Court File and Parties

Court File No.: Toronto 10007600 Date: 2012-10-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Denziel Jones

Before: Justice Sheila Ray

Heard: December 22 – 23, 2011, January 26, May 10, June 13, and July 17, 2012

Reasons for Judgment Released: October 2, 2012

Location: Old City Hall, Toronto

Counsel:

• E. Metz, C. Leafloor, and S. Siew for the Crown
• J. Miglin for the accused Denziel Jones

Introduction

[1] Denziel Jones is accused of five criminal offences all alleged to have occurred on July 10, 2011. He has been tried for unlawful possession of cocaine and marijuana, wilfully obstructing a police officer in the execution of his duty by falsely identifying himself, not complying with a condition of his recognizance that required him to abstain completely from the possession or use of non-medically prescribed drugs or narcotics prohibited by the Controlled Drugs and Substances Act, and failing to comply with his probation order to keep the peace and be of good behaviour. For reasons that will be explained below, the marijuana possession charge has already been dismissed.

[2] The Defence says that the Crown has failed to satisfy its onus of proving continuity of the seized cocaine, that the actus reus of failing to identify himself has either not been shown beyond a reasonable doubt or that it is de minimis, that any purported failure to identify himself by the Defendant was not wilful, that the Crown has not shown the recognizance with which Mr. Jones was required to comply was in force on July 10, 2011, and that he has not breached the peace or failed to maintain good behaviour by committing criminal offences. The Defence also submits that the Defendant's s. 8 and 9 Charter rights have been breached; that he was arbitrarily detained without reasonable grounds and without being advised of the reason for the detention, and that the seizure of cocaine allegedly in the Defendant's possession was unlawful. The Defence seeks exclusion of the seized items from the evidence pursuant to s. 24(2) of the Charter.

Were ss. 8 and 9 of the Charter Breached?

[3] It is uncontested that on July 10, 2011, the police were patrolling a Toronto Community Housing Complex on Ardwick Boulevard near the corner of Finch and Islington Avenues in the City of Toronto. The complex has gained notoriety as a high crime area in which gang, drug, and gun trafficking and related activity prevail. Constable Andrew Boyce testified at trial that the "…area is known to us as being plagued with drugs, gang activity." He also agreed with the information that about five or six years ago, a police project called "Flicker" targeted guns and gangs issues at that complex. He testified that, "In fact that's why we're there because we had a complaint from a civilian who lives in that complex about drug dealers in the area…" Boyce also explained in his testimony that there had been "ongoing drug problems in that area" and "several community complaints."

[4] Boyce testified that currently and at the time of the incident he was assigned to the Community Response Unit: "Basically what we do in that unit is deal with community complaints, including specific problems in a specific area of the division. So if a community complains about something, we're going to go in and see if we can take care of it." A few weeks prior to the incident:

We actually attended a radio call and spoke with a resident, who was complaining about the drug activity, saying that there were people loitering around that weren't supposed to be in the complex. As a result of that over the next few weeks we had driven by and observed some people loitering in front of the complex. So as we drive by on Finch, you would see groups loitering there. We would attempt to turn the police car into the parking lot and speak with these people, however they would disappear into the complex itself. So on this date…we decided to…enter the complex…on foot, and attempt to speak with the loitering group of individuals that we had seen. Because we did see them on this day, July 10th.

[5] Boyce testified that he and his partner, Constable Savary, went into the complex on foot to speak to the group of ten loitering individuals that they saw as they drove by. Two other officers were in the complex circulating with the intention of attempting to speak to individuals in the building. As Boyce approached the area where he had observed the group, he noticed a male black with dark complexion, wearing a white tank top, an afro and baseball hat. This individual was walking towards him from the parking lot, and after making eye contact, he immediately turned away from Boyce and walked towards Finch. He seemed at first to be coming into the complex, but then after looking over his shoulders at Boyce, he turned and walked away. When asked to stop, he began to run away as fast as he could. Boyce chased him because he wanted to speak to him about the community complaints, the area itself, and the complaint about drug dealing from the resident they had spoken to. As Boyce was chasing the individual, he heard sirens behind him, and saw a police cruiser driving in the direction of the running individual. When it stopped, he saw P.C. Ciric and P.C. Bartlett jump out of the car. Ciric was ahead of him in relation to the individual Boyce was chasing, whom he saw throwing something, which Ciric stopped and picked up, and continued to chase.

