R. v. Smith

Court File No.: Central East Region: Oshawa Court 17-34221

Date: October 5, 2020

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Hugh Alexander Smith

Before

Justice Peter C. West

Counsel and Representation

Crown Counsel: G. Raven

Amicus Curiae Counsel for the Court: C. Hicks

Accused: Hugh Alexander Smith (on his own behalf)

Hearing Dates and Judgment

Evidence for Crown Heard: February 24-27, 2020 and March 2, 2020

Submissions Heard: September 15, 2020

Reasons for Judgment Read: October 5, 2020

ENDORSEMENT

Introduction

[1] Hugh Smith is charged with possession for the purpose of trafficking in cocaine (2 counts), possession of marihuana, failure to comply with recognizance – curfew condition and failure to comply with recognizance – possession of drugs. These charges are alleged to have occurred on April 4, 2017. Mr. Smith elected trial in the Ontario Court of Justice and pleaded not guilty. Mr. Smith had advised the presiding judge when these trial dates were set in the fall of 2019, that he would proceed on these trial dates with or without counsel. Further, amicus was appointed to assist the Court on December 9, 2019, and Mr. Christopher Hicks accepted that appointment. His appointment as amicus has been extended for any date set for the continuation of Hugh Smith's trial, for reasons that will become apparent during my setting out the events that have unfolded.

[2] Mr. Smith has had numerous counsel appearing for and representing him on these charges. There was a two-day preliminary hearing originally scheduled, which was vacated because Mr. Smith's lawyer, Ms. Kwan, brought the matter forward for an application to be removed as counsel of record, which was granted. A month prior to the scheduled preliminary inquiry a continuing unrepresented judicial pre-trial was held and Mr. Smith decided to re-elect his mode of trial to be tried in the Ontario Court of Justice without a preliminary hearing. As a result, new trial dates had to be set for a pre-trial motion (Garofoli) and four days for trial. This new trial was set with or without counsel. The pre-trial motion did not proceed as Mr. Smith did not file an application and on the first day of trial Mr. Smith attended and indicated he was expecting a lawyer to be present, but the lawyer was not in attendance. The trial judge adjourned the trial until the next day and ordered defence counsel to attend. The lawyer, Mr. White, attended on the second day scheduled for trial and advised he was not on the record, as he had not been retained by Mr. Smith. He advised the trial judge he could assist Mr. Smith by bringing a Rowbotham application for counsel to be appointed. After speaking with Mr. Smith, counsel advised the trial judge an issue had arisen and he could no longer assist Mr. Smith, nor bring a Rowbotham application. Mr. Smith then requested an adjournment, which was granted. A second trial date was set for a trial with or without counsel. Mr. Smith ultimately retained counsel, Mr. Affleck, and the new trial dates were confirmed. On the first day of trial, counsel brought an oral application to be removed as counsel of record because of a fundamental breakdown in the solicitor-client relationship. The application was granted by the presiding judge and a third trial date was then set with or without counsel. This trial commenced before me.

[3] The most recent counsel, Mr. F. Kazandji, was retained to represent Mr. Smith at the start of his trial on January 27, 2020, when an application was brought to cross-examine the affiant of the ITO (Information to Obtain) for a tracking warrant and a Garofoli application to challenge the issuance of this tracking warrant, as breaching Mr. Smith's ss. 8 and 9 Charter rights. I dismissed the application to cross-examine the affiant of the ITO and Mr. Kazandji requested an adjournment to provide affidavit evidence on the Garofoli application, which I granted. This application continued on January 31, 2020, and at the completion of oral submissions judgment was reserved to February 18, 2020. I read my ruling orally, as Mr. Kazandji was not retained further, and he did not attend on that date. The Garofoli application was dismissed for the reasons indicated in my oral reasons.

[4] The trial commenced on February 24, 2020, and continued for five days. Hugh Smith was not represented by defence counsel. I provided Mr. Smith with copies of the Criminal Code and Controlled Drugs and Substances Act sections he was charged with and the sections of the Canadian Charter of Rights and Freedoms applicable in his case. Mr. Smith was in custody because of allegations he had breached his conditions of his release order on the charges that were before me for trial. Those charges were not before me for trial. I understand my obligations to Mr. Smith, a self-represented defendant, in ensuring he receives a fair trial and to raise any issues that arise from the evidence (see R. v. Richards, 2017 ONCA 424, at paras. 110-113). Throughout the course of the trial I had Mr. Hicks ensure Mr. Smith had the witness' notes and typed reports, as well as any caselaw Mr. Hicks had provided to the court and the Crown.

[5] When the Crown called his first witness, P.C. Dupont, Hugh Smith initially was reading out loud from a small book while he stood or sat in the prisoners' box. He did not ask any questions of the first witness, P.C. Dupont, was one of the uniformed police officers, who transported him to the police station. Mr. Smith continued this conduct when D.C. Graham was called as the second witness, despite my attempts to encourage him to participate in his trial. After D.C. Graham testified in-chief, I adjourned Mr. Smith's cross-examination until the next day and advised him to please think about becoming involved in his trial by listening to the evidence and asking the witnesses questions concerning their evidence and involvement. The next day Mr. Smith became actively involved in his trial by cross-examining witnesses, and I permitted him to sit at counsel table, without handcuffs, in order to be able to more easily access his disclosure on the counsel table, which had been provided to him by the Crown on numerous occasions prior to the trial. Both Mr. Hicks and the Crown made sure Mr. Smith had the relevant police notes and reports pertaining to the witnesses who testified during the Crown's case. The Crown called nine (9) witnesses on this trial, the majority who were drug unit officers, including Detective Paul Mackintosh, who was qualified as a drug expert. The Crown's case was completed on March 2, 2020.

[6] Throughout the evidence led by the Crown, Mr. Hicks, as amicus to the Court, would provide relevant cases to the Court, Mr. Smith and the Crown respecting legal and Charter issues, which arose from the evidence. Examples of these legal issues that arose included: the elements of possession, namely knowledge and control; the reasonable grounds necessary for police to search a suspect incident to arrest or to search a vehicle incident to arrest and the Charter issues in relation to searches incident to arrest, s. 10(a) issues and the informational and implementational obligations of police respecting the right to counsel pursuant to s. 10(b), to name a few.

[7] At the conclusion of the evidence called by the Crown I asked Mr. Smith if he intended to call any witnesses for the defence, including whether he intended to testify or whether we would be moving directly to oral submissions by the Crown and Mr. Smith, as to whether the Crown had proven beyond a reasonable doubt the charges before the court. I advised Mr. Smith he was not required to call any evidence as the onus was on the Crown to prove the charges beyond a reasonable doubt and he was presumed to be innocent.

[8] Mr. Smith requested I order transcripts of the evidence called by the Crown because he required the transcripts to be able to make submissions. Mr. Smith also indicated he or his family were in the process of trying to retain a lawyer to provide him with advice on whether he should call witnesses and whether he would testify. Further, he said this lawyer could also provide him advice respecting his submissions or this lawyer could be retained to make those submissions. I ordered the transcript of the five days of evidence on an expedited basis for all parties involved in the trial and adjourned Mr. Smith to March 9, 2020, to determine if he had retained defence counsel in some capacity or if Mr. Smith intended to continue representing himself. A tentative date of March 18, 2020 was also set as a continuation date for the trial, either for Mr. Smith to call evidence or for submissions to be made.

[9] On March 9, 2020, Mr. Smith attended before me. The transcript was prepared and copies were handed out. I was advised Mr. Smith's family was attempting to retain Tom Balka to represent Mr. Smith. Members of Mr. Smith's family had been present for each day of Mr. Smith's trial. Mr. Smith's matter was held down to allow his family and Mr. Smith to meet with Mr. Tom Balka over the lunch recess. Mr. Balka attended before me in court after lunch. He had spoken separately to Mr. Smith and Mr. Smith's family members. I provided my copy of the transcript to Mr. Balka so he could review it. I ordered an additional copy of the transcript for myself. Mr. Smith took his disclosure and his copy of the transcripts back to Central East Correctional Centre (CECC), where he was detained. Mr. Balka was to advise the Crown if he was retained and if he was, what the next steps would be.

[10] On March 16, 2020, the COVID-19 pandemic became evident and all matters before the Ontario Court of Justice were basically adjourned to dates in the future, as the various governments: federal, provincial and municipal, were determining how best to address this world wide threat to the health and safety of people everywhere. The continuation date of March 18, 2020 was adjourned.

[11] It was arranged through the trial co-ordinator for Mr. Smith's matter to be heard before me on March 27, 2020. Mr. Smith was still in custody at Central East Detention Centre and he appeared by teleconference, as the video facilities were being utilized for another court location at the CECC. On that date the Crown agreed to Mr. Smith's release on a house arrest surety release order. His sureties, his mother and sister, were in court and had been approved by the Crown, Mr. Raven. Mr. Smith's matter was adjourned to June 5, 2020, for out of custody continuation dates to be set for Mr. Smith's trial. I again reiterated to Mr. Smith I wanted him to decide if he was calling evidence or the trial was moving to submissions. After June 5, 2020, Mr. Smith's matter continued to be adjourned because of Covid-19 and I was advised by the Crown that Mr. Balka had not been retained by Mr. Smith. Mr. Smith advised he had decided to continue representing himself. When asked whether he would be calling witnesses for his defence, Mr. Smith would not commit or indicate as to how he intended to proceed. The matter was addressed in court on two additional dates by teleconference and one appearance in-person. Ultimately continuation dates of September 15 and 16, 2020, were set for either Mr. Smith to call witnesses for the defence or for the Crown to commence making submissions, as Mr. Smith resisted my request to advise me of his intentions. I reiterated with Mr. Smith that he needed to bring with him on September 15, 2020, the Crown disclosure, as well as the five volumes of transcript of the evidence called by the Crown at his trial.

