Court File and Parties

Ontario Court of Justice

Date: 2017-12-05

Court File No.: Durham Region 2811 998 17 25168

Between:

Her Majesty the Queen

— and —

Jamar Thomas

Before: Justice J. De Filippis

Heard on: October 19 – 20, 2017

Reasons for Judgment released on: December 5, 2017

Counsel:

• Mr. G. Black, counsel for the Crown
• Ms. S. Samet, counsel for the defendant

Judgment

DE FILIPPIS J.:

[1] Introduction

The defendant was charged with possession of cocaine for the purpose of trafficking. He admits the substance seized from him on the day in question is cocaine. He claims that this evidence should be excluded because his rights pursuant to sections 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms were violated. In any event, the defendant argues that the Crown has failed to prove that his possession of the drug was for the purpose of trafficking. I heard testimony from three police officers and the Defendant. I find that the evidence proves the defendant to be guilty. However, I grant part of the Charter application and exclude that evidence. The charge is dismissed. These are my reasons.

Evidence

[2] Initial Police Response

It is not controversial that on the day in question, shortly before 9:00 p.m., the police were summoned to an apartment building, located at 2 Westney Road in the Town of Ajax, in response to "a report about a stabbing". P.C. Vandenberg and other members of the Tactical Support Unit (TSU) arrived along with P.C. Madhaven, an officer on general patrol. The police were looking for Patrick Lucas (a.k.a. "Tony"), a man known to them, and went to his residential unit on the 11th floor. There are two elevators.

[3] Detention and Search of Lucas

P.C. Vandenberg testified that he proceeded down a short hall and around the corner to the residential unit. Lucas' mother opened the door in response to his knock. As soon as she did so, he heard another officer down the hall shout "you get back here". P.C. Vandenberg ran back to the elevators and saw Lucas running toward him. He had blood on his abdominal area and was carrying a bag over his shoulder. The officer detained Lucas, handcuffed him, and told him he was a person of interest in a stabbing. He searched the bag and found a handgun, loaded with three rounds of ammunition. P.C. Vandenberg briefly noticed that another officer was "interacting with a second person" and he shouted "gun" so all police personnel would be aware of what he had found. According to P.C. Vandenberg, these events, from his knock on the door to the seizure of the gun, happened in less than one minute.

[4] Detention and Search of the Defendant

P.C. Madhaven testified that he and P.C. Barnett exited the elevator after the TSU members. As they did so, the second elevator doors opened to reveal two males, one white and one black. Both males were unknown to P.C. Madhaven but he soon learned that the white male is Lucas and the black male is the defendant in this matter. According to the officer, Lucas stepped out of the elevator and, on seeing the police, immediately stepped back into it. P.C. Madhaven reached into the elevator, "grabbed [Lucas] and passed him off to another officer". He ordered the defendant to get out of the elevator and told him he was under investigation for a stabbing. He testified that he did so because he had been with Lucas in the elevator and both were of similar age. The defendant identified himself and said he knew the white male "as Tony from the building". During this exchange, P.C. Madhaven heard another officer shout "gun" and immediately arrested the defendant for possession of a firearm. He justified this by adding these comments to his reasons for detaining the defendant: The latter admitted knowing Lucas, Lucas had tried to evade police, and an officer had found a gun. P.C. Madhaven testified that all events "happened quickly – about 30 seconds".

[5] Search and Seizure of Cocaine and Cash

The defendant was handcuffed and searched as an incident of arrest. The officer seized a wallet from his pocket. The wallet contained numerous 20 dollar bills folded in half and a baggie with white powder. The baggie was in the shape of a ball about the size of a "townie". Numerous other folded 20 dollar bills were seized from another pocket. P.C. Madhaven testified that with the search completed, at 9:12 p.m., he arrested the defendant for possession of cocaine. He escorted him to his cruiser and, at 9:16 p.m. advised him of the right to counsel and cautioned. The defendant asked to speak to a particular lawyer, John Olver. He was transported to the nearby police station.

[6] Analysis of Seized Items

At the station, the officer counted the money and found it to total $3,890.00. The cocaine weighed 14.25 grams. P.C. Madhaven described the wallet as "so bulky" with the folded money bills that one "could not miss" seeing the bag of white powder protruding from it.

