Court File and Parties
Ontario Court of Justice
Date: November 3, 2016
Court File No.: Toronto
Between:
Her Majesty the Queen
— and —
Pietro Puma
Before: Justice Nakatsuru
Heard on: January 7, 8, March 3, April 5, May 4, 6, July 25, 26, 28, September 12, 13, 2016
Reasons for Judgment released on: November 3, 2016
Counsel:
- C. Josic, for the prosecution
- P. Thorning, for the accused
NAKATSURU J.:
A. OVERVIEW
[1] The accused, Mr. Pietro Puma, is charged with trafficking in heroin, possession of heroin for the purpose of trafficking, and possession of proceeds of crime. He has brought a Charter application alleging violations of ss. 7, 8, and 11(b). I have dismissed those applications. These are my written reasons.
[2] On December 8, 2014, a team of plainclothes police officers from 12 Division under the supervision of Sgt. Fredericks were assigned to investigate Mr. Puma who was suspected of trafficking heroin. Mr. Puma was a tow truck driver for a company that was contracted to provide tow services for the Toronto Police Service. P.C. Stojic was conducting surveillance of Mr. Puma's home when he observed a male, Mr. Alfredo Mazzei, arrive in a jeep. Mr. Mazzei waited for a few minutes until Mr. Puma pulled into the driveway of his home in his tow truck. P.C. Stojic testified that he observed what he believed to be a drug transaction in the driveway of this residence. Mr. Mazzei left and the police team followed him to a Home Depot. Mr. Mazzei was arrested by P.C. Sgroi. He was in possession of .41 grams of heroin. When questioned by P.C. Sgroi, Mr. Mazzei stated that he had just purchased the heroin from Mr. Puma. After finding him at the address of 49 Noranda Drive, the police arrested Mr. Puma in his tow truck and found 155 grams of heroin in his jacket pocket.
A. SECTION 11(B): UNREASONABLE DELAY
[3] Mr. Puma's trial has not gone smoothly. This trial was initially scheduled for two days. We have now had 11 trial days with a number of adjournments. In the course of this on-going trial, the Supreme Court of Canada delivered its decision in R. v. Jordan, 2016 SCC 27. As a result, Mr. Puma has brought an application alleging his rights under s. 11(b) were violated and has asked for a stay of proceedings.
[4] Jordan has significantly changed the s. 11(b) analytical framework. In my opinion, the Supreme Court of Canada wanted to simplify the analysis of any alleged breach, provide more certainty in determining when a delay becomes constitutionally unreasonable, and change what is described as a culture of complacency in the criminal courts.
[5] When a trial judge was called to assess an alleged s. 11(b) violation under the prior Morin test, especially when there were numerous court appearances and a number of factors contributing to the delay, the analysis became complicated. Transcripts were minutely parsed in order to determine how a delay was characterized. Some characterizations seemed rather arbitrary and the case often turned on the resolution of discrete periods of delay. If called inherent or neutral, long periods of delay were justified and removed from the calculus. Although the law was consistent that prejudice to the accused could be presumed, the authorities attached great prominence to the presence or absence of actual prejudice. It seemed at times that forest was being lost sight of and too much attention was being paid to the trees.
[6] In some of my written reasons on this topic, I have been guilty of this. In this decision, I will endeavour to respect the spirit of the new Jordan decision.
CALCULATION OF NET DELAY
[7] First of all, the total delay from the swearing of the information and the expected end of the trial is just over 21 months. [1] Mr. Puma elected to be tried in the Ontario Court of Justice. As a result, given the 18 month presumptive ceiling, the delay is presumed to be unreasonable.
[8] Looking at the larger picture (the "forest"), the explanation for delay in this case was essentially due to:
- A disclosure request by the defence for recorded radio communications of various police officers which was made only on the first day of trial, January 7, 2016, and;
- A failure to accurately estimate the length of time for this trial. The trial was originally set for two days. It has taken about 11 days of trial to get to this point. While evidence was not heard each day, the amount of trial time required for this case was significantly under estimated.
[9] The Crown submitted that a portion of the delay should be subtracted as defence delay. It is agreed by the parties that the defence did not expressly or implicitly waive any portion of the delay. However, the Crown argues that the defence caused much of the delay due to his untimely requests for disclosure, failure to provide proper notice for multiple applications, inaccurate trial estimates, and unavailability of defence counsel in scheduling continuations.
[10] I cannot agree with the Crown that any defence delay should be subtracted in calculating the net delay. I say this because the Supreme Court of Canada in Jordan was careful to state that only unreasonable actions solely attributable to the accused must be subtracted from the period for which the state is responsible. Steps necessary to make full answer and defence are not.
[11] In this case, it is true that the defence did not make his request for the radio communications until the day the trial started and P.C. Stojic was testifying in examination-in-chief. This was not the type of disclosure that would normally comprise the disclosure package that the Crown would be obliged to provide the defence before trial. The defence could have requested this disclosure before the trial commenced. There is a duty for the defence to be diligent in making such disclosure requests: see R. v. Dixon (1998), 13 C.R. (5th) 217 (S.C.C.) at paras. 37-38. If the defence was not diligent in making the request, there would be merit to the Crown's position.
[12] However, I accept that defence counsel was not aware that such radio communications were recorded until evidence started being heard at this trial. Crown counsel did not appear to be aware of this until she investigated it. As a result, not only was this not a deliberate or calculated tactic to delay the trial, but it also amounted to a fair exercise of the accused's right to make full answer and defence.
[13] In addition, while there was some delay attributable to mid-trial applications and the availability of defence counsel, this was not the sole reason for the delay. The radio communications were not disclosed by the Crown until June 24, 2016. Thus, these periods of delay cannot be relied upon by the Crown as defence delay since regardless of any delays caused by defence actions, the parties agreed that the cross-examination of the key Crown witnesses, P.C. Stojic and P.C. Sgroi, could not proceed until the radio communications were disclosed and properly reviewed by the defence.
[14] Therefore, the 21 months makes this case presumptively unreasonable.
EXCEPTIONAL CIRCUMSTANCE: DISCRETE EVENTS
[15] However, I find that the Crown has proven that a period of time is justifiable as an exceptional circumstance. This period of time due to a discrete exceptional event must be subtracted from the total net period of delay. As noted above, the fundamental reasons for the delay were the late disclosure request and the under-estimation of time for the trial. I find that these actions were unforeseeable or unavoidable. The Crown could not reasonably remedy the delays emanating from these circumstances once they arose. The disclosure issue arose because neither Crown nor defence knew or could have reasonably foreseen that these radio transmissions which are routinely made by the police as they go about their duties, had been recorded and could be retrieved if requested. The defence did not request them until the trial had started. The under-estimation of trial time is understandable since some of the developments as the trial proceeded were unexpected. Furthermore, both parties shared responsibility for the underestimation. Finally, even while there was outstanding disclosure issues, everyone involved tried to make the best use of the time we had in court to avoid any greater delay than necessary. The Crown made reasonable efforts to remedy the delays once they arose. Trials are dynamic events. Especially hard fought ones like this one. Sometimes issues arise unexpectedly and take time to resolve. Delay may be inevitable in order to ensure a trial remains fair. To both prosecution and defence.