[12] On September 15, 2020, Mr. Smith did not call any witnesses and would not indicate whether he intended to testify. The Crown requested I differentiate with Mr. Smith whether he wished to testify in respect of any Charter issues he believed had arisen during the evidence or whether he wished to testify on the trial proper. After adjourning for a period of time to allow Mr. Smith to consider his position and advise how he intended to proceed, Mr. Smith would not speak or respond to my questions. I took his silence to indicate he did not wish to call any witnesses or to testify on his own behalf, either respecting Charter issues or the trial proper. I requested the Crown make his oral submissions first. I inquired if Mr. Smith had brought his Crown disclosure and the five volumes of transcript I provided to him in court on March 9, 2020. He did not respond but it was clear he had not brought these things with him to court despite knowing his trial was continuing September 15 and 16, 2020. Mr. Hicks provided him with his copy of the transcripts. After the Crown made his submissions I invited Mr. Smith to make submissions. Mr. Smith again did not respond and despite numerous requests to make submissions he stood mute and then sat down. I then asked Mr. Hicks if there were any cases he wished to bring to my attention having regard to the legal and Charter issues raised by the evidence led by the Crown. He referred to and subsequently provided a number of cases, which I will be referring to in my reasons for judgment.

Factual Background

[13] The Durham Regional Police Drug Enforcement Unit received anonymous information on January 18, 2017, concerning an individual later identified as Hugh Smith, who lived at 1954 Faylee Crescent in Pickering and had connection to 1952 Faylee in Pickering, which are two townhouses that share a driveway. The police determined Hugh Smith is a registered co-owner with Jasmine Maitland of 1954 Faylee Crescent in Pickering. The registered co-owners of 1952 Faylee are Courtney Davis and Verona Smith. The DEU had information that Hugh Smith was associated with both addresses. D.C. Graham attended these addresses on January 18, 2017, and observed a black SUV Mercedes, licence plate BPPR457 at 1954 Faylee, with two motorcycles in the opened garage. At 1952 Faylee, next door to 1954 Faylee, he observed a black Subaru, licence plate BVYY164. The Subaru was registered to Lisa Questel. The anonymous source's information included the fact that Hugh Smith had access to these two motor vehicles.

[14] Surveillance was conducted by the DEU on March 1 and 8, 2017, on Hugh Smith who was believed to be trafficking cocaine in the Durham Region from information received from the anonymous source. D.C. Graham was the team leader of the investigation and he conducted briefings with his team before any surveillance was conducted respecting 1952/1954 Faylee. On March 1, 2017, at 3:34 p.m., Hugh Smith was observed by D.C. Smith arriving at 1952/1954 Faylee in the driver's seat of the black Subaru, licence BVYY164. He was carrying a weighted down plastic bag when he entered the residence. On March 8, 2017, at 3:56 p.m., the team attended 1952 Faylee. One of the team members observed Hugh Smith in the Subaru leaving the area of 1952/1954 Faylee Crescent at 7:52 p.m. Surveillance was discontinued at 7:59 p.m., after the Subaru was "misplaced" on Highway 401, as the driver was driving at a high rate of speed, in and out of traffic. D.C. Graham had been following the Subaru on Highway 401 in the Port Union area. D.C. Graham agreed that none of the officers conducting surveillance on Mr. Smith observed him trafficking in drugs.

[15] On March 14, 2017, at 4:05 p.m. surveillance was conducted on the address at 1952/1954 Faylee Crescent and the black Subaru BVYY164. At 7:31 p.m. the black Subaru arrived and was parked across the road from 1954 Faylee and a black male with a black hoodie, which was up, and dark pants got out of the Subaru and walked to front door of 1954 Faylee. The DEU officers were not able to identify this individual. On March 31, 2017, the black Subaru, licence BVYY164 was located at the Pickering Town Centre parking lot near the movie theatres. At 6:06 p.m., D.C. Smith observed Hugh Smith in a black jacket with a beige hat get into the Subaru with a female wearing a black jacket. It did not move but later the vehicle was misplaced by the DEU officers when it was moving, and the tracking device (installed after a tracking warrant was granted on March 14, 2017, for 60 days) had the vehicle back in the area of 1952 Faylee. D.C. Smith observed the black Subaru at 6:52 p.m. on March 14, 2017, in the driveway of 1954 Faylee.

[16] Further surveillance was conducted on April 4, 2017. A tracking device had been installed on the black Subaru being driven by Hugh Smith by DEU officers. The tracking device provided the location for the target vehicle, the black Subaru, licence BVYY164, which the DEU were following. The tracking device could be accessed using a cell phone or a computer. If it was difficult to maintain observations or observations of the Subaru were lost, it would be able to be located through use of the tracking device. The team, which included D.C. Davies, D.C. Smith, and D.C. Phillips, along with D.C. Graham, the team leader or road boss, were briefed at 3:20 p.m. At 3:41 p.m., the tracking device located the Subaru at Walpark Avenue and Woodward Avenue in Toronto. At 4:59 p.m., the vehicle was located parked on Danforth Avenue in Toronto by a team member. Surveillance was commenced at 5:19 p.m., when Hugh Smith was seen getting into the black Subaru and driving westbound on Danforth.

[17] At 6:45 p.m., the Subaru was next found parked out front of an address at 430 McMurchy Avenue in Brampton, which is a high-rise residential apartment building. Mr. Smith was observed returning to the Subaru at 7:01 p.m., and he proceeded southbound on McMurchy to Steeles Avenue. D.C. Graham was aware Hugh Smith was subject to a curfew condition in his recognizance, to be in his residence at 7 p.m., subject to certain specific exceptions (travelling to, from or while at employment; travelling to, from or at court appearances or at his lawyer's office or in the company of his surety). D.C. Graham confirmed at 7:08 p.m., with DRPS communications that Mr. Smith's recognizance and curfew were still in place and Mr. Smith was bound by the condition. Mr. Smith had been at an apartment building in Brampton and was alone driving the Subaru. D.C. Graham believed Mr. Smith was in breach of his recognizance and he contacted his supervisor, Det. Antaya, who instructed the team to arrest Mr. Smith for breach of his recognizance. D.C. Graham agreed in cross-examination that none of the DEU officers conducting surveillance observed Mr. Smith engaging in any drug trafficking during this surveillance.

[18] D.C. Graham observed Hugh Smith at 7:03 p.m., just after he exited the area of 430 McMurchy Avenue when he came to a stop at a red light, waiting to turn eastbound from McMurchy onto Steeles Avenue. D.C. Graham was parked directly behind the Subaru. He observed Mr. Smith reach behind the front passenger seat of the Subaru into the passenger side foot area of the back seat of the vehicle. Mr. Smith also adjusted his rear view mirror. Mr. Smith was the only person inside the Subaru when he left Brampton. D.C. Graham testified Mr. Smith's reaching into the passenger side back seat area caused him concern for officer safety given the information he had that Mr. Smith was facing charges involving a firearm. He advised the officers conducting the surveillance of the Subaru that Mr. Smith was reaching into the back seat on the passenger's side and for the surveillance team to be cautious about that area of the Subaru when the arrest was made.

[19] Surveillance was continued and D.C. Graham advised the team they would be arresting Hugh Smith for breach of the curfew condition of his recognizance. He further advised they would be conducting a high risk vehicle stop for officer safety, as there was information from a C.P.I.C. entry that Hugh Smith was on charges from December 2016 involving a firearm and he could be armed. At 7:41 p.m., the Subaru was observed by D.C. Davies stopping at the Swiss Chalet drive-thru at the Scarborough Town Centre. D.C. Graham advised the team if Mr. Smith went to Lee Centre Drive in Scarborough, which was an address associated to him, the arrest would be attempted there in the parking lot.

[20] At 7:55 p.m., the Subaru drove onto Lee Centre Drive, conducted a U-turn, parked in front of Green Shop Convenience, Mr. Smith exited the driver's front seat of his vehicle and went inside the store. He had been alone in the Subaru. D.C. Graham advised the team at 8 p.m., when Mr. Smith re-attended the Subaru he would be arrested by the team. The DEU positioned their vehicles to prevent the Subaru from leaving and Hugh Smith was arrested by D.C. Smith at 8:01 p.m., as he was entering the front passenger side of the vehicle. D.C. Smith arrested him as he was leaning and reaching into the front passenger seat area. D.C. Davies and D.C. Phillips assisted D.C. Smith in the arrest of Mr. Smith. Exhibit 1 is a diagram prepared by D.C. Graham of the position of the DEU vehicles in relation to Mr. Smith's Subaru when he was arrested. D.C. Smith advised Hugh Smith, "Police, you're under arrest. Police, get on the ground." He said this several times. D.C. Smith advised Mr. Smith he was under arrest for breach of his curfew. All the DEU officers were wearing vests with POLICE on them. Mr. Smith was handcuffed to the rear. D.C. Smith was involved in handcuffing Mr. Smith. D.C. Smith ordered Mr. Smith to the ground and this was where he was handcuffed. D.C. Smith testified when someone is reaching into a motor vehicle there is the potential for an imminent threat and in that circumstance there is the need to secure the person, which he did in this case. The arrest was very quick, 20-30 seconds at most. After Mr. Smith was handcuffed other officers took custody of him.

