Court File and Parties
Court File No.: 06-2204
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Joseph Allan Pierce
Before: Justice Gregory A. Campbell
Dates Heard: November 15 and 19, 2012
Released: November 27, 2012
Counsel:
- Christine Malott, for the Crown
- Julie Santarossa, for the Accused
Reasons for Judgment
The Proceeding
[1] This case proceeded by way of a blended voir dire and trial. It concerns charges of possession for the purpose of trafficking and breaches on June 14, 2006. The accused moved to exclude evidence pursuant to s. 24(2) of the Charter as a result of alleged breaches of s. 7, s. 8 and s. 9 of the Charter. Having heard the evidence and considered the submissions of counsel, the central issue to be determined is whether the arrest of Mr. Pierce was unlawful and if so, it is asserted that his detention was arbitrary and the subsequent search and seizure of cocaine was unreasonable.
The Facts
[2] Officer Novak had twelve years experience as a police officer but had only been working in the Drugs and Guns Unit for a couple of months when he authorized the arrest of Mr. Pierce for trafficking in controlled substances. He had heard the name Joseph Pierce before but had never seen the accused nor had any dealings with him. The officer had limited experience handling confidential informants and few notes to assist him in recalling background information about the informant who provided him with a tip on June 14, 2006 that Mr. Pierce, also known as "Joe-Joe" was in possession of a quantity of crack cocaine and selling it on Wyandotte Street in the downtown corridor. Officer Novak described the area as extending between Walker Road and Huron Church but more specifically between Caron Avenue and Chilver Road.
[3] The description of the trafficker provided by the informant included a nickname, race, age, height, weight, colour of hair and clothes he was wearing. The officer searched the police department's internal data bank in addition to CPIC and located a description of Mr. Pierce. In addition to satisfying himself that the description he had was accurate against the information received and his general knowledge about the accused, Officer Novak also learned that Mr. Pierce had a prior conviction for trafficking in a controlled substance and an outstanding probation order and bail condition that precluded Mr. Pierce from having in his possession illegal drugs. The officer printed a copy of the accused's photograph that was on file and went out with his partner to try and locate Mr. Pierce on Wyandotte street.
[4] Officer Novak said little about the length of time he may have been engaged with the confidential informant other than to say that it was "very short". When asked if he considered the source reliable, the officer responded "I would say yes." When asked why he held that opinion, the officer essentially offered three reasons. Firstly, because the description of the suspect provided by the informant matched the information on the suspect the police had in their index system. Second, because the suspect had previous involvement with the drug subculture and because they located the suspect who happened to be Mr. Pierce in or around the area the informant said he would be found; namely, the Wyandotte Street corridor.
[5] Officer Novak explained that after he printed up the photograph of Mr. Pierce, he and his partner went out in an unmarked police vehicle and drove up and then down Wyandotte Street in an effort to locate the suspect. They found Mr. Pierce standing on the corner of Wyandotte and Lincoln. Officer Novak said he watched for a few minutes as the accused talked on his cell phone and appeared to be looking around until a taxi cab arrived. Officer Dileva made the same observation but had no recollection of seeing Mr. Pierce talking on a cell phone.
[6] In any event, Officer Novak and Dileva followed Mr. Pierce in the taxi to the 1500 block of Langlois Avenue where the taxi stopped. The accused exited and went into a residential dwelling for only a few minutes and then exited, got back in the cab and drove southbound and then turned on to Tecumseh Road. It was at or about this time that Officer Novak concluded he had grounds to arrest the accused for trafficking in a controlled substance. The officer radioed dispatch for uniformed officers in a marked police vehicle to assist in effecting the arrest.
[7] Officers Novak and Dileva followed the taxi cab westbound on Tecumseh Road to Crawford, a distance of three or four kilometres until the taxi pulled into a Public Works Yard and stopped. Uniformed officers in a patrol car arrived to effect the arrest. Officer Novak and Dileva remained in their unmarked vehicle a short distance away and observed.
[8] Officer Gawadzyn and Mollicone said they responded to the call by attending the Public Works Yard. They exited their vehicle and instructed Mr. Pierce to show his hands. He did not respond. Officer Gawadzyn therefore drew his firearm, pointed it at Mr. Pierce and issued another command to show his hands. This time, Mr. Pierce complied. Officer Mollicone moved in, opened the rear door of the taxi, reached in and pulled Mr. Pierce out of the taxi and to the ground. Officer Gawadzyn moved in, placed his firearm in his holster, handcuffed Mr. Pierce, told him why he was under arrest and proceeded to search him. The officer said he then provided Mr. Pierce with rights to counsel and a caution while he laid face down on the ground.