[16] In Jordan the majority recognized that discrete and exceptional events during a trial could arise in this way and that they are not rare events (at paras. 73 and 74):
Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.
[17] In this case, the trial was initially scheduled to conclude within the ceiling. From the swearing of the information to the anticipated end of the trial was 13 months. While disclosure issues are generally within the Crown control and should not be considered exceptional circumstances, here the Crown was only put on notice by the defence request after the trial had started. Further, the Crown could not reasonably remedy the delay by making immediate disclosure given the steps required to obtain, review, and disclose the radio transmissions. In the meantime, the Crown made reasonable efforts to avoid delaying the trial by calling P.C. Stojic and P.C. Sgroi in examination-in-chief while the disclosure was outstanding, agreeing to call a defence witness while she still was presenting the Crown's case to accommodate the witness, agreeing to a blended trial and Charter application, not objecting to short service of defence applications, and making best efforts to make herself available despite defence counsel's busy schedule. In addition, given how the trial time was underestimated, in the Ontario Court of Justice, it is not easy to schedule continuation dates. The busy nature of the Court means that I am not immediately available to continue with any trial that goes beyond the scheduled time. Other cases must be heard. As a result, the Crown, the defence, and myself, made best efforts to have this case heard in a timely fashion. Mr. Puma was in custody at the time and best efforts were made to expedite the continuations. I conclude that the Crown did make reasonable efforts to conclude the trial within a reasonable time and the delay caused could not be reasonably remedied by the Crown.
[18] As a result, some of the delay must be deducted from the overall net delay. From the date disclosure was requested to the date when the radio communications were received by the defence was January 7, 2016 to June 24, 2016, a period of roughly 5.5 months. However, not all of that time should be subtracted: see Jordan at para. 75. There is a portion of that time that the Crown could have mitigated. I find this to be so since there was a misunderstanding between the Crown and the Toronto Police Data Services as to what calls were actually required. This understanding caused some delay. Without assigning any blame, this misunderstanding could have been reasonably avoided and the delay caused by it should not be considered when calculating the remaining operative delay. In addition, the process of retrieving, reviewing, vetting for confidential informant privilege, and the need for defence preparation would cause some unavoidable delay given there were 83 radio communications to disclose. However, that process should not have taken 6 months to complete. The first set of radio communications were disclosed on April 5, 2016. In my view, had the misunderstanding not occurred about what calls were required, all of the communications should have been disclosed by that time. The defence would still have required time to review the communications and prepare once they received the disclosure. This meant that the defence would not have been in a position to cross-examine the two chief police witnesses on April 5. I do note however that we did make use of that day as the Crown expert witness was called on April 5. The next date we continued the trial was May 4, 2016. On that date, we would have been ready to resume the trial had the appropriate disclosure been made on April 5. Based upon this analysis, I find that the period of time January 7 to May 4, a period of just less than 4 months, should be subtracted from the overall net delay of 21 months. In other words, the Crown is responsible for about 2 months of delay that they could have reasonably mitigated. By so doing, the actual remaining delay under consideration in this case is 17 months. This is under the presumptive ceiling of 18 months. It has not been argued by the defence that that there was a violation of s. 11(b) even though the remaining delay is below the presumptive ceiling. As a result, the defence application must be dismissed.
[19] In coming to this conclusion, I recognize that I have not deducted any time for the wrong estimation of trial time. This is more difficult to assess. Had it been necessary, I would have deducted further time for this exceptional circumstance in calculating the remaining delay. This would have further lowered the case below the presumptive ceiling. Were it necessary to do so, in my view, the trial dates that took place in July and in September of this year were a result of this inaccurate estimation of time. This would have been roughly an additional two months that should have been subtracted from the period of delay leading to a remaining delay of 15 months.
TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE
[20] If I am wrong in my decision about the remaining delay and if the remaining delay remains above the presumptive ceiling, I would still dismiss the application as this is a transitional case. I am satisfied that the Crown has proven this transitional exceptional circumstance.
[21] This transitional exceptional circumstance applies when the Crown proves that the time the case took is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence are factors in deciding whether the parties' reliance on the previous state of the law was reasonable.
[22] In this case, I am satisfied that the Crown relied upon the previous state of the law. The Crown took comfort in the jurisprudence before Jordan which often treated late disclosure requests of the defence and the fact that the delay occasioned by an inaccurate estimate of trial time as neutral or defence delay in the calculation of delay for s. 11(b) purposes. Furthermore, although every effort was made to keep this trial on track and to obtain the earliest possible continuation trial dates, certainly, if the Crown was aware that there was a presumptive ceiling of 18 months, I am confident that measures would have been taken to try and get this trial done within that period. Instead, I had the impression that the parties were content to proceed with the trial in the fashion that it did, especially given the efforts made to ensure Mr. Puma who was in custody at the time received early continuation dates.
[23] In looking at the analytical framework under Morin, this case would not have been stayed in assessing the various time periods. In summary, the following would have been my calculation of the various time periods (I have excluded the days on which the trial proceeded):
December 8, 2014 to April 15, 2015 (4 months 7 days): Inherent delay. While this is an extended period for intake, I would still characterize it as intake. Bail was addressed. Disclosure was made. A Crown pretrial and a judicial pretrial were conducted. While the disclosure was delayed, there was some indication that the fact there was a related matter with another accused may have contributed to the disclosure not being obtained early. In addition, it was the defence that requested three weeks to do a Crown pretrial even though a much earlier date was available. Also, the defence would have had to have some time to prepare for trial. Finally, on the set date appearance for trial, the defence indicated to the court that at that time, delay was not an issue.
April 15, 2015, to January 7, 2016 (8 months 21 days): Institutional delay. This is within the guidelines for institutional delay set out in Morin.
January 8 to May 4, 2016 (3 months 27 days): Neutral delay. This was the result of a late disclosure request by defence and an inaccurate estimate of time: see R. v. Kugathasan (2012), 296 C.R.R. (2d) 52 (Ont. C.A.) at para. 16.
May 6 to July 25, 2016 (2 months 19 days): Crown delay. This was caused by the misunderstanding by Toronto Police Data Services.
July 28 to September 12, 2016 (1 month 15 days): Neutral. This was caused by the inaccurate estimate of trial time and the need to schedule the continuations.
