Court File and Parties

Court File No.: Orangeville OP11294381 Date: 2013-06-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Darrell Ronald Beck

Before: Justice G. R. Wakefield

Judgment released on the 27th day of June, 2013

Counsel:

• N. Sandercock for the Crown
• H. Black and N. Martin for the accused Darrell Ronald Beck

WAKEFIELD J.:

Background and Trial History

[1] Darrell Beck is charged with one count of possessing a controlled substance to wit: cocaine with an offence date of September 16th, 2011. A review of the Information reveals there were numerous Judicial Pre-trials. The trial commenced on March 21, 2013, and continued March 22nd, April 19th, 22nd, and 23rd, at which time the Crown closed their case.

[2] Upon the Crown closing and submissions on a separate application to add an additional ground of relief pursuant to the Charter application which I denied (reasons released and reported separately), submissions were heard on the alleged breach of the Defendant's s. 8 Charter rights on May 13th, 2013. That application was also denied with separate reasons released concurrently today with this judgment.

[3] Defence evidence comprised the testimony of the Defendant and submissions on the trial proper over May 14th, 15th, and 16th with judgment put over to today's date. In total, this trial on a single count of simple possession of a controlled substance consumed ten full days.

[4] With the prior rulings in this trial, much of the trial evidence as to the procedures followed by the OPP with the detention of Mr. Beck, the search of his belongings and the various statements becomes unimportant to the trial issue. By the close of the Crown case, it was clear that the Defendant was knowingly in possession of the noted drugs and the trial issues would be the intent of the Defendant and the application of the Narcotic Control Regulations authorizing possession of controlled substances.

Facts

[5] The trial allegations arose on September 16th, 2011, when the Defendant was involved in a single motor vehicle accident by rolling his car after consuming alcohol on a rural road in Mulmer Township. He was injured to the extent of a small but bleeding cut above his ear and at least a "goose-egg" bump to his head. He was found near the car having been lying on the ground, identified himself as an off duty Peel Regional Police officer and the sole occupant of the motor vehicle. He was taken into custody by the two responding OPP officers.

[6] When taken into custody on the scene, the Defendant was holding a gym or duffle type bag which was taken by P.C. Mask. Approximately the same time that the OPP officers arrived, an ambulance was also on scene and E.M.S. personnel examined the Defendant. The Defendant refused any medical assistance. However, while there one of the E.M.S. responders noticed loose paper money in the damaged motor vehicle and advised P.C. Bronsveld of his observation. That officer in turn attended on the Defendant's vehicle and retrieved the cash and in doing so noticed a black brief case and retrieved that as well. There was no other apparent "search", inventory or otherwise, of the vehicle at that time until ten days later, and only after an attendance by the Defendant at the car impound field to attempt retrieval of the car and some of its contents, when a search warrant was obtained.

[7] Constables Bronsveld and Mask transported the Defendant and his property to the Dufferin OPP detachment, where an impaired driving investigation continued with breath tests and ultimately charges of both Impaired and Over 80. At the conclusion of the breath tests, Constable Bronsveld advised the Defendant of a quick release. Subsequently but before releasing the Defendant, the two officers were reminded by their Sergeant of their obligation to conduct an inventory search of the property of the Defendant brought with him into the detachment. This obviously delayed the release of the Defendant, but not unreasonably so. Given the nature of the Defendant's occupation, there would be in any event some delay in releasing him while superior officers of both the OPP and Peel Regional Police were notified. The inventory search was captured on video and initially was done quickly pulling items out from the bag brusquely and shoving them back in.

[8] That search, and the promised release of the Defendant, stopped abruptly upon the OPP officers finding what appeared to be 18.5 grams of crack cocaine in the Defendant's briefcase. The officers informed their Sergeant as the investigation into the Defendant took a far more serious turn into an additional charge of Possession for the Purpose of Trafficking. Superior officers of both police forces were then informed of the drug discovery resulting in the O.P.P. assigning two drug and crime unit detectives to take over the investigation. Essentially the briefcase now became a crime scene and a further search of the briefcase by Detective Light was conducted and resulted in finding an additional baggie containing .5 grams of powder cocaine located separately in the briefcase.

