COURT FILE NO.: 11-90000170-0000

DATE: 20120504

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MELISA BLAKE and NICHOLAS BLISSETT

Applicants

Jason Mitschele, for the Crown

A.M. Stein, for the Defendant Melisa Blake

A. Robbins, for the Defendant Nicholas Blissett

HEARD: April 23, 24, 25, 26 and 27, 2012

Allen J. (oRALLY)

reasons for judgment

(Voir dire on Charter of Rights s. 8. search and seizure and s. 9 arbitrary detention)

APPLICATIONS

[1] The accused Melisa Blake and Nicholas Blissett, spouses, were charged on September 23, 2009 with two counts each of possession of cocaine for the purpose of trafficking it contrary to s. 5(2) of the Controlled Drugs and Substances Act. Ms. Blake and Mr. Blissett bring applications under s. 9 of the Charter of Rights claiming they were arbitrarily detained. Mr. Blissett also brings an application under s. 8 of the Charter. They seek to have 229.78 grams of cocaine excluded at trial as having been obtained in breach of their Charter rights.

BRIEF FACTUAL BACKGROUND

[2] On September 23, 2009, Toronto police officer D.C. Chant was dispatched to 96 Attview Cres., in Brampton in response to a report of a man in possession of a firearm at that address. D.C. Chant arrived in the area at 6:20 p.m. Other officers were there conducting an investigation in relation to a warrant application to search those premises.

[3] The target was described as a black man, 5′ 10″ in height, with short hair and a slim build, in his 30s. Mr. Blissett, a black man about 5′ 5″ in height with long black dreads, was observed departing 96 Attview, returning and leaving again carrying a grey plastic bag. Mr. Blissett and Ms. Blake are the owners of the house at 96 Attview. He and two females, one of whom was Ms. Blake, got into a black Ford Explorer registered in Mr. Blissett’s name. He got into the driver’s seat, Ms. Blake into the front passenger seat and the other female into a back seat.

[4] The police officers assigned to this case were members of the guns and gang unit working out of Toronto Police Service, 31 Division. Det. Johnston, the supervising detective, asked D.C. Chant and three other officers, D.C. Tucker, D.C. Little and D.C. Tianos, to follow the Ford Explorer to conduct surveillance in relation to the firearm investigation. Each of the officers was unaccompanied and drove separate unmarked vehicles.

[5] D.C. Chant indicated that while he did not find the fact Mr. Blissett was carrying a grey plastic bag significant, it piqued his interest. He testified even though Mr. Blissett did not fit the description of the target, it was not out of the ordinary to follow him. He explained it was a firearm investigation at 96 Attview and Mr. Blissett had just left that address and was of interest for that reason. There was also a possibility an incorrect description for the target was given.

EVIDENCE

Pre-Arrest Evidence

The Crown

[6] D.C. Chant testified about the characteristics he was looking for as he pursued the Ford Explorer: the route the vehicle took; whether, if someone got out of the vehicle, they displayed the characteristics of someone carrying a firearm; whether Mr. Blissett made any counter surveillance moves; and whether Mr. Blissett acted extra cautiously or was watching who was following. D.C. Chant explained that an indication that a person might be carrying a firearm would be if the person attempted to secure it with an arm, elbow or hand. He conceded he did not observe Mr. Blissett display any such characteristic.

[7] The supervising officer, Det. Johnston was informed at 4:51 p.m. that Mr. Blissett’s address was 258 Hallmark and that he owned the Ford Explorer. Presumably, it would be known through a computer search at that time that Mr. Blissett did not have a criminal record, no history with drugs or firearms. D.C. Chant however testified he knew nothing about Mr. Blissett when he began to pursue him. He conceded he had no information that the target had any connection to Mr. Blissett’s Ford Explorer.

[8] The Ford Explorer proceeded along highway 401 eastbound with all four officers in pursuit. The Ford Explorer then exited highway 401 at Weston Rd, went north on Weston Rd. and then got back onto highway 401 going eastbound. D.C. Chant found the quick departure and the immediate return to highway 401 suspicious, to be a possible act of counter surveillance. D.C. Chant explained he thought Mr. Blissett did this counter surveillance move to see if anyone was following him.

[9] The Ford Explorer exited highway 401 at Keele St. and proceeded north on Keele St. to a plaza just south of Wilson Ave. and Keele St. The Ford Explorer parked in the north east corner of the plaza lot. It was still daylight at this time.

[10] D.C. Chant testified that at 6:50 p.m. he observed Mr. Blissett leave his car and walk eastward to a small dark car in the north east corner of the plaza. D.C. Chant testified he was parked some 40′ to 45′ away from Mr. Blissett and saw Mr. Blissett engage in broad daylight, in the midst of a busy plaza parking lot, what he called a hand-to-hand-transfer. He said Mr. Blissett approached the passenger side window of the small dark car and passed a hand-sized whitish package through the window. He said he had a clear view of the driver’s side of the dark car and did not see Mr. Blissett receive anything in exchange from the small dark car. Nor did he observe anyone inside the small dark car. D.C. Chant said he assumed someone in the car retrieved the package from Mr. Blissett.

[11] D.C. Chant did not get the licence plate number from the small dark car. He did not know the colour. He made no note of the make of the car, but testified he thought it might have been a Sunfire. He did not attempt to drive around the car to get a clearer look at it. D.C. Chant said he did not know where the other three officers were at this time. D.C. Tucker testified that while he saw the Ford Explorer enter the plaza lot followed by D.C. Chant, he did not see D.C. Chant in the parking lot or where either car was parked. Nor did he see the small dark car. The entirety of his knowledge about the drug transaction he learned from the information D.C. Chant eventually put over the radio.