[24] The total institutional and Crown delay in this case would have been 11 months 10 days. This is 1 month 10 days beyond the Morin guidelines.
[25] The defence did not present any affidavit evidence of actual prejudice. In this case, I find no prejudice to his fair trial interests. With respect to the security of the person, I appreciate that Mr. Puma was in custody on these charges. However, Mr. Puma was originally released on a consent bail soon after he was arrested on these charges. That bail was revoked on a section 524 application on December 4, 2015, and he was ordered detained. While Mr. Puma was on his bail release, in December of 2015, a search warrant was executed at his home and 29.19 grams of heroin and money alleged to be proceeds was found. The Justice of the Peace detained Mr. Puma on the secondary ground. Mr. Puma was therefore only in custody for about one month before the first date of trial. While I appreciate he remained in custody until relatively recently, this was only because the trial could not be completed in the two day sitting. In these circumstances, while detention obviously affects Mr. Puma's security of the person, the prejudice is mitigated in that it was his alleged misconduct while out on bail in possessing a quantity of heroin for the purpose of trafficking that lead to the revocation of his bail. Finally, the delay was not so inordinately long that I am prepared to find significant inferred prejudice.
[26] The charges here are serious. They involve a significant quantity of an illegal drug that is well-known for its toxicity and detrimental effects upon users and the community. There is a significant societal interest in a trial on the merits. In balancing all the factors under the previous s. 11(b) analysis, I would have found there to be no s. 11(b) violation. The overall delay required inquiry. However, the material delay did not greatly exceed the guideline. The existence of prejudice was mitigated. The charges are serious and there is a significant societal interest in a trial on the merits. In these circumstances, had the case been litigated under the previous framework, a stay of proceedings would not have been granted.
B. SECTIONS 8 AND 7: UNREASONABLE SEARCH AND SEIZURE
[27] The defence argues that Mr. Puma's ss. 8 and 7 rights were violated. While both sections were relied upon, the essence of the arguments made by the defence is similar. Mr. Puma was searched incident to his arrest. The constitutionality of that search depends upon the lawfulness of the arrest. The defence argues that there were no reasonable and probable grounds for Mr. Puma's arrest. It is submitted that P.C. Stojic did not observe a drug transaction between Mr. Puma and Mr. Mazzei. Further, it is submitted that Mr. Mazzei told P.C. Sgroi that Mr. Puma sold him the heroin under improper pressure and that P.C. Sgroi knew or ought to have known that this information was false. It is submitted that Mr. Puma's liberty should not have been taken away in these circumstances and to do so is not in accord with the principles of fundamental justice.
[28] I have resolved this issue by making certain factual findings. The defence conceded that if Mr. Mazzei told P.C. Sgroi that he just got the heroin from Mr. Puma and there was no impropriety in P.C. Sgroi's questioning of Mr. Mazzei, then there would be reasonable and probable grounds to arrest Mr. Puma for trafficking. Plainly, such a concession is a proper one. In my opinion, regardless of the credibility or reliability of the evidence of P.C. Stojic, the information from Mr. Mazzei formed the core of the reasonable grounds for the arrest of the accused. Based on my factual findings, I reject the defence application.
1. THE TESTIMONY OF P.C. STOJIC
[29] The focus of my analysis is on the testimony of Mr. Mazzei and P.C. Sgroi. However, it is necessary to touch upon the testimony of P.C. Stojic. Much of the focus of the defence attack was on his evidence. I must assess it since it is part of the evidence as a whole. It also has the potential of impacting my other factual findings.
[30] That said, given that the key finding that must be made with respect to reasonable and probable grounds for the arrest lies elsewhere, I do not need to spend a great deal of time on P.C. Stojic's evidence.
[31] This is a brief summary of the key points of the officer's testimony that advances the Crown's case on this issue. On December 8, 2014, P.C. Stojic had a briefing with a group of officers under the supervision of Sgt. Fredericks at 11 a.m. at 12 Division. The briefing centered on information about Mr. Puma, a J.P. tow truck driver and the trafficking of heroin from his tow truck and home at 130 Church Street. P.C. Stojic had significant prior information about Mr. Puma as J.P. Towing does work for the Toronto police. He had seen him dozens of time during the officer's 10 years at 12 Division. He believed that Mr. Puma's drug trafficking activities were being unaddressed by the police except on one occasion when Mr. Puma had been charged. P.C. Stojic was suspicious of Mr. Puma's behaviour given what he had witnessed and heard.
[32] P.C. Stojic also knew that Mr. Puma lived close to the address of 49 Noranda Drive where a George Avramopoulos lived. P.C. Stojic also knew from a police colleague who lived next door to Mr. Avramopoulos that a number of tow trucks went to that address including Mr. Puma. Mr. Puma would go inside for a few minutes and then leave. P.C. Stojic did some investigation on Mr. Avramopoulos and became concerned how Mr. Avramopoulos could tear down a bungalow at the address and build a massive house while he appeared to be unemployed. P.C. Stojic believed that Mr. Avramopoulos was supplying heroin to J.P. tow truck drivers including Mr. Puma.
[33] After the briefing, P.C. Stojic was assigned to make observations at Mr. Puma's home at 130 Church Street. He made mobile observations from an unmarked car. He arrived around 12:15 p.m. He parked a reasonable distance away. There was no tow truck in the driveway of Mr. Puma's home. Within 5 minutes, P.C. Stojic saw Mr. Mazzei drive up to the address and park in front of the home. Mr. Mazzei got on his cell phone for a couple of minutes. About 5 minutes later, Mr. Puma drove up in his tow truck and parked in the driveway of his home at around 12:25 p.m. Mr. Puma was alone. Mr. Puma got out of his truck and walked toward the sidewalk. At the same time, Mr. Mazzei got out of his jeep and walked up to Mr. Puma and met him on the sidewalk. They shook hands. They then proceeded to walk back up the driveway in between the tow truck and the house. There by the truck, P.C. Stojic observed what he believed to be a drug transaction take place. Nothing obstructed his view other than part of the tow truck which shielded a part of the men's bodies. He could not see specifically what their hands did but he did see movement. He saw hands moving around consistent with the drug transaction although he could not see what was exchanged. Mr. Mazzei then returned to the jeep and drove away. From the time Mr. Puma arrived and the time Mr. Mazzei left, about two minutes passed. P.C. Stojic radioed out what he saw to the team. The team then followed Mr. Mazzei to a Home Depot where he was eventually arrested and searched.
