Court File and Parties

Ontario Court of Justice

Date: June 29, 2016

Court File No.: Halton 15/711

Between:

Her Majesty the Queen

— and —

Kadeem Theodore Henry

Before: Justice D. A. Harris

Heard on: April 26 & 27, 2016

Reasons for Judgment released on: June 29, 2016

Counsel:

• Kevin McCallum, for the Crown
• S. Chung-Alvares, for the defendant Kadeem Henry

Judgment

HARRIS J.:

[1] Kadeem Theodore Henry is charged with possessing cocaine in the Town of Milton on February 27, 2015.

[2] Crown counsel elected to proceed summarily.

[3] Mr. Henry pled not guilty and a trial was held.

[4] Mr. Henry had applied for an order that any statements made to the police by Mr. Henry and that any cocaine that was seized by the police should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Halton Regional Police Constables Joshua Pateman, Matthew Seberras, Carson Henderson and Adam Vanderheyden testified for the Crown. Mr. Henry testified with respect to the Charter application. No evidence was led by the defence with respect to the trial itself.

[7] There is no issue that Mr. Henry was in a motor vehicle in Milton on February 27, 2015 or that the substance seized by police from that vehicle was cocaine.

[8] The issues before me are:

1. whether the statements and the cocaine referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms;

2. whether the statement was inadmissible because it was not made voluntarily; and

3. whether the Crown has proven beyond a reasonable doubt that Mr. Henry was in possession of the cocaine.

[9] More particularly with respect to the Charter application, counsel for Mr. Henry argued that the evidence should be excluded on the basis that:

1. the police did not have the reasonable and probable grounds necessary to arrest Mr. Henry. Therefore the ensuing search of the motor vehicle, which was purportedly done incidental to the arrest violated Mr. Henry's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter, and his right not to be arbitrarily detained as guaranteed by section 9; and

2. the police infringed his right to retain and instruct counsel without delay and to be informed of that right, as required by section 10(b) of the Charter.

[10] I will deal with the unreasonable arrest and search argument first.

UNREASONABLE ARREST AND SEARCH

[11] Mr. Henry was arrested for simple possession of less than 30 grams of marijuana. This is a summary conviction offence. Accordingly, pursuant to section 495(1)(b) of the Criminal Code, police could arrest him for that offence only if they believed on reasonable and probable grounds that Mr. Henry was committing the offence at the time that they arrested him.

[12] Sections 8 and 9 of the Canadian Charter of Rights and Freedoms provide that:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[13] In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable. [1]

[14] In this case then, the onus is on Mr. Henry to establish an infringement of his section 9 rights but the onus is on the Crown with respect to the section 8 rights. [2]

[15] The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.

[16] It is a fact based analysis of the totality of the circumstances the arresting officer had in mind. However, the officer must balance any circumstance detracting from his conclusion against those which are supportive of his conclusion, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

[17] There is no doubt in my mind that Constable Seberras had reasonable and probable grounds to stop the motor vehicle driven by Mr. Henry. Both he and Constable Pateman testified that it had just driven through a red light. Mr. Henry conceded that he might have run the red traffic light just before he was pulled over. He was arguing with his passenger Jeremiah at the time.

[18] I am also satisfied that Constable Pateman had the necessary reasonable and probable grounds to subsequently arrest Mr. Henry for possession of marijuana.

[19] Both Constables Pateman and Seberras testified that they smelled freshly burnt marijuana when they approached the car. They also saw what appeared to them to be flakes of marijuana on the console. They did not observe any smoke in the car. They did not see any roaches. They each subjectively formed the opinion that they had reasonable and probable grounds to believe that both Mr. Henry and Jeremiah were in possession of marijuana and they arrested the two men for that offence.

[20] Counsel for Mr. Henry argued that I should disbelieve the two officers' evidence. He argued that this evidence was contradicted by:

1. the evidence of Mr. Henry;

2. the fact that the police drug detection dog did not detect any marijuana in the car;

3. the fact that Constable Pateman did not ultimately charge Mr. Henry with possession of marijuana; and

4. the fact that he did not seize the marijuana flakes as evidence or even photograph their presence in the car.

[21] I will deal with each of these arguments in the above order.

[22] Firstly, I did not believe Mr. Henry. His evidence did not leave me with a reasonable doubt about what had happened. My reason for this is that Mr. Henry's story made no sense.

[23] Mr. Henry testified that he had borrowed the car from his friend Jason. He had been at Jason's house when he got into an argument over the telephone with the mother of his child. He needed to get to Milton to deal with this issue. Jason overheard the conversation and told Mr. Henry to take his car.

