Her Majesty the Queen v. Anson Charles, 2012 ONSC 2001

minicounsel

COURT FILE NO.: 7-542/11

DATE: 20120413

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANSON CHARLES

Defendant

Andrew Cappell, for the Crown

Pharah Bacchus, for the Defendant

Anthony Bryant, for the Defendant on a voir dire

HEARD: February 6, 7, 8, 9, and10, 2012

A. INTRODUCTION

1On November 30, 2010, Toronto police executed a search warrant at an apartment on Bleeker Street where the accused Anson Charles lived with his mother. The warrant was issued based on material alleging that Mr. Charles was trafficking in crack cocaine. When the police arrived, Mr. Charles was the only person at home. Police officers did a pat-down search of Mr. Charles and found 7.81 gm. of crack cocaine in one pants pocket and a roll of bills totaling $865.00 in another pocket. A loaded handgun and 50 rounds of ammunition were found in a locked safe on the floor of the closet in his bedroom, along with a further $2000.00 in cash.

2Mr. Charles was charged with a number of offences relating to possession of a loaded restricted firearm and ammunition, possession of proceeds of crime, and possession of crack cocaine for the purposes of trafficking.

3At the outset of trial, Mr. Charles re-elected to be tried by me, sitting without a jury. There were two preliminary applications. First, the defence challenged the validity of the search warrant and, as part of that challenge, sought to cross-examine the police officer whose affidavit was the basis upon which the search warrant was issued. Second, the defence sought to exclude all evidence obtained from the search, including a statement made by Mr. Charles as to the contents of the safe, on the grounds that the evidence was obtained in violation of his rights under sections 7, 8, 9, and 10 of the Charter.

4For the reasons that follow, I found that the search warrant was valid and that there had been no breach of Mr. Charles’ rights by the officers conducting the search. All of the evidence obtained was properly admissible.

5With respect to the merits of the charges themselves, there is no issue with respect to the crack cocaine and the money. Mr. Charles acknowledged in his testimony at trial that he had purchased the crack cocaine earlier that same day, intending to sell it to others. It is also apparent that although about $350.00 of the money he had on him may have been from the welfare cheque he had cashed earlier that day, the rest of it was obtained from trafficking in illegal drugs.

6However, Mr. Charles testified that he knew nothing about the handgun in the safe. He said that he had given permission to his friend B.T.¹ to store some crack cocaine in the safe, but that, without his knowledge, B.T. had instead placed the handgun and ammunition in there. For the reasons that follow, I do not believe Mr. Charles’ evidence. He has no credibility whatsoever. I am satisfied on the evidence that Mr. Charles knew the gun and ammunition were in the safe. He was therefore in possession of both the gun and the ammunition.

7I would have reached that conclusion even without the inculpatory statement made by Mr. Charles to the police at the time he was initially detained. However, I accept the evidence of the police officers that Mr. Charles told them there was a safe in his closet and that it contained a handgun. I also accept their evidence that prior to making that statement, Mr. Charles had been fully advised of his rights and made the statement voluntarily. The statement is admissible and reinforces the finding that Mr. Charles was fully aware of the contents of the safe.

8My detailed reasons for all of these findings follow.

B. PROCEDURAL ISSUES : LEGAL COUNSEL AS WITNESS

9During the course of the trial a difficult issue arose as to the circumstances in which legal counsel could, or should, be a witness in the trial. Because of the unusual nature of the issue, I thought it useful to set out in some detail how the issue arose and how it was ultimately resolved.

How the Issue Arose

10Both counsel agreed that the trial would proceed on a blended basis, with the evidence of the police officers being admissible both on the pre-trial applications and the trial proper. The trial started on the afternoon of Monday, February 6. The Crown called six police officers as witnesses. At the conclusion of their evidence on Wednesday morning, February 8, Ms Bacchus (counsel for the accused) indicated that she would be calling evidence from B.T., as well as her client. The Crown initially objected to the right of the defence to call B.T. as a witness in the absence of proper prior notice to the Crown as he was alleged to be a third party suspect. Ms Bacchus acknowledged that no notice had been given to the Crown prior to trial, explaining that there were logistical problems in meeting with B.T. as he was in custody and she had therefore had him brought to court for trial on a judge’s order. She had not given notice to the Crown of the substance of B.T.’s evidence as she had not interviewed him until she met with him in the cells upon his arrival in the courthouse on Monday morning, when the trial was scheduled to start. However, she indicated that she anticipated B.T. would testify that he was the one who had placed the gun and ammunition in the safe.

11In order to give the Crown an opportunity to consider his position on this point, Ms Bacchus agreed to call Mr. Charles as a witness in advance of calling B.T. She further stated that she would be calling evidence from Mr. Charles with respect to the trial proper as well as on issues related only to the pre-trial motions. Mr. Charles was thereupon called as a witness and was examined and cross-examined.

12On Wednesday afternoon, at the conclusion of Mr. Charles’ evidence, the Crown withdrew his objection to B.T. being called as a witness for the defence, while reserving his right to argue later as to the weight and/or admissibility of his evidence in light of the lack of notice.

13Initially, I had reservations as to the relevance of B.T.’s evidence to anything other than the trial proper. However, having heard Mr. Charles’ evidence, it was apparent that B.T. could be an important corroborating witness with respect to the admissibility of the statement allegedly made by Mr. Charles to the police. According to Mr. Charles, B.T. put the gun and ammunition in the safe without his knowledge. He said that shortly before the police arrived, he had given permission to B.T. to put crack cocaine in the safe, and had no idea that B.T. had put a gun in there until the safe was opened by the police in the course of executing the search warrant. According to police evidence, their attention was initially drawn to the safe because D.C. Dean had asked Mr. Charles if there was anything illegal in the apartment and Mr. Charles volunteered that there was a handgun in the safe on the floor of his closet. Mr. Charles maintained that not only did he not say that, he could not have said it, because he did not know there was a gun in the safe. The evidence of both B.T. and Mr. Charles on this point would therefore be relevant to both the Charter motions and the trial itself.

14B.T. took the stand on the afternoon of Wednesday, February 8. In a nutshell, he testified that he had put the gun and ammunition in the safe four days earlier and that Mr. Charles was fully aware of that fact. Ms Bacchus sought leave to cross-examine B.T. as an adverse witness on the basis that he had given her a different story when she interviewed him on Monday morning. There were no other witnesses to that interview. I raised with counsel the difficulty presented in proving that statement other than through Ms Bacchus testifying as a witness, a significant problem given that she was the sole counsel for the defence. I adjourned early so that they could consider their positions.

15On Thursday morning, I heard further submissions from counsel as to how this issue could be dealt with. I advised counsel that in my view it would not be proper to proceed without dealing in some manner with whether B.T. had made a prior inconsistent statement. Indeed, the evidence of B.T. and the credibility of B.T. were potentially so important for the defence that the right to cross-examine B.T. on a prior inconsistent statement could affect Mr. Charles’ ability to make full answer and defence.