[9] It was never made clear why the original charge of Possession for the Purpose of Trafficking was reduced or why there was only one count when both crack cocaine and powder cocaine were found separately within the briefcase. While the Crown in error filed the Certificate of Analysis with respect to only the crack cocaine Defence conceded the packet of powder was indeed cocaine.

[10] The Defendant was in continuous custody from his arrest through the night into the following morning before the newly assigned detectives were on scene at the O.P.P. detachment. He was brought to the station in a clear state of impairment with the subsequent truncated breath readings of 150 and 140. He had visible injuries from the motor vehicle accident and was throwing up while locked in the cells. He advised of headaches which last a couple of weeks and resulted in being placed on light duties. In that context the Defendant made his utterances to Sgt. Zayachkowsky and the first of his video statements to the detectives.

Statements and Admissions

[11] Voluntariness of the various statements and utterances was ultimately conceded. When told of the anticipated additional charge of Possession for the Purpose of Trafficking, the Defendant asserted that "it was not what you think it is. It's not like I am a drug dealer". Later the Defendant requested the officers re-attend his cell and asserted with respect to the drugs that "it's more a procedural issue".

[12] The Defendant was in custody from about 21:30 on the 17th. Detectives Light and Redgate commenced a videoed interview at 08:45 the next morning. The Defendant was not entirely forthright in that interview. While confirming he came into possession of the drugs as part of his duty as a street crime unit police officer, he claimed to not know exactly where the drugs came from and asserted that there were no charges laid as a result of the drug recovery. He advised that the drugs came from a situation when going through a park and it was found. He was not able to advise of which officers were with him at the time. The Defendant explained that he forgot to submit the drugs on finishing his shift.

[13] The Defendant was obviously vague on any details which might identify or impact on his team members and wished to talk to them first. Unsurprisingly, the investigating detectives were not compliant in that request. However he made a clear denial of either using or selling drugs. The Defendant asserted that he would be pleading guilty to the impaired charges at the first appearance.

[14] Against counsel's advice, the Defendant arranged for a second video interview with Detective Redgate for February 7, 2012. In this interview Mr. Beck was more forthcoming as to the source of the drugs found in his briefcase. He asserts that it was more important to sort out what happened than follow his lawyer's advice to the contrary.

[15] The Defendant described the specific take-down and subsequent residential search resulting in the drug seizure. He described placing the drugs into exhibit bags and putting them in his briefcase then putting the briefcase in the trunk of his motor vehicle. Upon returning to his detachment, he found the bag had tipped over and its contents strewn across his trunk. He put everything back in and processed what he thought were all of the seized exhibits. He missed the drugs which became the subject of the charges before the court.

[16] I understand it to be common ground that the unusual texture of this particular crack cocaine is consistent with and identified to the raid the Defendant described in his statement and subsequent testimony.

[17] It was not until a number of days later when going through his briefcase that Mr. Beck notices the baggie of drugs. He realizes that putting them in as exhibits will adversely impact on the prosecution of the arrestee; he realizes he will get into trouble for not submitting the drugs when he was supposed to; he realizes how much he has let down his squad members.

[18] This situation goes on for days, then weeks, then months. He acknowledged he could have just thrown it away but felt duty bound to submit the drugs for destruction. He procrastinated and at times forgot about the drugs. He delayed submitting them knowing that there would be consequences and unsure of how to proceed with the submission of the drugs for lawful destruction.

[19] Unfortunately, and sadly, Mr. Beck lied again in this statement by not just minimizing but again asserting about not remembering about the drugs.

[20] At the same time, he also took responsibility for not having turned in the drugs properly, confirmed his intent to do so and acknowledged his conduct was inexcusable and sloppy police work.

Credibility Assessment

[21] The Defendant testified. I note that Mr. Beck is a professional witness. I do not mean that pejoratively, but as an acknowledgment that with ten years' experience as a police officer he has no doubt testified in court on numerous occasions as would any police officer with the Defendant's seniority. I instruct myself to be critical in assessing the manner of his testimony. Additionally the Defendant gave the impression of being thoroughly prepared by his experienced counsel team.

[22] Mr. Beck described the circumstances of coming into possession of the crack and powder cocaine including the name of the target, where the drugs were found, the tossing of his bag in the car trunk, their contents spilling out, and the subsequent realization of having overlooked the drugs in his bag. In the essentials, his testimony paralleled his second video statement. After specifically seeking protection of the Canada Evidence Act he confirmed lying to the police in both of his statements.