[6] Constable Nikola Ciric testified that as his partner was driving eastbound on Finch Avenue West, after he had just finished dealing with another matter, he saw Boyce and Savoury running after the Defendant. As they pursued him in their patrol car, Ciric noticed that he was reaching in his waistband with his left hand. They continued to pursue him as far as they could by car, and then continued the pursuit by foot. Ciric was ahead of the others and the closest to the Defendant. He noticed him reaching into his front waistband with his right hand and discard something. He picked it up and continued to pursue him. Both Boyce and Ciric observed that the object discarded was white. Ciric observed that it was a white plastic bag, and he thought there was something in it because of the way that it flew and it hit the ground. It had to be heavier than just a piece of a bag. It felt hard and he put it into his pocket. After they caught up to the Defendant and got him under control, Ciric examined the baggy and what was in it. He believed that the white yellowish rock substance inside was crack cocaine, and that it was wrapped in a manner consistent with the way that narcotics are packaged. After making these observations, Ciric placed the Defendant under arrest for possession of crack cocaine.

[7] Constable Daniel Bartlett testified that he was driving with his partner Ciric, when they observed Boyce and Savary pursuing a running black male. He decided to assist by pursuing the individual as far as they could by car, and then they continued the pursuit by foot. Bartlett saw an object drop from the right side of the Defendant and fall to the ground. He did not recall on the stand whether or not it was thrown, even after being reminded that his notes indicate that the object was thrown. He observed Ciric, who was ahead of him, pick it up and continue running. He heard his partner yelling at him to stop. He observed the suspect tripping and dropping other objects to the ground that looked like a hat, cell phone, and watch. He believed that these final objects were not dropped intentionally, but rather because the Defendant was tripping. He observed Ciric catch up to him, bring him to the ground, and when Barlett caught up with them he handcuffed him. Ciric described to Bartlett what he had picked up and placed the Defendant under arrest. This is consistent with Ciric's testimony about how the chase ended.

[8] Constable Neil Savary testified that the Defendant appeared to be avoiding them, when they first observed him. This is what made him suspicious. When he initially walked away, it gave him a suspicion. When Ciric yelled at him to stop, he started running. As to why the police were there, Savary said it was "because people had complained that there was a group of males that they believed were trafficking drugs." Based upon the behaviour of the Defendant, the way he set himself apart from the group, the way he was looking around nervously, he became suspicious that the Defendant "had drugs."

[9] Boyce testified that when they first observed the group of individuals standing outside the complex, they were acting on an "informed hunch." They wanted to find out whether they lived there and what their business was. They would not be obligated to answer the questions, they were free to leave, and they were not physically obstructed from leaving. A diagram entered as ex. 6 during his testimony illustrates this well. He became suspicious when the Defendant suddenly turned and walked away from them. He believed that this behaviour may have been because he was involved in some kind of criminal activity. He thought the criminal activity might be drugs because of the community complaint that he and his partner had received from a woman living in this complex. He believed that he had grounds to detain the Defendant, because he did not stop when asked to. He wanted him to stop. But if he had simply said that he did not wish to speak to them, there would be no grounds to detain.

[10] The police evidence in this case is generally credible and I accept it. Boyce and Savary made admissions that did not support the Crown's legal position on the Charter argument. Boyce seemed to be of the view that Jones was detained when he directed him to stop, as he walked away, before the foot chase began. Both Boyce and Savary also seemed to think they had grounds for an investigative detention at that point, which is highly arguable. They could have disagreed with the suggestions put to him on cross-examination and said that Jones was not detained yet, but after he ran and Ciric picked up and identified the cocaine, then they had grounds. This sort of evidence would have dove-tailed the Crown's theory of the Charter case. It was the Crown's position that the detention occurred when Ciric caught up with Jones and began physically restraining him. But Boyce and Savary seemed unaware of the Crown's theory of the case, and simply explained their subjective grounds as they believed them to be. This enhanced the credibility of their evidence.