[7] Officer's Testimony Regarding Detention and Search

P.C. Madhaven conceded that when he detained the defendant, the person of interest had already been identified as being the white male (Lucas). He explained that he would have detained anybody in the elevator with Lucas to establish identity and relationship. The officer denied that he simply grabbed the defendant and searched before he heard the word "gun". He insisted that he told the defendant he had been detained because of a stabbing report and arrested him after learning a gun had been found. His notes, however, are silent about these matters. The officer agreed that he did not immediately advise the defendant of his right to counsel and, instead, waited 16 minutes from the initial encounter to do so in the cruiser parked outside. He explained he wanted to get the defendant away from Lucas and those unfolding events. He added that en route to the cruiser, they talked about the seizure of the gun and the defendant satisfied him he had no knowledge of it. Accordingly, he was not charged with that offence. His notes are silent about this discussion.

[8] Expert Evidence on Cocaine Trafficking

The Defence does not dispute that P.C. McIntosh has expertise in use, sale, and distribution of cocaine. He is not a member of the investigative team. He reviewed the report prepared by that team and sent to him by the Crown. That report sets out the items seized from the defendant, as described above. The officer testified that a heavy user of cocaine will consume between 2 and 3.5 grams of the product each day. He added that it is not usual for a person to carry more than this daily amount on his/her person at any time. Cocaine is sold for $80.00 to $120.00 per gram. On this basis, the value of the cocaine seized from the defendant is between $1,160.00 and $1,740.00. P.C. McIntosh noted that drug dealers do not usually bank the proceeds of the crime because this is searchable by the police and Canada Revenue Agency. It is his opinion that the quantity of cocaine and money possessed by the defendant is consistent with the purpose of trafficking.

[9] Cross-Examination of Expert

P.C. McIntosh agreed with the following suggestions put to him by the Defence: A purchaser "gets a better deal by buying in bulk"; The amount of cocaine found on the defendant could be consumed by a heavy user in four days; He has no direct evidence about why the defendant carried so much cash and does not know what he does for a living.

[10] Defendant's Testimony – Background and Possession

The defendant is a 25-year-old with permanent resident status in Canada. He admitted to a criminal record. No other questions were asked about that matter. He testified that he reports bi-weekly to immigration authorities and that because of "an outstanding issue" he is not permitted to have a bank account. He works in construction. He described it as "a cash job" and stated that the money seized from him was from the job he was working on in Toronto. The defendant testified that he possessed the cocaine for personal use and that he had purchased it in bulk for $650.00 the day before. He added that it is cheaper that way" that it represented a one month supply as he consumed cocaine "every week or so".

[11] Defendant's Testimony – Events at the Building

The defendant said that he had been visiting a friend in the building and encountered "Tony" [Lucas] on the elevator. When the elevator doors opened, Lucas tried to evade the police but was grabbed by one of them. The latter officer was assisted by another dressed in the gear of the TSU. Lucas was on the ground "being patted down". The defendant testified that as this happened he was "shoved against the wall, patted down, and handcuffed". He added that nothing was said to him and that "everything was going so fast". The wallet was taken from him during the pat down and that he heard somebody shout "gun". According to the defendant, he was never arrested for possession of a firearm. The first time he was told he was under arrest was in the police cruiser – for possession of cocaine.

[12] Defendant's Testimony – Right to Counsel

The defendant stated that he had a cell phone in his possession and would have called John Olver immediately, if given the chance. However, he was not advised of his right to counsel until he was in the police cruiser. He denied having a discussion with P.C. Madhaven about his knowledge of "Tony". He testified that the entire incident intimidated him because "so much was going on".

[13] Cross-Examination – Cocaine Use

In cross-examination, the defendant conceded that he has not filed an income tax return for the past two fiscal years. When pressed about his use of cocaine, he clarified that he would consume "four grams or something like that" every weekend. On this day he intended to visit a friend and snort it there. He insisted he would not share it with others or sell it.

[14] Cross-Examination – Purpose of Possession

The following exchange with Crown counsel is relevant to the purpose for which the cocaine was possessed:

Q: So why have 14 g and risk arrest on this amount

A: I had so much because I bought it in bulk at a cheaper price

Q: But you bought it the day before

A: Yes, at a cheaper price

Q: But you said you bought it the day before, why carry it around with you, there's no reason to have that amount

A: It was cheaper…I was going to see my friend and I didn't know how much I would use

Q: You weren't going to use 14 g

A: Correct, but I didn't know how much I would do and it's hard to get it out of the container and easier to have it in one container….I don't walk around with this bulk every day but it was Friday and I didn't know how much I'd use on this Friday

Q: You knew it was 14 g in your possession

A: Yes

Q: So on this day why carry around an extra $3,000

A: I normally carry it around

Submissions

[15] Crown's Position on Charter Breaches

At the conclusion of the evidence, the Crown conceded that sections 8 and 9 had been breached when the defendant was arrested for possession of the gun because P.C. Madhaven's subjective belief in the grounds to do so is not objectively reasonable. As such the arrest and subsequent search is unlawful and arbitrary: R v Storrey. The Crown argues that the evidence is nevertheless admissible. Counsel resists the motion that the defendant's section 10 rights were violated. This section provides that a person detained or arrested must be promptly told of the reasons and to be informed without delay of the right to counsel.

