Court File and Parties

Ontario Court of Justice

Date: September 30, 2015

Court File No.: Central East - Newmarket 4911-998-13-08550-00

Between:

Her Majesty the Queen

— and —

Shaun Campbell

Before: Justice David S. Rose

Heard on: July 22 and 23, 2015

Reasons for Judgment released on: September 30, 2015

Counsel

K. Dickson — counsel for the Federal Crown

D. Michael — counsel for the defendant Shaun Campbell

ROSE J.:

Overview

[1] Mr. Campbell was arraigned before me on May 25, 2015 on the charge of Possession of Cocaine for the purpose of trafficking and, after argument on June 22, 2015, I dismissed his Motion under s. 11(b) of the Charter to stay the proceedings for unreasonable delay. I heard evidence on the trial and submissions on July 22 and 23, 2015. At trial, the Accused brought a Motion alleging an infringement of his rights under ss. 8, 9, 10(b) of the Charter and seeking exclusion of the evidence under s. 24(2) of the Charter.

Evidence

[2] On 20 November 2013, P.C. Joshi of the York Regional Police (YRPS) was working in uniform on the night shift. He was operating a marked patrol car equipped with video recording which captures both the view from the driver's perspective and also of the back seat.

[3] That night he was asked by other YRPS officers, Blacker and Hatjis, to stop a vehicle in the area of Yonge Street and the 16th Line. The identity of the vehicle was given on the air and Joshi then offered assistance because he was in the vicinity. He saw the vehicle make a left turn onto 16th Line eastbound from Yonge Street southbound. Joshi stopped the vehicle on the 16th Line at Red Maple at about 7:49 p.m. He saw a lone occupant in the car.

[4] Joshi radioed Blacker and Hatjis that he had stopped the car and waited in his cruiser. He did not know the reason for the stop. Blacker and Hatjis showed up two minutes later and parked their car in the roadway in a diagonal fashion of cutting off the target car. The forward-looking camera on Joshi's patrol car was by this time operating and recording the events as they unfolded.

[5] Joshi noticed no sudden or awkward movements from the driver. He was shown the video recording taken from his car camera and agreed that at 7:49:43 he approached the passenger side of the car. He had a flashlight in his hand and was shining the flashlight into the interior of the car. He was looking at the centre area. Less than a minute later the driver was removed from the car by Hatjis and handcuffed.

[6] Joshi later searched Mr. Campbell after he was arrested by Hatjis, and then transported him to the police station to ensure that he had spoken with duty counsel.

[7] P.C. Hatjis testified that he was working in plainclothes with P.C. Blacker that night. They had set up observations at 143 Marsi Road, which is the address of a person, Mr. Ursic, known to Blacker to be a drug user. Hatjis had no knowledge of that fact himself. At 7:40 p.m. he saw a man leave 143 Marsi and walk west on Marsi a short distance, turning the corner onto Wainright. Blacker recognized him as Ursic. According to Hatjis, Ursic walked with purpose. They saw a vehicle stopped on Wainright facing northbound. It was running. Ursic got into the passenger side of the vehicle and then, after 30–40 seconds, he exited and walked back towards his house. Blacker made the decision to have the car stopped and the occupant investigated but Hatjis agreed with that decision. In cross-examination Hatjis admitted that he could not see into the vehicle which was about 160–200 feet away. He could not see a hand to hand transaction. In his words he could see headlights, but nothing more than that. He couldn't say what the transaction was, and couldn't hear it.

[8] Blacker and Hatjis drove away from their location and passed the Ursic residence. The licence plate of the car was broadcast to dispatch so that it could be stopped. Hatjis testified that based on what he saw and Blacker's knowledge of Ursic being a drug addict they possessed the grounds to arrest the occupant of the car.

[9] When Hatjis and Blacker arrived at the scene where P.C. Joshi had stopped the car, Hatjis and Blacker both approached the driver's door of the vehicle they had seen earlier and identified themselves as police officers. They advised him to move his hands from his lap to the steering wheel. They requested identification. He reached into his pocket and pulled out two folded stacks of cash. In the middle was an Ontario driver's licence. The driver identified himself with that as Shaun Campbell.

