Her Majesty The Queen v. Justin Thombs, 2021 ONCJ 310

ONTARIO COURT OF JUSTICE

DATE: May 31, 2021 COURT FILE No.: 20-6182 and 21-1451

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JUSTIN THOMBS

Before: Justice P. H. M. Agro

Heard on: 18, 19, 20 & 21 May 2021 Reasons for Ruling released on: 31 May 2021

Counsel: J. Little....................................... counsel for the Public Prosecution Service of Canada R. McCourt........................................................................................ counsel for the accused

AGRO, J.:

[1] The accused Justin Thombs, having elected trial by indictment in this court, was arraigned on two informations. The first alleges his possession of stolen license plates and the second his possession of the proceeds of crime under $5000 and 5 counts of possession of Schedule 1 drugs for the purpose of trafficking. The offence date for each information and count is the 27th of July 2020.

[2] A judicial pre-trial was held on 7 October 2020 at which time issues were canvassed with both Mr. Little and Ms McCourt in attendance. There were no Charter issues identified and 4 days were authorized for this trial.

[3] At the opening of trial the defence conceded that continuity and substance were not in issue. There were no Charter applications before the court.

[4] On the first and second days of trial the Crown called the two officers directly involved in Thombs's arrest. During her cross-examination of PC Vincent Starrs, the arresting officer, the defence began to explore his reasons for the search of Thombs’s vehicle after arrest and his role in the handling and logging of seized exhibits.

[5] That cross-examination was opposed by the Crown in light of the admission by the defence that continuity of exhibits was not in issue and that there was no Charter motion before the Court. I ruled in favour of the Crown and directed the defence to abandon that line of cross examination.

[6] At the end of the second day, a Mohan voir dire began to qualify a Hamilton Police Services officer as an expert on the packaging, pricing, quantities, usage and consumptions of the five Schedule 1 drugs particularized in the information.

[7] His testimony, if admitted, and the filing of certificates of analysis and solemn declaration pursuant to s. 53 of the Controlled Drugs and Substances Act, were the only remaining matters to complete the Crown case.

The Issue

[8] At 10am on the third day of trial, before the completion of the Mohan voir dire, the Court received a Notice of Application of Charter motion and supporting affidavit filed by the defence. There was no formal service on the Crown, but Mr. Little was alerted to the possibility of the application by text message earlier in the morning and received the Notice of Application and affidavit at 10am as well.

[9] The grounds for the application were set out as follows:

1. Disclosure was provided by the Crown, including notes and will say of Officer Vincent Starr [sic], who searched a vehicle, eventually finding drugs in the vehicle. Based on the disclosure, Counsel did not anticipate a Charter issue with respect to the search of the vehicle.
2. At trial, Officer Vincent Starr [sic] testified the reasons the vehicle was searched was for officer safety, to find weapons, and to determine if the car was stolen. This information was not disclosed prior to trial.
3. Officer Starr [sic] testified that once drugs were found in the vehicle, the search of the vehicle also included looking for evidence that would be related to drug trafficking. That information was not disclosed prior to trial.
4. The evidence given at trial gives rise to an issue as to whether or not Mr. Thombs's Charter right to be secure against unreasonable search and seizure was infringed.

[10] There was no factum filed, nor did the defence produce and exhibit the disclosure referred to in the affidavit.

[11] The Crown opposed the hearing of this mid-trial motion and sought a summary dismissal of the Charter application. In the interests of making the best use of the remaining trial time that day, I heard submissions, directed production of the disclosure materials referred to for my consideration and directed that the Mohan voir dire continue, reserving my delivery of this ruling on this defence application until the completion of the Mohan voir dire and remaining Crown evidence.

Submissions of Counsel

[12] The defence did concede that the arrest of her client for the possession of the stolen license plates was lawful.

[13] The essence of her argument seeking the mid-trial Charter application is that she was caught by surprise as the Stinchcombe disclosure made no reference to the grounds for search that led to the discovery of drugs and, had she been aware of those grounds, she would have considered serving and filing a Charter application prior to trial. She relies on the decision of the British Columbia Court of Appeal in R v Vukelich.

