Court File and Parties

Court File No.: Toronto 10-10012689-00 Date: 2012-10-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Alfred Tenegnigui Ouattara

Before: Justice Sheila Ray

Heard on: December 19, 2011, February 2, and March 5, 2012

Reasons for Judgment released: October 2, 2012

Location: Old City Hall, Toronto

Counsel:

• D. Morlog, for the Crown
• W. MacKenzie, for the accused Alfred Tenegnigui Ouattara

Ray J.:

Introduction

[1] Alfred Tenegnigui Ouattara is accused of three criminal offences all alleged to have occurred on September 27, 2010. He has been tried for unlawful possession of marijuana for the purpose of trafficking, unlawful possession of marijuana, and unlawful possession of cannabis resin. As always the Crown must prove its case beyond a reasonable doubt and the court must make credibility assessments. I dismissed the charges on March 5, 2012, with reasons to follow. These are the reasons.

The Crown's Evidence

[2] Brandon Chinn is an operational manager at the Toronto West Detention Centre. On September 27, 2010, he investigated the Defendant, Alfred Tenegnigui Ouattara, for possessing contraband. He testified that he seized two substances from Ouattara, a green leafy substance and hashish looking substance, which were both handed to him directly by Ouattara. While performing his routine duties of Unit 1B, he entered the day room with one of the security officer, Sean MacCormack. He heard inmates making what is known in the jail as a "six up," to notify the other inmates that officers known as "white shirts" and "blue shirts" are coming into the unit. MacCormack could not confirm in his testimony, whether inmates were alerting other inmates that officers were present. Chinn testified that it was noisy, and he believed that Ouattara did not hear the other inmates from the washroom. MacCormack testified that there was noise. It appeared to Chinn that the inmates were directing their attention towards the bathroom. He went inside and MacCormack stayed within a few feet of the entrance door. Chinn testified that he became suspicious, when he saw Ouattara trying to hide himself in the shower, where he got a little wet, because the showers turn on automatically. He took him for further investigation to a private interview room known to the institution employees as the "pro visit room," and to Mr. Ouattara as "the quiet room."

[3] MacCormack's testimony on what preceded taking Ouattara to the private interview room differs from that of Chinn. MacCormack says that what aroused suspicion is that he saw Ouattara "bolt into the washroom." MacCormack testified that Ouattara came out of the washroom "soaking wet dripping" and that "stuff was taken out of the dayroom and placed in the one B left pro visit room." No notes were made by the officers of the reason for suspicion, jumping into the shower stall, bolting into the bathroom, or what Ouattara was wearing on his feet. MacCormack agreed on cross examination that it was fair to say he did not have a specific recollection of what Ouattara was wearing on his feet. The officers relied on summary reports prepared for institutional purposes including the necessity for keeping their superiors informed in order to refresh their memories on the witness stand, and no other more detailed notes were made. Both Chinn and MacCormack were candid about errors in their notes and things they forgot to write down.

[4] Leon Watson was the security officer, who conducted the strip search of Ouattara. Watson agreed that if the orange jumpsuit was soaking or dripping wet, he would remember. He also agreed that he made no notes of the orange jumpsuit being soaking wet or dripping. He testified that he had no recollection of it being wet at all. He testified that while searching his shoes, he noticed slits in the bottom. He ripped the shoes open and found a green leafy substance in one shoe, and a brown leafy substance in the other. The green substance smelled like marijuana, and the brown substance smelled like tobacco. There is no disagreement that this is what these substances were. Ouattara disagrees that these were his shoes. Watson testified that Ouattara told him that these were his shoes, but the Crown declined to hold a voir dire into the voluntariness of the statement, and voluntariness was not admitted. As such, I have disabused my mind of this purported statement made to Watson. The evidence seized was preserved and photographed. The photographs were adduced as evidence.

[5] On cross examination Watson agreed that his institutional report, upon which he relied to refresh his memory, did not contain any information about the shoes appearing to have a slit in them, which caused him to rip them open. The report did not contain any information about where Ouattara's shoes were. When asked on cross examination whether another officer handed him the shoe, he replied, "No, the inmate would have handed me the shoes, because I'm doing a full search." Watson had explained earlier that the procedure for doing a strip search was for the prisoner to hand him each item of clothing. It appears to me that Watson may be relying on how a full search is supposed to be done correctly in order to help him remember how he did it this time. On cross examination, Watson was asked, "And why wouldn't your report contain a relatively significant piece of information such as your observation about the slit in the shoe?" He replied candidly that, "I think my report, basically, reflects the fact that I searched him and maybe I just sort of forgot to mention there was a slit in the shoe…"