[12] So there was no investigation of the small dark car to determine if it was involved in a drug trade or to keep track of where it went. D.C. Chant and D.C. Tucker testified there were insufficient police resources to do this. Both officers conceded there were only two exits from the plaza that could have been watched to keep track of the small dark car. But they maintained that four police officers in four separate vehicles were not sufficient to undertake this. They said all four officers had to concentrate their efforts to ensure Mr. Blissett did not get away. D.C. Tucker testified he parked in a spot securing the exit at Keele and Wilson.

[13] D.C. Chant testified strangely that at the subsequent debriefing meeting, none of the other officers told him they had seen the transaction, but he did not take the proactive step of asking them. He said he was confident however that none of the other officers observed the transaction.

[14] D.C. Chant then followed Mr. Blissett’s vehicle a short distance northbound on Keele St. and observed his vehicle turn into the driveway of a building complex at 3680 Keele St. He saw Mr. Blissett leave his vehicle and enter and exit the building through the side door at about 7:20 p.m. According to D.C. Chant he returned to the Ford Explorer with a small whitish package in his right hand. D.C. Chant testified he thought, because Mr. Blissett came out of the building with a similar package as he had earlier at the plaza, that he was dealing narcotics. D.C. Tucker testified he did not observe Mr. Blissett’s activity at 3680 Keele St. and there is no evidence the other two officers saw it either.

[15] D.C. Chant testified that it was at the plaza that he formed the opinion that he had reasonable and probable grounds to arrest Mr. Blissett for narcotics trafficking. However, he did not state this opinion to the other officers until after the incident at 3680 Keele St.

[16] D.C. Chant was asked on what basis he had formed that opinion. He testified it was a combination of his suspicion about the counter surveillance and the passing of the small whitish package to the dark car that led to his conclusion that Mr. Blissett had dealt drugs. To questions about whether it concerned him, in assessing what he observed, that he saw nothing pass in exchange to Mr. Blissett, he answered “no” since money does not have to pass for a hand-to-hand transaction to occur.

[17] D.C. Chant was questioned as to why he referred to Mr. Blissett’s actions at 3680 Keele St. as a hand-to-hand drug transaction when he did not see him interact with anyone. D.C. Chant admitted what he saw at 3680 Keele was not a hand-to-hand drug transaction. He also conceded he did not know what was inside the small whitish packages, that no such package was found in Mr. Blissett’s vehicle when he was arrested and that he did not know where it was.

[18] Mr. Blissett left the parking lot at 3680 Keele St. at 7:20 p.m. eventually getting onto highway 401 westbound. The other three officers followed him. It was not until they got onto the highway at about 8:00 p.m. that D.C. Chant radioed Det. Johnston and the other three officers about the two hand-to-hand drug transactions.

Ms. Blake’s Evidence

[19] Ms. Blake’s testimony shines a different and realistic light on Mr. Blissett’s activities.

[20] Ms. Blake testified she arrived home from work in the afternoon of September 23, 2009. Her mother was visiting from Jamaica at that time. Mr. Blissett left the house saying he would return soon. He then called Ms. Blake and asked if she wished to go out for dinner that evening. She agreed and Mr. Blissett returned to the house and left the house with Ms. Blake and her mother and they boarded Mr. Blissett’s Ford Explorer. The plan was to have dinner at Yorkdale shopping centre.

[21] Ms. Blake countered D.C. Chant’s suspicion about Mr. Blissett carrying a grey plastic bag as he exited 96 Attview. She testified she was two months pregnant at the time and that she suffered from chronic morning sickness. This was aggravated by being in a moving car. She testified she would carry plastic bags in the car to vomit into when she got nauseated. She asked Mr. Blissett to bring a plastic bag to the car before they left for dinner and he did so, what she described as a grey Walmart bag. Ms. Blake testified that she was wearing a dress and that because Mr. Blissett kept the car at a cool temperature she had a peach coloured blanket on her lap to keep warm.

[22] Ms. Blake contradicted D.C. Chant’s evidence on the suspected counter surveillance and what happened at the plaza. While Crown counsel attempted to challenge other areas of Ms. Blake’s evidence, he did not raise questions to dispute these two crucial areas of her evidence that directly contradicted D.C. Chant.

[23] On the so-called counter surveillance, Ms. Blake testified that as the car approached the Weston Rd. exit from eastbound highway 401, she began to get nauseated. She asked Mr. Blissett to leave the highway. Mr. Blissett exited at Weston Rd. Ms Blake testified that as they sat at the traffic light at the Weston Rd exit, the nausea subsided and Mr. Blissett immediately returned to highway 401 eastbound. After they returned to the highway, the nausea returned and she vomited into the grey plastic bag.

[24] On the activity in the plaza parking lot, Ms Blake testified Mr. Blissett exited highway 401 at the Keele St. exit to dispose of the bag containing the vomit. He pulled into the plaza at Keele and Wilson Sts. in front of a coffee shop she thought was a Tim Horton’s. Mr. Blissett got out of the car, leaving the car door open, and discarded the grey bag into a garbage disposal and returned to the car. He then pulled out of the parking lot and drove north on Keele St.

[25] Ms. Blake testified she was drowsy and went in and out of sleep. Mr. Blissett indicated that he had to make a stop. He did not tell Ms. Blake why he had to make a stop or who he was going to see. He entered into the parking area of 3680 Keele St. and parked. Ms. Blake said she was asleep and did not see Mr. Blissett leave the building. She did not see him carrying a whitish package.

[26] Ms. Blake testified that Mr. Blissett asked if she minded if they went for dinner outside the city, which she agreed to. Mr. Blissett then returned to highway 401 going westbound. Ms. Blake testified she slept during the westbound drive on highway 401. She said she woke up when an OPP officer stopped the car.