[11] Bartlett candidly stated on the witness stand that he could not remember now whether or not the object was thrown or whether it dropped, even when reminded that his notes said it had been thrown. Had he said he now remembered it was thrown, this would certainly have been consistent with the evidence of the other officers, consistent with his notes, and supported any theory that the item was discarded and abandoned. Had I agreed that the detention occurred before the object dropped, the matter of whether it was thrown rather than just fell out of a pocket would be important, but Bartlett just said what he remembered rather than what he thought would help the Crown's case. Because the officers testified honestly without regard to what would help the Crown's theory of the Charter argument, I found their evidence to be believable. The officers were also very truthful that they couldn't really remember whether the property owners had given them trespassing authority. They may have, but they were not sure. It would have been easy for them to say they were sure they had it, and were I to find that the detention crystallized before the chase, this would have helped the Crown's case. But the officers seemed oblivious to this, and it enhanced their credibility.

[12] The police evidence in this case was internally and externally consistent except for a few points. These inconsistencies do not detract from the overall candour of their testimony nor does it detract from their general credibility. I will now deal with a few areas of inconsistency.

[13] When Ciric first testified about picking up the object discarded by the Defendant, he said he used his right hand to put it in his right pocket. He said later that after he placed the Defendant under arrest, he placed the evidence into his left pants pocket, and after he originally picked it up, he put it in his right. He grabbed it originally with his right hand. He then says, "So when I first picked up the item, I felt it hard. Okay, my apologies, I guess I remember putting it in my right, but in my notes it says my left." After a recess Ciric testified that he had a chance to "refresh his memory," and the discarded item "was thrown by the male with his right hand to the right side. So it was closest to my right hand. So when I scooped down, I grabbed it with my right hand, and I indicated that – in my notes it says I picked it – I grabbed it and put it in my left front pants pocket." He grabbed it with his right and switched it to his left hand, and put it in his left pants pocket. It would be hard to put it in the right pocket, because his firearm sits there. I accept the explanation that Ciric provided for why his initial testimony conflicted with his notes, and the way he has re-constructed it makes sense. I am satisfied that he picked up the discarded object and put it in a pant pocket, and I do not believe that anything much turns on which pant pocket. The confusion over this minor point does not detract from his general credibility.

[14] Another minor inconsistency in the evidence is that Boyce initially testified that he walked back along the path that he thought he had taken, just to see if there was anything else that had been dropped, and he did not find anything. He said later that, "I forgot to mention about the marijuana I located when I retraced the chase, the foot chase," and "it was on the west side of the plaza near the police car." Later Boyce says that he does not remember who was with him when the item was located and he thinks Constable Savary seized it. Savary says in his evidence that he retraced the steps of the foot pursuit and found the small bag of marijuana in the driveway of the plaza, and it would have been right in line with the foot pursuit. He says he gave the marijuana to Ciric. Ciric testified that it was Boyce and Savary who backtracked, and Savary handed him the marijuana. Boyce's corrected evidence is consistent with the evidence of the other police officers, and I am not troubled that Boyce does not remember this detail in his evidence clearly. He does remember that he retraced the foot chase. He is not the one who found the marijuana. One would expect Savary, who found it, to remember more clearly, and Ciric remembers receiving it from Savary. Ciric also remembers that Boyce and Savary went together to retrace the foot chase.

[15] There are two points during the interaction between Mr. Jones and the police before he was arrested, where I could find that Mr. Jones had been detained. The Defence suggested that Jones was detained when Boyce asked him stop, as he walked away, just before Jones began to run. Boyce was trying to impede him from walking away. He wanted to detain him and question him. Boyce and Savary both subjectively believed they had grounds to detain, and Boyce agreed after rigorous cross-examination that Jones was detained. But the test is not only subjective, and the subjective beliefs of the officers are not conclusive. The test is also objective. The Crown suggested that Jones could not possibly be detained, while he was running away. Police officers have no control, physical or psychological, over someone who is running away. The officers did not have control over Jones until Ciric caught up with him and brought him to the ground.