[6] The evidence of the officers is consistent that there were cameras in the dayroom, but not in the washroom, and these cameras were not working that day. The police evidence is also consistent that Ouattara handed a package containing contraband to Chinn, which was subsequently scientifically confirmed to be marijuana and hashish. Chinn thought at first there were two separately packed units of the substances in the package and later corrected his evidence. His corrected evidence that there were five separately wrapped packages within the one package was consistent with rest of the police evidence. The officers made no notes regarding what Ouattara was wearing. They recollect he was wearing the required orange jumpsuit, and Ouattara agreed with this in his testimony. But neither Chinn nor MacCormack were sure that he was wearing his prison shoes. They thought he was wearing them, because he should have been. Ouattara says he was wearing shower slippers, and that is what he was still wearing after he left the "quiet room" and was taken to segregation.

[7] Chinn testified that the seized package "stayed on my person" until he "logged it" and "put it in the drug box until the police arrived." He directed that Ouattara be strip searched prior to going into segregation. It is common ground that Ouattara was strip searched before he was segregated.

[8] It is common ground that the showers in question open automatically and that Ouattara had been at the West Detention on an immigration hold for over a year. Prior to that he was serving a sentence, and altogether, he had been in custody for seven straight years. It is also common ground that he had a criminal record, the details of which he attested to.

[9] On re-examination Watson explained that occurrence reports are generally used for the purpose of informing "the superintendent and staff captains and all the admin staff about occurrences that happened within the jail involving inmates or may not even involve inmates." They are just meant to "inform and report." The occurrence report "outlines" the events and another type of internal report generally referred to as a "misconduct" report, "just provides a brief summary." This evidence is consistent with the other police evidence regarding the brief summaries upon which the officers relied to refresh their memories. None of the officers testified using the more detailed type of notes generally used by police officers to refresh their memories in court.

The Testimony of Alfred Ouattara

[10] Ouattara testified that he was in the washroom halfway in the shower washing his hands, while wearing his slippers. He had to use the shower to wash his hands, because the sink did not work. A "white shirt" came in and asked him questions. When asked to put his hands on the wall, Ouattara wanted to know why. "For what?" he asked. "A little altercation" ensued, and Ouattara wound up on the floor. Chinn told "everybody else not to move," and found "a package of weed," according to Ouattara, "a couple of feet away." I am not sure who he means by "everyone else." Ouattara managed to communicate in English slang quite easily on the witness stand, but it was obvious that English was not his first language. On cross examination he said there was one other person in the washroom. This is the only internal inconsistency in his testimony. The "white shirt," who asked Ouattara questions was Mr. Chinn. Ouattara was taken to segregation and stayed there for 15 days. He was strip searched at segregation. He was not wearing any shoes, because shoes are not allowed in segregation. "I didn't have no shoes on for him to take," said Ouattara in answer to questions on cross-examination. When he was in segregation, shoes from his unit were brought to him. They were not his shoes. He saw them rip the shoes apart, but he did not see what they found. Before being segregated, he was taken to the "quiet room." All that happened in there is that he was handcuffed. Ouattara denies handing Chinn a package of contraband. He denies having any contraband at all on him that day. He admitted to a criminal record containing entries for drug related charges and offences of dishonesty. He testified that he had pled guilty to all the other charges on his record.

Analysis of the Evidence

[11] As always I must do a W.(D.) analysis: R. v. W.(D.) (1991), 63 C.C.C.(3d) 397 (S.C.C.). The evidence of the Defendant was internally consistent with the exception of the point regarding whether there was one or more than one other person in the washroom. On cross examination he said that there was one other person in the washroom. In chief he said that the "white shirt" told "everyone" not to move. "Everyone" could mean both he and the one other person. Ouattara was also speaking English slang as a second language, although he spoke effortlessly and he was easily understood. I find that this is not really an internal inconsistency, and if it is, I would characterize it as of the most minor sort.

[12] A significant number of details in Ouattara's evidence are consistent with that of the officers. I also find very interesting MacCormack's evidence that, "stuff was taken out of the dayroom and placed in the one B left pro visit room." There is evidence that there were two interview rooms in B block. It is not clear into which of the two Ouattara was brought. But this part of MacCormack's testimony does lend credence to the idea that something was brought by an officer into one of the interview rooms. Ouattara says that a package of weed was found and taken on the floor of the bathroom by Chinn. Ouattara also says that shoes were brought to segregation from the range and ripped open. Watson does not have any independent recollection that Ouattara handed him shoes during the strip search and there is nothing in his notes about it. Watson assumes he did the search correctly and that Ouattara must have handed him the shoes. MacCormack's testimony about the "stuff" brought into an interview room coupled with Watson's lack of independent recollection regarding who handed him the shoes is a tiny bit of indirect and independent confirmation that the drugs found were not his.

