toronto Police Service (TPS); 2) a June 7, 2009 arrest for possession of OxyContin involving the Durham Regional Police Service (DRPS); and 3) an October 13, 2009 arrest for shoplifting involving the TPS.
[9] As for the first two incidents, the bicycle and OxyContin arrests, the appellant contended that he provided information to police as a confidential informant. With respect to the third arrest, for shoplifting, the appellant explained that after he offered to provide information about drugs and guns, the arresting officer arranged to have a detective, whose name he could not recall at trial, speak to him. The unnamed detective met with the appellant and released him on condition that he later provide him with either drugs or guns and report back every Friday.
[10] For the following few weeks, the appellant attended the police station weekly. The detective was not there the first week. However, on one of the following Fridays when the detective was there, they met in the locker room and the detective clearly gave the appellant the impression that there would be consequences if he failed to produce results.
[11] Sometime after this exchange, the appellant went to meet his dealer/ex-girlfriend at her house. His friend and roommate Mr. Davolio drove there with him. When the appellant went into his ex-girlfriend's house, Mr. Davolio waited outside with his dog. When the appellant exited the house, Mr. Davolio told him that, while he was waiting he took his dog for a walk. By chance, the dog sniffed out a large bag of drugs. Mr. Davolio took the drugs and suggested to the appellant that they could be used as a "patch" for the detective.
[12] The following Friday, the appellant mentioned to the detective that he had two to three ounces of heroin for him. The detective responded that he wanted "the people that come with" the drugs and the guns. This, the appellant testified, was a change in the deal that he had made with the detective.
[13] Three days later, the appellant went to a methadone clinic with Mr. Davolio. Mr. Davolio informed him that he had found a buyer there for the drugs and that the potential buyer would be calling the next day. A sale could be set up. The following day, November 25, 2009, the phone rang. Mr. Davolio answered then passed it to the appellant silently indicating that it was the buyer from the clinic. The caller, who identified himself as "Sheriff," was Detective Salhia.
[14] The appellant explained that in agreeing to set up and carry out the sale of drugs, his role was limited to making sure that the deal was real and that there would be a second transaction in which he could involve the police detective. He maintained that he never saw the drugs nor did he touch them. He also acknowledged that the arrangement and his participation in the drug deal had not been raised or discussed with the detective.
[15] In order to advance his defence of acting as a police agent, the appellant brought a pre-trial O'Connor application for disclosure of all records in the possession of the TPS and DRPS relating to any dealings he had with the police: R. v. O'Connor, [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235. This broad request was later limited to the disclosure of the police records relating to the three incidents noted previously: the bicycle incident, the OxyContin incident and the shoplifting incident.
[16] The appellant acknowledged that he had received disclosure from the Crown, including a number of occurrence reports detailing prior interactions between himself and the police. He argued, however, that a search of police records might unearth records that would be relevant to his anticipated defence of having acted throughout the drug transaction with Officer Salhia as a police agent.
[17] The regulation relating to that defence is as follows:
4 A person is exempt from the application of section 5, 6 or 7 of the Act, as applicable, where the person engages or attempts to engage in conduct referred to in any of those sections that involves a substance, other than a substance referred to in any of subsections 8(1), 11(1) and 13(1) of these Regulations, of which the person has come into possession, if the person
(a) acts under the direction and control of a member of a police force who meets the conditions set out in paragraphs 3(a) and (b); and
(b) acts to assist the member referred to in paragraph (a) in the course of the particular investigation.
[18] The Crown, along with counsel for the TPS and DRPS, opposed the O'Connor application. O'Connor provides that if a judge finds that the third-party records being sought are likely relevant to an issue in the proceedings, he or she should inspect them and, having reviewed them, then make a determination as to their relevance and whether they should be produced. The Crown and the police services argued that the appellant had not even met the "likely relevant" threshold and there was no need for the judge to inspect the records. The trial judge agreed.
[19] Having failed to secure the information through the O'Connor application, the appellant then sought to compel the police officers who had been involved in the bicycle and shoplifting incidents to testify. The appellant also sought to introduce the occurrence report he had in his possession that pertained to the shoplifting incident and a statement alleged to have been made by an officer in relation to the bicycle theft incident.