Right of a Party to Cross-Examine His Own Witness

16The right of a party producing a witness to cross-examine that witness is dealt with under s. 9 of the Canada Evidence Act, which states:

(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.

17I ruled that there was no automatic right to cross-examine B.T. on the alleged prior inconsistent statement because that statement did not fit within the parameters of s. 9(2) of the Canada Evidence Act. Although Ms Bacchus had made handwritten notes in the course of her interview of B.T., those notes were by no means verbatim. They merely reflected the recollection of Ms Bacchus as to the gist of what B.T. said. They did not record the questions asked and they did not record the whole of what he told her. That is not the type of statement to which s. 9(2) applies.² Accordingly, counsel would either have to prove the witness adverse or prove a prior inconsistent statement, either by calling Ms Bacchus as a witness, or possibly, with the consent of the Crown.

Problems Presented by Being Both Counsel and Witness

18There is a well-known general rule that counsel cannot be both advocate and witness in a case before the court. Sometimes, however, circumstances can arise that put counsel in the unenviable position of, at least potentially, wearing both hats. Often counsel is able to abandon one of the roles, while keeping the other; where, for example, there is some other witness who can provide the evidence, or another counsel who can step in as advocate. The situation in this case was not so easily solved. Ms Bacchus was the only person present when B.T. made the allegedly inconsistent statement and she was also the only counsel at trial. Further, the trial was virtually over, subject only to the completion of the evidence of B.T. and legal argument. The charges against Mr. Charles dated back to November 30, 2010 and he had been detained in custody since that date. Declaring a mistrial and starting all over again with new counsel (whenever such a trial could be accommodated by counsel, the witnesses, and the court), was not a good solution.

19That said, there are some obvious problems that arise when counsel for a party steps into the witness box. Such problems might well be insurmountable if the nature of the evidence goes to the actual merits of the case against the accused. However, there is somewhat more scope on a voir dire or pre-trial motion.

20The Court of Appeal decision in R. v. Leduc³ provides some guidance on this point. During the course of the trial in that case, it came to light that the Crown had failed to disclose some important evidence prior to the commencement of the trial. The Crown immediately produced the documents. The defence applied for a stay of the charges against the accused because of the delayed disclosure. In the course of argument before the judge hearing the application, Crown counsel advised the court that she had not realized earlier that these documents existed and that the failure to produce them was purely inadvertence. The applications judge held that the Crown’s failure to disclose was deliberate and stayed the charges. This was reversed by the Court of Appeal based, in part, on the lack of evidence supporting any finding of misconduct by the Crown. The Court of Appeal also ruled that if the application judge was inclined not to accept the statement of counsel from the counsel table, she ought to have been forewarned of that so that she could consider whether to give her evidence from the witness box. Laskin J.A. held at paras. 132-133:

Ms. Hallett recognized that the Crown owed both the court and the respondent and explanation for the non‑disclosure. See R. v. Ahluwalia, supra. She should, however, have given her explanation from the witness box instead of from the counsel table. She should have arranged for another Crown to take carriage of the stay application and lead her evidence. The reasons why she should have done so are grounded in the principle that ordinarily a lawyer cannot be both an advocate and a witness in the same case. See, for example, Imperial Oil v. Grabarchuk (1974), 1974 869 (ON CA), 3 O.R. (2d) 783 (C.A.). If an advocate wishes to give evidence about material and contested facts, the advocate must take off his or her gown and testify under oath. Otherwise, the advocate’s statements are shielded from cross‑examination and the court has to make findings of credibility on untested evidence.

Moreover, being an advocate and a witness in the same case raises professional conduct concerns. Giving evidence from the counsel table puts in question the advocate’s personal credibility.

(Emphasis added)

21Rule 4.02 of the Rules of Professional Conduct of the Law Society of Upper Canada addresses the issue as follows:

02 (2) Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.

Commentary

A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

(Emphasis added)

22The precise statement made by B.T. to counsel is not clear-cut. It is appropriately an issue upon which the Crown may wish to probe in cross-examination. Likewise, the circumstances in which the statement was given by B.T. could be the subject of concern. For example, it would be relevant to know whether B.T. volunteered the statement in his own words, or if he merely agreed with suggestions put by counsel. Again, this would appropriately be the subject of cross-examination by the Crown. Thus, the existence of the prior inconsistent statement is important to the accused, but both the substance of the statement and the circumstances in which it was given are matters on which there must be actual evidence, tested by cross-examination.

23There is a clear difficulty when counsel testifies on the trial proper. That counsel then has more of a stake, or vested interest, in the outcome. There is a danger that counsel may become an advocate for the credibility or reliability of his or her own testimony, which may not be consistent with the duty owed to the client or with the professional role as an officer of the court.

24The difficulty is still there, but is less problematic, when the evidence of the solicitor is on a peripheral issue. It is still awkward, and to be avoided if at all possible, but it may not result in the solicitor being unable to continue as counsel for the rest of the trial. Much will depend on the extent to which credibility is an issue and the findings of credibility made by the trial judge.

25I raised these issues with counsel and gave them a further opportunity to consider their respective positions.

The Solution Proposed by Counsel

26After a period of consultation and some additional submissions, counsel worked out a proposed plan for dealing with the matter, which I agreed was appropriate. Counsel and the court were greatly assisted in this regard by Mr. Anthony Bryant who stepped in to assist the defence in dealing with this issue.

27The procedure adopted was first for Ms Bacchus to continue her examination-in-chief of B.T. If he acknowledged making prior inconsistent statements that Ms Bacchus felt tallied with her own recollection of what he told her, it would not be necessary for Ms Bacchus to testify in order to contradict his evidence. The trial could then simply proceed. I ruled that at this stage, Ms Bacchus was not entitled to cross-examine B.T. and could not put to him her own version of what he said and ask him to agree or disagree. I restricted her to asking open-ended questions about his previous statement.

28At the end of that examination-in-chief, the defence would then consider whether they wanted to cross-examine B.T. If so, there would be a voir dire as to the alleged statement made by B.T. and Ms Bacchus would give evidence. Because that interview would otherwise be protected by solicitor/client privilege, Mr. Charles waived any privilege with respect to it. Mr. Bryant agreed to lead Ms Bacchus’ testimony in chief and to make submissions as to whether the statements made by B.T. were inconsistent with his earlier testimony in the trial. An overnight transcript of that evidence was obtained to assist Mr. Bryant in that regard. Also, the defence provided to the Crown the notes made by Ms Bacchus as well as a memo from her amplifying on those notes, based on her recollection of the conversation she had with B.T.

29It was agreed by counsel that after the voir dire there would be further consideration by counsel, and ultimately by me, as to whether Ms Bacchus could continue as counsel. If either she felt unable to continue, or I ruled it was inappropriate for her to continue, Mr. Bryant agreed to step into the breach. Since all that would be left in the trial was to cross-examine B.T. and then make final argument, Mr. Bryant felt able to fulfill that role based on reviewing transcripts of the entire trial. I acceded to that plan and was prepared to adjourn the trial and accommodate the schedules of counsel to conclude it at a later date, which was anticipated to be about one month away. Mr. Charles consented to this procedure.