[34] P.C. Stojic then returned to 130 Church Street but he received information that Mr. Puma's tow truck was leaving there. He and other members of the team began surveillance of this tow truck. The team lost sight of the tow truck for a while. P.C. Stojic went towards Noranda Drive which is the area of Brookhaven Drive and Trethewey. There he saw Mr. Puma in the tow truck with a white male passenger that P.C. Stojic had not seen before. Noranda Drive is a cul-de-sac and Mr. Puma parked on the west side of it facing westbound. P.C. Stojic saw Mr. Puma doing stuff around the dash area and then onto the passenger side. He then saw him get out of the tow truck and walk to 49 Noranda Drive. The passenger remained in the truck. P.C. Stojic stayed in the area until 1:55 p.m. At this time, he saw Mr. Puma exit the house. Mr. Puma had on a black leather jacket. He did what P.C. Stojic described as two security taps to his right jacket pocket. His right hand reached over to the right side of his jacket area where his pocket was and he did two squeezes. P.C. Stojic believed that Mr. Puma went to 49 Noranda Drive and picked up more heroin from Mr. Avramopoulos. In addition, P.C. Stojic noticed that when Mr. Puma was getting into his tow truck, he grabbed the right side of the pocket prior to getting in and held it as he got in. He then proceeded to drive away. Mr. Puma was then stopped by P.C. Sgroi as he left the address.
[35] I have been unable to fully accept P.C. Stojic's testimony in two key areas. I am aware that I can accept some, part, or none of his evidence. I do accept large portions of his evidence. He was generally a good witness. He was extensively cross-examined. This cross-examination was aggressive and very thorough. P.C. Stojic had explanations for apparent inconsistencies and communicated his testimony well. He did not waiver in any significant manner in his testimony.
[36] All that said, the two areas of his testimony that I cannot fully accept are:
- That P.C. Stojic observed what he testified to be a drug transaction between Mr. Puma and Mr. Mazzei outside in the driveway of Mr. Puma's residence; and
- That P.C. Stojic observed Mr. Puma perform two security taps on his jacket as he left 49 Noranda Drive.
[37] I make this finding based upon the following reasons:
During P.C. Stojic's observations at 130 Church Street, he was not always stationary. He was conducting his surveillance while mobile in his car. In cross-examination, a number of photos were shown to him of the home at 130 Church St. I appreciate that the photos were taken during a different season when there was less foliage. I also recognize the officer's insistence that he could still see the transaction. But even on his own evidence, I find it would be very difficult. The photos just confirms this. In addition, some of the testimony of the defence private investigator and the photos he took of the scene also support the defence position. Looking at the whole of the evidence, I find that while it would not have been impossible, it would have been very difficult and very fortuitous for P.C. Stojic to observe what he said he observed at 130 Church Street.
P.C. Stojic did not recall in his evidence that he broadcasted out to his fellow officers that he saw the transaction. But he testified that he did alert the others as he was the "eye" on the home. His job was to say what he saw and where he was. I fully appreciate P.C. Stojic's testimony that his radio broadcasts serve a very different function from making notes of his observations or articulating all the details in testimony in court. I agree that the distinction makes sense. I also accept his testimony that these radio broadcasts are often cryptic, confusing, and may contain errors. All that being recognized, I find that the radio transmissions are significantly inconsistent with P.C. Stojic's testimony that he saw this transaction. First of all, he never calls out that he saw this occur either at the time or at any point subsequently. While it is true that the police were directed to arrest Mr. Mazzei and they would have needed some grounds to do so, this highly important piece of information was omitted from any of the radio calls. It could well have been a mistaken omission but the mistake was never truly acknowledged by P.C. Stojic in his cross-examination. Standing alone, this may not have proven fatal to this aspect of his testimony, but the calls that were made at the time tend to prove a set of circumstances quite different to what P.C. Stojic testified to. When P.C. Stojic initially called out that Mr. Puma had returned, he said that Mr. Puma and Mr. Mazzei were "going back inside the house". Further on, P.C. Stojic was quite concerned that P.C. Sgroi had not yet arrived in a uniform capacity to assist. P.C. Stojic said "This guy's gonna come outta there real quick, so this might be a quick thing." About 4 minutes from the time of Mr. Puma's arrival, P.C. Stojic as he was describing the jeep that Mr. Mazzei arrived in, interrupted himself and stated "he's comin out right now". He then called out that Mr. Mazzei was pulling out in his jeep. These transmissions must be viewed not only in the context of P.C. Stojic's overall testimony, but also what Mr. Mazzei testified to. Let me hasten to add that I have serious credibility concerns about Mr. Mazzei as will be outlined below. However, Mr. Mazzei's testimony is more consistent with the radio communications in the sense he testified that he went into Mr. Puma's house. The radio communications on their face support this. P.C. Stojic denied the two ever went into the house. In addition, the passage of time, 4 minutes, seems longer than the quick transaction described by P.C. Stojic. I find that these series of radio transmissions leads me to have serious concerns about the credibility or reliability of this part of P.C. Stojic's testimony. While I understand that P.C. Stojic testified he initially believed they were going to go in the house and had an explanation for these transmissions, nonetheless, I do find them adverse to my acceptance of his testimony on this point.
P.C. Stacey McCabe swore an Information to Obtain based upon the results of this police investigation. In the ITO, the officer described Mr. Puma's transaction with Mr. Mazzei in the driveway of the home in the following way: "After a short interaction (between the two men)." While I recognize that P.C. Stojic cannot vouch for what P.C. McCabe heard about what took place or how this was drafted, a "short interaction" is quite far removed from a "drug transaction" or a "hand-to-hand transaction." Again standing alone, this may not be of much moment. However, when viewed in the context of the above, it just adds to my reservations.
There are similar inconsistencies between the radio transmissions and the observations P.C. Stojic claimed he made at 49 Noranda Drive. Again, P.C. Stojic was in his car making mobile observations. He testified that P.C. Barnes was with him. On the application, I have not heard from P.C. Barnes. Based upon the evidence, Noranda Drive is a small residential cul-de-sac. After losing Mr. Puma, the police found his tow truck at 49 Noranda. According to the radio transmission, Sgt. Fredericks wanted Mr. Puma to come out from the residence and be stopped by the police some distance away. I can infer that the police also had their sights on Mr. Avramopoulos and did not want him to be alerted. The radio transmissions reveal that different police officers were manoeuvring about trying to get good locations to observe the address. From one call, Sgt. Fredericks did not want too many units in the cul-de-sac given that it was so small. P.C. Stojic radioed he was on Brookhaven and Trethewey and that he had a clean eye. This location is at some distance from Noranda. P.C. Stojic testified that he was just mistaken when he radioed this out. However, P.C. Stojic repeated again that he had Trethewey and Brookhaven. I appreciate he also said that he had the "eye". But two times he radioed to his team he was at a location different from where he testified to. He wanted police north of his location as there were other side streets. P.C. Stojic also commented that he "couldn't keep going with this car one too many times around there." P.C. Stojic admitted that he kept changing locations. In my view, P.C. Stojic was making moving observations and was not always within Noranda Drive. This just makes sense. And is consistent with the radio transmissions he made. Thus, I cannot place a great deal of reliance on his testimony that he was parked in a stationary place on Noranda for some time.