[24] According to him, he had met Jason three or four times. He did not even know Jason's last name. He met Jason that day in an apartment on Sandalwood in Brampton. He was not sure of the address. Since then, he has lost contact with Jason. In fact, he never saw him again after that day. He just left the keys with the car and called Jason to tell him where it was.

[25] This is the relationship that Mr. Henry had with a person who allegedly loaned him a rental vehicle. I found that to be unbelievable.

[26] Mr. Henry testified that he drove to Milton along with his other friend Jeremiah. They did not smoke marijuana in the car. There was no smell of marijuana in the car. He did not see any marijuana flakes in the car.

[27] Sometime that day, Mr. Henry noticed a bag of "stuff" in the car. He assumed it was drugs but did not know that it was cocaine. He did not do anything about it. He drove around with it in the car for between nine and 12 hours and did not even think about the fact that there were illegal drugs in the car.

[28] I found this to also be unbelievable.

[29] Mr. Henry never explained how he had seen this bag of drugs which was well hidden in a compartment in the dash of the car. It was hidden so well that the drug detection dog did not find it and Constable Pateman had to search extensively before he found it.

[30] Jeremiah was also a friend. They had smoked marijuana together before this but not on that day. However he had not known Jeremiah's last name either until the police told him what it was. This was the person who was accompanying him to Milton to clear up his problem with the mother of his child. This too was unbelievable.

[31] With respect to the failure of the drug detection dog to detect any marijuana, Constable Vanderheyden testified that the dog had not been trained to respond to the smell of burnt marijuana. He also testified that sometimes the dogs failed in their tasks. That was certainly the case here. Not only did the dog not respond to the marijuana flakes, it also did not respond to the cocaine which even Mr. Henry agreed was in the car.

[32] Constables Pateman and Seberras both testified that they believed that they had reasonable and probable grounds to arrest the two men in the car but that they would not likely have charged them had they not found something more than the flakes that they saw originally. They further testified that it simply never crossed their minds to seize the marijuana flakes as evidence or to photograph them. They did not think that it was necessary to do so.

[33] I believed both of them.

[34] There was no appearance of any animus on their part towards Mr. Henry. They had no apparent motive to lie.

[35] In noting that, I am aware that the absence of any motive to fabricate an allegation is only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.

[36] Their evidence was most certainly not scripted collaboratively. There were very real differences in their evidence with respect to other matters. These differences however were of the sort one would expect from two people who had very different vantage points. Constable Seberras was in the driver's seat of the police van while Constable Pateman was the passenger. Later they were on opposite sides of the Henry motor vehicle.

[37] Both gave their evidence in a straight-forward manner and neither was seriously shaken during cross-examination.

[38] Taking all of that into account, I believed them.

[39] As I stated earlier, I was satisfied, on a balance of probabilities that they subjectively believed that Mr. Henry and Jeremiah were in possession of marijuana.

[40] I was further satisfied that their subjective belief was objectively reasonable. The smell of freshly burnt marijuana provided evidence that there had been marijuana in the car shortly before. The presence of the flakes on the console was evidence that there still was marijuana present.

RIGHT TO COUNSEL

[41] That brings me to the allegation that Mr. Henry's right to counsel was infringed here.

[42] Section 10(b) of the Canadian Charter of Rights and Freedoms provides that, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."

[43] It is agreed by everyone that Constable Pateman informed Mr. Henry of his right to counsel and that Mr. Henry asked to speak to a lawyer.

[44] Constable Pateman testified that he told Mr. Henry that they could facilitate this but that they needed to get a cell phone for him to use. He also told Mr. Henry that he needed approval from his supervisor to do this and that there would be a short delay in this. Mr. Henry then told him that he just wanted to know what was going to happen, more particularly, was he going to jail. Constable Pateman replied that he would not if there was no further marijuana in the car. Mr. Henry then said that he no longer wanted to speak to a lawyer. Constable Pateman testified that his usual practice in those circumstances would be to tell Mr. Henry to advise him if he changed his mind.

[45] During cross-examination, Constable Pateman testified that his record check of Mr. Henry had made him aware of a history of violence such that he was not prepared to give Mr. Henry a potential weapon such as a cell phone, without a supervisor's approval.

[46] Constable Henderson testified that he too subsequently informed Mr. Henry of his right to counsel and that Mr. Henry replied then that he did not want to speak to a lawyer.

[47] Mr. Henry testified that he never told Constable Pateman that he had changed his mind. He always wanted to speak to a lawyer and he told both Constables Pateman and Henderson that.