How the Issue Was Resolved

30Ms Bacchus conducted further examination of B.T. His answers about what he had said previously were not satisfactory from the defence perspective and Ms Bacchus sought leave to cross-examine him on prior inconsistent statements. The voir dire began.

31Mr. Bryant took carriage at that point. Ms Bacchus literally and figuratively took off her barrister’s robe and took the witness box. She was examined in chief by Mr. Bryant, and then cross-examined by the Crown. I did not permit any questions on cross-examination that would cause Ms Bacchus to reveal anything that was said to her by her own client. Privilege on that issue had not been waived.

32At the conclusion of the evidence, I heard submissions from Mr. Bryant and from Mr. Cappell on behalf of the Crown. Mr. Bryant conceded that B.T. had not been a “hostile” witness. He was not argumentative or confrontational, and did not seem to be interested in hurting Mr. Charles’ defence. On the contrary, he was there to help Mr. Charles, admitted that he had given the gun to Mr. Charles, and at least at one point, testified that Mr. Charles did not know there was a gun in the bag he gave him. I agreed with that concession.

33Mr. Bryant argued, however, that there were two clear prior inconsistent statements: (1) B.T. testified that he had brought the gun and drugs in a Jansport backpack, but he told Ms Bacchus he had brought it in a brown paper bag; (2) B.T. testified that he searched the bag at the apartment, found the gun, and placed the gun in the safe after Mr. Charles opened it for him, but he told Ms Bacchus that Mr. Charles did not know about the gun.

34I accepted Ms Bacchus’ evidence on these two points and was satisfied that these constituted prior inconsistent statements upon which the defence should be given leave to cross-examine.

35I did not permit cross-examination as to whether B.T. gave the gun to Mr. Charles four days before the police raid on November 30 (as he had testified at trial) or on November 30, which was what Ms Bacchus believed to be his position when she spoke to him in the cells. Mr. Bryant did not strongly press this issue. Ms Bacchus was very fair in her testimony on this point. She had started her interview of B.T. by asking him to take his mind back to November 30 and the events of that day. She said it was therefore her understanding that when B.T. told her he had brought the bag containing the gun to Mr. Charles’ apartment, he was referring to November 30. However, he did not say that specifically and she did not clarify with him whether in fact the date he went there was actually November 30. While I can see why Ms Bacchus might believe B.T. was talking about November 30, that is not necessarily the case. She did not pin him down on that point during her interview, and I therefore do not take this to be a prior inconsistent statement. Accordingly, I granted leave to cross-examine on prior inconsistent statements relating to the nature of the bag B.T. brought to the apartment and whether he had disclosed to Mr. Charles that there was a gun in the bag.

36At that point, all counsel agreed that Ms Bacchus could continue as defence counsel. Given the nature of her evidence and the rulings I had made, I also had no difficulty with Ms Bacchus resuming her role as advocate for Mr. Charles. The trial then continued in the ordinary course. Mr. Bryant remained in the courtroom until the cross-examination of B.T. was completed in case any further wrinkles emerged, but there were none. B.T. admitted to making the prior inconsistent statements and said he had lied to Ms Bacchus.

37Before leaving this issue, I will reiterate what I already said on the record in the courtroom at the time. I am grateful to all counsel for the professional, cooperative, and courteous manner in which they handled this manner. In particular, it was most generous of Mr. Bryant to have stepped forward as he did on virtually no notice in order to assist. His conduct was in accordance with the highest standards of the Bar and was of great assistance to the court.

C. VALIDITY OF THE SEARCH WARRANT

The Test

38All of the evidence against Mr. Charles arose from the execution of the search warrant on November 30, 2011. The defence submitted that the warrant was not validly issued and that all the evidence obtained should therefore be excluded.

39In considering whether the search warrant was validly issued, it is not my role to substitute my own view for that of the authorizing justice of the peace. The issue is whether, on the material before the justice of the peace, as amplified on review, he or she could have authorized the search. If so, there is no basis for me to interfere.⁴

40The information upon which the application for the search warrant was based came from two confidential informants who told the police that a drug dealer known by a particular nickname was regularly selling crack cocaine in the area of a Toronto Community Housing building on Bleeker St. Without that information, there is clearly no basis at all for the warrant. Everything hinges on whether the information from these sources was sufficient to justify the warrant, and in particular sufficient to support a finding by the justice of the peace that there were reasonable grounds to believe that drugs or other evidence of drug trafficking would be found in Mr. Charles’ apartment.

41Where police seek to justify a search based on information from a confidential informant, three concerns must be addressed: (1) whether the information is compelling: (2) whether the source is credible; and, (3) whether the police obtained any independent corroboration of the information supplied. These are not separate, cumulative tests. Rather, the totality of the circumstances must be taken into account. Thus, weaknesses under one of the three factors may be compensated for by strengths in other areas.⁵

The sources are credible

42Confidential Source #1 is a crack addict. He provided his information directly to the affiant, D.C. Dobbs. This was the first time D.C. Dobbs had used this source and he therefore had no proven track record for accuracy or reliability with him. However, he stated in the ITO that he believed the information to be reliable because it was provided in the hopes of obtaining financial gain and consideration for future charges. No such benefits would be forthcoming if the information proved to be inaccurate. This is some indication of reliability. Further, D.C. Dobbs testified on cross-examination that C.S.#1 was known to be highly involved in purchasing drugs in the area in question. He was therefore in a position to observe firsthand the things about which he provided the information. Further, D.C. Dobbs testified that although he had not used this particular source before, other officers had and they found him to be reliable. If such information about C.S.#1 had been included in the ITO, it would only have strengthened the credibility of this source.

43It would have been preferable if the Information to Obtain the search warrant (“ITO”) had included particulars on the criminal record of C.S.#1. However, the information did disclose that he was a known crack addict and had outstanding charges against him. The Justice of the Peace would therefore not have been under any illusions as to his character.

44Confidential Source #2 provided his information about Mr. Charles to Detective Smith, who passed it along to D.C. Dobbs. Detective Smith had known C.S.#2 for several years and had received tips from him multiple times in the past. That information proved to be reliable every time. The ITO states that C.S.#2 is believed to be motivated to help police “to stem the tide of drug dealing in Toronto.” This background enhances the credibility of the source.

45There is an error in the ITO with respect to C.S.#2. In the main text of the ITO it is apparent that the information from C.S.#2 came to D.C. Dobbs through Detective Smith. However, in Appendix D, which provides background on the confidential sources, D.C. Dobbs states that he C.S.#2 had been “known personally by the affiant for several years.” D.C. Dobbs testified that this was simply a mistake on his part and that he should have indicated that Detective Smith had known this informant during that period of time. I accept that explanation. D.C. Dobbs was not experienced in drafting ITOs at the time and had perhaps fallen back on “jargon” from a precedent. It is appropriate to amend the ITO to reflect the actual facts. However, this does not alter the reliability or credibility of this source. D.C. Dobbs believed and relied upon the information provided by Detective Smith as to the track record of C.S. #2. That is sufficient for the ITO.