At one point, P.C. Stojic radioed that he was nowhere near the 49 Noranda address but this was said after Mr. Puma had left in his tow truck. To me, P.C. Stojic was following Mr. Puma and at the time when Sgt. Fredericks asked him to hold that address, P.C. Stojic had already moved. This was not a significant admission or a contradiction.
More material was the radio call at 13:57:49 when P.C. Stojic is asked whether "he" meaning Mr. Puma had come out of there by himself. P.C. Stojic replied "I have no idea, he came out of that side street. I did not want to go inside there. There is no way we can set up there." This seems to be an admission by P.C. Stojic that he was unable to make observations within Noranda Drive for any length of time or during the moment someone could have exited the house with Mr. Puma. This also makes sense to me given how the location was set up. In the same call, after Mr. Puma was stopped and arrested by P.C. Sgroi, P.C. Stojic inquires whether the passenger in the tow truck was the occupant of the house. This does not make sense if P.C. Stojic had been able to clearly observe the whole length of time during which Mr. Puma exited 49 Noranda, made his way to the tow truck, and left in his tow truck.
One final factor is that I find it hard to characterize what Mr. Puma did as "security taps" given the ambiguous and subjective nature of P.C. Stojic's description.
When I look at the whole of this evidence, I find that I cannot rely on this this aspect of P.C. Stojic's testimony. I do find that P.C. Stojic was making his observations as he moved around in his car. It is true he radios out that he has the "eye". I also accept that it was part of his obligation as a surveillance officer to observe the tow truck the best he could. I see no reason why he would be derelict in doing so. However, given the physical layout of the small cul-de-sac, P.C. Stojic would have to have been discrete and likely mobile most of the time. He would not have had a good chance to make prolonged observations of the target or target vehicle. This is consistent with what he said on the radio transmissions. I cannot place much weight on P.C. Stojic's testimony that he saw Mr. Puma make such two discrete squeezes of his right jacket. I can accept that he saw Mr. Puma at some point making his way to his truck. He may have even seen Mr. Puma touch his jacket but this would not be in any way as unusual as these security taps.
[38] In conclusion, I cannot say that P.C. Stojic was lying about his observations of Mr. Puma. Indeed, it might well be that these things did happen. He did not in any fashion come across as a deliberately misleading witness. As I said, he was a good witness in many ways. However, the concerns that I have highlighted have troubled me sufficiently that I cannot accept that these particular things actually happened. P.C. Stojic may have been misinterpreting or inaccurately recalling what he observed. It could also be that P.C. Stojic was not being candid. On the other hand, it could well be that he is telling the truth. I am left unable to say. What I can say is that when I assess his evidence in the context of the evidence as a whole I am not sufficiently satisfied about his testimony on these points to rely on it.
2. THE TESTIMONY OF ALFREDO MAZZEI AND P.C. SGROI
[39] Alfredo Mazzei, a forty year old man, testified that one or two days before, December 7 or 6, he was working in his part-time job as a paint associate at the Home Depot. Mr. Puma who Mr. Mazzei knew through his father, came into the store to pick up a mis-tint of paint to purchase. As Mr. Puma did not have the money on him to pay, Mr. Mazzei testified that he arranged to get the payment of $140 at some later time. This was the reason why Mr. Mazzei went to Mr. Puma's home on December 8th.
[40] On that day, Mr. Mazzei drove to Mr. Puma's home in his jeep but there was no one home. He parked his car on the street to wait. He waited there 10 to 20 minutes when Mr. Puma arrived in his tow truck. Mr. Puma parked in his driveway. Mr. Mazzei greeted Mr. Puma and the two of them went into the home. He testified that he did not touch Mr. Puma in anyway. Mr. Mazzei testified that they were only outside the minute or two it took for the two of them to walk into the house. Mr. Mazzei's friend had done the renovation of Mr. Puma's kitchen and the latter offered to show Mr. Mazzei the work. Once inside, Mr. Puma went upstairs to use the washroom and Mr. Mazzei was shown the kitchen by Mr. Puma's wife. Mr. Mazzei received the money and after five or ten minutes left. Mr. Mazzei then drove to Home Depot because he wanted to get a deal on some fencing supplies.
[41] Mr. Mazzei went into the store looking for his cousin. Inside, P.C. Sgroi arrested him. Mr. Mazzei testified that he almost had a heart attack and his cousin was freaking out. Mr. Mazzei testified he was handcuffed inside the store and was only told why outside. P.C. Sgroi told him that he did not want to embarrass him. Mr. Mazzei testified that he was brought to the police car and while outside the car he was checked and asked by P.C. Sgroi where the heroin was. Eventually, Mr. Mazzei told him. The officer found a small amount of heroin. After that, another police officer arrived.
[42] Mr. Mazzei testified that he was very nervous. He was supposed to go back to work and was very scared about losing his job. He had a child on the way. He did not know what to do. He was trying to put his life back together when this happened. Mr. Mazzei testified that at the time he was using heroin but he was trying to taper himself off. He testified that he was shaking and trembling. Mr. Mazzei had kept his drug addiction secret from his family. There was also a good friend of Mr. Mazzei's parents who was watching him get arrested and Mr. Mazzei testified that it tore him apart because he knew this man was going to call his parents. He felt devastated. He thought his wife was going to leave him. His parents were going to disown him. There were a million thoughts going through his head. He admitted he probably told the police his life was ruined.
[43] Mr. Mazzei testified that he remained on scene in the car for about ten minutes. During this time, he and the officer had a discussion. When Mr. Mazzei asked if he was going to jail or be let off, Mr. Mazzei testified that P.C. Sgroi essentially told him that would depend on his answers. P.C. Sgroi told him that they knew he got the heroin from Mr. Puma. At some point, either when they were driving or when they got to the station, he was shown a picture on P.C. Sgroi's cellphone of Mr. Puma. He testified P.C. Sgroi sounded a bit cocky or upset at Mr. Mazzei. In his eyes, Mr. Mazzei felt that if he did not tell them it was Mr. Puma, they would not let him go. He agreed the officer did not use those words but that was the implication. That was what he understood. As a result, Mr. Mazzei told the police he got the heroin from Mr. Puma. Mr. Mazzei testified that this was not the truth. When asked whether it was his impression the police knew he was not telling the truth, Mr. Mazzei testified that he had no idea.
[44] Mr. Mazzei was ultimately released from the station without any charges. Mr. Mazzei also testified that P.C. Sgroi told him if Mr. Mazzei could help them there could be money involved but Mr. Mazzei refused saying he was not that type of person. He also said he would not show up in court as a witness. Mr. Mazzei entered rehabilitation and has remained clean since his arrest.