[20] The trial judge quashed the subpoenas of the officers and, on the motion to introduce hearsay evidence, ruled that the occurrence report and the statement that the appellant sought to tender were inadmissible. Evidence relating to the prior occurrences was simply not relevant to the issue of whether the appellant was, on the date of the arrest, on the present charges, acting as a police agent.
[21] The trial proceeded and the appellant testified in his defence. In pre-charge discussions, the appellant asked that the statutory defence of acting as a police agent pursuant to the CDSA be left with the jury. The trial judge refused on the basis that there was no air of reality to that defence. In his view, there was no evidence from which a properly instructed jury, acting reasonably, could come to the conclusion that, in arranging the sale of the heroin, the appellant was acting under the "direction and control" of the detective as required by the regulation. In his evidence, the appellant acknowledged that the unnamed detective did not ask him to set up a drug transaction. He also confirmed that the unnamed detective was totally unaware of the drug transaction set up by the appellant to sell two ounces of heroin to Detective Salhia. The appellant's actions had, in the trial judge's view, been the result of his own planning and initiative. There was no evidence from which a properly instructed jury could find that the appellant's trafficking of the drugs was carried out as a police agent acting under the direction and control of the unnamed detective.
[22] In his closing address, no doubt as a result of the trial judge's ruling, the appellant made no submissions with respect to the trafficking charge. His submissions were confined to whether the appellant was in possession of the heroin. The jury convicted the appellant of trafficking, but was unable to reach a unanimous decision on the possession of heroin and breach of recognizance charges. The appellant appeals from the conviction for trafficking.
Issues
[23] The appellant argues that:
the trial judge erred in concluding that there was no air of reality to the statutory defence of acting as a police agent;
the trial judge erred in his assessment of likely relevance and in dismissing the O'Connor application;
the trial judge failed to instruct the jury on how to assess the defence evidence given his refusal to leave the police agent defence with the jury; and
the trial judge erred in failing to declare a mistrial because of improper statements in the Crown's closing.
Analysis
(1) The Air of Reality Finding
[24] The appellant argues that his police agent defence ought to have been left with the jury. In the appellant's submission, his evidence of his interaction with the unnamed detective and of his understanding that the detective wanted drugs and guns as well as the people that come with them was sufficient to give an air of reality to that defence, as required by R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3. In his submission, it was for the jury to weigh the strength or weakness of the appellant's evidence tendered in support of the police agent defence. The trial judge ought therefore to have left that defence for the jury's consideration.
[25] Cinous provides that an air of reality for a defence will be made out if there is evidence upon which a properly instructed jury could reasonably acquit if they believed the evidence to be true: para. 82. This means that the trial judge must leave with the jury all defences that arise on the facts, even if counsel did not raise the defence. Merely asserting the elements of a defence will not, however, suffice. For there to be an air of reality to the defence, there must be evidence that, if believed, makes out each element of the defence: Cinous, at paras. 51, 88.
[26] The air of reality test does not address the substantive merits of the defence or its likelihood of success. The totality of the evidence is considered with the assumption that evidence tendered in support of each element is true: Cinous, at paras. 53-54.
[27] In the appellant's submission, in order to advance the police agent defence as contemplated by the regulation, he need show only that he was acting under the direction and control of the detective whose name he cannot recall. The appellant notes that there is little jurisprudence as to what constitutes direction and control, leaving considerable room for interpretation. Based on the appellant's evidence, a jury may very well have concluded that his interaction with the unnamed officer amounted to direction and control as contemplated by the regulation or, at the very least, the jury would be left with a reasonable doubt as to whether the appellant was in fact an agent.
[28] The evidence of "direction and control" on which the appellant relies is his evidence that the detective told him he wanted drugs and guns as well as the people that come with them and that he was to report every Friday. This "direction and control" had, according to the appellant, essentially left him to figure things out on his own. On this basis, the heroin sale could be viewed as having been directed by the officer with control being exercised at the regular Friday attendances.
[29] I would reject this ground of appeal.
[30] The regulation provides that, in order for a person to be exempt from criminal liability, that person must be acting "under the direction and control of a member of a police force" and be assisting that officer "in the course of the particular investigation." The French version of the regulation is also quite specific. It provides that the person must be acting "sous l'autorité et la supervision du membre d'un corps policier" (under the authority and supervision) in order to assist "dans le cadre de l'enquête particulière" (within the framework of the particular investigation).