[14] The Crown submits that the Charter application is too late; that on a review of disclosure the defence would have known that an arrest for possession of stolen license plates led to a search that garnered five Schedule 1 substances in large quantities as well as other things indicative of trafficking. The Crown further submits that those facts ought to have prompted the defence to either seek a preliminary hearing to flesh out the officers’ grounds for search, a trial strategy decision that cannot now be remedied, or alternatively to have served and filed the application in this court so that a potential Charter issue could be dealt with as a pre-trial motion. To allow an application at the stage when the Crown case is all but formally closed, would require the recall of 2 witnesses and the possibility of a third.

[15] The Crown also challenges the merits of the motion itself relying on R v Cody and the recent decision of the Ontario Court of Appeal in R v Megill.

The Disclosure

[16] I reviewed the relevant extract from the Crown disclosure provided by counsel, being police notebook entries & will states of the 3 officers that attended at the driveway of 66 Wellington Street, the site of the arrest and search.

[17] The disclosure sets out that while on routine patrol in a marked police van on 26 July 2020, PC Vincent Starrs observed a white BMW with stolen license plate pull into a driveway at 66 Wellington Street. He continued to observe the vehicle and its occupants from a distance and, when he saw the driver open the trunk and retrieve a wrench and remove the plates, he called for back up. Officers Tyminski and Seebach attended, Seebach detaining the driver.

[18] The disclosure from Officer Tyminski is of little import to my consideration of the defence application. His dealings with Thombs were minimal, and he did not take part in any search. His focus was on the front seat passenger of the vehicle who fled the scene. He followed in pursuit.

[19] Officer Seebach’s will state and notes indicated that he observed 2 males standing at a vehicle at 66 Wellington, one of whom identified himself as the accused. He assisted Starrs with the arrest, and searched Thombs incident to that arrest before placing him in his cruiser. In that search Seebach located keys to the BMW in Thombs’s right pants pocket and a Samsung cellphone in his left pants pocket. He noted that the cell phone rang repeatedly while Thombs was in his cruiser.

[20] Officer Starrs’s will state sets out that once on scene, he spoke with Thombs who had the key fob for the vehicle and formally arrested him for possession of the stolen plates. He noted that Thombs denied any knowledge of the stolen plates. Starrs observed that the vehicle’s VIN plate was covered with a piece of paper which he believed was an attempt to conceal the vehicle status. He recorded that he believed the vehicle to be stolen but not yet reported as such.

[21] In the open trunk Starrs saw a black Canon camera bag with a small notebook. He believed the writing in the notebook was a debt list indicating amounts of drugs owed and sold and the names of debtors. In the passenger side door he saw a clear bag containing an open box of baking soda, a substance he is aware is used as a cutting agent in narcotic distribution.

[22] On the floor of the BMW, behind the driver’s side seat, Starrs saw an open backpack containing numerous baggies and a larger bag with what he believed to be purple heroin containing fentanyl along with another substance he believed to be methamphetamine. In the middle console of the vehicle Starrs located 2 cellphones, a scale and $110. Canadian currency.

[23] Starrs’s will state indicated that he formally arrested Thombs for CDSA 5(2) providing rights to counsel and caution, which Thombs acknowledged.

[24] Starrs’s hand-written notes fleshed out the will state with these facts: that Thombs said he was the vehicle owner and had bought the car from a person whose identity is noted but illegible in the notes; that the plates were in the trunk with the camera bag; and an inventory of all items seized including the weights for the various drugs seized from behind the driver’s seat.

Testimony Regarding the Arrest and Search

[25] Without making any finding on credibility or other matters relating to the Crown onus of proof beyond a reasonable doubt on the essential elements of the offences, it is important to summarize the testimony that defence counsel alleges gives rise to her mid-trial application and the relationship of that testimony to the disclosure provided to me.