[45] Mr. Mazzei testified that P.C. Sgroi later contacted him by telephone. Mr. Mazzei admitted saying that he hoped Mr. Puma did not think he told on him because it was not him. Mr. Mazzei denied ever meeting Mr. Puma later at a gas station and having a conversation with him.
[46] On this point, P.C. Sgroi testified that Mr. Mazzei called him later by telephone. P.C. Sgroi did not take notes because he thought it was moot at the time. Mr. Mazzei called and asked about the case and asked if Mr. Puma was going to find out that Mr. Mazzei was saying he bought the heroin from Mr. Puma. It was a short conversation. P.C. Sgroi said not yet as it was soon after the date of arrest. He did not yet have the disclosure. Mr. Mazzei told P.C. Sgroi that he saw Mr. Puma at a gas station and he asked Mr. Mazzei if he had told the police anything and Mr. Mazzei denied doing so. Mr. Mazzei did not claim he felt threatened. P.C. Sgroi reassured Mr. Mazzei. P.C. Sgroi could not recall the exact date of the call but it was within a month of the arrest. P.C. Sgroi testified that some of the conversation stood out to him. When Mr. Mazzei used the word "told" it sounded like something someone in elementary school would say so that was a reason he remembered.
[47] Mr. Mazzei testified that he had actually bought the heroin at Landsdowne and Dupont where he usually got it. There were two guys there at the Coffee Time. He did not know their real names but gave descriptions. He testified he paid about $30 and owed $10 more for the heroin.
[48] Looking carefully at Mr. Mazzei's testimony, it was very clear to me both from the substance of his testimony and the manner he gave it that Mr. Mazzei did not want to be in court testifying. He appeared frightened and anxious. I appreciate it is difficult to precisely gauge the appearance of a witness and its effect. In fact, as the law requires, I do not give it much weight in terms of assessing his credibility. But I would be remiss if I did not point out that his anxiety was striking.
[49] Cross-examination had an adverse effect on Mr. Mazzei's credibility. There were times on material aspects of his testimony that he was inconsistent and evasive. Mr. Mazzei testified that the police had told him they knew he had purchased the heroin from Mr. Puma. When questioned that he had not simply told the police that he just went to get the $140 from Mr. Puma for paint, Mr. Mazzei agreed he did not do so. When asked why not, he became evasive and his evidence quickly shifted to his belief that he did in fact tell the police and then finally to being sure he did. Then under further cross-examination, he became again inconsistent on this point. This exchange in my eyes was significant. It hurt Mr. Mazzei's credibility.
[50] Further on in cross, Mr. Mazzei's testimony on the amount of money fluctuated: he became unsure whether it was $100 or $140 and that he may have been owed $40 more from Mr. Puma. The uncertainty revealed in his testimony negatively affected his credibility.
[51] There is the Crown argument that no monies were ever found on Mr. Mazzei on his arrest and this was inconsistent with his testimony. I accept that P.C. Sgroi did not seize any money from Mr. Mazzei but this is not the same as P.C. Sgroi not finding any money on him. The officer could not really recall well whether Mr. Mazzei had any money on him and he did admit that he did not always seize all monies found on detainees as proceeds since the money could be for their own personal use. This makes sense to me especially if the person was being arrested for simple possession and not trafficking. No parading or booking video of Mr. Mazzei was presented nor any record of arrest. As a result, I cannot put much weight into this Crown argument.
[52] Further when Mr. Mazzei was crossed on whether he was concerned about Mr. Puma believing he had "told" on him to the police, Mr. Mazzei became argumentative, defensive, and inconsistent. He became upset at the suggestion by telling the police Mr. Puma had sold him the heroin that this would have negative consequences for the accused. It is indisputable that it would. He eventually admitted he was concerned. This portion of the cross revealed how concerned he actually was about being a "rat". This was abundantly in display in his testimony in cross.
[53] Finally, when Mr. Mazzei was cross-examined about an incident he allegedly told P.C. Sgroi about after Mr. Puma's arrest about his meeting Mr. Puma inadvertently at a gas station, while Mr. Mazzei admitted he spoke with P.C. Sgroi, he was plain about his denial of ever meeting Mr. Puma or ever saying this to P.C. Sgroi. While his denials were adamant, I found that the course of the cross-examination led me to find some of those outright denials suspect.
[54] Mr. Mazzei did not have notes to refresh his memory. This was a very stressful time for him. I can easily empathize with his situation. His recollection of the conversations with P.C. Sgroi was not particularly reliable. He does recall parts of it but I cannot say with any certainty it is reliable. Other parts he did not recall. No doubt, he was scared, he wanted to go home, and felt pressured in his mind by the police. But that is far from any objective assessment of what was actually going on.
[55] In addition, Mr. Mazzei is friendly with Mr. Puma's family. His father received tows from Mr. Puma. Mr. Mazzei is in a difficult situation in my view. By his own evidence, he told the police that Mr. Puma sold him the heroin. In cross, it was apparent he did not want the Pumas to be angry with him. I can easily imagine the internal stress he is under to disown the truthfulness of that statement; to deflect his responsibility in fingering Mr. Puma. A claim that somehow the police pressured him into doing so is an easy refuge in these circumstances. I find that this is a factor at play in Mr. Mazzei's testimony. A factor that leads me to discount his testimony about being improperly pressured by P.C. Sgroi.
[56] Let me now address the testimony of P.C. Sgroi.
[57] P.C. Sgroi was at 12 Division when sometime after 12:27 p.m. he received some information from P.C. Stojic about what the officer observed. P.C. Sgroi was part of the team that was investigating Mr. Puma. P.C. Sgroi noted that a hand-to-hand was observed. He could not recall if that description was verbatim or if he received further information. P.C Sgroi quickly put on a uniform and got into a marked police car. He testified that while plainclothes officers can arrest someone, when a target goes mobile stopping someone in such a fashion was more difficult. P.C. Sgroi got to the Home Depot and found Mr. Mazzei inside and arrested him. P.C. Sgroi did not want to cause a scene inside the store so he escorted Mr. Mazzei to his police car where he was placed in cuffs. The arrest occurred at about 12:49 p.m. .47 grams of heroin was found in Mr. Mazzei's right pant pocket. It was in a piece of clear plastic rolled up inside a piece of white toilet paper. P.C. Sgroi gave Mr. Mazzei his right to counsel and caution. When asked if he wanted to call a lawyer, Mr. Mazzei replied "No. I know I fucked up."