[16] Detention is defined in Canadian law as "a suspension of the individual's liberty interest by a significant physical or psychological restraint." A psychological detention occurs, "either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply." Whether or not Constable Boyce subjectively intended to detain Jones, when he directed him to "stop," after he started to walk away, and whether or not he had the requisite subjective or objective grounds, I cannot find that there was any suspension of the Defendant's liberty. He ran. He was not being physically restrained from running. There was no psychological restraint that prevented him from running. The police wanted to restrain him, but he wasn't restrained yet. The evidence of the police officers is inconclusive as to whether or not they had authority from the building owners to act pursuant to the Trespass to Property Act. Jones chose to run rather than comply. He did not testify. There is no evidence before me as to why he ran. But the evidence is that he did run, and for this reason, I find that he was not detained either physically or psychologically, while he was running.

[17] In the case of R. v. N.N., a post-Grant decision, M.L. Cohen J. found that the flight of two youths from the police, in the absence of other factors justifying their detention, and in the face of reasons other than a connection to the commission of an offence, did not in itself constitute adequate grounds for an investigative detention. She noted that the two young people in that case were stopped by the police after a dramatic and arguable dangerous chase in a police vehicle. She found that the detention in that case crystallized after the chase, when the youth were cut off by the police vehicle. The officers agreed in their testimony that this is when the detention occurred. They believed they had grounds to detain, but Justice Cohen ultimately disagreed. The decision does not hold that these young individuals were detained, while they were running, and it is entirely consistent with the pre-Grant decisions that maintain the common sense that a person is not detained, while he or she is fleeing from the police or running. Flight is a relevant factor to be considered in relation to grounds for detention, and Justice Cohen quite rightly believed that this factor should not be conclusive in the N.N. case.

[18] I am persuaded by the Crown's submissions that the cocaine was seized before Mr. Jones was detained, and it is therefore admissible. According to the evidence, once the officers caught up to Mr Jones, Ciric verified the contents of his pocket, and Jones was placed under arrest for the possession of crack cocaine, following which there was a pat-down search for weapons, and he was advised of his rights to counsel. In my opinion this all happened within a reasonable time after the detention crystallised, which is when Ciric caught up with Jones and brought him to the ground. He was both physically and psychologically detained at that point. The police evidence is clear that once the police caught up with him, Jones was compliant and cooperative. There was no struggle and he did not resist. It is my opinion that it was at this point, when he felt he no longer had a choice but to comply. He was arrested, advised of the reason for the arrest, given a pat down search, and given his rights to counsel, all within a very short time after his detention crystallised.

[19] The constellation of objective factors that justified the Defendant's detention, once Ciric caught up to him and took physical control, were the following:

• The Ardwick complex was a well-known drug and gun trafficking area.
• There had been a number of community complaints about drug trafficking in the area.
• A resident of the building had recently complained to the officers in this case about a group of loitering males, whom she suspected of drug trafficking.
• The officers had been to the complex previously and seen a loitering group of individuals, whom they had had tried to investigate, but the group would disappear as they got close to them.
• On the day in question the officers saw a group of loitering individuals, whom they believed to be the same group they had seen previously.
• When the officers tried to speak to Jones, who may or may not have been part of the group, he became nervous and avoided them, and abruptly changed the direction in which he was walking. Suspicion focused on Jones and away from the group, when he walked away.
• When Constable Boyce called out to Jones to stop, he ran. He apparently ran so fast that it caused him to be short of breath and to sweat profusely.
• Soon after Constable Ciric saw Jones running, he saw him reaching into his waistband.
• While Jones was running, Ciric saw Jones reach into his waistband a second time and discard a substance resembling crack cocaine that was wrapped in the usual manner that this substance is packaged. Ciric saw and felt it briefly as he picked it up and put it in his pocket. Other officers saw this package fall out of his pocket. There is evidence that it was thrown. One officer is uncertain about whether it was thrown, but he did see it fall out of the pocket, and remembers that it fell at an angle and landed a short distance away.
• Other items were also seen falling from the pocket of Mr. Jones as he ran including a cell phone. These were not discarded. They just fell.