[21] D.C. Davies seized a cell phone that Mr. Smith had in his hand. Mr. Smith also had his keys in his hand and D.C. Davies also found some marihuana in Mr. Smith's front right pocket together with some cash and change when he did a pat down search incident to Mr. Smith's arrest. Mr. Smith was advised he was under arrest for breach of recognizance. Mr. Smith was advised he was also being arrested for possession of a controlled substance, the marihuana, by D.C. Davies.

[22] D.C. Davies then read Mr. Smith his right to counsel and Mr. Smith said he wanted to speak to his lawyer, Alji Kwan, of Reid Rusonik's office. He also cautioned Mr. Smith that anything he said would be taken down and would be used against him in court. D.C. Davies testified he wanted Mr. Smith to know he did not have to say anything to the police.

[23] D.C. Graham spoke with D.C. Smith who had arrested Hugh Smith and D.C. Smith advised D.C. Graham that a small quantity of marihuana was found on Mr. Smith. D.C. Graham testified he advised Hugh Smith his vehicle would be searched incident to arrest. Custody of Mr. Smith was turned over to D.C. Wesseling and D.C. Naccarato, who brought him to the rear of D.C. Wesseling's vehicle, a pickup truck, which was parked north of where Hugh Smith's Subaru was in front of the convenience store.

[24] D.C. Graham requested Mr. Smith's vehicle be moved from where it was parked. D.C. Graham testified it was necessary to move the vehicle because it would impede traffic where it was parked if all the doors were opened and it would unnecessarily expose the officers conducting the search. As a result, it was moved around the corner to a parking spot that afforded an area where the search could be safely conducted. At 8:04 p.m., D.C. Smith moved the Subaru from the front of the convenience store to a safe place to search it about 60 feet north to a parking lot.

[25] D.C. Graham agreed he did not seek a search warrant to search the black Subaru, as it was searched incident to arrest. This search was conducted by D.C. Phillips and D.C. Graham assisted. D.C. Phillips testified he believed he had reasonable grounds to search the black Subaru incident to Mr. Smith's arrest on the charge of possession of a controlled substance. He was present when D.C. Davies did a pat down search of Mr. Smith, incident to his arrest on the breach of his recognizance's curfew condition. He observed D.C. Davies discover a small quantity of marihuana on Mr. Smith and observed D.C. Davies arrest Mr. Smith for possession of a controlled substance. D.C. Graham requested D.C. Phillips conduct a search of the black Subaru incident to Mr. Smith's arrest. He testified he was searching the vehicle for "further evidence of the offence of possession of a controlled substance or further drug paraphernalia, drugs."

[26] D.C. Phillips testified if the only charge Mr. Smith had been arrested for was the breach of recognizance there would not have been grounds to search the Subaru incident to that arrest. After the Subaru was moved by D.C. Smith to the parking area north of the store, D.C. Phillips first searched the front passenger seat area. His attention was drawn to the glove compartment, which was open. He observed the cabin air filter had been removed and he knew from experience with the DEU that this was a great hiding place for "stuff." The filter was on the floor of the front passenger seat area. The filter can be seen on the floor in the front passenger seat area in the video taken by D.C. Davies, Exhibit 5.

[27] D.C. Phillips moved to the rear passenger door and when he opened this door he observed what he believed to be a kilogram-shaped brick of cocaine, almost in the centre of the foot area of the rear passenger seat. It was in plain view. It was vacuum-sealed in plastic wrap that would seal it before freezing it or storing it. D.C. Phillips advised D.C. Graham he had discovered what he believed to be a kilogram brick of cocaine and that an additional charge of possession for the purpose of trafficking could be laid or added against Mr. Smith. He also told D.C. Graham that Mr. Smith should be advised of this. D.C. Phillips requested a Scenes of Crime Officer, D.C. Davies, to take photographs of what he believed to be cocaine and the position it was in when he first saw the brick. Exhibit 5 are the photographs and video taken by D.C. Davies of the black Subaru and the kilogram of cocaine. After the photographs were taken, D.C. Phillips removed the brick of cocaine, placed it on the front driver's seat of his vehicle and locked the doors. He also took custody of Mr. Smith's marihuana, cell phone, some change, as well as some cash ($400.00).

[28] The search of the vehicle was conducted at 8:07 p.m. by D.C. Phillips and D.C. Graham. The search was seeking to locate further evidence respecting the marihuana found on Hugh Smith's person. Mr. Smith was alone in the Subaru and had been in the driver's seat of the Subaru when he pulled in front of the convenience store. D.C. Graham did not personally find anything inside the Subaru. D.C. Phillips advised he located what appeared to be a kilogram of cocaine in the rear passenger foot area of the Subaru. D.C. Graham observed the vacuum-sealed package consistent with a kilogram of cocaine. D.C. Davies testified he was aware the brick of cocaine had been located and he knew D.C. Wesseling was directed to advise Mr. Smith of his change in jeopardy. A change in jeopardy occurred as a result of a new charge relating to the brick of cocaine being added to the possession and breach charges facing Mr. Smith.

[29] At 8:14 p.m., D.C. Davies was tasked with taking photographs of the Subaru and a video, Exhibit 5. The brick of cocaine was in plain view on the floor of the back passenger seat, as can be seen in the photographs and video. D.C. Phillips testified in cross-examination the black Subaru was later towed to the Property Bureau on Courtice Court as the Subaru was seized as offence-related property.

[30] D.C. Wesseling was detailed to assist with the arrest of Hugh Smith at Lee Centre Drive in Scarborough. When he arrived, Mr. Smith was already in custody and handcuffed to the rear. Mr. Smith was turned over to the custody of D.C. Wesseling around 8:05 p.m. by D.C. Davies. Mr. Smith was brought to the rear of D.C. Wesseling's pickup truck. He decided to conduct a pat down search of Mr. Smith just prior to turning him over to uniform officers for transport to 17 Division. He testified he searched Mr. Smith at 8:28 p.m., for officer safety, for anything that could assist him in escaping, for example weapons or any additional evidence. When D.C. Wesseling conducted the pat down search, he was aware Hugh Smith had been arrested for breach of recognizance and possession for the purpose of trafficking, as a substantial quantity of cocaine had been located in the vehicle Mr. Smith had been driving. D.C. Wesseling testified he knew Mr. Smith had been advised he was being charged with possession for the purpose of trafficking in cocaine, but he could not recall how he was aware of this. When he did the pat down search, he located a latex glove with four (4) separate bundles (or baggies) of suspected cocaine in Mr. Smith's left breast pocket of the plaid button-up shirt he was wearing. He seized those items. After he found the four baggies of cocaine in the latex glove he did not provide Mr. Smith with his right to counsel or caution because Mr. Smith was already aware of the charge of possession for the purpose of trafficking of the kilogram brick found in the Subaru and as a result he did not "believe finding the small amount of cocaine on his person changed his jeopardy."

[31] Hugh Smith was turned over to P.C. Dupont, a transport officer, at 8:29 p.m., to be taken to 17 Division. D.C. Graham detailed D.C. Wesseling and D.C. Naccarato to follow the uniform officers back to 17 Division. P.C. Dupont testified he was advised Mr. Smith had been read his right to counsel and he had requested his own lawyer be contacted. He read Mr. Smith a secondary caution: "If you have spoken to any other police officer or if anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making a statement. Do you understand?" After he clarified Mr. Smith's answer "Okay," he drove Mr. Smith to 17 Division and had no further conversation with him.

[32] At 17 Division, D.C.s Wesseling and Naccarato paraded Mr. Smith before the booking sergeant. Exhibit 11 is the booking video, which was played during the trial. On the booking video the sergeant asked Mr. Smith if he knew the charges he was facing and Mr. Smith responded, "Yes." When he was asked if he wanted to speak to a lawyer he responded he had a lawyer he wanted to speak to, A. Kwan, at Reid Resonick's office. D.C. Wesseling, who was standing beside Mr. Smith, advised the sergeant he would place a call to Mr. Smith's lawyer of choice. At 9:15 p.m., D.C. Wesseling called Mr. Smith's lawyer of choice, Ms. Kwan, from Reid Rusonik's office and left a message. He advised on the voice mail message that Mr. Smith was under arrest for breach of recognizance and possession for the purpose of trafficking in cocaine and requested her to call 17 Division cells to speak to him. There was no call back from Ms. Kwan while D.C. Wesseling was at 17 Division. D.C. Wesseling attended the cells, although he did not note the time, to advise Mr. Smith that his lawyer had not called back. He spoke to Mr. Smith before he left the station and advised him that he could call another lawyer of choice if he wished. Mr. Smith declined to do this, saying he wished to wait for Ms. Kwan to call.