[27] Crown counsel attempted to impeach Ms. Blake’s credibility with respect to the plausibility of the delay involved in the plan to have dinner outside the city. Crown counsel suggested it is not realistic that a pregnant woman who had not eaten since early afternoon would be prepared to delay eating several hours while her spouse travelled along the highway for over an hour to an undisclosed location out of town.

[28] I find Ms. Blake provided a reasonable explanation. I accept her evidence that she had lost her appetite because of the nausea and had slept through most of the drive along the highway and did not feel the need to eat sooner.

The Search and Seizure and Arrests

Just Prior to the Arrests

[29] D.C. Chant made the decision Mr. Blissett should be arrested as a result of the drug transactions. He did not consider stopping him for an investigative detention. Det. Johnston instructed the surveillance team to contact the OPP to assist with the arrest on the highway. D.C. Tucker phoned and spoke to OPP P.C. Fisher. P.C. Fisher testified he spoke to D.C. Tucker at 8:15 p.m. and D.C. Tucker advised him the Toronto guns and gangs task force was involved in a firearm and drugs investigation. P.C. Fisher testified he was not told the details of the decision to arrest Mr. Blissett.

[30] P.C. Fisher testified he was only asked to stop Mr. Blissett’s vehicle, but was not told to arrest Mr. Blissett. D.C. Tucker contradicted this evidence saying he asked P.C. Fisher to do the arrest but that P.C. Fisher said he was not comfortable doing that.

[31] P.C. Fisher followed Mr. Blissett on the highway. At about 8:34 p.m., P.C. Fisher pulled him over just outside Cambridge on the pretext of stopping him for a speeding violation. D.C. Tucker pulled up moments later behind P.C. Fisher. P.C. Fisher approached the driver’s side door of the Ford Explorer and asked Mr. Blissett for his identification and vehicle ownership documentation, which Mr. Blissett freely surrendered. P.C. Fisher testified he used his flashlight for about 20 seconds to scan the interior of the Ford Explorer. He instructed Mr. Blissett to get out of the vehicle and get into his OPP police cruiser. P.C. Fisher gave D.C. Tucker Mr. Blissett’s documentation.

Ms. Blake’s Arrest

[32] The officers gave contradictory evidence about approaching Ms. Blake at the front passenger side of the vehicle.

[33] D.C. Chant testified he was alone when he approached Mr. Blissett’s vehicle. He said he dealt with Ms. Blake alone and that D.C. Tucker walked up later. D.C. Tucker testified on the contrary that he and D.C. Chant walked up to the vehicle together. They both stated that P.C. Chant first approached the vehicle on the driver’s side and looked in with his flashlight. D.C. Chant spoke to Ms. Blake through that window then walked over to the front passenger side door, looked in with his flashlight and spoke to Ms. Blake. D.C. Tucker testified he then went to stand behind the vehicle and was looking through the rear passenger window.

[34] The Crown’s witnesses gave contradictory evidence about the circumstances surrounding Ms. Blake.

[35] Both P.C. Fisher and D.C. Tucker testified Ms. Blake was sitting with a blanket over her lap. D.C. Tucker said D.C. Chant asked Ms. Blake to take the blanket from her lap. D.C. Tucker gave that evidence about the blanket at the preliminary inquiry, but attempted to resile from it at trial. I find that D.C. Tucker’s memory at the preliminary hearing would be more reliable, that he did see the blanket. As noted earlier, Ms. Blake testified she had a blanket over her lap. D.C. Chant denied seeing the blanket.

[36] D.C. Tucker testified Ms. Blake was sitting in a normal upright posture when the officers approached the car. Her knees were at a 90˚ angle to her upper body. D.C. Chant however testified that Ms. Blake was sitting such that her knees were propping up the door of the glove box. Keeping in mind that D.C. Tucker said he approached the vehicle with D.C. Chant, D.C. Tucker testified he did not see Ms. Blake holding up the glove box door with her knees.

[37] Ms. Blake also denies this. She says she was sitting upright and slightly inclined backward. Based on video evidence of the interior front passenger side of the vehicle and Ms. Blake’s testimony, her knees when she is sitting upright would be about 2′ from the glove box. In other words, she could not sit upright and have her knees be in contact with the glove box door.

[38] P.C. Fisher testified he did not see this since he had only done a 20 second scan of the interior of the vehicle with a flash light and then went to stand at the rear of his cruiser with his eyes trained forward and not on the suspect vehicle.

[39] On all the evidence, I accept that Ms. Blake had a blanket on her lap and was not sitting with her knees holding up the glove box door. This then raises the question why D.C. Chant would present this misleading evidence.

[40] D.C. Chant said he observed pieces of cocaine on Ms. Blake’s lap and legs. D.C. Tucker said D.C. Chant asked Ms. Blake to remove the blanket and to get out of the car. D.C. Chant testified that after he asked Ms. Blake to get out of the car he spotted with his flashlight pieces of cocaine on the floor of the passenger’s side. D.C. Chant testified he then observed an opaque plastic bag containing a large quantity of cocaine which seemed to be stuffed into the ceiling of the glove box. The plastic bag was torn and some of the cocaine had spilled out into the car. D.C. Tucker testified he came over to the passenger side and also observed this. D.C. Chant retrieved a video camera from his car and recorded the interior passenger’s side showing the seat, glove box, the bag of cocaine and the pieces of cocaine on the floor.

[41] Ms. Blake and her mother were directed to stand behind the Ford Explorer. Ms. Blake was advised she was under arrest for possession of cocaine for the purpose of trafficking it. Her mother was also arrested.

[42] P.C. Fisher testified at this point he stood by the rear door of his own cruiser. P.C. Fisher said he heard that traces of cocaine were found in the front passenger side of the Ford Explorer and he understood that was the reason the three persons were arrested. P.C. Fisher testified he did not see the larger quantity of cocaine taken from the glove box.