[26] PC Seebach testified he received a dispatch call for assistance at 13:24 and attended on scene. Once there he assisted Starrs with Thombs’s arrest for the possession of stolen license plates which he noted took place at 13:30. He then searched Thombs’s person, finding the key fob and cellphone. After placing Thombs in his cruiser he remained with him until they departed at 14:26 for central custody.

[27] After running the license plate for the BMW on the computer in his police van, from a distance, Starrs testified that he observed the accused exit the driver’s side of the vehicle and another male exit from the front passenger side. He alerted Tyminski & Seebach to attend and then saw the accused open the trunk of the vehicle with a key fob, remove the plates with a wrench retrieved from the trunk and place them in the trunk. At that moment Seebach and Tyminski arrived. Seebach detained the accused and Tyminski pursued the fleeing passenger as Starrs was coming on the scene.

[28] Starrs testified he arrived and formally arrested Thombs at 13:30 for the possession of the stolen plates and retrieved them from the open trunk. Thombs denied any knowledge of the stolen plates.

[29] Starrs testified that his focus was on Thombs, the driver of the vehicle as he thought he was also investigating what was a potentially stolen auto. Although Thombs told Starrs he had recently purchased the vehicle he did not produce any registration or other document to verify that purchase.

[30] Starrs explained that Wellington Street is a high crime area of the city, and he saw Thombs removing stolen license plates from a vehicle. Those plates were registered to a white BMW registered to an owner in Stoney Creek. Starrs testified he was aware of a practice called “shading” in which criminals would place stolen plates on an auto of the same make, colour and model as the vehicle from which they were stolen so as to avoid detection. He thought the loose piece of paper covering the VIN plate was an attempt to conceal the registration number of the vehicle.

[31] These factors and the fact that the accused was wearing an ankle monitoring device, were the reasons Starrs articulated to search first the open trunk, then the interior of the vehicle, for any weapons or any evidence that might advance his investigation of the stolen plates and lawful ownership of the vehicle.

[32] Starrs said he opened the Canon camera backpack to look for identification or any stolen property that might advance that investigation and looked into the vehicle, for the same purpose. It was his recollection that both the driver’s and passenger doors were open.

[33] After clearing the trunk Starrs went to the passenger side door where he saw the baking soda in plain view in the door pocket. From the driver’s side he observed the open Burberry back pack with the drugs on the floor behind the driver’s seat.

[34] Starrs testified that he then opened the middle console as that was where, in his experience, people often place vehicle ownership, registration and insurance documents. The additional cell phones, scale and currency were there.

[35] Starrs testified that his search was visual, no components of the vehicle were moved for the purposes of his search.

[36] Both officers testified that in terms of their note taking, they were prepared as contemporaneously as possible given the fluidity of the circumstances. In Starrs’s case he said during his surveillance of the vehicle and the activities of the two occupants he was not writing notes until 13:25, ten minutes after his observations began because his focus was on the surveillance aspect of his investigation. Seldom did either officer need to refer to their notes to refresh their memories of events.

Analysis

[37] I am guided in my analysis by the Court of Appeal decision in Megill.

[38] While I agree with the defence that there is little in the disclosure that details Starrs’s grounds for the vehicle search, the defence knew from the moment of Thombs’s arrest that there was a search of the vehicle.

[39] There was ample information in the disclosure for the defence to choose a strategy, whether by preliminary inquiry during which the matter could be explored, or by serving and filing a properly supported Charter application in accordance with the rules of this court, either as a pre-trial motion, or with leave of the court, as a blended voir dire and trial. In either of those cases, the Crown strategy may well have differed and most certainly, the trial time estimate in this court would have been longer.

[40] It should be noted that there is no obligation by statute or in any appellate authority that requires police officers to detail each and every event, or each and every factor that goes into their decision making in their notes and will states. Any issues resulting from incomplete or inconsistent notes go to credibility and reliability, not admissibility. That is part of the dynamics of trial. To require that high a standard of officers would obviate the need for their oral testimony: R v Sillars, citing with approval, Durno, J. in R v Brown.

