Ontario Court of Justice

Date: 2016-10-24

Court File No.: Niagara Region 998 15 N0344

Between:

Her Majesty the Queen

— AND —

Liban Omar

Before: Justice J. De Filippis

Heard on: August 18 and September 19, 2016

Reasons for Judgment released on: October 24, 2016

Counsel:

• Mr. D. Anger, counsel for the Crown
• Mr. M. Evans, counsel for the Defendant

De Filippis J.:

Introduction

[1] The defendant was tried on an Information alleging that on 28 January 2016, he possessed cocaine for the purpose of trafficking and with possession of the proceeds of crime. After the defendant was arrested, police seized cocaine, money, a knife, and cell phones. The Defence challenged the admissibility of this evidence on the basis that his Charter rights were infringed. A blended hearing was held to determine that issue and the trial proper. I heard from four witnesses called by the Crown. These reasons explain why I dismiss the Charter motion and find the defendant guilty of the two offences.

Police Investigation and Surveillance

[2] Sgt. Garner is a 14 year veteran of the Niagara Regional Police Service. He has investigated about 300 drug cases, approximately half of which involved cocaine. He testified that a confidential informant told him that a man known as "J.J." sells crack cocaine in the community. The latter was described as "black but not Jamaican black, with a beard and big build". The officer was also told that J.J. operates a black Jeep with a particular plate number. The informant reported that s/he had purchased an identified amount of this drug from J.J. at a specified time and place. Sgt. Garner testified that he, as well as other investigators, had used the confidential informant in the past and s/he "has proven reliable". He added that the person has never given false or misleading information.

[3] On 28 January 2016, "within a month" of receiving the above noted confidential information, Sgt. Garner was on general patrol at 15 Gale Crescent in St. Catharines. He described this apartment building as a "high crime area for prostitution and drugs". While doing so, at 4:09 PM, he happened to see the black Jeep with the plate number described by the informant. The man who exited the vehicle matched the description previously given for J.J. The man parked the vehicle well away from the door and entered the apartment building, returned to his vehicle 15 minutes later, and departed. Other officers were alerted to this and the vehicle was followed to 87 Rockwood, a nearby housing complex. Five minutes later, the black Jeep left that complex.

[4] The police followed the black Jeep along the QEW to the Arcona Motel, on Lundy's Lane, in Niagara Falls. At 4:48 PM, the same man parked the vehicle away from the entrance. He exited the vehicle and was seen on the second floor balcony that connects all rooms. Six minutes later, he returned to his vehicle, while talking on a cell phone. Sgt. Garner testified that Lundy's Lane is a known drug area and he has conducted three to four such investigations at the motel in question.

[5] P.C. Sills was one of the officers assisting Sgt. Garner in following the black Jeep. He confirmed that the Gale Crescent building "has long been a high crime area" and added that he has conducted "hundreds" of drug investigations there. He also noted that the driver of the black Jeep parked well away from the entrance to the building, notwithstanding that there were parking spots closer to that door. The officer noted that the driver did the same at the Arcona Motel. He testified that that in his experience drug dealers do this so as not to let their customers and others identify the motor vehicle they arrive in.

[6] Sgt. Garner concluded that the man in the black Jeep had been delivering cocaine to customers. He based this belief on the report previously received from the confidential informant and the fact that the man had driven to three locations for visits of short duration and had parked away from the entrance to two of the destinations. In this regard, he took special note of the fact that the last visit involved a trip between two cities and lasted only six minutes. The fact that the man walked back to his vehicle while talking on a phone suggested that he was arranging for another delivery and would have drugs in his possession. It was also noted that the man was not observed carrying anything, such as a commercial parcel or pizza, that would present an innocent explanation for his actions.

[7] The man was arrested before he entered the black Jeep. He was identified as the defendant. Sgt. Garner seized the cell phone from him and also located $100.00 on his person - $40.00 in one pocket and $60.00 in another. Other officers seized the following items from the vehicle: 19.9 grams of crack cocaine in one lump, a knife, three cell phones, and $1175.00 in cash.

Charter Analysis: Section 8 Rights

[8] Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right means that the police must have reasonable and probable grounds to arrest and/or search a person. I am satisfied that this standard is met in this case.

[9] Reasonable and probable grounds to arrest and/or search has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.). Judicial scrutiny of this standard must recognize the context within which the police officer's obligation operates. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni [2001] O.J. No. 5189 (S.C.J.). In other words, there must be enough to justify police interference with individual liberty, but this does not mean a prima facie case or proof beyond a reasonable doubt.