Mr. Blissett’s Arrest

[43] The police officers gave contradictory evidence about when Mr. Blissett’s arrest took place in relation to the search of his vehicle. Their evidence was also inconsistent as to whether Mr. Blissett was arrested once or twice.

[44] D.C. Tucker testified he arrested Mr. Blissett twice. He testified the first arrest was at about 8:37 p.m. for trafficking in cocaine based on the transactions at the plaza and at 3680 Keele St. By this time, P.C. Fisher had placed Mr. Blissett in the rear of his cruiser and P.C. Fisher was standing at the rear of his cruiser. It was P.C. Fisher’s evidence that this was the only time Mr. Blissett was arrested.

[45] P.C. Fisher testified the arrest occurred after the drugs were found, about ten minutes after he stopped Mr. Blissett. D.C. Tucker testified on the contrary that Mr. Blissett was removed from the Ford Explorer and arrested and that his vehicle was not searched before he was arrested. The cocaine he said was only discovered after the arrest.

[46] D.C. Tucker testified that after the officers had dealt with the female accused, he went to P.C. Fisher’s cruiser to advise Mr. Blissett of the cocaine located in his vehicle. D.C. Tucker said he informed Mr. Blissett he was going to be arrested for possession of cocaine for the purpose of trafficking it. It was at this point, according to D.C. Tucker, that he arrested Mr. Blissett a second time.

[47] Notably, D.C. Tucker provided no evidence of the time for the second arrest. He did not note a time in his memo book. D.C. Tucker testified Mr. Blissett was still in P.C. Fisher’s cruiser at this point. P.C. Fisher said he was standing at the rear of his cruiser. But D.C. Tucker said he did not know whether any other officers witnessed the second arrest.

ANALYSIS

Arbitrary Detention

The Legal Principles

[48] Section 9 of the Charter provides everyone has the right not to be arbitrarily detained or imprisoned.

[49] Police must have reasonable and probable grounds to arrest. Courts have required that there not only be a subjective basis for the belief there are reasonable and probable grounds, but that there be an objective basis for the belief as well. It is not enough that a police officer personally believes reasonable and probable grounds exist. An objective basis for the belief must exist. A reasonable person standing in the shoes of the officer must believe there are reasonable and probable grounds to detain the person [R. v. Storrey, 1990 125 (SCC), [1990] S.C.J. No. 12, (S.C.C)].

[50] Later courts, in addressing the power of investigative detention, adjusted the reasonable and probable test to “reasonable grounds to suspect”. The Supreme Court held a police officer may briefly detain for investigative purposes where, in the totality of the circumstances, the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. This guards against an officer operating on the basis of a mere "hunch" in detaining a person [R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.)]. The purpose of the power of investigative detention is the preservation of peace, the prevention of crime and the protection of life and property [R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)].

[51] To be reasonable a detention must be based on a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation [R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)]. The court must assess the reasonableness of the decision to detain in the context of all the circumstances, particularly with attention to the extent to which the interference with individual liberty is necessary to the performance of the officer's duties; the liberty interfered with; and the nature and extent of

That interference. [R. v. Mann, supra].

[52] The Ontario Court of Appeal highlighted an important safeguard provided by the requirement that grounds to detain be firmly rooted in objective factors:

A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as a detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a “hunch”.

Detention of Mr. Blissett

[53] D.C. Chant’s evidence was that he believed he had reasonable and probable grounds to arrest and detain Mr. Blissett based on his observations of Mr. Blissett’s activities at the plaza. I am therefore not as concerned for the purposes of this analysis with the incident at 3680 Keele St.

[54] I have no difficulty finding on an objective basis that D.C. Chant did not have reasonable grounds to suspect Mr. Blissett was involved in the commission of the crime of drug trafficking at the plaza.

[55] However, before I enter that inquiry, I must say I have some difficulty accepting that what D.C. Chant described as the drug transaction at the plaza even occurred. I find various aspects of D.C. Chant’s evidence have a somewhat surreal quality. I do not pretend for a moment to have the investigative skills of a police officer. I must also say that I firmly acknowledge police officers have a difficult job and are sometimes required to make difficult assessments of their observations. With this said however it is incumbent on the court to address the evidentiary problems on matters that bear directly on the issues before the court.

[56] For instance, Det. Johnston sent four separate unmarked vehicles to conduct surveillance on Mr. Blissett, with D.C. Chant to act as the lead and the central note taker. Only D.C. Chant’s vehicle entered the plaza parking lot. He at no time apprised himself of where the other three vehicles were. He had no evidence of what the other officers were doing. Further, there is no evidence they contacted D.C. Chant to inquire as to his whereabouts or his observations. Were they busy doing something other than conducting surveillance on Mr. Blissett?

[57] So only D.C. Chant saw the events he described despite the fact that the other three officers presumably remained in the vicinity. D.C. Tucker, the only one of the other three officers who testified, confirmed he was not in contact with D.C. Chant although he said he was parked nearby at one of the two exits to the plaza. Nothing in the evidence explains the lack of communication among members of the surveillance team.

[58] Also noteworthy is the fact there is no evidence the other officers saw the small dark car that was purportedly involved in the transaction. So, like D.C. Chant, none of the other officers investigated that car. I would think the small dark car would be a key source of evidence to establish a drug transaction. In spite of the fact that D.C. Chant said he was parked near that car, he did not note the actual colour or make of the car.