[58] P.C. Sgroi asked Mr. Mazzei some questions. He asked how much the heroin was worth and was told it went for about $100. He asked how often Mr. Mazzei used. Mr. Mazzei replied "Probably every day. I've been trying to stop." Mr. Mazzei said it all started because he had been hooked on pain killers after he had some kind of surgery. P.C. Sgroi asked Mr. Mazzei if he had just purchased the heroin and he agreed. When P.C. Sgroi asked from whom, Mr. Mazzei replied "you probably already know, from Puma." When P.C. Sgroi asked if this was his real name, Mr. Mazzei replied his first name is Peter or something. When asked if he knew where Mr. Puma lived, he replied at 130 Church Street. He asked how long Mr. Mazzei had been buying from him and was told about a year or so. Mr. Mazzei said he really wanted to stop using heroin and that his arrest was what he needed to realize that he had hit rock bottom. P.C. Sgroi told him that he could get him some help. Mr. Mazzei asked if there was any way he could be let go. Mr. Mazzei swore he would stop, he would tell his wife, and enter rehabilitation. P.C. Sgroi testified he told Mr. Mazzei they could discuss this at the station. This conversation took place outside the cruiser at the corner of the police car. Mr. Mazzei was then placed into the back of the cruiser. P.C. Sgroi testified that there were other officers around when Mr. Mazzei was first arrested but not when this conversation took place. P.C. Sgroi testified that he had further conversations during the transport about the same things. It was mainly about the drugs and his rehabilitation. P.C. Sgroi also testified that there were conversations about how Mr. Mazzei felt Mr. Puma was a terrible person for being a heroin dealer and blamed him for his addiction. It was a 12 minute drive back to 12 Division. Back at the station, P.C. Sgroi was asked to go back on the road so he did not personally parade Mr. Mazzei but turned custody over to two other officers at 1:40 p.m.
[59] P.C. Sgroi testified that he may have said he already knew Mr. Mazzei purchased the heroin from Mr. Puma but that would have been after Mr. Mazzei initially gave that information. P.C. Sgroi would have asked where he bought it from but he would not have introduced Mr. Puma's name. P.C. Sgroi already knew that was the source of the drug because another officer had seen a hand-to-hand between the two men. P.C. Sgroi denied ever threatening Mr. Mazzei. He denied ever saying to Mr. Mazzei whether he went home today depended on him saying it came from Mr. Puma. P.C. Sgroi testified that he made no promise to Mr. Mazzei that he would be released. P.C. Sgroi admitted that Mr. Mazzei asked if there was any way he could be released. P.C. Sgroi only replied that they would have discussions about that at the station. P.C. Sgroi denied ever putting pressure on Mr. Mazzei to say he got drugs from Mr. Puma.
[60] P.C. Sgroi noted down that the in car camera in the back seat was not working. P.C. Sgroi did not note down the conversation he had with Mr. Mazzei in the cruiser during the transport as it was the same as the one he had previously noted down with Mr. Mazzei. P.C. Sgroi testified that there are rules and practices to ensure police equipment was functioning properly. However, on that day, he was not in uniform as he was part of a community safety team that did not require it. When he was at 12 Division and received information that a hand-to-hand had been observed, he rushed to put on his uniform and get into a marked police car to attend the area where Mr. Mazzei was. As a result, he did not have the time to check his scout car like he normally would do to ensure it was clean and everything was working including the in car camera. When the officer arrived at work, it had not yet been decided who would get into uniform. Most often, he was not designated to be in uniform. So it did not cross his mind that he would be the one. He was contacted by the team to put on his uniform and come out fast to arrest the person as he was driving away. P.C. Sgroi believed he found out the camera was not working about the time he put Mr. Mazzei in the backseat of the car and he tried to turn on the camera. P.C. Sgroi denied the suggestion in cross that he simply did not turn on the camera and that it was working. P.C. Sgroi said he would have reported that to someone in a supervisory nature so that the issue could be addressed as the Primary Response units normally drive the scout cars.
[61] When P.C. Sgroi left his car to make the arrest of Mr. Mazzei, he could not recall bringing the microphone with him. There was an officer following Mr. Mazzei in the store and since P.C. Sgroi was the uniformed officer who was designated to make the arrest, he was in a rush and did not want to lose the opportunity to successfully arrest him. There were possibilities in the store and a potential Mr. Mazzei could flee. According to P.C. Sgroi, this was a very dynamic situation and things were happening quickly. P.C. Sgroi exited the car quickly to catch up and did not take the microphone although with hindsight it turned out the camera was not working anyways.
[62] P.C. Sgroi arrived back in the area of Brookhaven and Trethewey in his marked police car around 2 p.m. P.C. Sgroi caught up to Mr. Puma driving a red J.P. tow truck going northbound on Renfield Street where he conducted a vehicle stop. Mr. Puma was the driver. Constantino Skipou was the passenger. P.C. Sgroi asked for driver documents and waited for back up to arrive. Once they did, P.C. Sgroi asked Mr. Puma to step out of the car and arrested him for trafficking in heroin. Mr. Puma was handcuffed and searched. P.C. Sgroi found a white clear sandwich bag with 8 bundles of brown powdery chalky claylike substance that later tested as heroin wrapped individually in cellophane. They were bigger than a golf ball but smaller than a baseball. This heroin was later weighed to be 155.90 grams. Mr. Puma was then arrested for possession of heroin for the purpose of trafficking. The heroin was found in his right jacket pocket. The jacket was a dirty bluish J.P. tow truck jacket. Also found in the pocket were six vials with a white powdery substance inside in a plastic bag with a blue label on it. In Mr. Puma's right pant pocket, there was one bundle of $325 and another bundle of $107 and some change. Mr. Puma also had a heavy bandage on his right leg.
[63] P.C. Sgroi later searched Mr. Puma's tow truck. He seized two cell phones, Mr. Puma's tow license, a zip lock bag with blue baggies inside ("dime bags"), and three pieces of cardboard with handwriting on it. P.C. Sgroi could not recall exactly where in the tow truck he found these items but he testified that he was searching from the driver's side and did not search the passenger side or the glove box.
[64] P.C. Sgroi testified that he did not show a photograph to Mr. Mazzei of Mr. Puma on his cell phone. P.C. Sgroi had seen a mug shot of Mr. Puma before in the police file. However, he did not believe he had one with him. P.C. Sgroi likely had a cellphone with him but he could not recall if he took it on the road that day or had forgotten it at the station.
[65] In my assessment of P.C. Sgroi's testimony, I found him overall to be a good witness. In some areas, his recollections were not great but given the passage of time, his recollection and responses were acceptable to me. For instance, while cross-examination on the radio communications revealed his recollection was not good about whether Sgt. Fredericks was present and what Sgt. Fredericks exactly did at Mr. Mazzei's arrest, this does not affect the overall reliability of his recollections. Realistically speaking, such a frailty in memory is understandable.