[48] For the reasons I set out earlier, I did not believe Mr. Henry.

[49] I believed the evidence of Constables Pateman and Henderson. My earlier comments with respect to the evidence of Constable Pateman also apply here. They further apply with respect to the evidence of Constable Henderson.

[50] Mr. Henry failed to satisfy me that his right to counsel was infringed in any way.

WAS HIS STATEMENT VOLUNTARY

[51] That then leaves the question of whether Mr. Henry's statement to Constable Henderson was made voluntarily.

[52] Constables Pateman, Seberras and Henderson all testified that they did not threaten Mr. Henry in any way. They made no promises to him. They offered no inducements that might lead him to confess to anything. Constable Vanderheyden testified that had no contact with Mr. Henry that night. He did not even see him.

[53] Constable Henderson asked Mr. Henry "What are we going to find in the car?" Mr. Henry replied "Some rock, boss."

[54] Constable Henry asked, "How much?" Mr. Henry replied, "One gram maybe."

[55] Constable Henry asked where it was. Mr. Henry replied, "In the front driver area in the dash boss."

[56] Constable Henry testified that he did not recall discussing the possibility of releasing Mr. Henry on a Form 9. It would not have been his responsibility to decide whether to release Mr. Henry in any event and there was no reason why they would have discussed it.

[57] Mr. Henry testified that he asked Constable Henderson if he would be let go.

[58] Constable Henderson replied, "Well I know that you know what's going on in the area. You let me know what's going on and I'll tell buddy and he'll let you go on a Form 9."

[59] Only then did Mr. Henry tell him about the drugs.

[60] Again and for the same reasons, I did not believe Mr. Henry. His evidence did not leave me with a reasonable doubt.

[61] I did believe the police witnesses. My earlier comments with respect to the evidence of Constables Pateman, Seberras and Henderson also apply to that of Constable Vanderheyden.

[62] I read nothing into the fact that Mr. Henry was ultimately released on a Form 9 Appearance Notice. It was the appropriate form of release in the circumstances. Further Mr. Henry only made his allegations long after he knew what his form of release had been and could have tailored his evidence to match that.

[63] I also read nothing into the fact that Mr. Henry used the word "boss" in court. Crown counsel argued that this somehow corroborated Constable Henderson's testimony but I disagree. The issue was never what Mr. Henry said to Constable Henderson. At issue was what Constable Henderson said to Mr. Henry.

[64] For the above reasons, I am satisfied beyond a reasonable doubt that the statements made by Mr. Henry to Constable Henderson were made freely and voluntarily.

RULINGS

[65] The Charter applications are dismissed. The statements were admissible. The cocaine was also admissible.

DID MR. HENRY POSSESS THE COCAINE

[66] The cocaine was in a compartment in the dash area of the car that Mr. Henry was driving.

[67] His statements to Constable Henderson indicate that he knew where it was and that it was about a gram of "rock".

[68] Further, as the driver, he was "not in the same position as a passenger who may merely acquiesce to another's, i.e. the driver's possession." [3]

[69] A driver, operating the vehicle with the owner's consent, determines what is permitted to enter and stay in the vehicle and can "control access to the vehicle and exclude others from the vehicle". [4]

[70] All of the essential elements of possession, being knowledge, consent and control, have been established here beyond a reasonable doubt.

[71] I will point out that, in the absence of the statements made by Mr. Henry to Constable Henderson, I would have been far from satisfied that Mr. Henry even knew that the cocaine was hidden in the vehicle. Neither would I have imputed consent or control.

CONCLUSION

[72] I find Mr. Henry guilty of possession of cocaine.

Released: June 29, 2016

Signed: Justice D.A. Harris

Footnotes

[1] R. v. Haas, [2005] O.J. No. 3160 (Ont. C.A.) per Goudge J.A. at paras. 24 to 26; R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 (S.C.C.) per McLachlin C.J. and Charron J. at paras 15 to 16.

[2] The different burdens were ultimately of no consequence here since I found that the Crown had met its onus.

[3] R. v. McIntosh, [2003] O.J. No. 1267 (Ont. S.C.J.) per Hill J. at para. 62 also citing R. v. T.(S.), 140 O.A.C. 122 (C.A.) at 123-4; R. v. Williams, 125 C.C.C. (3d) 552 (Ont. C.A.) at 555, 557-8.

[4] R. v. McIntosh, supra at para. 62 quoting from R. v. Belnavis and Lawrence, 107 C.C.C. (3d) 195 (Ont. C.A.) at 209 (affirmed (1997), 118 C.C.C. (3d) 405 at 419 (S.C.C.)).