The information is compelling

46On November 25, 2010, Confidential Source #1 provided detailed information to D.C. Dobbs about a drug dealer operating in the Bleeker St. area. He only knew the dealer by his nickname, but that nickname was known by the police to be used by Anson Charles. When C.S. #1 was shown a photograph of Anson Charles, he confirmed that this was the same man. C.S.#1 reported that this dealer lived on the 10th floor at 275 Bleeker St. and provided a very detailed physical description of him. He told police that this dealer packages his crack cocaine in a very specific way: a package of crack worth $50 or more will be wrapped in plastic; anything less will be wrapped in paper or chipped directly off a larger rock. He further revealed that the dealer always wore a black do-rag and two pairs of pants – an outer layer of loose baggy jeans and an inner pair of track pants – with the drugs hidden in a pocket of the inner pants. The level of detail provided by C.S.#1 is compelling and suggests inside first-hand knowledge as to Mr. Charles’ activities.

47On November 29, 2010, Confidential Source #2, completely independently, contacted Det. Smith and provided information about a man who was “always busy selling drugs” in that same area. He provided a physical description of the man and said that he lived in the area with his mother. He also told police that in the course of his drug deals, this dealer would usually chip crack cocaine off a larger rock.

There is some corroboration

48Each of the confidential sources provides some corroboration for the other, including Mr. Charles’ habit of chipping smaller portions of crack cocaine off a larger piece. The physical description each provided was consistent with that of Anson Charles. Police computer checks revealed that Anson Charles lived with his mother in Apartment 1012 at 275 Bleeker Street. Mr. Charles had 70 contacts with the police, dating back to 2001. On at least one of those occasions, in 2005, Mr. Charles sold crack cocaine to an undercover police officer. The ITO also refers to an incident in Kitchener-Waterloo in which Mr. Charles was alleged to have robbed a local drug dealer at gunpoint and was said by the victim to have been introduced as a “drug dealer from Toronto.” The fact that Mr. Charles had sold crack cocaine in the past provides some limited corroboration of the information supplied by the two informants.

Conclusion: The search warrant is valid

49There are two errors in the ITO. One related to whether D.C. Dobbs was personally familiar with C.S. #2 (see para. 44 above). The second relates to the 2009 incident in Kitchener-Waterloo. The ITO states that Mr. Charles was charged with pointing a firearm, disguise with intent, and weapons dangerous in relation to that matter. The police database contained the information that Mr. Charles was convicted only with attempted robbery and that all of the other charges were withdrawn. That information was not placed before the Justice of the Peace. I agree with defence counsel that the ITO is therefore inaccurate in that respect. However, once that error is corrected, it has no impact on whether or not there continues to be a basis upon which a search warrant can issue. In my view, both errors are simply inadvertent. There was no malice or bad faith involved and the Justice of the Peace was not materially misled. Police officers preparing material for a search warrant application are not held to a standard of perfection. In this case, the ITO does not suffer from any error or omission that would have any impact on the validity of the warrant.⁶

50Defence counsel was also critical of the police for failing to conduct an investigation to corroborate the information received from the confidential informants. Again, in an ideal world, surveillance of Mr. Charles would have been useful. That does not mean its absence is fatal to the validity of the warrant.

51In my opinion, the confidential sources were demonstrated to be reliable. Their information was detailed and compelling and corroborative of each other. The fact that they came to the police independently, and to different officers, also heightens the compelling nature of their information. Much of the information they provided to the police was corroborated by information in the police databanks. There was ample evidence to support a reason to believe that Mr. Charles was a drug dealer. Given the area from which he worked, the amount of drugs he dealt in, and the constant and repeated nature of his dealing, it was also reasonable to believe that he kept crack cocaine and drug paraphernalia in his residence.

52For these reasons, I found the search warrant to be valid and dismissed the application to set it aside.

D. EVIDENCE OBTAINED ON THE SEARCH

53Five police officers attended at 275 Bleeker St. on November 30, 2010 to execute the search warrant. At approximately 8:45 pm, they breached the door with a battering ram and entered the apartment. Mr. Charles was the only person at home. He was in his bedroom. D.C. Dean was the first officer to reach the bedroom. Upon seeing Mr. Charles, he advised him that he was under arrest for possession of crack cocaine for the purpose of trafficking. He and D.C. Ing immediately conducted a pat-down search of Mr. Charles. They located a piece of crack cocaine weighing approximately ¼ oz. in one pants pocket of Mr. Charles’ jeans and a wad of cash ($865) in another pocket. Mr. Charles was then advised that he was also under arrest for possession of the proceeds of crime.

54The search of the apartment itself then began. D.C. Dean testified that he asked Mr. Charles if there was anything illegal in the apartment and that Mr. Charles told him there was a small safe in his bedroom closet and that there was a firearm in the safe.

55Other officers searched the closet and seized the safe. They opened the safe with a key, either provided by Mr. Charles or found by the officers in the bedroom, depending on whose version you believe. The safe contained: some personal documents for Mr. Charles and his daughter; $2000 in cash; a loaded .22 calibre handgun with 5 shells in the magazine and a spent casing in the chamber; 44 rounds of .22 calibre ammunition capable of being fired from that gun; and, 8 rounds of .45 calibre ammunition not capable of being fired from that gun.

56The defence seeks to exclude all of the evidence obtained from the apartment on the following grounds:

(a) upon entering the apartment, the officers had no reasonable and probable grounds to arrest Mr. Charles and the search of Mr. Charles’ person was therefore unlawful;

(b) the officers had no authority to search the safe without obtaining a second search warrant; and,

Reasonable and Probable Grounds to Arrest

57D.C. Dean was clear in his evidence that immediately upon seeing Mr. Charles, he arrested him for possession of crack cocaine for the purposes of trafficking. He cited the warrant as his grounds for that arrest. The officers had a search warrant; they did not have a warrant for Mr. Charles’ arrest. D.C. Dean was mistaken in his understanding that the warrant, standing alone, authorized the arrest of Mr. Charles. In that sense, the arrest can be said to be unlawful.

58However, as a practical matter, nothing turns on whether the initial arrest was lawful or unlawful. The police entered the apartment lawfully for the purpose of executing the search warrant. Upon finding Mr. Charles in the apartment, the police had lawful authority to detain him until the search could be completed. Further, upon detention, they had lawful authority to search him, both to ensure the preservation of evidence and for officer safety. Within seconds of seeing Mr. Charles, detaining him, and starting to search his person, the officers located ¼ oz. of crack cocaine in his pocket. At that point, they had grounds to place him under arrest for possession of the crack cocaine for the purpose of trafficking. Thus, while the officers incorrectly told Mr. Charles he was under arrest about 10 seconds ahead of when they had actual grounds to arrest him, they did nothing during that 10 seconds that they would not have done in any event upon placing Mr. Charles under detention. Although the wrong words were said to him, no other violation of his rights flowed from it.