[59] More importantly, D.C. Chant did not note the licence plate number. His reason for not pursuing this potentially key piece of evidence ― insufficient police resources and fear of being discovered to be a police officer. However, he was in an unmarked car in plain clothes in a busy plaza parking lot with three other officers in unmarked cars to assist who might have put themselves in a position to at least see the licence plate. I just do not see a reasonable basis for the licence plate number not to have been recorded, if only to pursue that evidence at a later time.

[60] There is also the fact that D.C. Chant said he suspected a counter surveillance move on the highway. He thought Mr. Blissett might have been suspicious that he was being pursued. And yet, as D.C. Chant described it, Mr. Blissett left the highway, pulled into the parking lot, immediately jumped out of his vehicle, leaving the driver’s door open, and in broad daylight conducted a hand-to-hand drug transfer in a busy plaza parking lot. This does not seem to be the conduct of someone who suspected he was being followed.

[61] I found Ms. Blake gave a perfectly plausible explanation for the move off and back onto the 401 ― that Mr. Blissett left the highway because Ms. Blake was about to vomit and returned when it was thought the nausea had subsided. I also found plausible Ms. Blake’s explanation for Mr. Blissett going to the plaza. She eventually did vomit into the grey bag she said Mr. Blissett carried into the car for that purpose and he pulled into the plaza to discard it in a garbage receptacle. Of critical importance is the fact that Crown counsel did not challenge that evidence on cross-examination.

[62] D.C. Chant is an officer of some 13 years’ experience with Toronto police. He had been with the guns and gangs unit for some two years at the time of this incident. He was not new at this work. Det. Johnston had confidence in him. He put D.C. Chant in charge. When I consider his background in the context of his description of the events at the plaza, I find D.C. Chant’s account of the drug transaction, on which he formed his reasonable and probable grounds to arrest Mr. Blissett, to lack an air of credibility.

[63] But even if I accept D.C. Chant’s evidence at its best, I do not find there was a reasonable justification to detain Mr. Blissett. I can see no discernible constellation of facts that could lead to a reasonable suspicion that Mr. Blissett was involved in a drug transaction at the plaza.

[64] I found particularly useful for this inquiry Det. Johnston’s evidence on the types of factors police officers might look for in assessing if a drug transaction has occurred. Det. Johnston has been a police officer for some 24 years and has been on the Toronto guns and gangs task force for some seven years. He testified some of the factors officers consider are:

(a) the person being observed;

(b) whether the area is a high drug area;

(c) the reactions of the people involved;

(d) whether the area is busy with people or a secluded area;

[65] Apart from being a black male, Mr. Blissett did not fit the physical profile of the target alleged to be in possession of a fire arm. Moreover, Mr. Blissett’s residential address in the police records was not the target address. Mr. Blissett was simply seen entering and exiting the target address where the target was alleged to have had the firearm. Further, the computer search would have disclosed that Mr. Blissett did not have a history of firearm or drug offences. As well, D.C. Chant testified when he observed Mr. Blissett he did not show the characteristics of a person carrying a firearm.

[66] Mr. Blissett was ultimately arrested in connection with drugs and not a firearm. Looking at where Mr. Blissett was seen, there is no evidence that either the area in Brampton where 96 Attview is located or the plaza at Keele St. and Wilson Ave., or the area where 3680 Keele St. is located were high crime or drug areas. The officers were not sent out on a community policing mission to monitor a high crime or a high drug area.

[67] In terms of the conduct of the persons involved, on the so-called counter surveillance observation, D.C. Chant who closely followed the Ford Explorer testified he could not see Mr. Blissett or the other occupants of the vehicle. He therefore did not see Mr. Blissett or the other occupants check the rear view mirrors, look back or display any signs of over caution. Neither did Mr. Blissett show any signs of over caution in the plaza parking lot. On D.C. Chant’s version of events, he got out of his vehicle, walked over to the dark car and passed a whitish package through the driver’s side window, in broad daylight. D.C. Chant did not see the conduct of any other person in this transaction since he did not see any occupants in the dark car.

[68] Needless to say again, the so called drug transaction did not occur in a dark secluded place. It purportedly happened in a busy shopping plaza in daylight.

[69] There are further factual considerations to look at in this case. D.C. Chant of course did not know what was in the small whitish packages. No hand-sized whitish package was ever found in Mr. Blissett’s vehicle. D.C. Chant did not see Mr. Blissett pass the package to anyone in the small dark car. There is no evidence of a recipient hand on the other end of the so-called hand-to-hand transfer. D.C. Chant did not see any money or anything else pass from the dark car to Mr. Blissett in exchange for the whitish coloured package.

[70] It is clear from the case law that context defines the assessment of whether a particular activity can reasonably be regarded as a hand-to-hand drug transaction [See for example: R. v. Lagios, [2011] O.J. No. 5763 (Ont. S.C.J.); R. v. Henry, 2010 ONCA 625, [2010] O.J. No. 4080 (Ont. S.C.J.); R. v. N.O., 2009 ABCA 75, [2009] A.J. No. 213 (Alta. C.A.); R. v. S.M., 2006 ONCJ 348, [2006] O.J. No. 3775 (Ont. C.J.)] Money does not have to pass in a drug transaction. There is some flexibility in what actions have been regarded as hand-to-hand. But if what is observed is not a clear cut classical hand-to-hand transfer, the surrounding circumstances have been found to shed some light on the situation. Here police officers’ experience in these matters is a key factor to be taken into account.

[71] Flexibility is allowed in what is deemed to be a hand-to-hand transfer if the activity takes place in a certain context, for instance: in a dark secluded area, a high drug crime area, or where there are known drug dealers or users involved. None of those factors existed in the circumstances described by D.C. Chant. What he described alone cannot justifiably be summed up as a drug transaction. If this were the case, many innocent actions by ordinary people in plaza parking lots would meet with the suspicions of the police. I therefore find in the particular circumstances of this case that the passing of a package with unknown contents, where there is no recipient observed and where nothing is received in exchange, cannot be reasonably seen as a hand-to-hand drug transfer.