[16] Defence Position

Defence counsel accepts the concession with respect to sections 8 and 9 – but maintains her claim that the arrest never occurred before the search and that, in any event, the evidence should be excluded. In this regard, counsel also relies on the alleged breach of the defendant's section 10 rights. If the evidence is admissible, the Defence position is that it only warrants a finding of guilt for possession, not possession for the purpose of trafficking.

Analysis

[17] Burden and Standard of Proof

The defendant bears the onus of establishing the alleged violations of the Charter including alleged violations of s. 8 (although the Crown bears the onus of establishing that a warrantless search was reasonable). If a Charter violation has been established, the defendant must also show why onus of establishing why evidence should be excluded under s. 24(2). The standard of proof is on a balance of probabilities.

[18] Criminal Trial Standard

At the trial proper, the Crown must prove the essential elements of the offence beyond a reasonable doubt. The application of this standard is set out in the much quoted case of R v S.(W.D).

[19] Proof of Guilt on the Merits

Before dealing with the Charter issues, I will explain why the Crown has otherwise proven guilt. There is no dispute that the defendant was in possession of cocaine. The only matter to be decided is whether this was for the purpose of trafficking. I have no doubt that he had this intent.

[20] Analysis of Trafficking Purpose

I accept the opinion of the expert in this case. This evidence was not successfully challenged. Although he conceded that 14 grams of cocaine could be for personal use, the possession of this amount, in a public place, outside the home, along with a large amount of cash persuades me that the defendant intended to traffic in the drug. I am strengthened in this view by the testimony of the defendant. Assuming he cannot access bank accounts, the money seized from him exceeds his regular employment earnings and need not be kept in his personal possession. He also stated that he is not a daily user and that the 14 grams of cocaine would last him one month. His claim to buy in bulk to save money is rendered meaningless by his admission that the purchase occurred the day before he was caught with the drug and by the fact he was on the way to a friend's home to consume it. His attempt to explain personal use, in these circumstances, was exposed as a lie through the cross-examination set out above. For these reasons, I am confident that much of the money found in his possession is the proceeds of crime.

[21] Charter Issues – Disputed Evidence

With respect to the Charter issues, the defendant agrees with the prosecution witnesses about the events leading up to the detention and search of Lucas. He disputes the evidence of P.C. Madhaven about the detention and search of himself. The officer testified that he immediately advised the defendant the police were investigating a stabbing and, once the discovery of a firearm was announced, that he arrested him for that offence searched incident to arrest. The defendant testified that he was not told anything at any time before the cocaine and money were taken from his wallet. Both witnesses agree that the defendant was advised of his right to counsel outside the building, in a cruiser.

[22] Credibility and Unlawful Search

It is clear that the defendant was overwhelmed by police presence and the quick pace of activity. As such, it is possible that he would not pay attention to, or recall, anything the officer said to him. On the other hand, it is significant that P.C. Madhaven's notes do not record what he said at trial; that is, there is no notation of the justification for a full search as incident of arrest. The different perspectives about how such an omission should be considered are discussed in these two helpful cases: R v Aelaek, 2016 OJ No. 2597, at para 47 and R v Odgers, 2009 ONCJ 287, 2009 OJ No. 2592, at para 16. I need not resolve this disputed evidence because, on either version of events, the defendant was unlawfully searched.

[23] Section 10(b) Right to Counsel – No Breach

I do not accept the defendant's assertion that the delay in reading him his rights to counsel should result in a finding of a s. 10(b) breach. The 16-minute delay was warranted in this case. The police were entitled to do so because of the 'urgent and dangerous circumstances' and 'concerns for officer or public safety'. Officers responded to a report about a stabbing and, in confronting two males in the elevator and hallway of a building quickly, learned that one of them had a loaded gun. It was prudent for P.C. Madhaven to read the defendant's rights to counsel in the privacy and safety of his cruiser.