[9] Located in Mr. Pierce's right front pocket were two packages of cocaine. One package contained 6.8 grams of crack cocaine. The other package contained 7 grams of powder cocaine. In his left pocket, the officer found $2,200 in various denominations including 84 x $20 bills, 4 x $50 bills, 3 x $100 bills and $5 bills, some of which were used to pay the taxi driver.
[10] Officer Chapman provided opinion evidence in regard to whether the drugs found in Mr. Pierce's possession were possessed by him for the purpose of trafficking. There was no issue in regard to the Officer's qualification. The defence cross-examination essentially explored whether the quantity of cocaine could have been for personal possession. I am satisfied from the evidence of Officer Chapman that not only was the quantity of drugs sufficient to indicate possession for the purpose of trafficking, but that the circumstances by which they were found, including the lack of paraphernalia associated with use of the drugs (a straw to snort cocaine or a pipe to smoke crack cocaine), the amount of cash that was in the accused's possession and in the denominations found indicate the controlled substances were in Mr. Pierce's possession for the purpose of trafficking.
Issues
[11] There are two issues to be determined:
- Whether Mr. Pierce's arrest was arbitrary and unlawful; and
- Whether the evidence obtained from the search incident to arrest should be excluded.
Lawfulness of the Arrest
[12] A police officer may arrest a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence. (See s. 495(1)(a) of the Criminal Code)
[13] In R. v. Storrey, [1990] 1 S.C.R. 241 (SCC) at paras. 16 and 17, the court indicated the officer's own personal belief that he has reasonable and probable grounds to make the arrest must also be justifiable from an objective point of view. There must be both subjective and objective grounds to make the arrest. Reasonable grounds to arrest requires more than a suspicion even if that suspicion is rooted in good faith. The authorities suggest that reasonable grounds to arrest invokes a standard that is less than a prima facia case, or beyond a reasonable doubt, and more akin to probability. (R. v. Storrey supra and R. v. Debot, [1986] 17 O.A.C. 141, affirmed at, [1989] 2 S.C.R. 1140)
[14] I was provided with authority to consider, and heard submissions in regard to the test for determining reliability of information received from a confidential informant in the context of considering warrants to search. Counsel relied on R. v. Debot, [1989] 2 S.C.R. 1140, among others, with respect to three criteria; namely, whether the source information received is compelling, whether the source of the tip is credible and whether the information was corroborated by police investigation. While these considerations are, of course, helpful as guiding principles, I am not so certain that an officer working in the field should be expected to exercise as careful a consideration as a judge or justice of the peace might be expected to exercise when considering an application for a search warrant.
[15] From my perspective, what Officer Novak had available to him for consideration as to whether he should effect an arrest of Mr. Pierce came from two sources. Firstly, his confidential informant. The officer could say little about the reliability or credibility of the source. That was in part, he asserted, because he wanted to protect the identity of his source and also because he could recall very little about the source. The officer explained that he had only been in the Drugs and Guns Unit for approximately two months so he had not really developed a close connection to the source. His relationship, whatever that may have been was very short. Reliability was based on the description provided matching information contained within the police data base. And the ability to locate Mr. Pierce within the Wyandotte Street corridor as indicated. Beyond this, Officer Novak could only add that his source was a known user of cocaine he believed that his source had firsthand knowledge that the accused was in possession of cocaine.
[16] There was no evidence in regard to whether the confidential informant had a criminal record; or if he had proven to be reliable in the past in regard to information he may have provided to police that led to charges or convictions; or, whether he provided any information to the police in the past in regard to this type of criminal activity. I appreciate there are compelling reasons to protect the identity of the informant. I did however, expect that the officer would have been able to indicate in a more compelling way he believed the source to be reliable beyond the scant reasons set out above or at least by indicating he had a proven track record of having assisted the police previously and by providing at least some facts to address the informant's source of knowledge in regard to the nature of transactions the suspect had been engaged in or would be engaging in or how he would carry out the transactions, for example hand to hand, vehicle exchange, or delivery to residences or commercial property. So, while the tip itself may have pointed toward reliability based on the description provided and the ability to confirm the target as someone known to the police who had a past record of similar offences and was found in the location described by the information, I would have expected the information to have been subject to a more careful and independent investigation including surveillance.