[23] Being an admitted liar certainly undermines both his credibility and reliability. At the same time, it would have been open to him to assert the first statement was confusing due to injuries sustained in the motor vehicle accident and explain the forgetting the drugs in the context of pressures of daily work and life pushing back thinking of the drugs. He did not. More importantly, by asserting the evidentiary protections and admitted to misleading the investigating officers he has presumably destroyed his credibility as a witness arising from any police investigations and removing himself from any investigative police career. The admission was against interest if he hopes to salvage any police career. In that context I am not prepared to reject his testimony on this point alone.

[24] Mr. Beck broke down while testifying with tears. While suspicious of the Defendant's self-awareness of the impact on a trier of fact in displaying emotion so openly, especially when turning towards me to ensure I saw those tears, I cannot dispel the impression that his emotions were genuine.

[25] It seemed odd that the examination in chief of the Defendant omitted any discussion of the two sets of drugs being found separately in his briefcase. The Crown did not resist asking Mr. Beck for an explanation for the two locations of the drugs and was met with an immediate observation that the manner of the search could have easily separated the two drugs when items were put back into the bag during the search. I am certainly suspicious that the issue was purposely left for the Crown to ask with a well prepared answer, and defence counsel's smiling facial expression during the question and answer did not assuage that suspicion. However, in viewing the search video the explanation given by the Defendant is in my view one which might reasonably be true. The bag was never made an exhibit and it was not clear whether the side pocket described by Det. Light was inside or outside the bag, but the drug was found in a bundle of papers consistent with the search video showing P.C. Mask putting bundles of papers back in the bag.

[26] Cross-examination by the Crown was remarkably respectful comprising a repetition of much of the Defendant's testimony in Chief, the explanation of the two locations of the drugs in the bag and the assertion that if he lied in the statements he could be lying when testifying. After a ten day trial the cross-examination seemed to occupy no more than an hour. It is not an understatement that the cross-examination did nothing to undermine the Defendant's testimony. In some respects it enhanced his credibility when canvassing Mr. Beck's possibly haphazard manner of accounting for seized items, such as not counting cash until back at the station, which would be consistent with the manner he described handling the seized drugs from the raid giving rise to the drugs found in his bag.

[27] While the prosecution of the target in the raid conducted by Mr. Beck was not compromised as the target became a homicide victim before trial, the cross-examination re-enforced the impression that Mr. Beck was worried about the impact of not turning in the drugs at shift end on the other prosecutions resulting from his team's work. That certainly would make each further day's delay in turning in the drugs more difficult for both Mr. Beck and his team, increasing the angst felt by the Defendant.

[28] While not bound by it, I understand the Crown to be conceding that there is no evidentiary basis for me to conclude the Defendant had possession of the drugs for personal use, to sell, to hold for anyone else or to plant on a suspect. The Defendant's sterling record as a police officer would certainly support that concession. The Defendant was virtually unchallenged in his assertion of a continuing intent to turn the drugs in lawfully for destruction. The weight of the crack cocaine, I believe the equivalent to three "eight balls", would certainly in different circumstances be evidence of intent to traffic, however the Defendant is not facing that charge. The substantial weight could be considered corroborative of the Defendant's desire to have the drugs destroyed lawfully rather than just "getting rid of them" as it would be a worrisomely large amount of drugs to flush into the water stream or toss and perhaps be found by another.

[29] I find myself without any articulable reason to reject the Defendant's testimony beyond his dishonesty in the two statements; indeed for the most part, the continuing theme in his earliest utterances, the two statements and his testimony was his view that over-holding the drugs was procedural and not nefarious. I am prepared to acknowledge that more than just leaving me in reasonable doubt, I accept Mr. Beck's assertion of his continuing intent to turn in the drugs for lawful destruction. Credibility assessments are notoriously difficult to articulate but in observing the Defendant with considerable caution while he testified, I found myself believing him when describing his intent throughout.

Legal Analysis: Narcotic Control Regulations

[30] That conclusion does not resolve the matter for Mr. Beck. While his intent was to lawfully destroy the drugs, he was in knowing possession of controlled substances. If not in lawful possession, he would be guilty of the charged offence.

[31] The Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1) authorizes possession of a narcotic where the person does so "in the course of activities performed in connection with the enforcement or administration" and that person is pursuant to subsection (1)(g) "is employed as … a police constable.. and such possession is for the purposes of and in connection with such employment".