[10] There are three factors that must be addressed in determining whether a search based upon confidential information meets minimum constitutional standards: First, was the information predicting the commission of a criminal offence compelling? Second, was the source credible? Finally, was the information corroborated by police investigation? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. This is well established law: R v Debot, [1989] 2 S.C.R. 1140.

Compelling Nature of Information

[11] In the present case, the Defence did not strongly dispute that information is compelling. It is detailed and personal: The informant identified a drug dealer by nickname and description and noted the make and model of the vehicle, along with a specific plate number, that the trafficker used to deliver his product. The informant himself/herself purchased crack cocaine from the man in question. The police were entitled to treat the report as compelling. I agree that it is.

Credibility of Informant

[12] Defence counsel argued that Sgt. Garner's testimony about the credibility of the informant is conclusory and lacking in sufficient detail. Moreover, there is no evidence about the person's motive or criminal record. This is a fair submission but I would not ignore the testimony entirely. It amounts to some evidence about the point in issue.

Police Corroboration

[13] The Defence noted that the police did nothing to corroborate the information except to follow the defendant to three locations over 40 minutes and that no transactions were observed. Counsel added that Sgt. Garner's "tunnel vision" is proven by the fact that he said he was certain the defendant was a drug dealer after observing him park far away from entrance at first stop (at 15 Gale Crescent). In any event, none of the three stops are sinister.

[14] Crown counsel responded that what the police observed at the three locations must be seen through lens of an experienced drug officer. Viewed this way, the observations are important confirmatory evidence. Moreover, there is innocent explanation for this pattern of short visits to high crime areas and parking far away from entrances.

[15] I find that the observations of the police constitute important corroboration of the confidential informant. I reject the suggestion that Sgt. Garner had tunnel vision. His experience quickly convinced him that the first stop was a drug delivery. He did not, however, arrest at this point. He and others followed the defendant to two other places. I infer that had an innocent explanation for the visits emerged, the police would have backed away. Instead, they witnessed a pattern consistent with the actions of a drug trafficker. I accept the Crown's submission that the experience of the officers informed their conclusions and actions and that this is relevant to my assessment of their conduct: R v Williams ONCA 908 (at para 14). This can be relevant to the judicial determination of objective test in Storrey has been satisfied: R v Wilson 2012 BCCA 517 (at para 29).

Conclusion on Reasonable and Probable Grounds

[16] As previously noted, there is some evidence to support the informant's credibility. The weakness in this branch of the Debot inquiry is made up by the strength in the other two. I conclude that the police had reasonable and probable grounds to arrest the defendant for the offences, within the meaning in Storrey. Indeed, the facts before me are similar to those in R v Caravaggio 2012 ONCA 248. In that case, the Court of Appeal for Ontario upheld the trial decision that the police had not breached section 8 of the Charter. To the same effect is R v Dezainde 2014 ONSC 1420 in which the trial judge concluded that reasonable and probable grounds had been established when the when police acting on a tip followed the accused and saw several short visits and concluded this pattern of conduct was consistent with drug dealing.

Admissibility of Evidence

[17] Having found that the police acted lawfully and did not violate section 8 of the Charter, it follows, in the circumstances of this case, that the items sized from the defendant and in the vehicle are admissible as evidence. I also admit the evidence of the telephone calls received on two of the four cell phones seized by police. This action by the police is warranted by the criteria enunciated by the Supreme Court of Canada in R v Fearon 2014 SCC 77 (at para 83):

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

Expert Evidence

[18] The Crown sought to prove that the cocaine found in this case was possessed for the purpose of trafficking by qualifying P.C. Marr as an expert to provide an opinion with respect to six matters. This application was opposed. I granted the application in part; I accepted opinion evidence about (i) the price and value of the cocaine seized, (ii) packaging and consumption of cocaine, (iii) personal use of cocaine, and (iv) drug trafficking terminology specific to the phone calls answered by PC Jackson. I declined to accept an opinion with respect to "the indicators of trafficking" or "possession of cocaine contextualized to the anticipated evidence of the [defendant]". In coming to this conclusion I considered the extensive resume of PC Marr and the challenge mounted by Defence counsel. The witness is well placed, by training and experience, to give an opinion as noted above. He has been an officer for 28 years and a drug investigator for the past 15 years. He has been involved in hundreds of drug investigations, including trafficking in cocaine, in a variety of roles. He has participated in many related educational programs, as a student and lecturer. Not surprisingly, he has been qualified as an expert in the past.