[10] Hatjis testified that just prior to arresting Mr. Campbell he saw him turn away and put something between the centre console and the seat. He described that turning away as a dipping of his shoulder. After arresting Mr. Campbell and escorting him to the back of P.C. Joshi's cruiser, he and Blacker did a field search of Mr. Campbell's car and found nothing. He saw loose panels in the interior and either he or Blacker decided to call the Canine Unit. Hatjis described the interior of the car as being "not neat and tidy". Ultimately a police drug dog arrived and after the animal searched the car a bag of cocaine was found. The dog had pointed at a location and Blacker then moved the driver's seat forward. Blacker then located the drugs and gave them to Hatjis at 20:25. Hatjis did not see where the drugs were found. Pictures of the seizure were taken once the drugs were in police custody, but none were taken of the interior of the vehicle. The vehicle was not seized. At 21:00 Hatjis contacted the owner of the car, who was not Mr. Campbell. The total amount of cash seized from Mr. Campbell was $710.00. The total amount of cocaine seized from the car was 5 grams. It was in individual packaging.

[11] Hatjis agreed that he never told Mr. Campbell about Rights to Counsel. Nonetheless he agreed that the video from P.C. Joshi's car records a conversation in which either he or Blacker confronts Mr. Campbell about having drugs in the car. Campbell denies having drugs in the car, although from my review of the video recording it cannot be described as a fervent or vigorous denial.

[12] P.C. Blacker testified that he had dealings with Mr. Ursic and had knowledge of the address 143 Marsi. He had received information from a confidential informant in March 2010 about Mr. Ursic which led him to 143 Marsi Road. At that time he saw no drug transaction but became familiar with the address and Mr. Ursic's name. In mid-March 2013 he was asked to participate in an investigation which targeted Mr. Ursic as a person of interest. Their information was that Mr. Ursic was a crack user. On March 23, 2013 Blacker was part of a team that set up observations on 143 Marsi. No drug deals were seen that day. On March 26, 2013 Blacker was again part of a team surveilling Mr. Ursic and 143 Marsi. A silver Acura pulled into the driveway and Mr. Ursic got into the vehicle for a short time, which was consistent with a drug transaction. The vehicle was followed from 143 Marsi as it met another person coming into the vehicle for a short period of time at Bayview and Major MacKenzie. They followed the vehicle to Highway 7 and Bayview where the team stopped the car and found a male driver named Haydon Alexander with crack cocaine on him. He was later convicted by the Superior Court of Possession of Cocaine for the purpose of trafficking.

[13] On March 29, 2013 P.C. Blacker was again set up at 143 Marsi Road. A vehicle pulled into the driveway and Mr. Ursic appeared. There was, in the opinion of Cst. Blacker, a short hand to hand transaction between the driver and Mr. Ursic. The investigators followed the vehicle after it left 143 Marsi to an address in Toronto on Champagne Drive. It then went to an address on Queen Street in Newmarket after which a uniformed officer stopped the vehicle on Davis Drive. The driver, a Mr. Decosta, was found to have a quantity of cash and crack cocaine. That case has yet to be tried. Blacker testified that Mr. Decosta had between 17 and 18 grams of cocaine on him.

[14] On November 20, 2013 Blacker saw Ursic get into Mr. Campbell's car and believed that a drug transaction occurred. He testified that after the traffic stop, and when he and Hatjis were at the side of Mr. Campbell's vehicle, Mr. Campbell turned to the centre console and he couldn't see what he was doing. It was in his words a hand motion of stuffing something down beside the seat. He testified that it was pronounced. That is what caused Blacker to pull him out. Blacker conceded that his initial search of Mr. Campbell's car with P.C. Hatjis "came up empty", so they called a canine unit. That search started at 7:51 and lasted for at least 3 minutes. They searched the front seats and the back seats from the front entrance and the rear entrance but didn't find anything. He had no doubt that a drug deal had happened and felt that the drugs were in the car. At 8:20 p.m. P.C. Nagy showed up on scene with a drug dog. The dog indicated for the centre console where Hatjis and Blacker testified that Mr. Campbell had put his hand. That area was pointed out by the drug dog handler at 20:20:59, and at 20:21:24 Blacker and Hatjis re-enter the car. Blacker testified that he pulled the seat forward and found a clear plastic baggie with individual bags. At 20:23:50 the video shows Hatjis and Blacker exiting the car with the seizure. Blacker said the car was not pristine and had garbage in it. He identified Mr. Campbell.

