Ontario Court of Justice

Date: 2014-01-13

Court File No.: Brampton 12-7781

Between:

HER MAJESTY THE QUEEN

— AND —

DANNY NGUYEN

Before: Justice Richard Blouin

Heard on: November 4, 5 and 6, 2013

Reasons for Judgment released on: January 13, 2014

Counsel:

• R. Johnston, counsel for the Crown
• L. Shemesh, counsel for the accused Danny Nguyen

BLOUIN, J.:

Introduction

[1] Danny Nguyen stands charged that he Possessed Marijuana for the Purpose of Trafficking on May 29, 2012.

[2] The Crown called four police officers. Three of which, PCs Muresan, Holland and Savino, were involved in the surveillance and arrest of the defendant. The fourth officer, PC Gregoriou, gave expert evidence regarding the use and effects of marijuana, its properties, and possession as it relates to personal use versus trafficking.

[3] The defence called no witnesses but tendered, on consent, a passage from the Health Canada website regarding the time required for marijuana to degrade. That passage was made Exhibit 7. Counsel for the defendant argued that he was arbitrarily detained contrary to s. 9 of the Charter. As a result, the search of the defendant's car trunk was unlawful, and without warrant, therefore violating s. 8 of the Charter. Finally, the defence argued that the defendant's rights to contact and consult counsel were violated under s. 10(b). The defendant argued that the seized 474 grams of marijuana ought to be excluded pursuant to s. 24(2).

[4] Although not specifically articulated, the case proceeded as a blended trial and Charter voir dire.

Crown Evidence

Constable Mike Muresan

[5] Muresan and PC Holland had a briefing with Constable Wozny on the morning of May 29, 2012 regarding a suspected marijuana dealer by the name of Danny Nguyen. Wozny told Muresan the following:

• the information came from a confidential informant;
• the information was very specific and reliable;
• Nguyen was associated with and drove two vehicles, a black Acura TL – AWXF 952, and a white Honda Civic – BHMX 568;
• he lived at 225 Sherway Gardens Road, Etobicoke;
• a description of Mr. Nguyen (this was testified to but not recorded).

[6] Muresan testified that he possessed other information regarding Mr. Nguyen and his activities that could not be disclosed because that information would put the confidential informant in peril.

[7] Both Muresan and Holland went to 225 Sherway Gardens in separate cars. They arrived at 10:25 a.m. to set up surveillance.

[8] Muresan located both described vehicles in the underground parking lot of 225 Sherway Gardens at 10:49 a.m. At 12:57 a young, Asian male drove the Civic out of the parking lot. Muresan and Holland followed that car, and also called Savino to assist with the surveillance. The Civic was followed to 95 Turnberry Avenue, Toronto, where it was parked on the road at 1:22 p.m. Muresan then observed the following:

• Mr. Nguyen got out of the car, retrieved a blue Adidas duffle bag from the trunk that Muresan believed was empty;
• Mr. Nguyen went into the house and returned within one minute with contents in the bag that Muresan believed was marijuana (past investigations of drug dealers were similar);
• Mr. Nguyen put the bag in the trunk.

[9] Once the Civic started driving again, Muresan told the other officers that they should stop the car, and arrest the driver for Possession for the Purpose of Trafficking. That decision was based upon the size of the bag, how full it looked when the defendant left the house. The Civic was stopped at 1:26 p.m. and Mr. Nguyen was arrested. Mr. Nguyen had three cell phones and $450 in cash. Constable Savino searched the trunk and found marijuana in the blue Adidas duffle bag.

[10] When questioned by Ms. Shemesh about the information given to him at the morning briefing, Muresan said he had knowledge about how recent the confidential information was, and how far removed it was from the informant (i.e. first hand or second hand). Muresan was not sure if he received a photograph of the target. He knew he was male, Asian, approximately 5' 9" and 27 years of age. Muresan did not conduct any fact checks, such as a CPIC inquiry, because that would have been done by the officer who received the information (i.e. Wozny). No information about 95 Turnberry was part of the briefing. There was, however, other information that he had regarding the target, Mr. Nguyen, that he did not make notes of and cannot now recall. He also did not make notes of what checks were done, but believed that they were done because doing so is a basic principle of an investigation. Muresan also did not know who was responsible for doing the checks but he trusted the members of his team.

Constable Adam Holland

[11] PC Holland was present at the briefing the morning of May 29, 2012 with Wozny and Muresan. He was made aware of a suspected drug dealer named Danny Nguyen connected to an address, 225 Sherway Gardens and, two vehicles, the white Civic and the black Acura. He did not conduct any checks to confirm that information, and assumed that Wozny would have done them. Coming up the ramp from the underground at 225 Sherway Gardens, he observed a male Asian wearing a hat and sunglasses, driving a white Civic. He believed the driver was Danny Nguyen.