[33] D.C. Wesseling lodged all the packages of suspected cocaine he had found in the latex glove in Mr. Smith's shirt pocket into the Drug Enforcement Unit Property locker. One bag weighed 1 gram, it was placed in a Health Canada envelope, LL0347005; the second bag weighed .9 grams and he placed it in envelope LL0347006; the third bag weighed 1 gram and he placed it into envelope LL0347002; and the fourth bag weighed 1.7 grams and he placed it into envelope LL0347004. They were all secured in the drug locker at the DEU in Whitby. D.C. Wesseling also took photographs of the latex glove and the 4 baggies, marked as Exhibit 13.

[34] Hugh Smith was not interviewed or questioned by any of the Drug Enforcement Unit officers or any other police officers respecting the charges he was facing, either at the scene or when he was transported to 17 Division or while he was held in the cells of 17 Division.

[35] D.C. Phillips took further photographs of the brick of cocaine back at the DEU office at Whitby police station and weighed the cocaine brick. The total weight was 1128 grams, which included the packaging as well. Exhibit 6 contains the photographs taken by D.C. Phillips. He put the marihuana, which was .2 grams into a Health Canada envelope LL0347001. He took two samples from the brick of cocaine, 1 gram each: the first was placed in Health Canada envelope LL0347000 and the second 1 gram sample was put in Health Canada envelope LL0347003. The remainder of the brick of cocaine, 1126 grams went into overflow into the DEU controlled property locker. The two samples of cocaine and the marihuana were then placed into the DEU's controlled drug locker. No one has access to this locker other than a clerk from the property bureau. The remainder of cocaine (1126 grams), vacuum-sealed in plastic wrap, was sent to forensics for fingerprint testing. The Crown advised he was not tendering any fingerprint evidence in this case.

[36] Exhibit 8 was an affidavit of Dean Sali, which was filed by the Crown to establish continuity of the two samples of cocaine put into Health Canada envelopes, as well as the four samples of cocaine also submitted to Health Canada. Exhibits 9(A) and 9(B) are the Certificates of Analysis from Health Canada, which determined the two 1 gram samples taken from the 1128 gram brick of suspected cocaine analyzed to be cocaine. Exhibits 16, 17, 18, and 19, are the Certificates of Analysis from Health Canada for the four small packages found in the latex glove, which also analyzed to be cocaine. The simple possession of marihuana charge had been withdrawn by the Crown previously given the small quantity, but it had tested positive for THC.

[37] Detective MacIntosh was qualified as an expert witness after a Mohan hearing and he provided evidence respecting the sale and distribution of cocaine. The kilogram brick of powdered cocaine's wholesale value would have been between $45,000 and $56,000. The price per gram, street level sales, would typically be $100, but the range is between $80 to $120. An ounce would be between $1200 and $1600. The cocaine brick found in the Subaru had markings on it consistent with branding at the kilo level. This can be seen in Image S168005.jpg, of Exhibit 6. This quantity of cocaine was indicative of a high-end trafficker or wholesaler. Bricks of cocaine are pressed with a custom plate to create the branding, which are different symbols, letters or a series of letters, or series of numbers, in order to identify a particular dealer's or wholesaler's product. This quantity would be broken down several times and sold throughout the hierarchy of the drug subculture several times before it reached a street dealer and ultimately sold to a user. The vacuum-wrapped plastic around the kilogram brick of cocaine looked to be cut on the top, which according to Detective MacIntosh was quite normal, as the customer often wants to determine and ensure what they are purchasing is cocaine.

[38] Detective MacIntosh reviewed the photographs of the kilogram brick of cocaine and the four (4) baggies of cocaine. The weight of the cocaine in the four baggies found in the latex glove in Mr. Smith's shirt pocket were consistent with how drugs are trafficked at street level. The $400 in cash is also consistent with street level trafficking of cocaine. Detective MacIntosh testified it was his opinion the brick of cocaine and the four baggies of cocaine are all consistent with possession for the purpose of trafficking. A heavy cocaine addict would use between 2.0 to 3.5 grams of cocaine daily. The kilogram brick is not consistent with personal use as it is greatly in excess of a user's requirements.

[39] Exhibit 14 is a certified copy of the Information of December 26, 2016 Toronto criminal charges. Exhibit 15 is a certified copy of the recognizance of bail dated January 6, 2017 with two revocations dated April 6, 2017 attached. Hugh Smith's recognizance of bail contained a condition he was not to be in possession of any substances under the Controlled Drugs and Substances Act unless prescribed by a doctor and he was in possession of a substantial quantity of cocaine. Further, he was subject to a curfew from 7 p.m. until 8 a.m. each day and given the time he was observed in Brampton (7:01 p.m.) by himself in the black Subaru and the distance he was from his residence in Pickering, Mr. Smith was in breach of this condition in his recognizance.

Position of the Parties

[40] Hugh Smith was self-represented during the calling of evidence on his trial. He has been represented by several lawyers during the time period between his being charged and this trial, who have either applied to be removed as counsel of record or who were not fully retained to represent Mr. Smith on his trial dates that were set with or without counsel. The only Charter application had been previously filed by Mr. Affleck, counsel for Mr. Smith, on his September 2019 scheduled trial. This application was brought by counsel subsequently retained by Mr. Smith, Mr. F. Kazandji, on January 27, 2020. Mr. Kazandji was not retained beyond this application.

[41] Mr. Smith did not, as an unrepresented accused, bring any Charter applications respecting the anticipated evidence of the police witnesses concerning his arrest and the searches conducted of his person and the motor vehicle he was driving. I provided Mr. Smith with the various sections of the Canadian Charter of Rights and Freedoms and the accompanying case annotations at the commencement of the trial. Throughout the trial I invited the Crown to address any Charter issues respecting Mr. Smith's arrest, detention, right to counsel and any searches conducted by the police incident to his arrest.

[42] With the assistance provided by the Court's amicus, Christopher Hicks, at the conclusion of the Crown's submissions, it is my intention to address a number of Charter issues I believe arise on the evidence, which would likely have been addressed and raised by defence counsel if Mr. Smith had been represented during his trial.

[43] The Charter issues include:

a. Warrantless search of Mr. Smith's person incident to his arrest for breach of recognizance;

b. Warrantless search of the Subaru Mr. Smith was driving incident to his arrest for possession of marihuana;

c. Warrantless search of Mr. Smith's person by D.C. Wesseling just before turning custody of Mr. Smith over to uniform DRPS officers for transport to 17 Division in Oshawa;

d. Right to counsel issue arising from Mr. Smith's change of jeopardy after discovery by D.C. Phillips of a kilogram brick of cocaine, in plain view, on the floor area in the back passenger seat area of the Subaru;

e. Right to counsel issue arising from Mr. Smith's change of jeopardy after discovery by D.C. Wesseling of latex glove with 4 small baggies of cocaine found in Mr. Smith's shirt front pocket; and

f. Right to counsel issue respecting implementation of Mr. Smith's request to speak to his lawyer of choice, A. Kwan.

[44] It was the Crown's position that Mr. Smith's Charter rights were not breached in any way by DRPS DEU officers and the evidence of the kilogram brick of cocaine and the 4 small baggies of cocaine should be admitted as evidence on the possession for the purposes of trafficking charges facing Mr. Smith.

Charter Issues Arising on the Evidence Called by the Crown

Was the Arrest of Mr. Smith Lawful and Was the Search Incident to His Arrest of His Person and the Subaru Lawful?

[45] The police conducted three searches in this case, which were characterized as occurring all incident to Mr. Smith's arrest for the offences of breach of recognizance (1st search of his person); possession of marihuana (search of Subaru) and all charges he was facing including possession of cocaine for purpose of trafficking (2nd search of his person before transport).

1. A pat down search incident to Mr. Smith's arrest for breach of his recognizance in relation to his curfew;

2. A search of the motor vehicle he was driving, a black Subaru Legacy, BVYY164, after the pat down search discovered a quantity of marihuana in Mr. Smith's right front pants pocket; and

3. A second pat down search just before D.C. Wesseling turned custody of Mr. Smith over to uniform DRP officers for transport to 17 Division in Oshawa.

[46] Section 8 of the Charter guarantees the right of every person to be secure against unreasonable search or seizure. It serves to protect the privacy of individuals from the intrusive conduct of the state. Section 8 is engaged when agents of the state intrude upon a reasonable expectation of privacy, R. v. Evans, at para. 11. There can be no doubt that Mr. Smith had a reasonable expectation of privacy in respect of his person and the motor vehicle he was driving. Generally, warrantless searches are prima facie unreasonable under section 8. Searches incident to arrest, however, are an established exception to this general rule, see Cloutier v. Langlois; R. v. Caslake, at paras. 13, 18-25; and R. v. Golden, 2001 SCC 83, at para. 84.

[47] The common law recognizes a right on the part of the police to conduct searches of accused persons and their immediate surroundings incident to arrest, without warrants or reasonable and probable grounds. The right depends on the lawfulness of the arrest and the search must be truly incidental to the arrest. Further it must not be conducted in an abusive manner, R. v. Fearon, 2014 SCC 77, at para. 20; R. v. Caslake, supra, at para. 13 and R. v. Mohamad, at paras. 28-29.