[15] In cross-examination Blacker said that his information was that Mr. Ursic was a drug user but had no information about the frequency. He knew him to be 52 years old at the time. He said that the March 26, 2013 investigation involved several officers of which he was one. He was part of a team. He had a clear recollection of the investigation that day, and was cross-examined extensively about it. Similarly, he was part of a team involved in the March 29, 2013 arrest of Mr. Decosta and had some direct observations during the investigation but was following the observations of others as they were made. In his words he was well aware of what was happening. He was pressed on why his belief that Mr. Ursic was a drug user lead to a conclusion that Ursic's short meetings in cars were drug related. He said that in his experience as a drug detective drug users buy drugs like others buy milk. There is no conversation between the purchaser and trafficker. This was information given to him by a confidential informant. He was confident that, having arrested two drug dealers leaving Mr. Ursic's house earlier Mr. Ursic's drug habits weren't going to change. As he put it, "Leopards don't change spots." Blacker believed that Mr. Ursic had a drug habit which required daily crack purchases.

[16] Blacker admitted that he did not read Mr. Campbell his Rights to Counsel but asked questions of him anyway which were potentially incriminating. In his evidence he said that the scout car is equipped with a video camera and there is a record of everything said, so there is no need to record it in his notebook. He testified that he did not have to provide Rights to Counsel while he is alone in the car. When he asked Mr. Campbell if he had drugs in the car and he denied possession he was not expecting an answer. He admitted in his evidence that he should have waited until Mr. Campbell had been given Rights to Counsel and the questioning was a mistake on his part.

[17] D.C. Lidstone testified as an expert witness. His expertise and the report were conceded by the defence. Lidstone testified that, while crack cocaine users' consumption habit may change, in his experience he has never experienced a weekend only crack user. The possible changes in consumption are not significant ones.

[18] Video tape taken from P.C. Joshi's car was played in open court. It shows P.Cs. Blacker and Hatjis searching through Mr. Campbell's car for 3 minutes. A flashlight is seen inside the vehicle being used by one of them. Mr. Campbell makes two exculpatory utterances, one at time of his arrest, and another at 20:18. The drug dog points out something at 20:21, and Blacker and Hatjis re-enter the car at 20:21:30. They take about 2 minutes and 20 seconds before they find the drugs.

Legal Issues

Has there been a Charter violation under ss. 8, 9 or 10(b)?

Principles

[19] Section 495 of the Criminal Code permits a police officer to arrest an individual without a warrant if that officer finds the individual committing a criminal offence or believes that individual has committed a criminal offence. The arresting officer must have subjective grounds for the arrest and those grounds must be objectively reasonable: see R. v. Storrey (1990), 75 C.R. (3d) 1 (S.C.C.). The officer's reasonable and probable grounds (RPG) must take into account all the information available to him, and (s)he may only disregard information which (s)he has good reason to believe is unreliable: see Chartier v. AG (1979), 9 C.R. (3d) 97 (SCC). Information from one officer may be relied upon by another officer to establish RPG; see Eccles v. Bourque, [1974] S.C.J. No. 123; R. v. Debot, [1989] 2 S.C.R. 1140.

[20] The police have a common law power to search incidental to arrest (SITA): see R. v. Kang Brown 2008 SCC 18, [2008] 1 S.C.R. 456. The SITA power has three main purposes: ensuring public and police safety; protection of evidence from destruction; and discovery of evidence which may be used at a trial. See R. v. Nolet 2010 SCC 24, [2010] 1 S.C.R. 851.

Application of Principles

[21] The seizure of drugs from the car being driven by Mr. Campbell was warrantless and incidental to arrest. If Mr. Campbell's arrest was unlawful, in other words if Csts. Hatjis and Blacker lacked RPG to make the arrest, the search of the vehicle will simply be warrantless, and lacking any common law authority. Much therefore turns on whether Mr. Campbell's arrest was lawful.

[22] Constables Blacker and Hatjis both testified that they were confident in their decision to arrest Mr. Campbell. They subjectively had grounds to make the arrest. But was that arrest objectively based? The evidence heard at trial established that Cst. Blacker had been investigating the goings on at 143 Marsi Road several months prior to the arrest of Mr. Campbell. He was part of a team of drug investigators that appear to have made a strategic decision to arrest those who met with Mr. Ursic under the appearances of a hand to hand drug transaction while leaving Mr. Ursic free (and unknowing it would appear) to bring more drug dealers to the scene. That method produced demonstrable results. In March of 2013 two individuals were arrested after having met with Mr. Ursic in the circumstances of a drug deal. Both were in possession of cocaine. In the case of Mr. Alexander the arrest happened after Mr. Alexander met another individual. In the case of Mr. Dacosta, he appears to have stopped at two other locations before being arrested. What is clear enough in both cases is that the police managed to arrest individuals a short time after having met with Mr. Ursic. The police strategy of arresting persons after observing them complete apparent drug deals with Mr. Ursic produced real results.