[13] There are serious unexplainable inconsistencies in the Crown's evidence. This is aggravated by the lack of proper notes made for the purpose of refreshing memory. The officers had to rely on their independent recollection on very important points. At times they readily admitted, they just could not remember. Chinn's version of what made him suspicious of Ouattara does not make any sense. It is common ground that the showers are automatic. After spending more than a year in the West Detention Centre, Ouattara must have known this. It does not make any sense for Ouattara to have tried to "hide" in the shower, if the shower would automatically turn on and draw the attention of anyone else in the washroom to the fact that someone was in the shower. Ouattara's evidence that the sink was not working and he had to use the shower to wash his hands was not contradicted. Ouattara's testimony on this point makes complete sense. Chinn's version as to the cause of suspicion is also inconsistent with MacCormack's. The Crown's evidence about whether Ouattara was "soaking wet," "dripping wet," "a little wet," or not wet at all is totally inconsistent. The factual issue about whether Ouattara was wet, and how wet he was, is important because of Chinn's version regarding why he was suspicious. His version of the reason for suspicion is also problematic because it conflicts with MacCormack's.

[14] I am mindful of Ouattara's criminal antecedents, and that he is legally considered to be an "unsavoury" witness. I appreciate that I must be cautious about accepting any of his evidence that is not independently confirmed. It is relevant that this is the first time Ouattara has had a trial, and he has pled guilty every other time, but I do not attach much significance to this factor. I don't know if he was under threat of deportation in relation to any of the other charges. I don't know what the quality of legal advice was in the other cases, and I don't even know if he was represented by counsel previously. I don't know whether the Crown's evidence in the other cases was as weak and problematic as this one. There are so many issues that factor into a decision regarding whether or not to contest accusations. When the Crown has a weak case, a Defendant is entitled to a defence, whether or not he may be guilty.

[15] I will not go so far as to say I believe the defendant's evidence. But a significant amount of Ouattara's testimony is consistent with the context in this case and the evidence of other witnesses. His version of the facts also makes sense and is internally consistent. This coupled with the weaknesses in the Crown's case leave me with a reasonable doubt. Even if I did not have a reasonable doubt, it would be unsafe to convict the Defendant on the Crown's evidence, which is externally and internally inconsistent, and when the officers candidly admit their lack of certainty on major points.

One Final Comment

[16] None of the officers in this case had the benefit of referring to adequate notes for the purpose of refreshing their memories. They relied on summaries in reports that they had prepared for other legitimate institutional purposes. Their independent recollection failed them on some important issues. It appeared to me that their training on note taking for court purposes is unsatisfactory. There is a strong public interest in the prosecution of cases alleging drug possession and drug trafficking in jail. There is an equally strong public interest that these cases should be resolved on their merits. When poor note taking by security officials in our penal institutions is a factor that influences the eventual outcome of a drug prosecution, this detrimentally affects the public's confidence in the administration of justice. Detective Brian Kay testified in this case that the same quantity of drugs can fetch a higher price in jail than outside. The quantity of drugs that in his expert opinion would be for the "purpose of trafficking" within and outside jail differs, and other factors such as the presence of drug paraphernalia are also relevant. The temptation to traffic in what Kay described as this "hot commodity" in jail is therefore high.

[17] There is an additional danger that Kay attested to:

The drug itself doesn't pose dangers as it would a harder drug, but it imposes dangers if there's any territorial issues that are inside the jail that came in from the individuals from their outside respective communities or neighbourhoods, and that's something that the guards and other inmates have to deal with, is that danger of some sort of violence breaking out because of that.

[18] A small investment in training the security officers, including the ones who testified in this case, would be a small price to pay given the benefits that would accrue. I also sincerely hope that the problems with the camera surveillance at the West Detention Centre have been remedied, and that in the future courts can have the benefit of the surveillance footage. Such evidence can be highly reliable and is not affected by the frailties of bias, poor memories, and inadequate note taking. It could potentially have been very helpful in this case.

Conclusion

[19] There is no doubt in my mind that illegal drugs were found in the West Detention Centre on September 27, 2010. The problem is that the Crown has not proved beyond a reasonable doubt that the drugs were the Defendant's. The Crown has not shown beyond a reasonable doubt that Ouattara simply possessed these drugs, or possessed them for the purpose of trafficking. The weaknesses in the Crown's case coupled with the evidence of the Defendant have left me with a reasonable doubt.

[20] The charges are dismissed.

Released: October 2, 2012

Signed: Justice Sheila Ray