[19] The opinion of PC Marr is set out in written form and a matter of record. I will highlight some points and respond to the some of the concerns expressed by Defence counsel.

Crack Cocaine: Quantity and Value

[20] Crack cocaine is a brittle product that is smoked to produce an intense effect. A heavy used can consume up to 3.5 grams a day. Crack is sold in "pieces". One-tenth of a gram costs $20.00 and is referred to as a "20 piece". A person can buy a 40 piece, 60 pieces, and so on, depending on the weight. An "8 ball" is common vernacular for 1/8th of an ounce and a "teen" is a street term for 1/16th of an ounce, or half an 8 ball.

[21] The cocaine seized from the defendant has a street value of $2,000.00, if sold in pieces, as noted above. Evidence of the personal use of crack include the presence of pipes, burnt tin-foil, glass stems and empty baggies or packaging material. Such evidence is not present in this case. On the other hand, the quantity of crack and money suggests trafficking. According to PC Marr, even assuming the defendant is a heavy user, his possession of five times the daily amount while mobile is most unusual. Moreover, the defendant's possession of a large amount of money supports the inference the crack cocaine was for sale, not personal use. In this regard, the officer noted that $1175.00 was found in the motor vehicle and another $100.00 in the defendant's pockets - $60.00 in his pants and $40.00 in his coat. The latter denominations correspond to the sale of a forty piece and sixty piece. The officer also said that the three brief stops made by the defendant, while mobile, is consistent with drug trafficking.

Cell Phones and Drug Trafficking Terminology

[22] PC Marr testified that it is common for drug dealers to have more than one cell phone. In this case, the defendant was found with four of them. Within minutes after they were seized, and the police answered telephone calls from unknown people; two callers wanted "a 40", another asked "are you good" and inquired about "a 100". The fourth caller asked for "the regular…a teen". The officer stated that the callers used well known slang for various amounts of crack cocaine that they wanted to purchase.

Defence Challenges to Expert Evidence

[23] Defence counsel pointed out that there is no evidence the four cell phones are registered to the defendant and that the police did not find baggies and scales with which to package the crack pieces for sale. Counsel argued that the possession of 19.9 grams of crack in "one lump" suggests the defendant purchased the product, rather than having it for sale. PC Marr agreed that the possession of one lump sum of crack in this amount could indicate a purchase, but pointed to "the totality of circumstances" in this case as evidence of trafficking. He added that buyers and sellers know what the various weights of crack look like and that this can be cut away from the one lump. He also testified that it is common for drug dealers to use "burner phones" that are not registered to them.

Burden of Proof and Verdict

[24] The Crown faces a significant burden in a criminal trial; to support of finding of guilt, each element of the offence must be proven beyond a reasonable doubt.

[25] Defence counsel submitted that "there is no proof beyond a reasonable doubt about what why the defendant made three brief stops". He repeated the assertion that the possession of one lump of crack is consistent with the purchase of it. Counsel added that the evidence about the cell phones offers "a limited window of observation about the defendant's activities" and that the content of the calls does not necessarily mean the defendant was in possession of the 20 grams of crack for the purpose of trafficking.

[26] The primary issue in this case is the admissibility of the evidence. The quality of it, except for the expert opinion, is not significantly in dispute. For the reasons expressed above, the impugned is evidence is admissible. Moreover, there can be no doubt that the defendant was in possession of those items; that is, he had knowledge and control of 19.9 grams of crack cocaine, four cell phones, a knife, and $1275.00. This conclusion was not seriously challenged by the Defence.

[27] I also find that the defendant possessed the cocaine for the purpose of trafficking. In coming to this conclusion, I note the following factors: the quantity of cocaine, the amount of cash, the possession of this drug and money while mobile, and the brief visits made by the defendant to three places in two cities over a short period of time. I accept the opinion of PC Marr that, taken together, these factors are compelling evidence of drug trafficking. Any doubt about this is extinguished by the content of the calls received by police on two of the telephones possessed by the defendant. They clearly reveal customers seeking crack cocaine. Indeed, it is obvious that the intervention of the police in arresting the defendant interrupted the activities of a busy drug dealer. Accordingly, I do not accept the Crown suggestion that I might have a doubt about whether the $1175.00 found in the car was the proceeds of crime. I find that all money seized comes within this definition.

[28] The Crown has met its burden of proof. The defendant is guilty of the charges.

Released: October 24, 2016

Signed: "Justice De Filippis"