[72] In the result, I find the detention of Mr. Blissett to be arbitrary and a breach of his rights under s. 9 of the Charter. I conclude the cocaine is therefore inadmissible as evidence against him at trial.

Detention of Ms. Blake

[73] Ms. Blake concedes she lacks standing to challenge the search of the vehicle under s. 8 of the Charter as she had no possession or ownership of the Ford Explorer. Ms. Blake challenges her detention on the roadside of highway 401 as arbitrary. She seeks to have the cocaine excluded as inadmissible against her at trial on the basis that her s. 9 Charter right to not be arbitrarily detained was breached.

[74] Ms. Blake’s evidence was that she was detained in the Ford Explorer for about 10 minutes after the vehicle was stopped. Mr. Blissett had been removed from the vehicle and she did not have the keys. She was in the middle of nowhere in the dark. I find she was detained. She was not free to go. Detention is that point when a person ultimately does not feel they have a choice as to whether to stay and speak to the police or leave [R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C)].

[75] The issue is whether her detention was lawful, whether she was detained arbitrarily. The context in which Ms. Blake’s detention took place must be considered. She was detained as a result of the arbitrary detention of Mr. Blissett which stemmed from a flawed investigation. It is difficult to see how in these circumstances her detention could be proper. As well, as I find below, the search of the vehicle that turned up the drugs occurred before Mr. Blissett was arrested which rendered the search unlawful. I find Ms. Blake’s detention, occurring as it did in the context of Mr. Blissett’s arbitrary detention and an unlawful search and seizure must itself be regarded as unlawful and arbitrary.

[76] I conclude therefore that the cocaine is inadmissible at trial as evidence against Ms. Blake based on the breach of her s. 9 Charter right to protection from arbitrary detention.

The Search and Seizure

The Legal Principles

[77] Section 8 of the Charter provides protection from unreasonable search and seizure.

[78] The police conducted a warrantless search of Mr. Blissett’s vehicle. The protection afforded by the Charter is directed at protecting an individual’s reasonable expectation of privacy. On one hand, Mr. Blissett was the registered owner of the Ford Explorer and would reasonably expect not to have his privacy in relation to his vehicle interfered with by state agents. On the other hand, police are authorized as a function of their police investigative duties to conduct searches in the private domains of individuals if such searches can be justified as lawful.

[79] A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable [R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 278]. Absent a warrant a police search or seizure is presumed to be unreasonable. [R. v. Collins, supra]. It is the Crown’s burden to prove the warrantless search was reasonable.

[80] Provided the arrest is lawful, the police may conduct a search incident to an arrest on a number of grounds such as: to guarantee the safety of the police and the public; to prevent the escape of a suspect; to obtain evidence against a suspect; to prevent the destruction of evidence. The search must be related to the purpose of the arrest. [Cloutier v. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 1997 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)].

The Evidence

[81] I found the detention of Mr. Blissett to be arbitrary and therefore done unlawfully. On that basis, the police were not lawfully permitted to search Mr. Blissett’s vehicle. It stands to reason that the search of the vehicle following an unlawful detention would itself be unreasonable. However, even if I were to have concluded the detention was not arbitrary, I find there are problems in the evidence related to Mr. Blissett’s arrest that undermine the reasonableness of the search.

[82] There are conflicts in the officers’ testimonies in key areas of the evidence around the arrest and search. The Crown has the burden to prove on a balance of probabilities that the search of Mr. Blissett’s vehicle was reasonable. I find the Crown did not meet this obligation.

[83] The law requires for a search to be proper it must take place after an arrest. The fruits of a search can be found inadmissible at trial if obtained before an arrest. The most significant area of inconsistency is in the facts pertaining to the sequential timing of the arrest and search and in relation to the number of arrests

[84] The Toronto guns and gangs officers, D.C. Chant and D.C. Tucker, testified Mr. Blissett was arrested before his vehicle was searched. The OPP officer, P.C. Fisher, testified Mr. Blissett was arrested after his car was searched and the drugs found. D.C. Tucker testified he arrested Mr. Blissett twice, once for drug trafficking and the second time for possession for the purpose of trafficking. D.C. Tucker is the only witness who testified about two arrests. He did not note a time for the second arrest. P.C. Fisher testified, with some assurance from his notes, that there was one arrest that occurred after the drugs were found in the car.

[85] My finding in relation to the timing of the search and the number of arrests is influenced by credibility issues in other areas of the evidence.

[86] There is conflicting evidence about what might have turned out to be an important piece of evidence ― a blanket Ms. Blake had on her lap when the vehicle was stopped at the side of the highway. It was on Ms. Blake’s side of the vehicle, on her legs and lap, that some of the drugs were allegedly found. Ms. Blake says she had a blanket on her lap. This evidence was supported by P.C. Fisher and D.C. Tucker. It was D.C. Chant who said he did not see a blanket. This is curious because it was D.C. Chant who went with his flashlight to the front passenger’s side to investigate Ms. Blake. He said he observed her legs and knees and that she was wearing a dress, but he did not see a blanket. A blanket was not part of the Crown’s case. I do not accept D.C. Chant’s evidence that there was no blanket.

[87] Then there is the matter of the glove box. D.C. Chant’s evidence was that Ms. Blake was using her knees to prop up the door of the glove box of the Ford Explorer. Ms. Blake denied this evidence and pointed out that it would be impossible for her to physically do that. She stated she was sitting up in a normal posture, slightly inclined backward. Officers Fisher and Tucker testified she was sitting normally, not slouched forward and D.C. Chant did not note an unusual sitting posture. Ms. Blake explained that the Ford Explorer is an SUV and that the distance between her knees and the glove box when she was sitting upright was about 2′, so she could not have held the glove box door closed with her knees. I accept that evidence. Further, the video taken by D.C. Chant supports Ms. Blake’s evidence about the distance of her seat from the glove box.