[23] The evidence about the objective grounds to arrest Mr. Campbell includes D.C. Lidstone. His evidence that crack users tend to continue their consumption patterns over time tends to support D.C. Blacker's evidence that "leopards don't change their spots." Blacker's belief that Mr. Ursic was still a cocaine user on November 20, 2013 had an objective basis, as was his belief that his meeting with Mr. Campbell that night was a drug deal.

[24] Cst. Blacker was aggressively cross-examined about his observations of Mr. Campbell that night. It was suggested to him that he fabricated his evidence about a dip in the shoulder by Mr. Campbell. Having seen the video tape and heard all the evidence I find Cst. Blacker to be perfectly credible. Hatjis and Blacker's evidence about Mr. Campbell's shoulder movement was not confirmed by P.C. Joshi, who was also observing the inside of the car when Mr. Campbell was sitting in it. While this detracts from the weight of their evidence on this point that discrepancy comes nowhere near support of a finding that Blacker was fabricating his testimony. Indeed, I found him to be quite credible. Without Blacker's observation of the shoulder movement there existed very ample grounds to arrest Mr. Campbell.

[25] Applying the facts to the law I cannot find a violation of Mr. Campbell's rights under s. 9 of the Charter. Blacker and Hatjis had RPG to make the arrest. Given the history of their investigation of Mr. Ursic, 143 Marsi, and what they saw on November 20, 2013 near 143 Marsi, they had ample grounds to arrest Mr. Campbell. The arrest was valid in law, and therefore the search of Mr. Campbell's car was lawfully incidental to arrest. There is no s. 8 violation under the Charter. There is no violation of Mr. Campbell's rights under s. 9 of the Charter because this was a lawful arrest. Those prongs of the Charter Application are dismissed.

Section 10(b)

[26] There is little dispute that Mr. Campbell was never read his Rights to Counsel in the period after his arrest and while he was in handcuffs in the back seat of Cst. Joshi's police car. There is also no dispute that he was questioned by either Blacker or Hatjis and that he provided exculpatory answers to their questions. Notably, his answers did not assist the investigators in the search of the vehicle. Cst. Blacker admitted that his questioning of Mr. Campbell prior to him being given his Rights to Counsel was a mistake. It was, and it led to a s. 10(b) violation. It has long been clear that arrestees must be given Rights to Counsel and the police have an obligation to hold off questioning until after that. See R. v. Manninen (1987), 34 C.C.C. (3d) 385 (S.C.C.); R. v. Elshaw (1991), 7 C.R. (4th) 333 (S.C.C.); R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.) and most recently R. v. Taylor 2014 SCC 50.

[27] While the s. 10(b) breach is clear, the relationship of that limited questioning of Mr. Campbell to the officers SITA power is tenuous. As Justice Lamer pointed out in R. v. Debot (supra):

The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest of detention, not from the fact of being searched. Therefore, immediately upon detention the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel.

The two exceptions to that rule outlined by Lamer J. would be 1) where the detainee's consent is necessary to the search, or 2) where a statute provides the detainee some ability to challenge the lawfulness of the search. Neither of those circumstances are present here.

Should the evidence be excluded under s. 24(2) of the Charter as a result of the s. 10(b) breach?

[28] Applying the three-part test from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that the Charter violation is not so serious. The questioning of Mr. Campbell was quite limited, and no incriminating answers were provided. None of the investigating officers took Mr. Campbell's denials to be a cause to question him more aggressively or more invasively. There was no excuse for the investigators in this case to question Mr. Campbell, which makes this Charter violation more than technical, but they readily admitted to their mistakes, and the limited nature of the violation renders the violation less serious. No inculpatory evidence was seized from the Charter violation. Notwithstanding their questioning in violation of s. 10(b) of the Charter, the video from P.C. Joshi's car shows all officers to be polite and professional in their dealings with him. The impact of the breach on Mr. Campbell's Charter-protected interests is virtually non-existent given that only exculpatory admissions were elicited from the Charter breach. Lastly, the impugned evidence in this trial is 5 grams of cocaine found in a car. Society has a great interest in the adjudication of this trial on its merits. Balancing all three factors, I would not exclude the drugs from this trial under s. 24(2). In the result the Charter Application is denied.

