Court File and Parties

Court File No.: Central East - Newmarket 4911-998-11-04266-00; 4911-998-11-04268-00

Date: 2012-04-17

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Dean Hippolyte

Before: Justice Richard Blouin

Heard on: February 6 and 7, 2012

Reasons for Judgment released on: April 17, 2012

Counsel:

• A. Adjei for the Crown
• J. Struthers for the defendant Dean Hippolyte

BLOUIN J.:

Charges

[1] Dean Hippolyte stands charged with the following offences:

• three counts of Possession for the Purpose of Trafficking (cocaine, crack cocaine and marijuana), pursuant to s. 5(2) of the CDSA;
• two counts of Possession of a Substance (marijuana and oxycodone), pursuant to s. 4(1) of the CDSA; and
• one count of Possession of Proceeds of Crime, namely money, under $5,000, pursuant to s. 354(1) of the Criminal Code.

At the conclusion of the trial the defendant conceded guilt on the possession of marijuana charge.

Evidence

[2] The Crown called two police officers. The defendant called no evidence and made many admissions, including identity of the defendant. The issue was proof of possession of drugs and, if so, for what purpose.

Arresting Officers

[3] Constables Hogan and Reid took up observations outside a Howard Johnson Hotel in Toronto. Hogan had a photograph of the defendant since Mr. Hippolyte was a target of the observations and, sitting in a minivan, they watched the defendant through the window of Room 2293. They saw him come outside to the balcony at 11:49 a.m. After returning to the room, they saw him leave the hotel in a blue minivan at 11:57 a.m. He returned at 12:20 p.m., parked in the same spot, and used the card reader to gain access to the hotel. At 12:23 p.m., he returned to the balcony, speaking on a cell phone.

[4] Around 1:16 p.m., a male by the name of Scott Graham was on the balcony of Room 2295. Graham met the defendant at the partition between the two balconies. Graham handed money to Hippolyte. Hippolyte passed something from his hand to Graham. Constable Hogan conceded he could not tell what it was that Hippolyte gave to Graham, and he could not determine the denomination of currency given to Hippolyte. The officer believed this to be a drug transaction. No issue was taken by the defendant regarding the officer's grounds to arrest for Trafficking.

[5] At 1:30 p.m., the defendant left the hotel with a woman named Thalisa Fray. The defendant was arrested in the parking lot. Ms. Fraye was detained. Constable Reid searched Hippolyte and found the following:

• 1.5 grams of cannabis marijuana in a bag from the defendant's coat;
• $1,720 cash in his front left pocket;
• silver digital scale in his rear pocket;
• cell phone on the driver's seat of the van; and
• a hotel receipt in the glove box of the van showing rental of Room 2293 by defendant.

[6] The police officers went to the front desk to get card access to Room 2293. They located and entered the room. It was a single room with one bed and the adjoining door to Room 2291 locked. In Room 2293 they found the following:

• drug packaging materials, including small plastic bags on a desk;
• small traces of marijuana residue on a hotel printout in the name of Dean Hippolyte;
• three bags of marijuana in a dresser drawer (57 grams, 21 grams and 7 grams);
• Mr. Hippolyte's identification (permanent resident card and drug eligibility benefit card) was beside the marijuana;
• black and grey backpack with a large zip lock bag containing purple coloured pills (discovered to be caffeine);
• two packages containing powdered cocaine – 7 grams, and crack cocaine – 15 grams, in a coffee machine reservoir;
• oxycodone pills in a plastic bag box on a TV cabinet;
• piece of paper with names and amounts that P.C. Hogan believed was a debt list from the same drawer as Mr. Hippolyte's identification and the three bags of marijuana were found;
• a razor blade with white powder residue;
• a credit card statement in the name of Thalisa Fraye in the same drawer as the marijuana; and
• men's and women's clothing and numerous bottles of alcohol.