[17] However, this reasonable and what I believe ought to have been a necessary step to form grounds for arrest, not only subjectively but also objectively, was limited to observing the accused stand on a street corner talking on a cell phone for no more than a few minutes before leaving in a taxi cab and then following him to an address some distance away from the area he was supposed to have been carrying out his illegal activity, where he was then observed entering a home for a very brief visit before exiting and returning to the taxi cab.
[18] I don't quarrel with the Officer's opinion, based on is experience and training, that a drug dealer may use a taxi to deliver drugs rather than his own automobile and that a brief attendance at a residence is also consistent with drug trafficking. However, these observations while to a great extent stand on their own when I consider the fact that the confidential informant was, to my mind, not proven to be reliable or credible.
[19] As I indicated from the outset, it is not necessary that there be a prima facia case made out for grounds to arrest but what I have here to consider objectively amounted to little more than an initial basis for suspicion followed by a decision to arrest based on instinct. The statement from the officer as to reliability is not sufficiently borne out from the facts. This arises either because of the unproven record for reliability of the informant or the inability of the officer to be able to articulate with sufficient clarity the reasons why he deemed the informant reliable. The considerable amount of time that has passed since the arrest and the inadequacy of the officers notes, which he readily acknowledged, supports this finding. In either scenario, even if the Officer had a good faith subjective belief that an offence had been committed, I am not persuaded objectively there were grounds for arrest. The officer had sufficient information to continue the investigation but not to effect an arrest. Observing Mr. Pierce get into the taxi cab and attend the home on Langlois for a short duration and then exiting and driving off would, based on the additional information provided, have warranted conducting further surveillance or investigation, but nothing more.
[20] I think it is noteworthy to point out that the informant said the accused would be trafficking in cocaine on the Wyandotte Street corridor. Nothing more was said about the suspects illegal activities. It was therefore incumbent upon the police to be satisfied, on reasonable and objective grounds, that the accused was in possession of a controlled substance and trafficking in it, as alleged. Viewed objectively, there wasn't a tittle of evidence to suggest in even a wearisome way that Mr. Pierce was either in possession or selling illegal drugs. I should point out that although office Novak made mention of observing the accused engaged in a brief conversation on the cell phone, his partner, also engaged in watching Mr. Pierce, said nothing about seeing the accused talking on a cell phone, a relevant fact that was presumably relied upon by the officer for grounds to make the arrest. When it's all said and done, Mr. Pierce did little more than get into a taxi cab and drive to a residence located approximately two kilometres away from the Wyandotte Street corridor. While I appreciate the officer may have legitimately held the opinion, as did Officer Chapman, that that overall activity would be consistent with drug trafficking, having regard to the limited information received from the source and the minimal observations made, the accused's activities amounted to little more than justification to investigate further. Based on the foregoing, I am of the opinion that the arrest of Mr. Pierce was unlawful.
[21] I have considered whether, notwithstanding the unlawful arrest, the detention of Mr. Pierce would have been justified in any event, based on the observations made by the police and what I have indicated would have been sufficient cause to further investigate. I suppose that having followed Mr. Pierce from the house on Langlois to a City of Windsor Public Works Yard, where he apparently had no business attending, would have been sufficient grounds to detain him for investigative detention within the meaning of R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. It seems to me there may have been a "constellation of objectively discernable facts" as expressed by Doherty J. in R. v. Simpson, [1993] O.J. No. 308, that would have provided the police with reasonable cause to suspect that Mr. Pierce may have been engaged in criminal activity. However, in the circumstances of this case, I am not satisfied that the use of police powers in this instance were proportional for investigative detention.
[22] In addition to the concern I have expressed as to the quality of the information received by the police from the informant, the Officer's own observations while arguably sufficient to justify detention were not sufficient to engage in the high risk arrest that occurred which consisted of drawing a firearm and pulling Mr. Pierce from the back of a police cruiser and onto the ground after he only briefly failed to respond to the initial command to show his hands. There was no evidence or information to suggest that Mr. Pierce had at any time been violent, either in his past or based on the information provided by the source. And, notwithstanding the police officer's indication that weapons are often associated with drug trafficking, with the scant information that was provided in regard to the accused's activities and the lack of any information to suggest that he would otherwise be in possession of a weapon, an investigative detention in this manner cannot be justified.
[23] Accordingly, I am of the opinion that the arrest was not only unlawful but the detention was also arbitrary.
[24] Insofar as the arrest was unlawful and the detention arbitrary, there can be no justification for the search that was carried out as Mr. Pierce was forced to lie face down on the ground. The search incident to arrest or detention was not authorized by law. Mr. Pierce's rights as guaranteed under s. 8 and 9 of the Charter were violated.