[88] I find in the context of the other credibility problems, that I do not accept D.C. Tucker’s and D.C. Chant’s evidence that Mr. Blissett was arrested before the search of his vehicle. I also do not accept that D.C. Tucker arrested Mr. Blissett on two occasions.

[89] I found P.C. Fisher testified in a professionally detached and forthright manner. P.C. Fisher prepared relatively detailed notes of the events that evening. He was the officer who at D.C. Tucker’s request took Mr. Blissett’s identification, removed him from his vehicle and placed him in the rear of his OPP cruiser. He stood by his cruiser keeping watch. It was while Mr. Blissett was in the OPP cruiser that D.C. Tucker arrested him. P.C. Fisher said he was there when the arrest took place, although D.C. Tucker did not note that or seem to recall that at trial. The time an arrest took place is an important fact for a police officer to note. I find it significant to my finding of credibility that D.C. Tucker did not note the time of the second arrest.

[90] Beyond the general interest expected of an officer in furthering the enforcement of the law, P.C. Fisher had no particular stake or part in this guns and gangs investigation. P.C. Fisher was called upon to do a particular job ― to stop Mr. Blissett on a highway violation ruse, to take his identification, to place him in his cruiser and stand by to assist. He did just that. I see no reason why he would concoct evidence that the search took place before the arrest if it did not or mislead the court that there was only one arrest if there were two. And I do not think he was mistaken.

[91] As I pointed out above, I find Officers Chant and Tucker were not credible in several areas of their evidence. Notes of important facts were lacking. They even gave evidence inconsistent with each other and with other police officers. For this reason, I accept P.C. Fisher’s evidence over theirs.

[92] In conclusion, I find the Crown failed to meet its burden to establish that the search of Mr. Blissett’s vehicle was reasonable. The cocaine should be excluded as evidence against Mr. Blissett for breach of his right under s. 8 of the Charter against unreasonable search and seizure.

THE SECTION 24(2) ANALYSIS

[93] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. The court must balance the effect that admitting the evidence would have on society's confidence in the justice system. The Supreme Court of Canada in R. v. Grant, supra, sets out three inquiries the application court must consider in determining whether to exclude evidence.

(a) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);

(b) the impact of the breach on Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (c) society's interest in the adjudication of the case on its merits.

[94] The seriousness of the breach falls along a spectrum: "The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law." On one end of the spectrum are violations that are inadvertent or minor in nature, and on the other end are violations that demonstrate a reckless and deliberate disregard of Charter rights Grant, supra, paras. [72 and 74].

[95] The court may be required to disassociate itself from conduct characterized by wilful or flagrant disregard of the Charter by those very persons charged with upholding the right in question. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. R. v. Grant, supra, para. [75].

[96] When considering the first and second inquiries, it is clear the impact of police action on Mr. Blissett’s Charter rights was more profound than the impact on Ms. Blake’s rights. I have found the police breached Mr. Blissett’s rights with respect to his detention and the search of his vehicle. However, in addressing the inquiries, I find it difficult and somewhat artificial to attempt in some areas of the evidence to draw a clear line of demarcation between the facts pertinent to the breach of Mr. Blissett’s rights and the breach of Ms. Blake’s right to protection from arbitrary detention.

[97] On the first inquiry, I find the breaches fall on the more serious end of the spectrum. With respect to the arbitrary detention of Mr. Blissett, I find the breach falls on the deliberate and reckless end of the spectrum. As such, I find the court must disassociate itself from the police conduct.

[98] I found D.C. Chant’s account of the drug transaction at the plaza lacks the hallmarks of credibility in that there is doubt in my mind as to whether that event took place. This would put D.C. Chant’s conduct more in the realm of deliberate conduct, conduct directed to misleading the court. Even if I accept D.C. Chant’s account that the transaction occurred as he described, considering his experience as a police officer and the nature of the shortcomings in the investigation, I would have to conclude D.C. Chant and the other surveillance officers acted in a reckless manner. I point for instance to the failure of the members of the surveillance team to communicate with each other, particularly with D.C. Chant, the lead investigator and their failure to investigate the small dark car.

[99] Regarding the breach of Mr. Blissett’s rights on the search of his vehicle, I find the officers’ conduct to have been deliberate at the worst and reckless at the least. The seriousness of the breach of Mr. Blissett’s s. 8 rights is founded in the fact that the officers arrested him and searched his vehicle following an arbitrary detention which itself was the result of either deliberate or reckless police conduct. Compounding this is the fact that the officers gave inconsistent accounts of the timing of the search and arrest and as to the number of arrests. I am troubled by this because this demonstrates either a deliberate or a reckless disregard by the police for how their conduct could affect Mr. Blissett’s and the broader community’s confidence that the police, whose job it is to uphold the law, will always take that important obligation seriously.

[100] I find the court must disassociate itself from the police’s conduct in breach of Mr. Blissett’s rights under s. 8 of the Charter.

[101] Regarding the breach of Ms. Blake’s right against arbitrary detention, I find the police conduct to be very problematic. I am troubled by the discordant evidence given by the officers who observed Ms. Blake before she was arrested. I am troubled by the fact that D.C. Chant, who did the closest investigation of Ms. Blake, denied Ms. Blake had a blanket on her lap when Ms. Blake and other officers said there was a blanket. My concern here is that D.C. Chant said Ms. Blake had pieces of cocaine on her lap and legs and that was where the blanket was. But the blanket, which would appear to be a potentially relevant piece of evidence, did not find its way into the Crown’s disclosure. I have stated my view on D.C. Chant’s evidence about the glove box. I did not accept as plausible that Ms. Blake was holding the glove box door closed with her knees.