[48] Any search conducted by police incident to arrest must be exercised in a manner consistent with Charter values. It must, therefore,

(a) be for a valid objective in pursuit of the ends of justice;

(b) not be conducted for purposes unrelated to the proper administration of justice, such as to intimidate, ridicule or pressure an accused person; and,

(c) not be conducted in an abusive manner.

See Cloutier and Langlois, supra, at paras. 49, 56 and 61-62.

[49] Where there is a warrantless search of an individual incident to arrest or search of a motor vehicle the individual has been driving incident to arrest the Crown initially bears the onus to demonstrate the search is reasonable (see R. v. Caslake, supra, at para. 11; R. v. Valentine, 2014 ONCA 147, at para. 43; R. v. Aviles, 2017 ONCA 629, at paras. 13-15 and R. v. Santana, 2020 ONCA 2561, at para. 23). Once the Crown demonstrates the search incident to arrest was lawful the onus shifts to the accused.

[50] In R. v. Santana, supra, at para. 26, Justice Doherty held that from Caslake and cases that have applied Caslake, a court, in deciding whether a particular search was a lawful incident to arrest, must determine:

• the purpose for which the officer conducted the search;

• whether that purpose was a valid law enforcement purpose connected to the arrest; and

• whether the purpose identified for the search was objectively reasonable in the circumstances.

[51] Further, in R. v. Santana, supra, at para. 28, the Court of Appeal held:

The scope of the power to search as an incident to an arrest is fact-specific: R. v. Fearon, at para. 13 … . Two points should be stressed. First, the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search. After-the-fact justifications that did not actually cause the police to conduct the search or seizure will not do. Second, the police purpose must be related to the specific reason for the arrest.

[52] It is my view that the police officers conducting surveillance of Hugh Smith had reasonable grounds to arrest him on the charge of breach of his recognizance, namely his 7 p.m. curfew. Mr. Smith was in Brampton when he exited 430 McMurchy Avenue, a residential apartment building, at 7:01 p.m. He was residing at 1952/1954 Faylee Crescent in Pickering, which meant he would not arrive home until at least an hour after the 7 p.m. time of his curfew. He was alone in the Subaru and he was therefore not in the company of his surety. Further, there was no indication he was working or meeting with his lawyer. Mr. Smith was arrested at 8:01 p.m. outside the Green Shop Convenience store in Scarborough and he still was not at his residence. On the evidence before me his arrest was lawful as the police had reasonable and probable grounds to arrest him for breach of his recognizance.

[53] Mr. Smith was the sole occupant of the Subaru sedan and had been driving it from Danforth Avenue in Toronto to 430 McMurchy Avenue, Brampton and then to Scarborough. Upon D.C. Smith arresting Mr. Smith for breach of recognizance, Mr. Smith was handcuffed. D.C. Davies testified he then conducted a search of Mr. Smith's person incident to arrest for officer safety. The police had information that Hugh Smith was on a recognizance of bail because he had been charged by Toronto Police on December 26, 2016, with forcible confinement, assault with a weapon, carrying a concealed weapon, possession of a firearm knowing its possession is unauthorized, pointing a firearm, unauthorized possession of a firearm in a car, and careless use of a firearm and subsequently, he was further charged on December 29, 2016, with possession for the purpose of trafficking of cocaine, ketamine and heroin.

[54] The search of Mr. Smith's person after his arrest was based on the common law power of search incident to arrest as decided in Cloutier v. Langlois, supra. This case "held such a search is an exception to the ordinary requirements for a reasonable search in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest," R. v. Caslake, supra, at para. 13. In Cloutier and Langlois, the Court held the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others and the discovery of evidence which can be used at the arrestee's trial.

[55] In R. v. Caslake, supra, the Supreme Court at paras. 18-25, referred to the decisions by Doherty J. in the Ontario Court of Appeal of R. v. Lim (No. 2) and R. v. Belnavis, where he held "the authority to search incident to arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest." In that case searching the trunk of a car had no connection to an arrest for outstanding traffic fines (see Belnavis, supra, at para. 49).

[56] However, in this case after discovering a small quantity of marihuana in Mr. Smith's right front pants pocket, it is my view the police had the power to search the Subaru incident to Mr. Smith's arrest on the charge of possession of marihuana in order to determine if there was any further marihuana or drug paraphernalia in the vehicle. The search of the vehicle was directly related to the discovery of marihuana by D.C. Davies, who searched Mr. Smith's person incident to his arrest for breach of recognizance. The search of the vehicle for evidence of more controlled substances was objectively reasonable. (see also R. v. Stonefish, 2019 ONCA 914 and R. v. Valentine, supra, at para. 58.) It is also important to note that D.C. Phillips, who conducted the search of the Subaru sedan, recognized the limits of a search incident to arrest and that the search must be connected to the underlying reason for the arrest. He testified if the arrest had been solely for the breach of recognizance he recognized such an arrest would not have permitted him to search the Subaru incident to that arrest. I find there was no breach of Mr. Smith's s. 8 Charter rights in terms of the search of his person and the search of the vehicle he was driving.

[57] The kilogram brick of cocaine was in plain view on the floor of the passenger side back seat and was seen immediately by D.C. Phillips, who had been tasked with searching the Subaru incident to Mr. Smith's arrest for possession of marihuana. It is my view the moving of the Subaru by D.C. Smith from in front of the Green Shop Convenience store, where it was interfering with pedestrian traffic going into the convenience store, to a parking area approximately 60 feet north did not adversely affect the search of the vehicle incident to arrest. The search commenced very shortly after Mr. Smith's arrest in an area where the vehicle was not obstructing the public or exposed the police officers to any danger (see Caslake, at paras. 23 – 25).

[58] A further pat down search was conducted by D.C. Wesseling just before handing custody of Mr. Smith to the two uniform officers that arrived on scene to transport him to 17 Division in Oshawa. D.C. Wesseling testified he was not present when Mr. Smith was arrested and was not aware whether he had been searched prior to his receiving custody of Mr. Smith around 8:05 p.m. D.C. Wesseling testified he was aware prior to searching Mr. Smith's person that Mr. Smith had been charged with an additional offence of possession for the purpose of trafficking as a result of a kilogram brick of cocaine being found in the Subaru. In addition, the DEU officers had previously received information Mr. Smith was facing several firearms offences laid by Toronto police and D.C. Wesseling testified he conducted the pat down or frisk search for the purpose of officer safety, to locate any weapons or further evidence because Mr. Smith was about to be transported to 17 Division in the rear of a DRPS marked cruiser. I accept the evidence of D.C. Wesseling as to his reason for conducting the pat down search. It is my view this search, which ultimately led to the discovery of the 4 baggies of cocaine in the latex glove in Mr. Smith's shirt pocket, was also incident to Mr. Smith's arrest and did not breach Mr. Smith's s. 8 Charter rights. It is further my view if D.C. Wesseling had not conducted that pat down search, the uniform officers would have been authorized to conduct a pat down search of Mr. Smith before putting him into the back of their marked police cruiser for the purpose of officer safety.

[59] Further, during Mr. Smith's booking at 17 Division a more detailed search was conducted by special constables, who can be seen requesting Mr. Smith remove his jacket, then his button-down shirt leaving an undershirt and having him remove his belt and shoes (when the shoes were returned the laces were removed). After checking the articles of clothing Mr. Smith removed, they were returned to him by the special constables. This can be seen on the booking video, Exhibit 11. I find the special constables were entitled to search Mr. Smith incident to his arrest as he was to be lodged in police cells until he appeared in court the next day. There was no evidence Mr. Smith was strip searched at 17 Division. This more detailed type of search incident to arrest is reasonable given Mr. Smith was being held at the police station for a bail hearing. It is my view the latex glove would have inevitably been discovered when the special constable searched his shirt at the police station.

Sections 10(a) and 10(b) of the Charter, Obligations on Police When Change in Jeopardy Occurs

[60] Section 10(a) provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor. This section works in conjunction with s. 10(b), which provides everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. These sections "are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination" R. v. Grant, 2009 SCC 32, at para. 22.

[61] The standard right to counsel advises an individual who is detained for investigative purposes or is under arrest that they have the right to retain and instruct counsel without delay, to telephone any lawyer they wish, they also have the right to free advice from a legal aid lawyer and a toll free number is provided to put the detainee into contact with a legal aid duty counsel lawyer for free legal advice right now. The exercise of the right to counsel by an individual who is under arrest is usually implemented at the police station in private.

[62] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see R. v. Bartle, supra; R. v. Devries, 2009 ONCA 477, at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, at paras. 29-30.

[63] In R. v. Brydges, the Supreme Court held the police must give a detainee his right to counsel upon arrest and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen at p. 391.

[64] The Supreme Court of Canada has consistently held since R. v. Baig, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, supra, at p. 192; R. v. Willier, supra, at paras. 30 & 33; and R. v. Taylor, 2014 SCC 50, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, at paras. 77-78 and R. v. Owens, 2015 ONCA 652, at para. 28.