[20] The detention crystallised when Ciric caught up to Jones and took physical control of him. The detention was lawful and warranted in the circumstances. Ciric took a few moments to examine the crack cocaine and packaging in his pocket more closely, before he arrested Jones very soon after the detention crystallised. There was a pat down search following the arrest, and then rights to counsel were given. I am satisfied that s. 8 and 9 of the Charter were not breached, the cocaine was seized before the detention, and should not be excluded, that no statements made or items seized after the lawful detention should be excluded, and that s. 10(a) and (b) were also complied with.

[21] This Charter application is dismissed.

Has Continuity of the Cocaine in Police Possession Been Proved Beyond a Reasonable Doubt?

[22] As mentioned above, Ciric first observed Boyce and Savary chasing Jones eastbound on Finch Avenue. He observed him reaching into his front waistband twice. He discarded the cocaine the second time. Ciric scooped it up, put it in his pocket, and continued running. For all of the reasons mentioned above, I do not believe much turns on which hand and which pocket were used for this. I accept Ciric's corrected version of what happened, because it makes sense, and because it is consistent with his notes made at the time, when his memory would have been better. The drugs remained in his pocket until he caught up with Jones and detained him. He then took it out of his pocket, examined it, and placed it back into a pocket. He also placed some marijuana into his pocket, that was found and given to him by Savary after Boyce and Savary retraced the chase, and found it. Ciric testified that he turned in both the cocaine and marijuana in to Boyce. Boyce testified that it was either Ciric or Bartlett that gave him these drugs. Boyce testified that he took them to 31 Division. He weighed them, placed them in a sealed exhibit envelope, and left them with a D.C. Dunning in the C.I.B. Boyce was able to identify his initials on the exhibit envelope during his testimony. The TO number of the envelope was T0089146, which is the number under which it was intended to be submitted for analysis. The numbering matches up with the certificate for analysis. The evidence of continuity adduced by the Crown is unimpeached and uncontradicted. As noted above, I found the evidence of the officers in this case to be very credible. I am satisfied that the Crown has adduced reliable evidence of continuity in this case, and that the Crown has proved the continuity of the cocaine in police possession beyond a reasonable doubt.

Has the Crown Proved the Actus Reus of the Defendant's Alleged Failure to Identify Himself Beyond a Reasonable Doubt?

[23] When Ciric advised Jones of his rights to counsel, there was no answer to the question regarding whether he understood, and no response to the question about whether he wished to speak to a lawyer "now." Ciric waited for him to catch his breath, and tried again. The second time Jones indicated an interest in speaking to a lawyer. Then Ciric asked him for his name, because no identification had been found during the pat down search after his arrest. He identified himself, giving a surname of Lorenzo, and a given first name of Denziel. He provided a date of birth of September 25, 1990. He said he had no previous dealings with the police. Ciric cautioned him that he would be committing the offence of obstruct justice if he gave a false name. He maintained after the caution that he had provided the correct name. Ciric could not find the name provided on police records. While he was checking, Jones complained of chest pain, and an ambulance was called. His pupils were dilated and there was concern about drug use. It was an extremely hot and humid day. Further checking of the police system revealed a photograph of the Defendant with his correct name. Ciric cautioned him again, and asked him specifically, what his first last name was, and then what his first name was. He did not deviate from the names originally provided.

As I have indicated above, I found the evidence of Ciric and the other officers to be very credible. The evidence on the obstruct justice that I have summarized above is not inconsistent with any other evidence in these proceedings. It is unimpeached and uncontradicted. It makes out the actus reus of the offence of obstruct peace officer. Jones persistently lied about his last name even after being cautioned. He also lied about never having had previous dealings with the police. The fact that he had been out of breath and sweating profusely after running in the heat and humidity, and that he complained of chest pains, does not change this. He was able to speak once he caught his breath. There is no medical evidence that subsequent medical attention revealed that anything was seriously wrong with him other than dehydration. He was asked what his name was more than once. He was given an ample opportunity to tell the truth. He persisted in lying. I am satisfied that the Crown has proved the actus reus of this offence beyond a reasonable doubt.

Has the Crown Proved that the Defendant's Purported Failure to Identify Himself Was Wilful?