[66] On the other hand, P.C. Sgroi did have a good recollection of his observations of Mr. Mazzei at the moment he arrived at the Home Depot, the circumstances of how he found Mr. Mazzei in the store, the location of his scout car, how the heroin was wrapped, and the substance of the conversations he had with Mr. Mazzei.
[67] I find that P.C. Sgroi was a straightforward witness. Cross-examination did not impeach him or his evidence. In short, I found him credible.
[68] When cross-examined on the radio communications, his evidence held and those communications were largely consistent with his testimony about how the events unfolded. The radio communications reveal that the police were trying to get P.C. Sgroi on scene but initially he was not immediately available at the station. When P.C. Sgroi got on the air, he advised he would get there. The team was looking to get a scout car quickly on scene to arrest Mr. Mazzei. Indeed, in some of the calls, they were willing to get someone other than P.C. Sgroi. P.C. Sgroi stated he was getting there and asked for further details about what was going on. He was given information about the police following Mr. Mazzei into the Home Depot. These calls are consistent with the pressure on the police to get someone in uniform to arrest Mr. Mazzei before he could get away. They are consistent with P.C. Sgroi's testimony about how he was rushing.
[69] To me, whether or not P.C. Sgroi had a photo of Mr. Puma is not particularly material. But P.C. Sgroi denied showing a photo. I accept his evidence. Further, in my view, even if he is wrongly recollecting this, it does not impeach his overall credibility. It would be natural that an officer may wish to confirm the identity of the person who sold the heroin to Mr. Mazzei.
[70] Then there is the issue of P.C. Sgroi releasing Mr. Mazzei unconditionally. P.C. Sgroi explained he believed him. P.C. Sgroi believed that Mr. Mazzei was genuine about getting rehabilitation. P.C. Sgroi stated that he has released others before when they had been arrested for simple possession. Initially, I was sceptical about this action. In my experience, it is an unusual thing to do. That being said, there is no dispute that Mr. Mazzei was indeed released without a charge. There is no dispute that he has turned his life around. In addition, there was some evidence that the police had asked Mr. Mazzei if he would provide future assistance to them. Looked at contextually, the fact that Mr. Mazzei was not charged does not affect my credibility assessment of P.C. Sgroi.
[71] Any alleged inconsistencies with what P.C. Sgroi observed and did in his interactions with Mr. Mazzei and what was found in the Information to Obtain are not particularly material to P.C. Sgroi's credibility. Further, P.C. Sgroi did not recall having told the affiant some of the things and that information could have come from someone else less well-informed which would explain the inaccuracies. Finally, as the officer testified to, if he had a conversation with the affiant, it could simply be explained by miscommunication.
[72] A major attack by the defence on P.C. Sgroi's testimony is his evidence that the in car camera was not working. It was put to him that he simply did not turn it on. The argument goes that P.C. Sgroi did not want any recording made of the improper pressure he was putting on Mr. Mazzei and later made up the fact that the in car camera was not working in order to deflect questions regarding the lack of confirmation by police video. P.C. Sgroi denied this and testified that he did report it to those responsible.
[73] There is a body of jurisprudence dealing with the videotaping of statements. This is a practise that should be encouraged in my view and should be extended to interactions between the police and detainees/witnesses whenever circumstances permit. Such recordings not only constitute accurate objective evidence at trial, but also have a beneficial effect on police accountability and transparency. Indeed, when they are not made when they could have been, it is open to a trier of fact to draw an adverse inference.
[74] The strong policy considerations in favour of videotaping statements whenever possible are reflected in the following comment by Iacobucci J. in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 46:
White, supra, at pp. 153-54, similarly offers four reasons why videotaping is important:
First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards. Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make more informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession. Finally, mandating this safeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.
This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.
[75] Looking at the whole of the evidence, I accept P.C. Sgroi's testimony about the in car camera not working. His explanation that he did not check out the car before he took it makes sense in the context he was part of a team that was dealing with a very fluid situation. When he was told to come and arrest Mr. Mazzei, he understandably did not have the time to go through his normal practice of ensuring the equipment in the vehicle was functioning. I reject the defence suggestion that his omission to turn on the recording equipment was deliberate in order to avoid his threats or pressure being recorded. As with most human technology, things do not always work when you want them to. The defence suggested P.C. Sgroi should have reported the malfunction and P.C. Sgroi testified he did. I note that in the radio communications between 12:55 and 12:56 p.m. when P.C. Sgroi advised he was going to be transporting Mr. Mazzei to 12 Division, P.C. Sgroi broadcasts over the air "and to further advise the rear camera wasn't working when I signed on and tried to reboot and do it again."
[76] My final consideration is assessing my findings about P.C. Stojic in relation to P.C. Sgroi. My concerns about the weight to be given to aspects of P.C. Stojic's testimony do not affect my view of P.C. Sgroi's testimony. They were both part of the same police team but there is nothing to suggest a closer connection between the men. I find that there is no substantive evidence that they wrongfully colluded in their testimony. The weaknesses that I have found in P.C. Stojic's testimony do not pertain to the conversations P.C. Sgroi had with Mr. Mazzei.
[77] Given my factual findings, there is nothing to suggest that the information given by Mr. Mazzei about the source of his heroin was not true. P.C. Sgroi believed it and it was entirely reasonable for him to do so given the context of the police investigation up to that point. As a result, there were reasonable and probable grounds to arrest Mr. Puma based upon that information. The search incident to Mr. Puma's arrest was therefore lawful and reasonable. The applications under ss. 8 and 7 in this respect are dismissed.
C. STAY OF PROCEEDINGS
[78] In the application record, the accused has also requested a stay of proceedings based upon the dishonesty of the investigating officers and the pressure exerted on Mr. Mazzei. The accused submits that this is an abuse of process: see R. v. Tran, 2010 ONCA 471; R. v. Mattison, 2012 ONSC 1795; R. v. Spagnoli and Shore, 2011 ONSC 4843
[79] I do not agree. As I have already found, there was no undue pressure exerted by P.C. Sgroi on Mr. Mazzei. While I have concerns about P.C. Stojic's testimony, I cannot say that he was deliberately dishonest. The credibility and reliability of this officer's evidence are matters that are best adjudicated on the basis of the weight to be given to his evidence at this trial. The accused has not shown there is any prejudice to his right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of this trial or its outcome: see R. v. Babos, 2014 SCC 16. There is no abuse of process. A stay of proceedings is not warranted.
[80] As a result, this application is dismissed as well.
Released: November 3, 2016
Signed: "Justice S. Nakatsuru"
[1] This was the total delay anticipated at the time of the application. Since deciding the application and the release of these reasons, further delay in finishing this trial has occurred. This further delay has not been taken into account in these reasons.