[65] Mr. Smith was initially arrested on the breach of recognizance, being out of his residence after his curfew of 7 p.m. Mr. Smith was advised by D.C. Smith that he was under arrest for breach of recognizance. Mr. Smith was handcuffed, and D.C. Davies performed a brief pat down search and found in Mr. Smith's right front pants pocket a small quantity of marihuana. D.C. Davies then advised Mr. Smith he was also under arrest for possession of a controlled substance, namely, marihuana. D.C. Davies provided Mr. Smith with his right to counsel pursuant to s. 10(b) of the Charter. It is my view Mr. Smith's ss. 10(a) and 10(b) rights were complied with by the police in respect of these two offences. When he was asked if he understood his right to counsel he responded he did and when D.C. Davies asked if he wanted to speak to a lawyer, Hugh Smith replied immediately he wanted to speak to his lawyer, Ms. Kwan, who worked at Reid Rusonik's office. D.C. Davies also cautioned Mr. Smith.

[66] D.C. Wesseling arrived just after Mr. Smith's arrest. He did not see the arrest take place. He parked his vehicle just north of where Mr. Smith had been placed under arrest just outside the convenience store. At approximately 8:04 or 8:05 p.m., custody of Mr. Smith was turned over to him and he brought Mr. Smith to the rear of his pickup truck. Mr. Smith sat on the truck's tailgate. They waited for uniform officers to arrive to transport Mr. Smith to 17 Division in Oshawa.

[67] D.C. Graham testified Mr. Smith was situated just a couple of parking spots from where the Subaru was moved to be searched incident to arrest. Mr. Smith's location waiting for the uniform officers to arrive is marked with a square on Exhibit 2. Mr. Smith was walked to this area from where his Subaru was parked.

[68] D.C. Graham was advised about the discovery of the small quantity of marihuana on Mr. Smith's person when a pat down search was conducted by D.C. Davies and as a result, D.C. Graham advised Mr. Smith his Subaru would be searched incident to arrest because of the discovery of the marihuana. Mr. Smith's vehicle was moved by D.C. Smith around 8:04 p.m., just north of the convenience store where the search of the Subaru, incident to Mr. Smith's arrest for possession of a controlled substance, could occur. The location of the Subaru is marked on Exhibit 2 by a circle with an 'X' inside. D.C. Graham directed D.C. Phillips to search the Subaru. When D.C. Phillips found a kilogram brick of cocaine, in plain view, on the floor area of the back passenger seat, he advised D.C. Graham that Mr. Smith could be charged with possession for the purpose of trafficking in cocaine and that Mr. Smith should be advised of this. In my view the discovery of the cocaine in the rear of the Subaru necessitated the police advising Mr. Smith about his change in jeopardy, as this charge was significantly more serious than the other two offences he had originally been arrested for. D.C. Phillips testified he requested D.C. Davies take a video of the interior of the Subaru after he discovered the kilogram brick of cocaine, Exhibit 5. D.C. Phillips completed his search of the Subaru after the video was taken. After he completed the search, D.C. Phillips put the items he was seizing, including the kilogram brick of cocaine into his undercover police vehicle. D.C. Smith testified he observed D.C. Phillips take what appeared to be a suspected kilogram of cocaine from the Subaru.

[69] As indicated by Boswell J. in R. v. Cave, 2019 ONCA 5949 (SCJ), at para. 109:

It is recognized that the section 10(b) right to counsel can only be meaningfully exercised if the person under arrest understands the extent of his jeopardy. "Jeopardy" refers, of course, to what's at stake. In other words, it includes, in the long term, the individual's ultimate risk of conviction and punishment and, in the short term, the risk of self-incrimination.

[70] In R. v. Sawatsky, at para. 29, Justice Doherty observed:

Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed.

[71] McLachlin J. (as she then was) in R. v. Evans, at para. 49, held:

…in order to comply with the first of the three duties [the police duty to inform the detainee of the right to counsel] set out above, the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. [Emphasis added]

[72] In this case there appears to be a gap in the evidence led by the Crown as to which officer advised Mr. Smith of his change in jeopardy after the discovery of the kilogram brick of cocaine inside the Subaru – that he was now facing a further charge of possession for the purpose of trafficking in cocaine and whether he had been re-advised by the police of his right to counsel pursuant to R. v. Black and R. v. Evans and R. v. Sawatsky, supra.

[73] D.C. Davies testified he became aware that a kilogram brick of cocaine was located in the rear passenger floor area of the Subaru. He overheard D.C. Graham instruct D.C. Wesseling to advise Mr. Smith of his change in jeopardy by advising him that he was under arrest for possession for the purpose of trafficking in cocaine. D.C. Wesseling testified he knew Mr. Smith was aware he was charged with possession for the purpose of trafficking in cocaine, but he did not recall how he knew this. D.C. Wesseling testified he did not provide any rights to counsel or caution in respect of his locating the four small baggies of cocaine in Mr. Smith's shirt pocket during the pat down search he conducted, because Mr. Smith was already aware he was charged with possession for the purpose of trafficking in cocaine. D.C. Wesseling did not believe his finding this small amount of cocaine (the four baggies) on Mr. Smith's person changed his jeopardy.

[74] Upon being advised of his right to counsel by D.C. Davies, Mr. Smith immediately requested for his lawyer to be contacted, as he wanted to speak to her. Mr. Smith's request to speak to his lawyer imposed a number of obligations on the police: first, to implement and facilitate contact between Mr. Smith and his lawyer, second, to hold off questioning or eliciting any evidence from Mr. Smith concerning his involvement in the offences.

[75] Mr. Smith was also cautioned by D.C. Davies after providing his right to counsel that he did not have to say anything to the police but that anything he said would be taken down and would used against him. D.C. Davies testified he wanted Mr. Smith to understand that he did not have to say anything to the police. He did not ask Mr. Smith anything about his charges. P.C. Dupont, one of the uniformed transport officers gave Mr. Smith a secondary caution about not having to say anything to the police. He was aware Mr. Smith had invoked his right to counsel and he testified he did not have any further conversation with him during his transport to 17 Division.

[76] Mr. Smith did not allege any breaches of his ss. 10(a) and 10(b) Charter rights during his trial. When Mr. Smith became involved in his trial on the second day when he first began cross-examining witnesses, namely, D.C. Graham, D.C. Davies, D.C. Smith and D.C. Phillips, it was clear his focus was on the issues of whether the Crown could prove he was actually breaching the curfew condition in his recognizance and whether he was in possession of the kilogram brick of cocaine found on the floor in the passenger back seat area in the Subaru – the issue was whether Mr. Smith had the requisite knowledge and control of this brick of cocaine. He did not suggest to any of the officers that he was not advised he was being charged with possession for the purpose of trafficking in cocaine. He did not give evidence that he was unaware of the charges he was facing after he was first placed under arrest or after the search of the Subaru or the pat down search conducted by D.C. Wesseling. He did not ask any questions of D.C. Wesseling or the drug expert, Detective MacIntosh.

Did the Police Implement Mr. Smith's Request to Speak to His Lawyer at the First Reasonable Opportunity?

[77] There was some delay in placing the call to Ms. Kwan, Mr. Smith's lawyer. He was arrested at 8:01 p.m. The DEU officers were operating unmarked vehicles that were not equipped with plexi-glass barriers between the front and rear seats where a detainee who is under arrest would be seated during transport to the police station. In my view it was reasonable for the DEU officers to request uniform officers to attend their location in Scarborough to transport Mr. Smith and to wait the length of time it took them to arrive. Mr. Smith was turned over to the uniform officers in a marked police cruiser, equipped with the necessary equipment to ensure officer safety and prevent a prisoner's escape, at 8:29 p.m., when P.C. Dupont and his partner commenced transporting Mr. Smith from Scarborough to 17 Division in Oshawa. P.C. Dupont testified he drove directly to 17 Division after he received custody of Mr. Smith. He arrived at 17 Division at 8:55 p.m., and the booking before the sergeant commenced, according to the time stamp on the booking video, at 9:07 p.m.

[78] Mr. Smith was asked if he knew what charges he was facing and he replied, "Yes." He was not told by either the sergeant or by D.C. Wesseling, who was standing beside him, in the booking area, the specific charges he was facing. Immediately after being asked this the sergeant asked Mr. Smith if he wanted to call a lawyer and Mr. Smith reiterated his request to speak to his lawyer, Ms. A. Kwan and he provided her telephone number. D.C. Wesseling advised he would place a call to Ms. Kwan once the booking was completed.

[79] The call to Ms. Kwan was made at 9:15 p.m. by D.C. Wesseling and he left a message on the answering machine for her to call 17 Division cells as her client, Hugh Smith was in custody on breach of recognizance and possession for the purpose of trafficking in cocaine charges. Mr. Smith was never interviewed or questioned by any police officer after his initial arrest when he invoked his right to speak to counsel after being advised by D.C. Davies of his Charter rights.

[80] D.C. Wesseling advised Mr. Smith prior to his leaving 17 Division to attend the DEU office, which was located at the Whitby detachment that Ms. Kwan had not yet called 17 Division. D.C. Wesseling inquired whether Mr. Smith wished to contact another lawyer. Mr. Smith advised he did not want to call another lawyer and he wanted to wait for Ms. Kwan to call back. D.C. Wesseling served Mr. Smith with an Intention to introduce documentation of his prior Release Order. During the booking the sergeant asked Mr. Smith if there was anyone he wanted the police to call to come to bail court the next day and Mr. Smith provided the booking sergeant with a name and telephone number.