[24] The Defendant persisted in lying about his name. He compounded his dishonest intent by telling another lie about his prior involvement with police. He was sweating profusely and out of breath after running, but he caught his breath and was able to speak before he was asked questions about his name. There is no evidence that he was seriously ill and unaware of what he was saying. There is no evidence that he was so ill that he was confused or cannot be held responsible for what he was saying. The evidence points to the contrary. He made some deliberate choices, the choice to run, the choice to discard drugs, the choice to give a false name, the choice to lie about previous involvement with police, and the choice to keep his identification concealed on his person, even before he encountered the police. The evidence points to the obvious conclusion that he was trying to conceal his identity from the police, and the motive for this is also found in what he said. He said he had no prior involvement with the police. That is what he was trying to hide – his previous involvement. For this reason, he lied about his name, and he did this persistently. I am satisfied that the Crown has proved the mens rea of this offence beyond a reasonable doubt.

Has the Crown Only Shown a De Minimis Obstruction of Police by the Defendant?

[25] The Crown has shown that Mr. Jones made some deliberate choices, and that he engaged in persistent lying. The Crown has shown a far more than de minimis obstruct of police by the Defendant.

Has the Crown Shown that the Defendant's Recognizance Was in Force on July 10, 2011?

[26] The court documents filed by the Crown in this case show that Mr. Jones was ordered to stand trial on June 13, 2011, and adjourned for a set date in Superior Court on July 27, 2011. What the court documents do not show is what happened between June 13 and 27. All we know is that as of December 16, 2011, the Superior Court was in possession of the documents from our court. We do not know what happened to the charges between June 13 and December 16, 2011. We do not know if there are other documents in the Superior Court showing that the charges were disposed of in some manner after June 13 and before July 10. For this reason, I cannot be certain beyond a reasonable doubt that the Defendant's recognizance was in force on July 10, 2011, and the fail to comply with recognizance charge is dismissed.

Has the Crown Proved that the Defendant Breached the Peace and Was Not of Good Behaviour by Committing Criminal Offences?

[27] The Crown has proved that the Defendant breached the peace and was not of good behaviour by committing the criminal offences of cocaine possession and obstruct police officer. Therefore, the Crown has proved that he breached his probationary condition to keep the peace and be of good behaviour.

Motion for Directed Verdict

[28] The evidence of continuity of the cocaine in police possession was strong enough for me to find that the Crown proved continuity beyond a reasonable doubt, so there was obviously sufficient evidence on this point to survive a directed verdict. I have also stated my reasons above for why I have concluded that there was more than a de minimis obstruction of police. The motion for directed verdict succeeded on the fail to comply with recognizance charge because there was some documentary evidence that the matter was adjourned to a date after July 10, but this was not sufficient in my view to prove beyond a reasonable doubt that the bail was in force on July 10. I was also satisfied that there was sufficient evidence that Officer Savary found some marijuana that looked fresh, when he and Boyce retraced their chase, and that there was sufficient evidence of a chain of continuity from when it was picked up until when it was submitted and analyzed, to survive a directed verdict motion. But I cannot be satisfied beyond a reasonable doubt that this marijuana originated on Mr. Jones. It could have recently been dropped on the pathway by anyone in this area that is well known for drug trafficking. No one saw Jones throw or discard the marijuana. No one saw it drop from his pocket. The officers gave very candid evidence on this point. The Crown very fairly conceded at trial that the evidence fell short of linking the marijuana found to Mr. Jones, and I accepted his invitation to dismiss the marijuana possession charge.

Motion to Re-open Case

[29] Following a defence motion for a directed verdict, in which it was submitted that the Crown had neglected to call evidence that the Defendant's bail was still in force on July 10, 2011, the Crown moved to re-open its case in order file the Superior Court indictment, which would conclusively show whether or not the charges were still outstanding on July 10, and Mr. Jones was still on bail. I denied the motion with reasons to follow.

[30] The general rule that applies in these circumstances is that the Crown will not be allowed to split its case, because the accused is entitled, at the close of the Crown's case, to know the full case to be met. The Crown must enter in its own case all the clearly relevant evidence it has, or upon which it intends to rely, to establish its case on all the issues raised in the indictment and any particulars. This rule prevents unfair surprise, prejudice and confusion that could result if the Crown were allowed to put in part of its evidence, or as much as it deemed necessary, and then after the defence has shown its hand or revealed it strategy, to add further evidence to bolster the position originally advanced. The discretion to allow the Crown to re-open before it closes its cases is very wide, but it narrows as the trial progresses.