59Even if the premature arrest could be said to violate the Charter, I would still admit the evidence found on Mr. Charles’ person under s. 24(2). The evidence is real evidence and reliable. The officers were acting in good faith. Any breach by the officers was not of a serious nature and had minimal, if any, impact on the accused. In these circumstances the “truth-seeking” function of the trial process would be better served by the inclusion of the evidence, rather than its exclusion. A fully informed, knowledgeable, and reasonable member of the public would not think less of the justice system if the evidence found on Mr. Charles was admitted at trial. Indeed, in view, the reverse would be true.⁷

Evidence Found in the Safe

60It was not the statement by Mr. Charles that led the officers to find the gun in the safe. The safe was sitting on the floor of Mr. Charles’ bedroom closet. The police had a warrant to search the whole apartment, including the closet. There is no chance they would have missed that safe, regardless of anything Mr. Charles said to them. Further, the keys to the safe were sitting in the bedroom in plain view. There is no chance that the officers would not have attempted to open the safe with those keys in the course of their search of the apartment, regardless of whether Mr. Charles pointed out the keys to them. Indeed, even without keys, it is a given that the officers would have opened that safe. They would have to have been utterly incompetent at their jobs to have done otherwise. Thus, whether or not Mr. Charles told them the safe was there, and whether or not he told them there was a gun in the safe, is irrelevant as to whether the evidence inside the safe would have been discovered. Once the police entered the premises with that search warrant, it was inevitable that they would find what was in the safe, and even Mr. Charles knew that at the time.

61Defence counsel argued that the police had no power under the search warrant to open the safe, but rather were required to apply for a second warrant to examine its contents. I disagree. The search warrant empowered the police to search the apartment and its contents. If, in the course of that search, they encountered a desk, they were empowered to look inside the desk. That would include opening the drawers of the desk and looking inside those drawers. They would not be required to get a new warrant if a desk drawer was locked. The warrant provides them with all the authority they need to look inside the locked drawer. There is nothing about a safe that makes it any different from a locked drawer. There is every reason to believe that a person who is believed to be a drug dealer, who is found to have crack cocaine and a large amount of cash on his person, and who has a safe in his closet, is likely to have placed either drugs or proceeds or both in the safe. Indeed, there is every reason to believe that is why he would have acquired a safe in the first place.

62Defence counsel relied on the decision of the Ontario Court of Appeal in R. v. Jones.⁸ In my view, that case is easily distinguishable on its facts and has no application to the case before me.

63In Jones the police had obtained a warrant to search the contents of a computer for evidence of fraud. In the course of examining the computer’s files, the police stumbled upon evidence of child pornography. The Court of Appeal found that the evidence thus found was subject to seizure under the “plain view” doctrine, as well as under s. 489 of the Criminal Code. However, having found this initial evidence of child pornography, the police then embarked on a further investigation of the computer directed solely to finding further evidence of child pornography. In doing so, they examined files that they would not have examined as part of their search for evidence of fraud. The Court of Appeal held that this second branch of the search was not authorized by the search warrant because the warrant was restricted to searches for evidence of fraud. Further, the additional evidence uncovered in the course of the second search could not be said to fall within the plain view doctrine because it did not come to the police attention accidently in the course of their legitimate search authorized by the warrant. The Court held that in these circumstances the police ought to have applied for a second search warrant to permit a new search of the computer for evidence of child pornography.

64At issue in Jones was an intricate legal issue as to the application of the broadly understood legal principles of search and seizure to the complexities of computers, given the vast and varied extent of private information stored on a computer. No such complexity arises in deciding whether or not the police can look inside a small safe sitting on the floor of a closet. The principles established in Jones relating to the need for a fresh warrant should not be expanded beyond the context in which the issue arose. In the case before me, it was reasonable to believe the safe would contain evidence relating to the purpose for which the warrant was granted, and the police looked in the safe expecting it might contain evidence relevant to the drug charges against Mr. Charles. In order to do that, they did not need any authorization beyond the warrant they already had in hand.

65I have considered the defence argument that upon Mr. Charles saying there was a gun in the safe, the nature of the search changed and the police were required to obtain a warrant directed towards looking for a gun. I do not accept that argument either. First of all, Mr. Charles denies having made such a statement, which makes it difficult for him to rely upon it. Secondly, assuming Mr. Charles did make the statement (and, incidentally, I am quite confident he did), the police were not required to believe him. They were entitled to check for themselves to see what was in the safe. Thirdly, even if the police believed Mr. Charles’ statement that there was a gun in the safe, they were still entitled under the existing warrant to search the safe. The mere fact that there was a gun in the safe does not rule out the real possibility that there might also be other things relevant to the drug charges. The possible presence of a gun does not change the nature of the receptacle as a likely repository for relevant evidence covered by the warrant.

66In Jones, after the police made their initial discovery of child pornography, they called a Crown Attorney for advice as to whether they could conduct further searches of the computer. The Crown advised that they could do so, and they did. The Court of Appeal held that while this advice turned out to be erroneous in hindsight, it was not carelessly given and the legal point was not an issue free from doubt. In the result, the Court found that the police believed, albeit wrongly, that their further search was authorized by the warrant. Therefore, their breach of the Charter by this warrantless search was not seen to be egregious. Although the impact on the privacy interest of the accused was significant, the interest in having a decision on the merits was high, given the serious nature of the child pornography allegations. In balancing these factors, as required under Grant, the Court of Appeal held the evidence to be admissible under s. 24(2) of the Charter.

67In this case, if I am wrong in my conclusion that a further warrant was not required to open the safe, I would still find the evidence to be admissible under the s. 24(2) test established in Grant, just as the Court of Appeal did in Jones. The police officers in this case acted in good faith believing the warrant authorized their search of the contents of the safe. There is little impact on the rights of Mr. Charles as the search of the safe was inevitable in any event by virtue of the existing warrant. The gun and ammunition are real evidence and reliable. The administration of justice would not be undermined by admitting this evidence. On the contrary, in light of the serious nature of a loaded handgun, particularly in combination with drug dealing, excluding the evidence in this situation would cause any reasonable person to think less of the justice system.

E. KNOWLEDGE OF THE GUN AND AMMUNITION

The sole issue is one of credibility

68There is no question that the safe contained a loaded handgun and a quantity of ammunition. The safe was in Mr. Charles’ bedroom closet and contained other possessions belonging to Mr. Charles. He had the key to the safe. Clearly he had control over the contents of the safe. The only issue is whether he knew that the gun was there. In the absence of any other evidence, I would have no difficulty inferring such knowledge.

69According to the evidence of police officers at trial, after Mr. Charles was under arrest, and after he had been fully advised of his rights, he was asked if they were going to find anything illegal in the apartment and Mr. Charles told them there was a gun in the safe in his closet. If the testimony of the officers is accepted, that statement was obtained voluntarily and without any breach of Mr. Charles’ Charter rights. If so, the statement is admissible and provides direct evidence of Mr. Charles’ knowledge of the gun in the safe.