[81] When an arrested individual upon being advised of their right to speak to a lawyer invokes their right to counsel, the police duty to facilitate reasonable access to counsel arises immediately. The police are required to facilitate access to counsel at the first reasonable opportunity. See R. v. Taylor, 2014 SCC 50, at para. 24. It is my view the delay from Mr. Smith's arrest until the call was made to his lawyer was explained in the evidence and I find the DEU officers facilitated Mr. Smith's request at the first reasonable opportunity. The police held off in respect of questioning or interviewing Mr. Smith in respect of the discovery of the different quantities of cocaine.

[82] The onus is on Mr. Smith to establish on a balance of probabilities whether (1) the evidence was obtained in a manner that infringed a Charter-protected right, and (2) that the administration of justice would be brought into disrepute by admitting the impugned evidence, namely the cocaine found in the Subaru and on his person.

[83] It is clear from the evidence of D.C. Graham, D.C. Davies, D.C. Phillips and D.C. Wesseling that these officers were aware of their obligation to advise an arrestee of any change in jeopardy that arose during the course of an investigation from a fundamental and discrete change in the purpose of the investigation, whether as a result of a more serious offence being uncovered or a different offence unrelated to their initial investigation. As I indicated above there is a slight gap in the evidence as to which of the officers involved in the high risk takedown and arrest of Mr. Smith advised him he was being charged with possession for the purpose of trafficking as a result of the discovery of the kilogram brick of cocaine. However, in assessing the evidence of the witnesses, I find Mr. Smith was most likely advised he was being charged with possession for the purpose of trafficking in cocaine immediately after that discovery and prior to the pat down search by D.C. Wesseling at 8:28 p.m.

[84] D.C. Davies observed D.C. Phillips remove what he believed to be a kilogram brick of cocaine from the Subaru around 8:07 p.m. D.C. Davies overheard D.C. Graham instruct D.C. Wesseling to advise Mr. Smith of his change in jeopardy as a result of that discovery. D.C. Phillips advised D.C. Graham, who was assisting in the search of the Subaru, of his discovery of the kilogram brick of cocaine, that Mr. Smith could be charged with possession for the purpose of trafficking as a result of that discovery and Mr. Smith should be so advised. D.C. Wesseling also knew a kilogram brick of cocaine was found in the Subaru at the scene. He had Mr. Smith in his custody only a short distance away where the Subaru was parked and searched by D.C. Phillips. D.C. Wesseling testified Mr. Smith was aware he was charged with possession for the purpose of trafficking as a result of the discovery of the kilogram brick of cocaine in the Subaru, but he could not recall how he knew this. D.C. Wesseling testified he did not provide Mr. Smith his right to counsel and caution him when he found the 4 baggies of cocaine on Mr. Smith's person, because he did not believe this small amount of cocaine changed Mr. Smith's jeopardy in light of the more significant quantity of cocaine and the fact Mr. Smith knew he was already facing a charge of possession of cocaine for the purpose of trafficking. In my view there is a reasonable inference available from this evidence that Mr. Smith was most likely advised he was being charged with possession for the purpose of trafficking in cocaine because of the kilogram brick of cocaine found in the Subaru.

[85] In making this finding I am also considering the conduct of the police officers during their arrest of Mr. Smith. His arrest lasted no more than 20-30 seconds when he was handcuffed. When a small quantity of marihuana was discovered in his right front pants pocket, Mr. Smith was advised he was under arrest for breach of recognizance, his curfew condition and possession of a controlled substance, marihuana. D.C. Davies then advised Mr. Smith of his rights to counsel and Mr. Smith invoked his right to speak to his lawyer. D.C. Davies also cautioned Mr. Smith. No questioning of Mr. Smith occurred after he requested to speak to his lawyer by any police officer. P.C. Dupont was told Mr. Smith had requested to speak to his lawyer and he gave Mr. Smith a secondary caution and had no further conversation with him during the transport to 17 Division. D.C. Phillips testified he would not have searched the Subaru incident to arrest if the only charge facing Mr. Smith was the breach of recognizance, however, the discovery of the marihuana on Mr. Smith's person authorized a search incident to arrest of the vehicle he was driving to determine if there were further controlled substances or drug paraphernalia in the vehicle. Mr. Smith again requested to speak to his lawyer and provided her phone number during the booking. D.C. Wesseling called Mr. Smith's lawyer's office and left a message. When there was no call back from Mr. Smith's lawyer, D.C. Wesseling advised Mr. Smith and asked if he wished to call another lawyer and Mr. Smith indicated he did not want to call another lawyer and he would wait for his lawyer to call back. Again, no questioning or eliciting of evidence from Mr. Smith by the police occurred.

[86] The reason an arrestee or detainee needs to know the jeopardy they are facing is so they can make an informed decision whether or not to exercise their right to counsel. Mr. Smith exercised his right to counsel from the outset of his arrest, immediately after he was provided his rights to counsel. He reiterated his wish to speak to his lawyer during his booking at 17 Division. Mr. Smith chose not to testify, which he is not required to do, on the issue of whether his Charter rights to counsel were infringed, as a result, there is no evidence to contradict the police evidence that he was advised of the change in his jeopardy and that the police held off in their investigation once he asserted his wish to speak to his lawyer.

[87] Taking all of these things into consideration it is my view there was no breach of Mr. Smith's ss. 10(a) or 10(b) Charter rights. Mr. Smith has not met his onus of establishing on a balance of probabilities the breach of his ss. 10(a) and 10(b) Charter rights. The 1128 gram brick of cocaine vacuum-sealed and wrapped in plastic found in his Subaru is admissible.

[88] It is also my view even if the gap in the evidence had resulted in a finding there was a breach of ss. 10(a) and 10(b), the seriousness of the police conduct would have been at most moderate to low, the impact on Mr. Smith's Charter-protected interests were at most a neutral factor given the police did not pursue any further investigation or questioning of Mr. Smith after he requested to speak with his lawyer. The evidence in question was discovered as a result of lawful searches incident to a lawful arrest and as such there was no causal link between a possible s. 10(b) breach and the cocaine found in the car and on his person sought to be excluded. Finally, the truth-seeking function of a criminal trial would be better served by the admission of the evidence. It is reliable evidence and essential to the Crown's case, which favours admission. The possession of cocaine for the purpose of trafficking is a serious offence. It is my view balancing the three factors in R. v. Grant, supra, the administration of justice would not be brought into disrepute by the admission of this evidence, rather the administration of justice would be brought into disrepute by its exclusion.

[89] Further, on the totality of the evidence the four baggies of cocaine found by D.C. Wesseling in Mr. Smith's left shirt pocket are admissible in evidence as D.C. Wesseling conducted a lawful search of Mr. Smith's person before turning custody over to the two uniform officers for transport to 17 Division, as it was a search incident to Mr. Smith's arrest.

Does the Crown's Evidence Establish Beyond a Reasonable Doubt That Hugh Smith Was in Possession of the Cocaine Found Inside the Subaru?

[90] There can be little dispute that if it is proven beyond a reasonable doubt that Mr. Smith had possession of the cocaine found in the Subaru, then he possessed it for the purpose of trafficking. Indeed, given the quantity and street value of the cocaine discovered, the only reasonable inference is that the cocaine was possessed for the purpose of trafficking.

[91] The Crown must prove beyond a reasonable doubt that Mr. Smith knew of its existence and had a measure of control over it. "Possession" means possession within the meaning of s. 4(3) of the Criminal Code. "Possession" is defined in s. 4(3) of the Code as:

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person;

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[92] In the recent decision of R. v. Lights, 2020 ONCA 128, Watt J. dealt with the definition of personal and constructive possession:

45 When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See also R. v. Beaver, [1957] S.C.R. 531, at pp. 541-42.

46 When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

47 Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused:

i. has knowledge of the character of the thing;

ii. knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

iii. intends to have the thing in the place for the use or benefit of the accused or of another person.

Morelli, at para. 17.

[93] Justice Watt also indicated in R. v. Lights, at para 50, that when things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy, citing R. v. Watson, 2011 ONCA 437, at para. 13 and R. v. Lincoln, 2012 ONCA 542, at para. 3.

[94] As noted in R. v. Pham, possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the defendant knew of the presence of the controlled substances and he had a measure of control over the substances.

[95] As to the meaning of "control", the Court of Appeal in R. v. Savory at para. 7 stated:

Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 55 C.C.C. (2d) 183 (Ont. C.A.), aff'd. (1983), 4 C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.

[96] To establish knowledge, it is not essential that there be direct evidence of the defendant's knowledge of the presence of the subject matter of the charge. Knowledge may, as with any other issue of fact in a criminal case, be established by circumstantial evidence. In R. v. McIntosh, 2003 ONCA 1267 (SCJ), at para. 43, dealt with the use of circumstantial evidence in possession cases:

In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1.

[97] In this case, there is no direct evidence of Mr. Smith's knowledge of the kilogram brick of cocaine found on the rear floor behind the front passenger seat. That is, no one testified that Mr. Smith put the cocaine in the Subaru where it was found, or that he directed it to be stored there or that he knew of its location. "[W]here the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt is the only reasonable conclusion on the totality of the evidence": R. v. Villaroman, 2016 SCC 33, para 55; R. v. Biggs, 2016 ONCA 910, para 17.