Merits of the Possession Charge

[29] If the answer to #1 or #2 is no, has the Crown proven that Mr. Campbell possessed the cocaine?

[30] Hearsay evidence was lead at trial to justify the officer's grounds for arrest, and that hearsay included confidential information to Blacker that Peter Ursic was a cocaine addict. Blacker has never met Ursic, and Ursic never testified at this trial. Therefore, on the trial on its merits I disregard the evidence that the man that Mr. Campbell met with on the night of November 20, 2013 was a cocaine addict. The evidence is that Mr. Campbell met with a man the police believed to be Peter Ursic for a short time in Mr. Campbell's vehicle. Neither Hatjis nor Blacker could give evidence about what exactly they saw happen between those two men in that meeting. Neither could say if anything passed between the two men, or what was said. Hatjis described the car as being 160–200 feet away when he and Blacker were viewing it. He said they could see headlights, but nothing more, and was candid that he couldn't say what the transaction was.

[31] When Mr. Campbell was stopped in his vehicle both Hatjis and Blacker searched it. Campbell was seen to turn to the centre console so that Blacker couldn't see what was going on. Both saw hand stuffing motion in the seat area. P.C. Joshi was present at that time but did not see that stuffing motion. This detracts from the reliability of Hatjis and Blacker's observation and therefore the weight I attach to it. Hatjis and Blacker searched the car for at least 3 minutes and found nothing. They were assisted with a flashlight. They searched the back seats and the front seats. In Blacker's evidence he firmly believed that there were drugs in the car, but even with his observation of the stuffing motion he didn't know where they were. After that initial search both Blacker and Hatjis are seen on the video to be talking at the front of Joshi's patrol car. They do not go back to Mr. Campbell's car prior to the arrival of the K9 unit. If either of them had concerns about the thoroughness of their initial search of Mr. Campbell's car, it isn't evident on the video.

[32] Once the K9 unit arrives and sniffs the interior of the car Blacker and Hatjis again search the interior of the car. Even with the tip from the drug dog, it takes another 2 minutes and 20 seconds before the cocaine is found. It appears on the video that there is some specificity to the tip from the drug dog.

[33] No pictures were ever taken of the interior of the car or where the drugs were ultimately found. Considering all the evidence I find that the drugs found in Mr. Campbell's car were sufficiently hidden that they would not be readily visible to any occupant. This is the only reasonable conclusion I can draw from the fact that it took two police drug detectives over 5 minutes to locate the drugs, with the assistance of a drug dog and flashlight. There is no evidence that Mr. Campbell owned the car or how frequently he used it. There is evidence that the car was owned by a third party whom D.C. Hatjis had to contact while Mr. Campbell was in custody.

[34] Mr. Campbell provided two exculpatory utterances when he was arrested. He denied knowing about any drugs in the car. Those utterances are admissible as part of the res gestae; see R. v. Graham, [1974] S.C.R. 206. While I place limited weight on this evidence, it nonetheless forms part of the evidential landscape.

[35] Possession under s. 4(3) of the Criminal Code has two elements, knowledge and control. Knowledge of the item must extend beyond quiescent knowledge and the evidence must support some measure of control over it in order to make out the charge; see R. v. Pham (2005), 36 C.R. (6th) 200 (Ont.C.A.). Put another way, constructive possession is only made out when the Crown proves beyond a reasonable doubt that the accused knew of the presence of the impugned item and had some measure of control over it.

[36] Applying the principals to the facts I find that the circumstances of the cocaine in the car driven by Mr. Campbell are quite suspicious. But I have concerns that the drugs were so hidden that the driver of the car would not presumptively know about their existence. There is no evidence that Mr. Campbell was the owner of the car or its regular driver. Hatjis and Blacker's evidence about a dip in Mr. Campbell's shoulder was not confirmed by P.C. Joshi and, even if it had been, that purported body movement did nothing to assist either of them in locating the cocaine. I therefore find that the cocaine was secreted in the car so much so that the driver would not have known of its existence simply by occupying the driver seat. The only evidence before me about Mr. Campbell's use of the vehicle components is extremely limited. On the whole I have concerns about gaps in the evidence.

[37] There is no direct evidence about a drug transaction occurring in the time frame before Mr. Campbell's arrest. While the circumstances are highly suspicious, it would be unsafe to convict Mr. Campbell and he is entitled to an acquittal.

Released: September 30, 2015

Signed: "Justice David S. Rose"