Admissibility of Evidence
[25] The evidence seized consisted of 7 grams of powdered cocaine and 6.8 grams of packaged cocaine, together with $2,200 in cash and a cell phone. The admission of this evidence is essential to the prosecution's case. There can be no doubt that trafficking in these substances is a serious matter and, while the quantity at issue is not great, it is significant enough however to adversely affect individuals and their families. Certainly there is a societal interest in seeing Mr. Pierce prosecuted and punished. There can be no doubt that he was in possession of the drugs and either engaging or would have engaged in the practice of selling the substances and thereby bring greater harm to the community.
[26] All of this serves as an argument to admit the evidence and afford the crown the opportunity to pursue convictions on all counts. However, there is more that I must consider in light of R. v. Grant 2009 SCC 32, [2009] S.C.J. 32 (SCC) and R. v. Harrison 2009 SCC 34, [2009] S.C.J. 34 (SCC), including the seriousness of the Charter infringing state conduct. That began with Mr. Pierce's arrest and search without reasonable grounds. I expect there's an argument to be made that Officer Novak had a good faith belief in his grounds for arrest. I have nevertheless struggled with answering the legal question as to whether there was a subjective belief. The quality of the evidence, was in no small way impacted as a result of the six years that have passed since the incident and it would appear that the lack of meaningful notes has contributed to the Officer's inability to recall things with reasonable accuracy. Officers Novak and Dileva were not consistent with respect to the accused's activity on the corner - Officer Novak said he saw Mr. Pierce talking on the cell phone and Officer Dileva said nothing about this. Moreover, Officer Novak testified that he called dispatch after the accused exited the home on Langlois and drove to Tecumseh Road, whereas Officer Dileva testified that Officer Novak called dispatch after the taxi cab pulled into the Public Works Yard on Crawford, a considerable time and distance later. Officer Gawadzyn clearly had little if any recollection of the events. This was clear as I observed him read his notes verbatim for most of his testimony. Defence counsel watched Officer Gawadzyn carefully as well as he read from his notes during his evidence in chief and then cross-examined on this point. He became annoyed and haughty by the suggestion he had limited recollection about the events. He often wouldn't answer counsel's questions and when she tried to get a direct answer he became insolent. Initially, he testified that "Constable Mollicone and I pulled our police issued firearms, pointed at Mr. Pierce and yelled at him again to show us his hands." Later, in cross-examination, the Officer said he pulled his firearm and wasn't sure if his partner did as well. Officer Mollicone said he did not pull his firearm out. Officers Novak and Dileva had no recollection of anyone pulling out a firearm and further had no recollection of Mr. Pierce being pulled from the car and being placed on the ground. Officer Dileva said Mr. Pierce simply exited the car.
[27] Based on the foregoing, it is difficult for me to conclude that the infringing State conduct was the product of good faith. I certainly have no basis to conclude that it was otherwise, but being able to define it accurately or accept that as being the case has proven to be elusive for me. What is clear to me, however, is that I should be concerned about finding this was just a casual breach of the accused's rights because there are facts that are inconsistent and others that haven't been explained. So, while I cannot go as far as to say the breaches were flagrant or deliberate, the quality of the evidence that would have to be relied on in order to somehow justify a case for inclusion of the evidence seized, following the unlawful search, is not only suspect as to its reliability but must be measured against the conduct of the police officer who effected the arrest who in this case had drawn his firearm and pointed it at the accused in circumstances that I've concluded were based on less than sufficient grounds to arrest; and, when there was no compelling reason to believe an arrest in this manner was reasonable or necessary.
[28] Mr. Pierce was arrested at gun point in a public parking lot at the corner of a busy intersection in the City of Windsor. He was pulled from the back of a vehicle and was forced to lie face down while he was searched. The impact on his liberty and privacy was not insignificant.
[29] In addition to the foregoing considerations about seriousness of the breaches and impact on the accused's protected interest, the ultimate consideration is the integrity of the administration of justice. To that end, the objective inquiry would invite me to ask whether a reasonable person, informed in all the relevant circumstances and values underlining the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. It requires balancing all of these considerations with society's best interest in mind. The aim of s. 24(2) is not intended to punish the police or provide compensation to the accused but rather focus on the long term interest on the repute of the justice system.
[30] Having given due consideration to all of this, I am of the opinion that the evidence seized from Mr. Pierce following the breach of his Charter rights should be excluded.
Released: November 27, 2012
Gregory A. Campbell, OCJ