[98] In R. v. Anderson-Wilson, 2010 ONSC 489 (SCJ), para 68, at paras 72-73, Justice Hill held:

Circumstantial evidence must be viewed as a whole and not each piece individually. R. v. Warkentin et al. (1976), 30 C.C.C. (2d) 1 (S.C.C.) at 20…. The mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt. R. v. Griffin; R. v. Harris, (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at para. 34 …. Circumstantial inferences are ones which 'can be reasonably and logically drawn from a fact or a group of facts established by the evidence'. R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209.

Has the Crown Proved Beyond a Reasonable Doubt That Hugh Smith Had Possession – Knowledge and Control – of the Kilogram Brick of Cocaine Discovered Inside the Black Subaru?

[99] D.C. Graham and the DEU officers had received information from Toronto Police Service that Hugh Smith had been arrested in front of 1952 Faylee Crescent in the black Subaru, licence BVYY164 on December 29, 2016, and that a search warrant was executed on January 3, 2017, in respect of the Subaru and a quantity of drugs were found.

[100] The black Subaru is not owned by Hugh Smith, as the registered owner is listed with the MTO as Lisa Questel. In fact, two documents in the name of Lisa Questel, which was mostly redacted for privacy concerns by the Crown, were located in the trunk of the black Subaru on April 4, 2017, during the search by D.C. Phillips and are contained in the photographs taken by D.C. Davies in Exhibit 5. One of the documents was an RMT report, dated May 2, 2016 in the name of Lisa Questel, lists other appointments, May 3-16, 2016. The documentation found inside the Subaru relating to Lisa Questel was almost a year old. No evidence was led during the trial respecting Ms. Questel's use of the Subaru during the relevant time period Mr. Smith was observed exercising possession and control over the vehicle.

[101] Mr. Smith had been observed by DEU officers during surveillance conducted between March 1, 2017 to April 4, 2017, as the only person who was operating the black Subaru sedan, licence BVYY164. Mr. Smith was usually alone with the exception of one occasion when he had a female passenger in the Subaru when he was in the driver's seat. There was one occasion where police observed the black Subaru pull in front of 1954 Faylee and a black male exited the Subaru, wearing a black hoodie pulled up with dark pants, but the surveillance officers were unable to identify who this person was. On April 4, 2017, Hugh Smith was observed at 5:19 p.m., to get into the Subaru by himself on Danforth Avenue in Toronto and he drove to 430 McMurchy Avenue in Brampton.

[102] The Subaru was located at the Brampton address at 6:45 p.m. and at 7:01 p.m., Mr. Smith was observed getting into the black Subaru and driving away. He was the sole occupant in the Subaru. He was next observed sitting in the driver's seat of the black Subaru at 7:03 p.m., stopped at a red light on McMurchy Avenue waiting to turn east on Steeles Avenue. D.C. Graham was directly behind the black Subaru and observed Mr. Smith to still be the lone occupant, sitting in the driver's seat. D.C. Graham observed Mr. Smith lean and put his right arm into the back seat foot area of the passenger's side. Mr. Smith then adjusted the rear view mirror. D.C. Graham was drawn to this action by Mr. Smith because of the information his team had concerning firearms charges Mr. Smith faced in Toronto and he advised the surveillance team of his observations, so they would be cautious concerning the foot area behind the passenger seat of the Subaru, after the decision was made by Detective Antaya at 7:08 p.m., to arrest Mr. Smith for breach of recognizance for his being outside his residence after his 7 p.m. curfew. Mr. Smith was later observed arriving at the Scarborough Town Centre where he went through the drive-thru of Swiss Chalet at 7:41 p.m. He was followed to Lee Centre Drive in Scarborough, where he was arrested for breach of recognizance outside the Green Shop Convenience store. He was the sole occupant of the Subaru from 5:19 p.m. until his arrest at 8:01 p.m.

[103] It is my view the evidence of the police witnesses that Mr. Smith was consistently the person observed operating the black Subaru, licence BVYY164 on random dates between March 1 and April 4, 2017, together with the information of Mr. Smith's arrest in that vehicle on December 29, 2016, is significant in assessing on the totality of the evidence whether Hugh Smith had control over this vehicle and its contents (including the kilogram brick of cocaine), on April 4, 2017, when he was operating it and was arrested going into the front passenger seat.

[104] D.C. Phillips searched the Subaru incident to Mr. Smith's arrest for possession of a controlled substance – marihuana. He began the search in the front passenger seat where he observed the glove box to be open and saw the cabin air filter had been removed and was situated on the passenger floor. This can be seen in the video, found in Exhibit 5, taken by D.C. Davies. D.C. Phillips testified he is aware from his involvement investigating drug offences that the area where the cabin air filter is located is often used to secrete drugs (see the facts in R. v. McIntosh, supra, at paras. 15-16 and 44). The evidence disclosed Mr. Smith upon exiting the Green Shop Convenience went to the front passenger door of the Subaru, opened it and was reaching into the front seat prior to his being approached from behind and arrested by D.C. Smith, who was the first officer to arrive at the vehicle. It is my view this evidence when considered with the observations of D.C. Graham at 7:03 p.m., of Mr. Smith reaching into the passenger's rear floor area of the Subaru leads to a reasonable inference that Mr. Smith had removed the air cabin filter from the glove box to either secrete the kilogram brick of cocaine he was reaching in the rear passenger side floor area to retrieve or to remove the kilogram brick of cocaine from the space where the air cabin filter was normally contained in the glove box and put it into the passenger rear floor area for later delivery. In my view the cabin air filter's location and the open glove box is too much of a coincidence when coupled with D.C. Graham's observations and D.C. Phillips locating the kilogram brick of cocaine in the rear passenger floor area, in plain view.

[105] The kilo brick of cocaine was found in plain view approximately in the middle or centre of the floor area behind the front passenger seat. The front passenger seat was found by D.C. Phillips and later D.C. Davies to be fully moved or "slid" back making the floor area in the front passenger seat quite large and the floor area behind the front passenger seat quite small, yet the cocaine was discovered in plain view and was not found underneath the front seat. This can be clearly seen on the video, taken by D.C. Davies, part of Exhibit 5. D.C. Phillips testified he did not touch the kilogram brick of cocaine when he first observed it and requested a SOCO officer video the Subaru. D.C. Davies testified he video-taped the kilogram brick of cocaine where he first saw it located in the Subaru. The kilogram brick of cocaine was vacuum-sealed in plastic and was branded, which according to the drug expert was indicative of a high level trafficker, a wholesaler. I accept the evidence of these officers.

[106] Detective MacIntosh, who was qualified as a drug expert, gave evidence that the wholesale value of a kilogram brick of cocaine was between $45,000 to $56,000, which is a significant amount for someone to leave unattended in a motor vehicle, out in the open, in plain view. The street level value of this cocaine at $100 a gram is significantly higher. As Justice Hill observed in R. v. McIntosh, supra, at paras. 45-46:

45 The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.) at 121 (aff'd. on appeal (1971), [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566 n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

46 The quantity of crack cocaine is clearly for the purpose of trafficking. The value of the illicit drug, thousands of dollars' worth from retail sales, suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptacle concealing the asset.

The value of the cocaine is such that if it was not Mr. Smith's, it would not have been left in plain view on the floor of the back seat, where it could be discovered by anyone getting into the vehicle. It is my view this would be completely unreasonable behaviour on the part of a high level trafficker or wholesaler.

[107] In considering the totality of the evidence relating to the issue of knowledge and control, I am satisfied the only reasonable conclusion to be drawn from the evidence, is that Hugh Smith had control of the vehicle and its contents and he knew the kilogram brick of cocaine was on the floor area behind the front passenger seat. The evidence of the cabin air filter being removed and the glove box open, together with Mr. Smith returning to the Subaru and opening the front passenger door and reaching in, also supports this reasonable conclusion. Further, the evidence of Mr. Smith reaching into the floor area of the passenger back seat I find puts him in direct contact with the kilogram brick of cocaine that was found after his arrest. It was readily accessible to him from the driver's seat. The search by D.C. Phillips of the vehicle was a lawful search incident to Mr. Smith's arrest for possession of marihuana. I find the Crown has proven the charge of possession for the purpose of trafficking in the kilogram brick of cocaine beyond a reasonable doubt and he will be found guilty of that offence.

[108] I also find on the totality of the evidence that Mr. Smith's possession for the purpose of trafficking of the four baggies of cocaine was proven beyond a reasonable doubt. The four baggies were inside a latex glove, which was in the left front pocket of the shirt Mr. Smith was wearing. In my view he was in personal possession of this quantity of cocaine. His possession of this cocaine together with the evidence of Detective MacIntosh that the quantities of the four baggies were consistent with street level trafficking, as well as the quantity of cash found on Mr. Smith's person. Mr. Smith will be found guilty of possession for the purpose of trafficking respecting the four baggies of cocaine.

[109] The Crown proved beyond a reasonable doubt that Hugh Smith was subject to a recognizance of bail on April 4, 2017, which required him to abide by a curfew of 7 p.m. to 8 a.m. each day and he was not to possess illicit substances, unless prescribed by a doctor and the fact he was arrested at 8:01 p.m. in Scarborough, still some distance from his residence, not in the company of his surety, in possession of two different quantities of cocaine. As a result, I find Mr. Smith is guilty of the two charges of breach of recognizance as well.

Released: October 5, 2020

Signed: Justice Peter C. West