[31] I acknowledge that, as the appellant suggests, the wording of the regulation allows some room for interpretation. That said, pursuant to any reasonable interpretation of the regulation, the appellant's arranging for and selling of two ounces of heroin cannot be said to have been carried out under the direction and control or "l'autorité et la supervision" of the officer. Something more than a police officer telling a person that he wants drugs and guns as well as the people that come with them is required in order to constitute "direction" in the course of a particular investigation. For there to be "control" as contemplated by the regulation, more than telling the person to report every Friday is required. Based on the context and wording of the regulation, the phrase "under the direction and control" of a police officer connotes reasonably specific directions and control that are absent in the present appeal.
[32] Here, the appellant's evidence was that he set out to transact a significant drug deal from which significant profits would be derived without making any further contact with the detective and without any police oversight, involvement or knowledge. The appellant candidly acknowledged that he did not involve the police because he wanted Mr. Davolio to get paid for the drugs. In this context, the alleged instructions the appellant said he received and his bald assertion that he was acting as an agent are not sufficient to clear the air of reality hurdle. The evidence tendered simply does not provide the basis for the defence.
(2) The O'Connor Application
[33] The appellant argues that the trial judge erred in denying his O'Connor application. In his submission, the third-party records being sought with respect to the bicycle incident and the OxyContin incident would confirm that the appellant had been a confidential informant, which would serve to explain why the detective recruited him to act as a police agent following his arrest on the shoplifting incident. In his submission, the third-party records would provide background information important to understanding his progression from police informant to becoming a police agent. It would also be relevant to the jury's assessment of his credibility and reliability.
[34] Pursuant to O'Connor, the onus is on an accused to satisfy the judge that the records are "likely relevant" to the proceedings and should be produced for the court's inspection. It is only once likely relevance is established that the judge examines the documents to determine whether and to what extent production should be ordered.
[35] In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, Charron J. explained, at para. 29, that the burden on the applicant is significant but not onerous. It is significant in that,
the court must play a meaningful role in screening applications "to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production." The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a decade after O'Connor.
That said, Charron J. went on to explain that,
the relevance threshold should not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, "to demonstrate the specific use to which they might put information which they have not even seen." [Emphasis in original. Citations omitted.]
[36] In the present case, the trial judge determined that the documents being sought were not likely relevant as there was, in his view, no connection between co-operating with police in relation to the previous bicycle and OxyContin incidents and becoming an agent following his arrest on the shoplifting incident. Additional records with respect to the shoplifting incident, after which the appellant submits he spoke to the unnamed detective, were also not likely relevant. For the appellant to establish a police agent defence, the trial judge found, he would have needed evidence showing that he was acting as an agent on the day of his arrest. The evidence would need to be likely relevant to what happened that night.
[37] The trial judge was in the best position to make an assessment as to likely relevance, and I see no reason to interfere: R. v. Toms (2003), 174 C.C.C. (3d) 87 (Ont. C.A.). The fact that a person has provided information and co-operated with police, even becoming a confidential informant on previous occasions, says little or nothing about whether the person became an agent of the police on a later occasion. Further, production of documents from the two previous arrests would not assist in the jury's assessment of the appellant's credibility and reliability. The appellant's testimony as to his having co-operated with police and provided information following the bicycle and OxyContin incidents was not disputed or challenged by the Crown at trial.
[38] In oral submissions in this court, the appellant also argued that production of the TPS and DRPS records and notes related to the three incidents may have assisted him in determining whether or not to testify and to proceed with the defence of acting as a police agent. In particular, the records relating to the third incident, the shoplifting incident, may have revealed the name of the detective who had told the appellant he wanted drugs and guns as well as those that come with them. This might then lead to the production of notes that the detective may have of his exchanges with the appellant. These notes, or testimony by that detective, might either confirm the appellant's testimony or raise doubts as to its accuracy. This, it is argued, is the type of information required for the appellant to make full answer and defence.
[39] From my review of the transcripts, this basis for establishing likely relevance does not appear to have been argued or at least made the focus of the appellant's submissions at trial. It was not, therefore, addressed by the trial judge in his reasons. In my view, this alternate basis for the O'Connor application does not succeed.
[40] I see no foundation for the appellant's suggestion that the production of additional material may have revealed the detective's name and that this, together with the material produced, may have served to confirm the appellant's testimony or resulted in different trial strategy such as deciding that the appellant would not testify or that the police agent defence would not be advanced. I say this for several reasons.