[24] Relevant Precedent – R v Darteh

In R v Darteh, 2014 OJ No. 638, at para 205, Justice Code commented as follows:

Turning to the alleged breaches of ss. 10(a) and (b) at the later stage, that is, once Darteh was arrested, I am not satisfied that any violation has been made out. It is true that the arresting officers did not "immediately" carry out their informational duties under ss. 10(a) and (b), upon arresting Darteh in the front hallway of his home. However, this was entirely appropriate, given that there were now officer safety and public safety concerns. There had been a violent struggle with Darteh, as he tried to flee, a large semi-automatic handgun had been seized in a public area outside the front door, the gun had not yet been proved safe by the officers, a crowd was gathering, and there was some yelling. In these circumstances, it was reasonable for P.C. George and P.C. Malhi to walk Darteh out of the courtyard, sit him down on the flower box at the St. Clair Avenue entrance, and read him his ss. 10(a) and (b) rights in this much safer and quieter environment.

[25] Investigative Detention and Inevitable Discovery

The Crown argues that the section 8 and 9 breaches should not lead to exclusion of the evidence because the police were entitled to detain the defendant for investigative purposes and, as such, the evidence would have been discoverable in any event. The Defence submits that the only connection between Lucas and the defendant is that they were in an elevator together and that the investigative detention was an unjustified "fishing expedition". I reject this submission. I also reject the Crown's second argument that the cocaine and money would inevitably been discovered.

[26] Common Law Power of Investigative Detention – R v Mann

In R v Mann, it was confirmed that the police have a common law power to detain for investigative purposes if they reasonably suspect a person is involved in criminal activity. This right allows an officer to conduct a limited search for the specific purpose of officer safety. The Supreme Court stated as follows, at para 45:

To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

[27] Scope of Investigative Detention Search

Having regard to the information received by police about a stabbing and the observation that the person of interest (Lucas) was in an elevator with the defendant and that both men were of similar age, it would be appropriate to detain the defendant for investigative purposes. Indeed, the police would have been derelict in their duties had they allowed the defendant to leave the scene without an inquiry. However, the officer had no grounds to arrest the defendant and no right to subject him to the full search incident to arrest. The wallet, with the packet of cocaine in it, would not have inevitably been found in the limited search incident to an investigative detention. A pat down revealing a wallet does not suggest the presence of a gun, knife, or other weapon. It feels like a wallet and nothing more. This applies with even greater force to the folded bills taken from another pocket.

[28] Section 24(2) Framework

Section 24(2) provides that,

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[29] Three-Part Grant Analysis

In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are fact specific. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute. See R v Grant, 2009 SCC 32 (SCC).

[30] First Prong – Seriousness of State Conduct

The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. This may not be the case in a case where the admission of evidence is gathered through a violation committed in good faith. That is, the seriousness of the Charter-infringing conduct is mitigated when the police make an honest and reasonable error regarding the scope of their legal authority. That is not the case here. The different search powers that accompany an investigative detention and arrest are well established. Police officers are expected to understand, and respect, these basic principles.

[31] Second Prong – Impact on Protected Interests

The second stage focuses on the impact of the breach on the protected interests of the defendant. Taking the Charter seriously means that the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. The Crown submits that the brief intrusion did not go so far as to demean dignity. I disagree. The defendant was entitled to expect the contents of his pockets to be free from search and seizure.

[32] Third Prong – Society's Interest in Adjudication

Society's interest in the adjudication of a criminal trial on its merits would be seriously prejudiced if highly reliable and critical evidence, such drugs and money were excluded.

[33] Balancing the Grant Factors – Exclusion of Evidence

It is agreed that the defendant was unreasonably searched. The first and second inquires in the Grant analysis support exclusion of the evidence. The third inquiry favours admission. On balance, the defendant has persuaded me that the violation of his section 8 rights should result in the exclusion of the relevant evidence, pursuant to section 24(2) of the Charter.

[34] Disposition

The charge is dismissed.

[35] Final Remarks

Notwithstanding the result in this case, the fact remains that on the day in question, the defendant possessed cocaine for the purpose of trafficking and possessed the proceeds of crime. This fact may be relevant to the "immigration issues" the defendant alluded to in his trial testimony. I leave it to the Crown to decide if this decision should be forwarded to appropriate authorities and whether a forfeiture motion is warranted.

Released: December 5, 2017

Signed: Justice J. De Filippis