[31] Relying on R. v. Robillard, the Crown submitted that failure to enter the Superior Court indictment into the evidence was an inadvertent error contributed to by the fact that carriage of the matter was transferred twice from one Crown to the next, and in these circumstances it is permissible for the Crown to re-open. It was submitted that the law no longer required that reopening only be allowed if some matter arises ex improviso that no human ingenuity could have foreseen. I note that the Defence made the strategic choice to reveal this shortfall in the Crown's case during its motion for a directed verdict, rather than wait until the end of its case and say that the Crown had not proved the charge beyond a reasonable doubt. Were I to allow the Crown's motion to re-open, it would cause an unfair prejudice to the defence. The circumstances were different in Robillard, and the Court did not conclude that there would be any such prejudice.

[32] The case before me is more akin to R. v. M. (F.S.), where the Court found that in cases where a Crown motion to re-open is intended to fill a gap revealed by the Defence, this should only be permitted in the rarest of cases. The term "gap" is not restricted to a total absence of evidence to support a finding of fact relied on by the Crown, but includes any shortfall in the evidence adduced by the Crown that could realistically result in the Crown's failing to meet its burden of proof.

Conclusion

[33] For all of these reasons, the breach of recognizance and possession of marijuana charges are dismissed. I find Mr. Jones guilty of cocaine possession, obstruct police, and fail to comply with probation, and I invite submissions on sentencing.

Footnotes

[1] Transcript, December 21, 2011, pp. 14, 34 – 35, 55 – 56. Transcript, May 10, 2012, pp. 7 – 8.

[2] Transcript December 21, 2011, p. 55, 79 - 80. Transcript, May 10, 2012, pp. 7 – 9, 90 – 91.

[3] Transcript, December 21, 2011, p. 55.

[4] Transcript, May 10, 2012, p. 8.

[5] Ibid., p. 8, lines 5 – 7. See also pp. 10, 16, 26 – 27, 33, and 38, Transcript, December 21, 2011, pp. 55 – 56.

[6] Transcript, December 21, 2011, p. 80, lines 6 and 12.

[7] Ibid., pp. 53 – 54.

[8] Ibid.

[9] Ibid., pp. 55 – 56.

[10] Ibid., pp. 14 - 23

[11] Transcript, May 10, 2012, pp. 54 – 57.

[12] Ibid., pp. 79 – 80, 94 - 98.

[13] Ibid., pp. 32 – 34.

[14] Ibid., p. 47.

[15] Transcript, December 21, 2011, p. 16, line 2.

[16] Ibid., p. 18, lines 20 – 24, 26 – 29.

[17] Ibid., p. 19, lines 1 – 4.

[18] Ibid., p. 20, lines 25 – 30.

[19] Ibid., pp. 20 – 21.

[20] Ibid., p. 64, lines 21 – 26.

[21] Ibid., p. 65, lines 17 - 19

[22] Ibid., Lines 21 - 22

[23] Transcript, May 10, 2012, pp. 81- 82, p. 24, lines 20 – 23.

[24] Transcript, December 21, 2011, pp. 27, 20-25.

[25] R. v. Grant, 2009 SCC 32, para 44.

[26] Ibid.

[27] R.S.O. 1990, c. T.21

[28] R. v. N.N., [2009] O.J. No. 4574

[29] R. v. Nesbeth, [2008] C.C.C. (3d) 567 (Ont. C.A.) and R. v. Jackson, [2002] O.J. No. 4005.

[30] Transcript, December 21, 2011, pp. 25 – 27.

[31] R. v. P. (M.G.), 89 C.C.C.(3d) 289 and R. v. G.(S.G.), 116 C.C.C.(3d) 193.

[32] R. v. Robillard, [1978] 2 S.C.R. 728

[33] R. v. M. (F.S.), 111 C.C.C. (3d) 90

Released: October 2, 2012

Signed: Justice Sheila Ray