[41] First, there is no basis for suggesting that further information would be uncovered. The Crown had made full disclosure, including production of the records of the appellant's arrest on the shoplifting incident. It also produced the records relating to the appellant's bail on that charge which, according to the appellant, would reveal the name of the unidentified detective. They did not. With respect to the DRPS records, the appellant received occurrence reports and police officers' notes. None of the information produced was of assistance in discovering the detective's name or was relevant to the claim of being a police agent. In these circumstances, requiring the TPS and DRPS to produce additional information would constitute unnecessary production applications that would consume scarce judicial resources, the very type of application the Supreme Court said in McNeil should not proceed.
[42] As to the suggestion that further production might reveal evidence that supports the appellant's testimony, I have explained that, taken at its highest, the appellant's own evidence has not made out the air of reality needed to advance the defence of acting as a police agent. Producing material confirmatory of the appellant's evidence would be of no benefit to him because the appellant's version of events, even if it is assumed to be accurate, fails to satisfy the air or reality requirement for a police agent defence.
[43] Further, the suggestion that production of additional documents may have led to the appellant deciding not to advance the police agent defence is without merit. The appellant simply had no other basis for defending the trafficking charge. He was clearly intent on trying to establish the police agent defence. Even if some information or evidence were to have been produced as a result of the O'Connor application, at most it could have served to confirm the appellant's evidence, evidence that was not sufficient to create an air of reality to the defence. Alternatively, it could have detracted from the appellant's evidence, but for the purpose of the air of reality test and deciding whether to leave the defence with the jury the appellant's version would nonetheless have to be taken as true. There is no realistic possibility, therefore, that any additional records that may have been located would have resulted in a different defence being advanced. Nor could it have resulted in the appellant deciding not to testify as his evidence was necessary to respond to the two other charges, charges for which he was not convicted.
(3) The Jury Instructions
[44] The appellant argues that the trial judge ought to have instructed the jurors on how they should interpret the evidence in light of his ruling that there was no air of reality to the police agent defence. Absent an explanation for not putting the defence to the jury, the appellant submits that jurors may have believed the trial judge made a negative assessment of his credibility or been otherwise confused.
[45] I would dismiss this ground of appeal. The jury charge was sufficient in the circumstances of this case. In my view, the jury would not have been confused by the trial judge omitting to mention the disallowed defence. Nothing in the charge suggested that because the trial judge had not included the defence in the charge, he had made a credibility assessment. Nor would anything said or unsaid encourage the jury to draw such an impermissible inference from the fact that the agent defence was not mentioned. As submitted by the Crown, to specifically refer to the absence of the defence could very well have caused confusion by "resurrecting the defence."
[46] Further, at no point did the appellant's trial counsel seek such a specific instruction and no objection was taken on this aspect of the charge.
(4) The Crown's Closing Address
[47] The appellant takes issue with the Crown's closing address to the jury. In his view, the closing suggested that the manner in which the appellant conducted the trial by presenting irrelevant evidence, obfuscating the truth, and resorting to "red herrings" had resulted in time being wasted.
[48] From my review of the transcript, the Crown's closing address did not accuse the appellant of wasting time. Rather, it properly focused on identifying inconsistencies in the appellant's evidence and suggesting that his credibility was limited. The reference to an argument being a red herring was with respect to the defence suggestion that who was physically handling the drugs was critical to the issue of possession. In context, these comments are in no way prejudicial. In my view, the Crown's closing address was proper and responsive to the issues raised by the defence and fell comfortably within the scope of advocacy in which the Crown is entitled to engage.
[49] The appellant also submits that the Crown improperly told the jury that the appellant had conceded the trafficking accusation. He believes that these statements were highly prejudicial and that no remedy short of declaring a mistrial was appropriate.
[50] The trial judge noted that this unfortunate statement warranted some further direction. His corrective instruction wherein he identified the fact that the appellant had not conceded the trafficking charge and that the Crown bore the burden of proof was, in the circumstances, adequate to address that issue.
Conclusion
[51] For these reasons, I would dismiss the appeal.
"Paul Rouleau J.A."
"I agree S.E. Pepall J.A."
"I agree Grant Huscroft J.A."
Released: January 29, 2019
"PR"