[12] Holland went to 95 Turnberry in a separate vehicle from Muresan. Muresan made observations, and passed them on to Holland, who recorded them. He was told that the "male driver was out… he was out with an Adidas duffle bag, blue, and went back into 95 Turnberry. And at 1:23 p.m. the male was back out, it was Mr. Nguyen, and back into the trunk."

[13] Holland then heard Muresan declare that the driver was arrested for Possession for the Purpose as he believed there were drugs in the bag. Holland stopped the defendant's vehicle. Muresan arrested the defendant. Savino searched the trunk where the marijuana was found in the Adidas bag. Holland took control of the defendant and advised him of his s. 10(b) rights at 1:31 p.m. Mr. Nguyen asked to speak to duty counsel. Savino turned over property seized incident to arrest. That included the blue bag with the marijuana, $450 cash, and three cell phones. At the station, Mr. Nguyen was told that his ability to contact a lawyer would be suspended because of the pending search warrant request. At 7:50 p.m. authorization to search both 225 Sherway Gardens, penthouse 101, and 95 Turnberry Avenue were obtained. At 11:35 duty counsel was contacted.

[14] Holland agreed in cross-examination his notes regarding what Muresan "voiced out" during observations of the defendant at 95 Turnberry were accurate. Mr. Nguyen was observed exiting the vehicle with a blue Adidas bag in hand. He attended the front door and entered using a key and, after a brief period, returned to the car with the same bag in hand.

[15] Holland also agreed that the police were present at the two searched residences shortly after 9 p.m., but he took no steps to ensure that the defendant satisfied his desire to speak with counsel.

Constable Damian Savino

[16] PC Damian Savino was not part of the briefing that morning. Instead he received from Wozny a "run sheet" which details the investigation. Later that morning, he received a phone call from Muresan requiring assistance at 95 Turnberry. Savino was not in direct observation but Muresan updated him and Holland on the radio that the target exited a white Honda Civic with a blue Adidas gym bag and then "minutes, or a minute" later he exited the same address with the same bag which was fuller than it was before. Later, in his evidence he indicated that Muresan advised that the bag went in the trunk.

[17] Muresan then broadcasted that Mr. Nguyen was arrestable for Possession for the Purpose. At 1:26 p.m. Muresan arrested Mr. Nguyen. Savino went to the trunk and found the blue Adidas bag. Inside he found a sealed Ziploc bag with 2 bags inside containing marijuana. Eventually he took a three gram sample from each bag, which was sent to Health Canada. The certificates were made Exhibit 2 and Exhibit 3. The total weight was 474 grams of marijuana.

Constable Nick Gregoriou

[18] PC Gregoriou was called as an expert in trafficking marijuana to establish that 474 grams found in the defendant's possession was for the purpose of trafficking, and not personal use. After a contested voir dire to determine admission of his evidence as expert evidence on November 6, 2013, I ruled that the Mohan criteria had been satisfied and ruled accordingly.

[19] Gregoriou's opinion was that an average user of marijuana consumes a gram a day. Four hundred and seventy-four (474) grams would be a year's supply. A heavy user would consume twice that amount. A user would not possess that quantity of marijuana because the THC potency degrades after three months, and after six months the potency is virtually zero. That volume plus three cell phones led the officer to conclude the marijuana was possessed for trafficking purposes.

[20] Ms. Shemesh provided an excerpt from the Health Canada website (Exhibit 7) which suggested the degradation of THC is significantly lower over time than was suggested by PC Gregoriou.

Findings

Section 9: Arbitrary Detention and Section 8: Unlawful Search

[21] Ms. Shemesh argued that the "tip" from the confidential informant is not reliable because the Court had no evidence before it dealing with the timing of the tip; whether it was second hand or worse; nothing about the informant's criminal antecedents; if there was any confirmation of the identity of the person purported to be Danny Nguyen. The last point is of specific importance in this case because Mr. Nguyen has an identical twin. In addition, Ms. Shemesh submitted that the observations of PC Muresan regarding the gym bag did not equate with the evidence of the note-taker of those same observations, PC Holland. Further, PC Muresan explained that the marijuana in the bag was noticeable when the defendant exited because of its heft, when PC Savino says it was vacuum-sealed and tight.

[22] The Crown argued that PC Muresan had reasonable and probable grounds for arrest. It follows that a search incident to a lawful arrest is itself lawful.