[32] Clearly the Defendant gained possession of the drugs during the course of activities performed in connection with the enforcement or administration of the Controlled Drugs and Substances Act. Just as clearly he ceased to be in compliance with the Peel Regional Police Force procedures when he failed to submit all the seized drugs by shift end on the day of the raid. At what point in time does a police officer cease to act for the "purposes of and in connection with such employment"?

[33] Neither counsel were able to assist with caselaw on point. The Crown asserted that at some point over-holding the drugs was clearly outside of the Defendant's employment as a police officer. She was not able to say precisely when, but submitted that at three months of knowingly possessing the drugs, he was doing so outside of the protection of the Regulation.

[34] If I accept any breach of any internal police directive as taking an officer out of his employment, it would deprive an officer of the regulatory protection should that person use an unauthorized notebook or using discretion in making decisions when contrary to any police policies.

[35] In my view, that analysis robs any officer of any sense of certainty as to when that officer's conduct falls outside of lawful possession. Admittedly, the Regulation sub-section does not seem to have contemplated a situation such as the one before the court. Where its application is ambiguous, such ambiguity should be construed in favour of any accused.

[36] In any event, in R. v. Beaudry, 2007 SCC 5, citing R. v. Jageshur, 169 C.C.C. (3d) 225, "an officer's duties and hence his or her responsibilities cannot be equated with instructions as to how those duties and responsibilities should be carried out. Police policies speak to the manner in which police should carry out their responsibilities but do not define or limit those responsibilities" which I take for the proposition that breaches of directives do not unilaterally deprive officers of their standing as officers and hence protection pursuant to the Regulation. The officers are still employed in that role even when non-compliant with directives.

Interpretation of "Purpose"

[37] In any event, I must first look at the wording of the Regulation to determine its meaning and application to the facts of this case. The meaning of connection is straight forward.

[38] The Canadian Oxford Dictionary, 2nd edition, defines "purpose" as 1 a: "something to be attained; a thing intended; and b: the reason for which something is done or made, or for which it exists" or 2: "resolution, determination". The first line definition seems the most appropriate in interpreting the wording of the Regulation.

[39] The Regulation would appear to have both an objective and a subjective component to the preconditions for authorized possession. The test would not seem to incorporate that a police officer be within the execution of his duty while possessing, but rather that the possession arises from the circumstances of his employment. Employment is a contractual arrangement while the execution of duty a common law relationship with the community and the justice system.

[40] Objectively, lawful possession is founded on the possessor doing so in circumstances of what the employment purpose and circumstances of the possession are at the time of possessing and not just when first obtained. The intent of a lawfully obtained drug may change over time and lose the regulatory protection when the purposes are no longer for employment.

[41] Clearly, the Defendant came into possession of the drugs lawfully, arising out of a residential raid authorized by search warrant. Even if the warrant was defective, and the officers acting outside of their duty, the involved officers would still have this regulatory protection. Similarly, in my view any officer affecting an arrest without reasonable and probable grounds thereby taking him out of his duty as an officer, which resulted in a drug seizure, that officer would still have that regulatory protection as a result of the possession being for the purposes of and in connection with his employment. Simply put, non-compliance with procedures or police force directives does not immediately terminate employment.

[42] In my view, it could be a reasonable inference from a three month over-holding that the Defendant was no longer possessing the drugs for the purposes and in connection with employment. That inference would be subject to any finding as to the Defendant's intent within the meaning of 'purposes'. I have already held that I accept the Defendant's testimony as to his continuing intent to submit the drugs for lawful destruction. In my view, Mr. Beck's purpose in possessing was the lawful destruction of the drugs, no matter if delayed and in circumstances where he breached the Peel force procedures. That means I am at the very least left in reasonable doubt that he continued to enjoy the protection of the Regulation. Indeed, in the particular circumstances of this case and my findings as to the credibility of Mr. Beck, I find that he was still within the wording of the Regulation. Even if I am in error on the direct application of the Regulation, the particular facts of this case leaving me in reasonable doubt means that doubt should be resolved in favour of the Defendant.

Verdict

[43] It follows that on the sole count before this court, the Defendant is acquitted.

Released: June 27, 2013

Signed: "Justice G. R. Wakefield"