ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-90000798-0000
DATE: 20120816

BETWEEN:

HER MAJESTY THE QUEEN – and – JAMAL ROACHE

A. Nisker and M. Insanic , for the Crown
R. Tomovski , for the Accused

HEARD: August 13 and 14, 2012

backhouse j.

REASONS FOR JUDGMENT

[ 1 ] Mr. Roache is charged with possession of cocaine for the purpose of trafficking and possession of property, being $1310, obtained by committing an indictable offence. The sole issue with respect to the trafficking charge is whether Mr. Roache was in possession of the cocaine. With respect to the cash, the issue is whether the Crown has proved beyond a reasonable doubt that it was obtained by committing an indictable offence.

Officer Campbell’s Evidence

[ 2 ] Officer Campbell testified as follows. On September 12, 2010, he was alone in his scout car in the area of Sherbourne and Dundas Street West, in Toronto. He was on patrol, travelling southbound on Sherbourne Avenue. At 8 a.m., he observed Mr. Roache on the porch of 245 Sherbourne, situated on the east side of Sherbourne and Mr. Roache saw him. He recognized Mr. Roache from a mugshot that he had seen in the course of a prior assault investigation. Mr. Roache had his arms outstretched over the ledge. Officer Campbell was in the process of making a “U” turn to stop and speak to Mr. Roache when he observed Mr. Roache drop a small package over the ledge and into the garden below. Mr. Roache then quickly came down the stairs and headed northbound on Sherbourne Avenue. Officer Campbell yelled at him to stop. Mr. Roache started to run. Officer Campbell parked the scout car and pursued him on foot. Officer Campbell yelled at 2 other officers, (Muirhead and Dewland) who were parked in their scout car in front of 251 Sherbourne.

[ 3 ] Within seconds of Mr. Roache leaving the porch of 245 Sherbourne, he entered the outer door of 251 Sherbourne and stopped at the second locked door. Officer Campbell caught up to him there and asked if he was Jamal Roache. Mr. Roache said yes and Officer Campbell escorted him out of 251 Sherbourne. Officer Campbell asked the other officers to stand by with Mr. Roache while he headed back to 245 Sberbourne to search for what he had seen Mr. Roache drop from the porch. He did not observe anyone else in the immediate area of 245 Sherbourne. In the boxed in garden area adjacent to the porch and immediately below where he had observed Mr. Roache drop something, he found a clear cellophane package with what appeared to contain crack cocaine. There was no other debris or packages in the garden area. Officer Campbell put the package into his pocket.

[ 4 ] At 8:03 a.m., Mr. Roache was arrested for possession for the purpose of trafficking in cocaine. He was searched incidental to arrest and Officer Muirhead seized 2 cellphones and $1310 from him. Of the cash seized, one hundred and forty-five dollars plus three five dollar bills torn in half were located in his right front pocket. The rest of the cash ($1150) was in a Luis Vuitton wallet inside his rear right pocket. Officer Campbell turned the package of crack cocaine over to Officer Dewland after Mr. Roache was arrested.

Evidence of Officers Muirhead and Dewland

[ 5 ] Officers Muirhead and Dewland both testified. There were inconsistencies between the officers’ evidence as to where the Muirhead/Dewland scout car was parked relative to 251 Sherbourne, where they first saw Mr. Roache and whether they stood by with Mr. Roache at their scout car or at Officer Campbell’s scout car. Officers Muirhead and Dewloand did not hear Officer Campbell yell “stop” to Mr. Roache. The first they were alerted to the situation was when Officer Campbell called their names. All 3 of the officers testified that Officer Campbell told the other officers that he had seen Mr. Roache drop something when he asked them to stand by with Mr. Roache. There was nothing in Officers Muirhead and Dewland’s notes regarding this. Officers Muirhead and Dewland were standing by with Mr. Roache and did not see Officer Campbell find the crack cocaine. Officer Dewland testified that Officer Campbell returned to where he and Officer Muirhead were standing by with Mr. Roache with the package of cocaine in his hand. Officer Muirhead could not remember if Officer Campbell had anything in his hand when he returned. He testified that after Mr. Roache was escorted to the scout car, Officer Campbell showed him the package of crack cocaine. His notes said: “Advised located quantity of crack cocaine.”

[ 6 ] Mr. Roache was a person of interest in a robbery investigation. One minute after he was arrested on September 12, 2010, Officer Campbell made a radio call to inform the officers involved in that robbery investigation that Mr. Roache had been arrested. When the officers returned to 51 Division, there was a debriefing regarding the robbery investigation and the cellphones seized by Officer Muirhead were turned over to Officer Palermo who was investigating the robbery.