70Mr. Charles testified in his own defence. He denied making the statement attributed to him. He also said he was not advised of his rights and that although he told the officers he wanted to call a lawyer, they ignored that request until after he was at the police station. Further, Mr. Charles testified that he had no idea there was a gun or ammunition in the safe. He said that he had given his friend B.T. permission to store some cocaine in the safe, but did not see what he actually put in there. According to Mr. Charles, either his friend B.T. put the gun and ammunition in the safe and lied to him about it being cocaine, or the police planted those items in the safe to frame him.

71Obviously, if I believe Mr. Charles’ evidence that he did not know there was a gun and ammunition in the safe, then a constituent element required for possession is missing and Mr. Charles is entitled to an acquittal. The answer to this question therefore depends on findings of credibility. For reasons, I will develop shortly, I do not believe Mr. Charles. Further, there is nothing about the defence evidence that causes me to have a reasonable doubt as to Mr. Charles’ knowledge of the gun.

The evidence of Anson Charles is not credible

72Mr. Charles testified that he sometimes lives in Kitchener with his girlfriend and their young daughter and sometimes lives with his mother in Apartment 1012, 275 Bleeker St where, according to him, he has lived all his life. He said that on November 30, 2010, he came into Toronto from Kitchener to pick up his welfare cheque, which he said was about $700.00 per month. Having cashed his cheque, he headed to the local community centre where he purchased about ¼ oz of crack cocaine for $350.00. Next, he invited his “good friend” Lydia to come back to his mother’s apartment with him to “chill.” On the way, they ran into B.T., another “good friend.” Mr. Charles testified that B.T. asked to come with them but he told him “No” because he was not planning to be there long. However, when B.T. protested that it was cold outside, Mr. Charles relented and told him he could come. According to Mr. Charles, the three of them would have reached the apartment at about 8:00 pm.

73Mr. Charles testified that the three of them watched some television, drank some rum and coke, and then smoked some marijuana on the balcony. He said they had to smoke the marijuana on the balcony because if his mother found out that he smoked marijuana in the apartment, she would throw him out. He took exception to the testimony of two of the police officers who had testified that when they attended to execute the search warrant they smelled marijuana in the apartment. Mr. Charles insisted that he never smoked marijuana in the apartment itself, and in any event, always sprayed the apartment with air freshener after smoking marijuana, which completely overpowers the smell. Not that anything much turns on this, I do note that B.T. (who Mr. Charles claimed was like a younger brother to him and intimately familiar with his apartment) testified that he smoked marijuana with Mr. Charles in his apartment on numerous occasions, including in the living room, and including when his mother was at home.

74Mr. Charles testified that after about half an hour, Lydia left and he then told B.T. that he also had to leave. He said that B.T. left, but retuned a few minutes later and knocked on the door, seeking to be let back in. Mr. Charles said he was annoyed because he wanted to leave and had told B.T. that. However, he said B.T. told him he had a problem because he was supposed to be on curfew, but could not get back into his own apartment in the building next door as his mother was out and the door was locked. Mr. Charles explained that B.T. could not stay in his apartment because his mother was not there and he also would be out. He said Mr. Charles then asked if he could leave his “shit” in Mr. Charles’ room. Mr. Charles said he knew that B.T. was referring to crack cocaine because that is the term they always used to refer to crack cocaine. However, Mr. Charles did not see what B.T. had, presumably because it was in the fake Gucci “man purse” B.T. was carrying on his shoulder. Because B.T. kept begging him to let him leave his “shit,” Mr. Charles eventually relented and threw B.T. his key ring that included the key to the safe. He said that B.T. knew all about the safe and where it was located. According to Mr. Charles, B.T. went into the bedroom himself, opened the safe, and put something in it. He said that B.T. then put the keys on top of the television in the bedroom and left. Later, on cross-examination, Mr. Charles said that B.T. passed his keys back to him on his way out. Realizing this was contradictory, he then said that he was not sure if B.T. put the keys on the television, or if B.T. gave him the keys and he put them on top of the television himself.

75Mr. Charles insisted that he did not see what Mr. Charles put in the safe and did not check the safe later. He also said that he would never have agreed to let B.T. put a gun in his safe because he would have no way of knowing where it had been used before. He said that B.T. promised him that as soon as his mother got home, he would come back and retrieve his “shit” from the safe. He also said that when B.T, left he reminded him to be sure to come and get it as soon as his mother got home. On cross-examination, the implausibility of that scenario was put to Mr. Charles and he was asked how B.T. was going to be able to get into the safe without a key. He responded that he was expecting this would not happen until the next day because B.T.’s mother would not be letting him out of the apartment during the night when he was on curfew.

76According to Mr. Charles, after B.T. left, he went to his bedroom and was texting a girl he was planning to meet up with. He heard a loud bang as the front door came open and slammed against the wall and a number of men with guns entered the apartment. He said they did not announce that they were police officers, did not say anything about a search warrant when they entered, and were not wearing anything that would identify them as police officers. He testified that he only realized they were police officers because if it was a home invasion he would be dead already. However, he also testified that as soon as D.C. Dean reached him, he told him he was under arrest for “possession for the purpose” and placed him in handcuffs. He said this was within “a couple of seconds” of the officers entering the apartment.

77Mr. Charles maintained that it was also D.C. Dean who searched him and found both the cocaine and the money in his pockets. He said no other officer was involved. He was aware that officers were searching his bedroom, but was not permitted to watch. However, he said one of the officers took his keys from on top of the television and opened his safe. He was not able to see what they took out of the safe. He was then taken to the living room.

78Mr. Charles said that he had been arrested on other occasions and knew what was involved in being advised of his rights. He said that D.C. Dean did not advise him in the bedroom of any of those things. Further, when he got to the living room, he was also not advised of his rights and was never told that he could call a lawyer. Mr. Charles testified that at one point he asked if he could call a lawyer and he was told, “This is not the station.” Then he asked if he could call his mother and one of the officers allowed him to do that from the phone in the living room, but told him what he could say. He left a message for his mother (presumably about being arrested and where he was being brought, as his mother later called the police station to speak to him).

79All of the officers involved in the search had testified prior to Mr. Charles giving his evidence. One of the officers testified to seizing the safe and produced it in the courtroom. Prior to the safe being marked as an exhibit, Mr. Charles asked to see it. He examined it at close range and announced in a loud voice that this was not his safe. He said he had a safe but this was not it. The next day when testifying, Mr. Charles acknowledged that the safe, which was now an exhibit, was in fact his safe. He said that the safe he saw the day before looked “completely different.” He explained that his eyes are bad and he usually wears glasses. (I note that he was not wearing glasses either day.) However, despite now having admitted this was his safe, Mr. Charles now claimed in his evidence that the key in the lock of the safe was not his key and in fact was a completely different colour from his key. (I note that this was the same key both days and it was demonstrated by the police witness to fit the lock and open the safe door.)

80Mr. Charles was a very poor witness. I found his evidence to be completely devoid of both reliability and credibility. Some aspects of his evidence simply made no sense: for example, his testimony about the appearance of the safe and the key and whether they had been switched; and his initial claim that B.T. was supposed to come and pick up what he put in the safe as soon as his mother got home. He also contradicted himself a number of times: for example, as to what B.T. did with the key to the safe and whether he ever smoked marijuana in the apartment.