[23] Mr. Justice Code, in a case relied upon by the defendant, R. v. Learning 2010 ONSC 3816, sets out the law in this area at paragraph 92:

In evaluating whether a tip from a confidential informer can rise to the level of reasonable and probable grounds, justifying an arrest or a search, the leading authority remains Martin J.A.'s decision, speaking for the Ontario Court of Appeal in R. v. Debot, supra at pp. 218-219:

Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary "reasonable ground to believe", to justify the granting of a search warrant: see, for example, R. v. Nepp (1927), 48 C.C.C. 275 (Man. C.A.); Illinois v. Gates (1983), 462 U.S. 213. Such information may also provide the necessary reasonable and probable grounds to justify an arrest without warrant: see Draper v. U.S. (1959), 358 U.S. 307. It would seem to be entirely logical and reasonable that such information can also provide the necessary "reasonable ground to believe", to justify a warrantless search, where a warrantless search is authorized by law. On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged: see R. v. Noble [1984] O.J. No. 3395, supra, at p. 161. Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged. I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrest without warrant. Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case, provided that the totality of the circumstances meets the standard of the necessary reasonable grounds for relief.

[24] It is clear in this case that the prosecution did not seek to employ "step 6" in Garafoli, and I only have before me the edited information possessed by PC Muresan to assess the objective reasonableness of his view that he had reasonable and probable grounds.

[25] Muresan testified that he did not conduct any confirming checks himself but relied on his belief that they must have been done. He did not assess the reliability of the informant; he relied on another police officer (Wozny), who warranted the information reliable. Wozny was the one police officer that could have given evidence about reliability, but Wozny did not testify.

[26] This by itself gives the Court little comfort when assessing objective reasonable grounds. Evidence from a police officer that you can trust the source because I trust the source is unsatisfactory. In my view, only the specific detail of the information (the two cars and the address) assists in an objective view regarding the existence of reasonable and probable grounds. At least the white Honda Civic's and the black Acura's connections to 225 Sherway Gardens were confirmed by Muresan before arrest.

[27] Had Constable Muresan no more than the information possessed before following the defendant to 95 Turnberry, reasonable and probable grounds would clearly not exist. But there is more.

[28] Muresan's observations that the defendant took one empty bag into 95 Turnberry for a brief period and came out with contents in the bag in the context of his experience in observing marijuana dealers acting similarly, along with the information from Wozny, provide the necessary grounds to arrest in my view. I accept Muresan's evidence as to what he observed. While Muresan's observations were not fully corroborated by PC Holland, which concerned me, PC Savino does confirm that he heard Muresan indicate that the bag had contents upon exiting 95 Turnberry.

[29] Although a close case, the defence has not established, on a balance of probabilities, a violation of s. 9 of the Charter. It follows that the warrantless search of the defendant's trunk, as a search incident to a lawful arrest, is itself reasonable and lawful. The Crown, therefore, has established that there was no s. 8 violation.

Section 10(b) Violation

[30] Ms. Shemesh argued that even though no evidence was obtained from a violation of her client's right to counsel, a violation of this right would assist the Court in conducting an analysis under s. 24(2), since the number of Charter violations inform the seriousness of the police conduct.

[31] Since I have ruled no breach under any other section of the Charter, this argument becomes somewhat moot. However, I think it is important to express my concern regarding the delay that police regularly employ in search warrant cases such as this. The rationale employed, that allowing contact with counsel puts officer safety, and evidence preservation, in jeopardy because counsel might contact potential sureties, who in turn might themselves, or by contacting others, imperil the search, is, in my view, suspect.

[32] The right to counsel is a bedrock democratic right. It seems to me that the legitimate concerns of police could be met by requesting counsel to hold off contacting sureties or others until the safety and evidence concerns have been resolved. Counsel could give that undertaking, and it could be recorded if necessary. That way, counsel could consult with their client, and proceed with preparation for a bail hearing when they receive word from the police. In my view, while not perfect, this approach is much preferred to a blanket shut down of the right to consult counsel, sometimes for many hours.

[33] In this case, the defendant's right to counsel was delayed approximately ten hours, some part of which was after officer safety or evidence concerns had been satisfied. In addition, this was not a gun case, but a marijuana case. Section 10(b) was clearly violated here.

Possession for the Purpose

[34] While I ruled that PC Gregoriou was an expert in matters of marijuana possession and trafficking, I was less than convinced regarding his evidence that a pound of marijuana would never be possessed for personal use because of degradation over time. He did not seem to have a firm grasp on the science, and his evidence was contradicted by the passage from the Health Canada website on that issue. Accordingly, the Crown fell short in proving that the marijuana was possessed for trafficking.

Conclusion

[35] Having admitted the evidence seized by police, the defendant is found guilty of Possession of Marijuana.

Released: January 13, 2014

Signed: "Justice Richard Blouin"