[102] Yet it was those observations by D.C. Chant that resulted in Ms. Blake’s detention and arrest.

[103] As I observed earlier, Ms. Blake’s detention occurred in the context of what I found to be an unlawful search of Mr. Blissett’s vehicle. I found the vehicle was searched before Mr. Blissett’s arrest. This I find exacerbates the arbitrariness of Ms. Blake’s detention and renders the conduct of the police all the more susceptible to censure by the court.

[104] I find the court must disassociate itself from the police conduct that resulted in the breach of Ms. Blake’s right under s. 9 of the Charter not to be arbitrarily detained.

[105] On the second inquiry, I find that while the impact of the violations on Mr. Blissett’s and Ms. Blake’s rights may not be the most severe, the impact of the actions of the police should not be underestimated.

[106] The search of Ms. Blake’s person was not intrusive or demeaning. The search of Mr. Blissett’s vehicle, unlike the search of a home, is not an intrusion into the most private sphere of the person's life. But it must have come as quite a shock to have the police pull him over unexpectedly on the highway at night with several police cars converging for reasons unknown to him. Ms. Blake testified they did not learn about the alleged transactions until Crown disclosure months later.

[107] The stop on the highway happened in the evening in the middle of nowhere. However, this does not nullify the humiliation and embarrassment attached to being pulled over with several cruisers and unmarked police cars, presumably with red lights flashing. Neither Mr. Blissett nor Ms. Blake has a criminal record. So this is not likely to be an experience they have had before.

[108] I find as well that the court should disassociate itself from the police conduct on the basis of the impact their actions would reasonably have had on Mr. Blissett and Ms. Blake.

[109] R. v. Harrison, 2009 SCC 34 offers guidance on how to approach the third inquiry. On the third inquiry, the court considers such factors as the reliability of the evidence and the importance of the evidence to the Crown’s case. The inquiry balances the public interest in seeing a determination on its merits against the public interest in a justice system that is beyond reproach [R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, paras. 33 and 34, (S.C.C.)]

[110] R. v. Harrison, like the case before me, involves police stopping a vehicle on the highway and finding a large quantity of cocaine, 35 kilograms, in two cardboard boxes. The police found a much smaller but not an insignificant quantity, 229.78 grams, in Mr. Blissett’s vehicle.The court in R. v. Harrison found the cocaine obtained as a consequence of Charter violations to be highly reliable. The same is true of the cocaine in the case before me. There is no question about the quantity and that the substance was cocaine and that it could provide conclusive evidence of knowledge and possession of the drugs. Evidence of that type cannot therefore be regarded as operating unfairly in the court's search for the truth at trial. [R. v. Harrison, at paras. 81

and 82].

[111] The amount of cocaine found in Mr. Blissett’s vehicle cannot be disregarded as inconsequential. Illicit drugs and the social blight and crime that stem from trafficking and addiction are all too prevalent reminders that drug crimes are serious. This threatens the well-being of many families, communities and institutions. There is clearly a public interest in this type of crime being tried and punished. This interest however has to be weighed against whether, in view of the Charter breaches, admitting the cocaine into evidence would bring the administration of justice into disrepute.

[112] The seriousness of the offence cuts both ways. Clearly, serious consequences to our justice system can result from a failure to prosecute a serious crime because critical evidence had been excluded. But what must also be considered is the longer term effect on the justice system of prosecuting a crime where the evidence was procured through serious violations of an accused's rights. This sentiment was expresses by the court in R. v. Harrison:

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively

prosecute a serious charge due to excluded evidence may have an

immediate impact on how people view the justice system. Yet, as discussed,

it is the long-term repute of the justice system that is s. 24(2)'s focus. R. v. Harrison, supra, at para. [84]

[113] The seriousness of the offence must be considered but must not take on disproportionate significance. R. v. Harrison, supra, paras. [34 and 84]. The court must balance the public concern over the type of crime against the serious infringements of Mr. Blissett’s and Ms. Blake’s Charter rights. The court must undertake a qualitative balancing of the three lines of inquiry based on the particular facts before it. It is not simply a quantitative evaluation of whether the majority of the factors favour exclusion. The balancing must consider the effect that admitting the evidence would have on the long-term repute of the administration of justice R. v. Harrison, supra, at para. [36].

[114] I found the nature of the state conduct in relation to both Mr. Blissett and Ms. Blake to be on the more serious end of the spectrum and that the court should disassociate itself from that conduct.

[115] I found the impact of the breaches on Mr. Blissett and Ms. Blake, while not on the most extreme end of the spectrum, in their circumstances would reasonably have had a sufficiently profound effect that the court should distance itself from the state conduct.

[116] Drug offences are undoubtedly serious and the cocaine seized is pivotal to the Crown's success at trial. However, the nature of the violations to Mr. Blissett and Ms. Blake’s rights justifies the conclusion that the long-term interest of the administration of justice would not be served by admitting the evidence. The reckless and deliberate actions of the police that underlie the violations tip the balance in favour of exclusion.

DISPOSITION

[117] The court orders that the 229.78 grams of cocaine is inadmissible in evidence against Mr. Blissett and Ms. Blake.

[118] Applications granted.

Allen J.

Released: May 4, 2012

COURT FILE NO.: 11-90000170-0000

DATE: 20120504

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

MELISA BLAKE and NICHOLAS BLISSETT

Applicants

REASONS FOR JUDGMENT

Voir dire on Charter of Rights s.8 search and seizure

And s. 9 arbitrary detention

ALLEN J.

Released: May 4, 2012