Evidence of Jamal Roache

[ 7 ] Mr. Roache testified as follows. On September 12, 2010, he was standing on the porch of 245 Sherbourne Avenue. He had come to visit his friend, Nasrulla, and had rung the doorbell, knocked and called Nasrulla on his cellphone but got no answer. He knew his friend was there and probably asleep so he decided to go down to 251 Sherbourne Avenue and thereby get access to the shared backyard with 245 Sherbourne so he could yell up to his friend’s window. He did not have his arms or hands over the ledge at 245 Sherbourne. He never dropped drugs off the porch. He had no drugs on him. He saw Officer Campbell’s cruiser drive by as he was walking to 251 Sherbourne Avenue. He did not hear Officer Campbell yell “stop” at him. He saw the second cruiser parked in front of 251 Sherbourne Avenue. He did not have a key to the second locked door at 251 Sherbourne and expected to get in when someone came out of the building. Before he could get through the second locked door, Officer Campbell grabbed his arm, said “You’re Jamal Roache, right?” Officer Campbell then pulled him out of the building and told the other 2 officers to hold onto him. There were no drugs in Officer Campbell’s hands when he returned or before Mr. Roache was put in the cruiser. He never heard Officer Campbell tell the other officers about having seen Mr. Roache drop something or telling the officers he had found a package of drugs.

[ 8 ] Mr. Roache applied to go to George Brown College for September, 2010. His application was late and the classes were full. He was supposed to talk to the education advisor in case somebody dropped out and a spot came open

[ 9 ] Mr. Roache pleaded guilty on August 11, 2012 to possessing a firearm. Two or three weeks before that, he was found guilty of a gun charge in regard to a February 2011 offence for which he is to be sentenced in the fall.

[ 10 ] Mr. Roache testified in chief that he worked at the Kiwanis Club for Boys and Girls. On cross-examination, he was uncertain when he worked there and uncertain as to the number of days or hours he worked. He testified that he was not working there when he was arrested on these charges and that he probably had not worked there in 2010. He had been in a car accident and the insurance company was giving him pay cheques. He had $2000 in a savings account. He did not pay rent and any money he had he was saving for school. His mother and father were trying to help him. He planned to stay over at his friend’s apartment on Sunday September 12, 2010 and his friend was going to take him to George Brown College the following day and show him around. When he told his mother he was leaving to go over to his friend’s and she knew he was planning to stay overnight, she said to make sure that he took the money that he needed to make the deposit to get into school. Mr. Roache identified this as anywhere from $500 to $1000 if he got admitted to $6000 for the whole tuition. His mother told him that there was approximately $1000 in her purse which she and his father had gathered. The money was kept in his mother’s wallet on top of the fridge which he took.

[ 11 ] Mr. Roache occasionally smokes marijuana and uses cocaine (“has a sniff”). He does not often do cocaine- perhaps once a month. He did not specifically remember if he did cocaine on the day preceding his arrest. He might have smoked marijuana on that day. He then conceded that he could have used marijuana and cocaine on that day with his cousin.

[ 12 ] Mr. Roache had 2 cellphones on him when he was arrested. His mother was always trying to reach him and the hearing was bad on his phone. He had bought a new cellphone 2 or 3 days before which his mother had given him the money for and he had not yet transferred all the phone numbers to the new phone.

Analysis

[ 13 ] Officers Campbell, Muirhead and Dewland were credible witnesses who gave their evidence in an honest, straight-forward manner. Officers Muirhead and Dewland were parked at 251 Sherbourne Avenue and did not see what happened at 245 Sherbourne Avenue. Officer Campbell was the only officer to be driving by 245 Sherbourne Avenue and to be in a position to see Mr. Roache drop something. I am satisfied that Officer Campbell could and did see Mr. Roache drop the package of what turned out to contain crack cocaine and that the porch was not so long and narrow that he could not have seen this, as the defence contends. The fact that Officer Campbell testified that he kept his eyes on Mr. Roache while he was making a u-turn but did not see Mr. Roache reach into his pocket to retrieve the package does not cause me to have a reasonable doubt. This would only have taken a split second and Officer Campbell had to drive the scoutcar. He could easily have missed Mr. Roache doing this, if the package was not already in his hand.