81Other things Mr. Charles said were simply not plausible. For example, I do not believe his testimony that the police officers who entered his apartment were not wearing anything identifying themselves as police officers and did not announce that they were police. Every police officer who testified said that they were shouting “Police. Search warrant.” as they were entering the apartment. Although they were not in uniform, every one of them said they were wearing something that would identify them as police, such as the word “Police” on a vest or a visible tag. This would be standard operating procedure for police officers in this kind of situation, largely for the protection of the officers themselves. Mr. Charles’ testimony on this point is not believable. It is not clear to me if that is because he is lying, or because his recollection of the event is poor, but either is problematic.

82It follows that I do not believe Mr. Charles’ testimony that he only realized this was not a home invasion because nobody killed him. That is simply a lie. It was apparent as soon as the door was breached that this was a police raid. The officers were shouting this loudly as they entered. Further, even on Mr. Charles’ evidence, within a “couple of seconds” of the police entry, he had been placed in handcuffs and told he was under arrest for possession of cocaine for the purposes of trafficking. There can be no mistaking such conduct as anything but the actions of police officers, as opposed to criminals carrying out a home invasion.

83I also find it implausible that Mr. Charles would allow B.T. to place something in his safe completely unsupervised. He was fully aware of B.T.’s character. He was not prepared to allow him to stay in his apartment unsupervised, even when the only items of value were locked in his safe and he had the key. On his own evidence, there was over $4000.00 in cash in the safe. Am I to believe that Mr. Charles permitted B.T. free access to the safe without even watching what he was doing? Mr. Charles himself was not engaged in any activity that directed his attention elsewhere. Before B.T. arrived, he was in his bedroom. After B.T. left, he was in his bedroom. Why would he wait by the door while B.T. went into his bedroom, rummaged in his closet, opened his safe, and deposited some completely unknown substance in it? Even if he believed that substance to be cocaine, I would expect him to at least inspect it to ensure the amount and description of it before it was left there. His story makes no sense. Even if it was corroborated by B.T. I would have trouble believing it. However, B.T. did not corroborate Mr. Charles’ story; he directly contradicted it.

The evidence of Mr. Charles’ friend, B.T., is not credible and does not assist Mr. Charles anyway

84B.T. was 18 years old at the time of the trial before me and had completed about 9 months of an 18 month sentence for assaulting a police officer, robbery and sexual assault. The sexual assault was carried out along with a cousin of his. Their victim was a developmentally disabled 16-year-old estimated to have a mental capacity equivalent to a 7-year-old. After sexually assaulting her, they beat her unconscious, robbed her, and then urinated on her. In addition to these offences, B.T. had many other criminal offences on his youth record going back to when he was 10 years old, including many crimes of dishonesty.

85When B.T. was interviewed by defence counsel prior to trial, he told her that somebody had given him the gun and that Mr. Charles did not see him put the gun and ammunition in his safe. In his discussion with counsel, he mentioned only that the gun was in a brown paper bag. In his testimony at trial, B.T. testified that both the gun and a quantity of marijuana were in a Jansport backpack and that he had stolen the backpack from a drug dealer. He said that what he told counsel earlier was not accurate. He explained the change in his testimony at trial by saying that he had put his hand on the Bible and was therefore required to tell the truth.

86B.T. testified at trial that he stole the backpack because he thought there would be marijuana in it. He said that this occurred about four days before Mr. Charles’ apartment was raided and he was arrested. B.T. claimed that the dealer who had sold him marijuana earlier that day had cheated him by giving him low-grade marijuana and that was why he decided to rob him. He said that he then went that same day to Mr. Charles’ apartment with the backpack. He thought Mr. Charles’ mother was there at the time. He said he and Mr. Charles went out on the balcony to smoke marijuana because his mother was in the living room. While at Mr. Charles’ apartment, he looked in a zippered pocket of the backpack and found the gun and ammunition. Up to that point, he was not aware there was a gun in the backpack. He said he persuaded Mr. Charles to let him leave the gun there because his mother would not permit him to have the handgun in her apartment. According to B.T., Mr. Charles was reluctant, but eventually agreed to it. B.T. testified that Mr. Charles opened the door of the safe for him so that he could put the gun and ammunition inside. He said that Mr. Charles clearly saw the gun and ammunition. B.T. told Mr. Charles he would come back the next day to get the gun, but said he never really intended to do that – he just said that to Mr. Charles in order to persuade him to store the gun for him. B.T. said that before he had a chance to go back for the gun, it had been seized by the police.

87Needless to say, B.T. is a person of poor moral character and I must treat anything he said, whether under oath or not, with great care. He was vague about the timing of this incident when he placed the gun in the safe and he was very imprecise about the amount of ammunition involved. Therefore there are problems with his reliability as well as with his credibility.

88That said, B.T. was a long-time friend of Mr. Charles and had no particular reason to wish him harm. He may even have thought that he was helping his friend by testifying that he was the one who brought the gun to the apartment and placed it in the safe. The critical point, however, is not who put the gun there. It was Mr. Charles’ safe, Mr. Charles had the key to it, and Mr. Charles had physical possession of it. If Mr. Charles knew the gun was in the safe, then he was in possession of it. The evidence of B.T. does not assist Mr. Charles in that regard. According to B.T., Mr. Charles knew the gun was in the safe.

89There are enough difficulties with B.T.’s evidence that it would not be safe to convict anyone of a criminal offence based on his uncorroborated testimony. Even if B.T.’s evidence had confirmed the story given by Mr. Charles, I would still have a difficult time accepting its truth, or even concluding that it gave rise to a reasonable doubt as to Mr. Charles’ guilt. However, because B.T.’s version of the events does not constitute a defence for Mr. Charles, I do not need to decide that point. The question is whether I can accept B.T.’s testimony as further evidence of Mr. Charles’ guilt. I have concluded that it would not be appropriate to do so. There are simply too many problems with B.T.’s credibility and reliability to rely upon his testimony as positive evidence of Mr. Charles’ guilt. Rather, I merely take from his evidence that there is no corroboration of Mr. Charles’ version of the events.

Mr. Charles admitted to the police that he knew the gun was in the safe

90Upon the police entering the apartment, the first officer to encounter Mr. Charles was D.C. Dean. He testified that he went directly to the bedroom area of the apartment. The first bedroom was empty (it belonged to Mr. Charles’ mother). Mr. Charles was sitting on the bed in the second bedroom. Upon seeing Mr. Charles, D.C. Dean said “Police. Don’t move. Show me your hands.” He said that Mr. Charles complied and he then cuffed him to the rear and told him he was under arrest for possession of cocaine for the purpose of trafficking. D.C. Dean said that he then began a pat-down search of Mr. Charles, with D.C. Ing assisting.