[7] In addition to many of the above items entered as exhibits, Exhibit 2 was a multi-page document from the Howard Johnson Hotel, 22 Metropolitan Road, Toronto. The first page documents Mr. Hippolyte's rental of Room 2293 for one night (February 16, 2011). The second page documents Mr. Hippolyte's rental of Room 2308 for one night (May 10, 2011). The third page is a photocopy of Mr. Hippolyte's licence. The next 10 pages represent Howard Johnson's listing of the rental of, and payment for, Room 2293. At the top of all ten pages an arrival date of May 12, 2011, and a departure date of May 16, 2011 is inscribed. It appears that Mr. Hippolyte is listed as paying $55 per night for every night from February 18, 2011 to May 11, 2011. On May 12, 2011 the last room entry shows a weekly price of $350. On the last page, the document shows a payment of $140 cash on May 11, and $210 cash on May 12. On May 17 it shows a refund of $150. It must be remembered that the defendant was arrested on May 14.

[8] In cross-examination, Constable Hogan conceded the following:

• that there were two adults noted on the registration for Room 2293 as occupants;
• he never had seen Mr. Hippolyte, and therefore was not aware of his connection to Room 2293, before 11:00 a.m. on May 14, 2011;
• that after the arrest at 1:31 p.m., the room may not have been shut down and secured for somewhere around one hour;
• no fingerprints or DNA were found on the cocaine discovered in the coffee maker; and
• one of the laptop computers seized (the Acer) belonged to Ms. Fray.

[9] Constable Reid attempted to make contact with Ms. Fray after she was released. Constable Hogan had no explanation for why she was not arrested.

Expert Officer

[10] Detective Constable Salhia testified as an expert in the purchase, pricing, distribution, terminology and trafficking of narcotics. He was qualified as such on consent.

[11] In his opinion, the quantity of each narcotic located, the various types, packaging materials on location, digital scales found on the defendant, five cell phones located, large quantity of cash on the defendant, the debt list, the rundown rented room, and the hand to hand transaction observed by P.C. Hogan, together led him to conclude that the drugs were possessed for the purpose of trafficking.

Findings

[12] The law is clear that in a case of circumstantial evidence, such as this, the defendant should not be found guilty unless his guilt is the only rational inference that arises from the proven facts.

[13] In my view, there is no other rational inference that can be drawn from these facts, other than the defendant's guilt on the charge of possession for the purpose of trafficking marijuana.

[14] When I collate the police observations of a hand to hand transaction (albeit inconclusive regarding subject matter), with the defendant's long-term connection to the rental of the hotel room, his occupancy that morning and early afternoon, his identification in the same drawer as the three bags of marijuana and a debt list, and most importantly his possession of marijuana, digital scales, and a large amount of cash upon his arrest after leaving the room, I am led inexorably to one conclusion, his guilt. Accordingly, there will be a finding of guilt registered on count 7.

[15] While I strongly suspect that Mr. Hippolyte was also possessing cocaine (both powder and crack) for the purpose of trafficking, I have a reasonable doubt regarding these charges. The cocaine was in a receptacle of a coffee maker, not clearly visible unless standing directly above the appliance (see Exhibit 8). Although the receptacle was open, there were other possible occupants of Room 2293 (Ms. Fray's identification was in the room, and two people were listed as occupants) that reasonably could have placed the cocaine in the coffee maker. Although Mr. Hippolyte had rented the room, there is no evidence as to how many nights he stayed there, if any, since the police observations began the day of his arrest. I am not satisfied that the defendant was in possession of the cocaine, although he probably was. Since, regarding the cocaine, there exists another rational conclusion other than the defendant's guilt, he must be found not guilty on those counts.

[16] Similarly, I am not satisfied beyond a reasonable doubt that the Crown has proven the defendant's possession of the two Oxycodone tablets found inside a cardboard sandwich bag box. Those tablets were more visible than the cocaine in the coffee maker, but they could have belonged to anybody that accessed that room. Again, I conclude they probably belonged to the defendant, but probably is not enough in a criminal case.

[17] Finally, the defendant's possession of a large amount of money, $1,720, upon arrest, as well as the marijuana and the digital scale, when collated with the police observations noted above, lead me again to one conclusion, and that is guilt on the single count information alleging Possession of Proceeds of Crime.

Released: April 17, 2012

Signed: Justice Richard Blouin