[ 14 ] The fact that Officers Muirhead and Dewland did not hear Officer Campbell yell “stop” to Mr. Roache can be explained by the fact that they were parked further north. They did hear Officer Campbell yell to them when he was chasing Mr. Roache as he headed to 251 Sherbourne where their scout car was parked. Exactly where the Muirhead/Dewland scout car was parked, where they stood by with Mr. Roache while Officer Campbell went to search and whether Officer Campbell had the cellophane package in his hands or in his pocket when he returned are minor details that do not affect the credibility of the main points of their testimony. The discrepancies in their evidence are the normal kinds of differences that may occur because of the passage of time and where witnesses are giving their evidence independent of one another. All the officers agreed that Officer Campbell said that he had seen Mr. Roache drop something when he asked them to stand by with Mr. Roache. I do not find the fact that Officers Muirhead and Dewland did not record this in their notes unusual, given their peripheral involvement in this matter. The fact that Officer Dewland recorded in his notes that he was advised that a quantity of crack cocaine had been located rather than that he was shown the crack cocaine is consistent with Officer Dewland not being present when it was found. I do not agree with defence counsel’s contention that it can be inferred from Officer Dewland’s note that he did not see the drugs.

[ 15 ] It was not put directly to Officer Campbell on cross-examination whether he planted the drugs. However, the defence submitted that the fact that Mr. Roache was a person of interest in a robbery, the immediate call to the hold up squad upon his arrest and the turning over to the hold up squad of Mr.Roache’s cellphones all suggested that Officer Campbell was more than capable of doing something like making this up. I disagree. I do not find it nefarious that there was cooperation between Officer Campbell, a primary response officer in 51 Division who had been involved in a prior assault investigation concerning Mr. Roache and the hold up squad who had an interest in Mr. Roach in regard to a robbery investigation.

[ 16 ] Mr. Roache was not a credible witness. He left the impression in his direct evidence that he was employed at the Kiwanis Club for Boys and Girls. On cross-examination, he was vague about the details and eventually agreed that he had not been employed there at all in 2010. When questioned about his drug use the day before his arrest, he first said that he did not remember. It was only after persistent questioning that he admitted that he could have used marijuana and cocaine the day before his arrest. If he had been sincere in his intention to go to George Brown College, one would expect that he would have applied on time. He gave no explanation for why he had not applied on time. He brought no document to confirm that he had in fact applied. If he intended to pay a deposit towards tuition on the day following his arrest as he attested to, one would have expected that there would be a fixed amount due and that he would know what that amount was instead of saying that it was $500, $1000 or more that was required. His story that his mother gave him approximately $1000 cash to walk around with until the following day when he planned to go to George Brown College and pay some non-specific amount as a deposit towards tuition for a course he had not yet been admitted to is incredible. There was no evidence that he even had an appointment with the educational advisor on the following day. It is not believable that his mother would entrust $1000 in cash for tuition to her son who had not yet been accepted into any program and who may have used marijuana and cocaine as recently as the previous day. His explanation for why he was carrying 2 cellphones when he was arrested was also incredible. His story that his mother could not hear him might explain why he got a new cellphone but did not explain why he would be carrying 2 cellphones. Having multiple cellphones and large amounts of cash are the hallmarks of drug traffickers. Mr. Roache’s attempts to explain them away are not believable. I place no weight whatsoever on Mr. Roache’s evidence. His evidence does not leave me with a reasonable doubt.

[ 17 ] I find that Officer Campbell saw Mr. Roache throw a package over the ledge of 245 Sherbourne Avenue and that Officer Campbell retrieved the package shortly thereafter. It is admitted that the package contained 7.15 grams of cocaine having a street value of between $1430 and $2860 and that the amount seized was possessed for the purpose of trafficking. I find that the Crown has proven beyond a reasonable doubt that Mr. Roache had possession of the crack cocaine for the purpose of trafficking.

[ 18 ] I reject Mr. Roache’s evidence that his mother gave him approximately $1000 to pay his school tuition. The presence of $1150 in cash held in a separate wallet from his other cash which he had in his possession when he was arrested, together with the cocaine and two cellphones, lead me to conclude that $1150 was obtained from trafficking. I find that the Crown has proven beyond a reasonable doubt that Mr. Roache had possession of $1150, knowing that it was obtained as a result of the commission of an indictable offence.

Conclusion

[ 19 ] In the result, I find Mr. Roache guilty of Count 1 and Count 2.

Backhouse J.

Released: August 16, 2012

COURT FILE NO.: CR-11-90000798-0000
DATE: 20120816

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – JAMAL ROACHE

REASONS FOR JUDGMENT Backhouse J.

Released: August 16, 2012