[41] I do not agree that Vukelich supports the defence position that missing disclosure regarding grounds and drug trafficking should necessarily lead to me allowing a mid-trial Charter application regarding the search.

[42] Firstly, Vukelich is distinguishable on its facts. It that case the British Columbia appeal court was dealing with the contents of a sworn information in support of a search warrant. There was an apparent discrepancy between disclosure and the contents of the Information to obtain relating to the purpose of the warrant. The trial judge summarily dismissed the application for a voir dire at both the pre-trial and trial stages. That decision was upheld on the appeal.

[43] The paragraphs cited by the defence in support of her position were in fact obiter comments by that appeal court regarding their view of the appropriate procedure on a mid-trial application and in particular the court’s view of the appropriateness of defence counsel or an associate filing an affidavit in support: Vukelich, per McEachern, CJ, at paras 12-27.

[44] I find that Thombs’s application was not brought in a timely fashion, the opportunities to do so having long passed. To allow an application at this juncture would require additional time for the defence to perfect an application and for the Crown to respond, the securing of at least 2 days of additional time for the recall of witnesses, their cross-examination, perhaps evidence in response, submissions, likely a further adjournment to allow for a decision and additional time, depending on the extent of the result, for the continuation of trial. All of this in a period of pandemic when trial time is at a premium due to extensive backlog in this court.

[45] As set out in Megill, I am entitled to consider the merits of the defence application on the material before me.

[46] The Charter s. 8 guarantees the right to be secure against unreasonable search or seizure. In R v Collins, the Supreme Court of Canada explained that in order to be “reasonable” a search must:

i. be authorized by law; ii. that law must be reasonable; iii. the search or seizure must be carried out in a reasonable manner.

[47] The defence having conceded that the arrest of Thombs for possession of the plates was lawful, cannot take issue with the search of his person incident to arrest before he was placed in the cruiser. The key fob and Samsung cell phone on his person are properly admitted.

[48] In this case I find that PC Starrs, having lawfully arrested Thombs for the possession of the stolen plates, had grounds to believe that the vehicle was also stolen and conducted a search of the vehicle in furtherance of that arrest and his reasonably held belief about the status of the vehicle.

[49] In his testimony he articulated his grounds for retrieving the license plates from the open trunk and searching for vehicle identification and ownership incident to arrest and in furtherance of investigation for that offence, all of which is permissible at common law: R v Stillman, R v Caslake. I find those grounds to be both subjectively and objectively sustainable.

[50] That in the course of that lawful pursuit, he came across a bag full of drugs in plain view behind the driver’s seat of the BMW, and other indicia of drug trafficking is not fatal to the admission of those items into evidence.

[51] While there may be a sustainable argument regarding the opening of the camera bag in the trunk and the middle console of the BMW, there has been no assertion of a privacy interest in either and in any case, it is questionable whether a finding of breach respecting those drug related items would necessarily survive Charter s. 24 (2) considerations.

[52] If a Charter breach were to be found, it appears that there is evidence that the breach was inadvertent & the impact on the accused’s rights at the lower end of the spectrum. The evidence would inevitably have been discovered had a warrant been obtained after the bag of drugs was seen in plain view behind the driver’s seat of the BMW. The drug list notebook, digital scale, 2 additional cell phones and Canadian currency are relevant and reliable evidence in the truth seeking function of the justice system in the serious matter of drug trafficking. From the public’s perspective, their exclusion in these circumstances may bring the administration of justice into disrepute.

Conclusion

[53] As a trial management judge I have the discretion to consider whether there is any reasonable prospect that the defence application will succeed: Cody and Megill.

[54] For the reasons set out, I conclude it would not. Therefore, the defence application brought mid-trial for a Charter s. 8 voir dire is summarily dismissed.

Released this 31st day of May 2021.

Signed: Justice P. H. Marjoh Agro