91D.C. Dean testified that in the front left pocket of Mr. Charles’ jeans he found a quantity of cash which appeared to him to be about $700-$900. He said that D.C. Ing told him he had found crack cocaine in another pocket. D.C. Dean said that he then advised Mr. Charles that he was also under arrest for possession of proceeds of crime. He read to Mr. Charles his rights to counsel and caution from the back of his memo book. He asked Mr. Charles if he understood, and Mr. Charles said that he did. D.C. Dean then asked him if he wished to call a lawyer, to which Mr. Charles replied, “No. I want to call my mother.”

92D.C. Dean testified that he next told Mr. Charles that they had a search warrant to search the whole apartment. He asked Mr. Charles if there was anything illegal in the apartment and told him it would be easier, faster, and less embarrassing for everyone if he simply told them what was there. At that point, Mr. Charles said that there was a small safe in his closet and a handgun in the safe.

93D.C. Ing testified that when he arrived at Mr. Charles’ bedroom, Mr. Charles was still sitting on the bed, but he appeared to have already been placed under arrest by D.C. Dean. He was cuffed to the rear and then stood up as the two officers together did a pat-down search, with D.C. Ing on one side of Mr. Charles and D.C. Dean on the other. D.C. Ing said that he found a piece of what looked to be crack cocaine tied in plastic in Mr. Charles’ right front pocket.

94D.C. Ing testified that he heard D.C. Dean advise Mr. Charles of his rights. He said D.C. Dean started doing that while they were still doing the pat-down search. He did not recall seeing D.C. Dean reading from his notebook. He said D.C. Dean was doing all the talking and asked Mr. Charles questions. In response to those questions, Mr. Charles said that this was his bedroom and that there was a firearm in the safe in his closet. D.C. Ing then asked Mr. Charles how they could get into the safe and Mr. Charles directed him to the key which was beside the television.

95I believe the evidence of both officers that Mr. Charles told them there was a gun in the safe in his closet. It is plausible to me that Mr. Charles would have volunteered that information to minimize the length of time required for the search as it was inevitable the police would find the gun in any event. The officers each had an independent recollection of the statement. Each of them recorded it in his notes without collaboration with the other. There are some discrepancies between the testimony of these two officers on other points, which I take as an indication that there was no collusion. I found the officers to be both reliable and truthful in their evidence. I am sure Mr. Charles made the statement attributed to him.

The statement is admissible in evidence

96I also believe the testimony of the officers that Mr. Charles made this statement after he had been advised of his rights and without requesting to speak to a lawyer. There are two discrepancies between the evidence of D.C. Dean and that of D.C. Ing. D.C. Dean testified that he told Mr. Charles his rights after the pat-down search and that he read it from the back of his memo book; D.C. Ing testified that D.C. Dean was telling Mr. Charles about his rights as the pat-down search was ongoing and that he did not recall seeing D.C. Dean read from his memo book. It is understandable that D.C. Ing might not remember the precise mechanics of how the rights were given since he was not the one doing it and he did not write up his notes until after he was back at the police station following the completion of the search. D.C. Dean is more likely to be accurate since he was the one actually carrying out the task. However, nothing turns on whether the giving of the rights started while the pat-down was underway, or just a few seconds after that. I see these small discrepancies as mere errors in recollection, rather than being untruthful. Both officers were clear that the rights were given before the statement was made. I believe them.

97Mr. Charles testified that only one officer was involved in the pat-down search. He is either mistaken or lying. If Mr. Charles is accurate on this point, it would mean that both Officers Ing and Dean colluded to fabricate their notes in their memo books and their evidence. Both have complete notes about their involvement, including that one of them seized the money and the other seized the cocaine. That is corroborated by the Exhibits officer who received those objects from Officers Ing and Dean. There would be no reason for those officers to fabricate evidence in this manner. Further, if they had colluded I would have expected their evidence as to how the rights were given to be identical, which it was not. I am completely confident that these two officers did not collude or fabricate their evidence. It follows that Mr. Charles is either lying about this, or his memory of it is not reliable. If his memory is not reliable about the number of officers involved, there is no reason to believe it would have been reliable about the advice as to his rights.

98Mr. Charles has proven to be an untruthful witness in other aspects of his testimony. It is not fully clear to me whether he is also lying about this aspect, or if he is simply mis-remembering aspects of it. Either way, I cannot rely on his evidence. I found the evidence of both officers to be truthful and reliable. I find on the evidence before me that: Mr. Charles was fully advised of his rights before he made the statement about the gun in the safe; that Mr. Charles did not ask to speak to a lawyer; and, that Mr. Charles did volunteer the information about the gun, knowing the gun would be found in any event.

99I therefore find that the statement was made voluntarily and that there was no breach of Mr. Charles’ rights before he made the statement. The statement is admissible in evidence, and provides further evidence that Mr. Charles knew the gun was in the safe.

F. CONCLUSIONS ON THE SUBSTANTIVE CHARGES

Possession of Cocaine for the Purpose of Trafficking

100Mr. Charles admitted at trial that he had ¼ ounce of crack cocaine in his pants pocket, which he said he had purchased earlier that evening, intending to resell it. He is therefore guilty of possession of cocaine for the purposes of trafficking as charged under Count 6.

Possession of Proceeds of Crime

101Mr. Charles also admitted ownership of the $2000 in the safe and $865 in his pocket. Mr. Charles is not gainfully employed. His sole “legitimate” source of income was from public assistance. He said the money in the safe came from selling drugs and from his savings. Indeed, he said that there had been twice as much money in the safe as the officers reported finding, including a quantity of Euros and American dollars, which he said he had received from persons buying drugs from him. As I have already noted, Mr. Charles has zero credibility. However, it is clear that the money seized by the police was not lawfully obtained by Mr. Charles and constitutes proceeds of crime. He is therefore guilty under Count 7.

Firearm Charges

102I do not believe the testimony of Mr. Charles that he did not know there was a gun or ammunition in the safe. The evidence of B.T. failed to corroborate Mr. Charles’ version of the event. While I do not necessarily believe B.T.’s testimony either, the absence of any corroboration for Mr. Charles’ story is particularly problematic in light of the serious difficulties with Mr. Charles’ lack of credibility and the unreliable nature of his evidence. The defence evidence does not cause me to have a reasonable doubt as to whether Mr. Charles knew the gun and ammunition was in the safe.

103Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Charles knew the gun and ammunition were in the safe. He had the keys to the safe and the safe was in his bedroom closet, under his control. I therefore find he was in possession of the loaded handgun and ammunition. I would have reached that conclusion even in the absence of the admission made by Mr. Charles. Accordingly, Mr. Charles is guilty of possession of a loaded prohibited firearm as charged under Count 1. Counts 2 and 3 are duplicative and I stayed them pursuant to the principles established in R. v. Kienapple.

104There was insufficient evidence to conclude that the storage of the ammunition was careless in all of the circumstances, as alleged in Count 4. Further, on the evidence before me I cannot be satisfied beyond a reasonable doubt that Mr. Charles knew the firearm was obtained by the commission of an offence, as alleged in Count 5. The only evidence on that point came from B.T. and that is not a sufficiently credible basis upon which to base a finding of guilt. Accordingly, I found Mr. Charles not guilty on Counts 4 and 5.

MOLLOY J.

Released: April 13, 2012