ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-G5248
DATE: 2012-09-27

BETWEEN:

HER MAJESTY THE QUEEN – and – ANGELA MARIE BRAY Defendant

Chris Donaldson, and Elizabeth O’Grady, for the Crown
Leo Russomanno, for the Defendant

HEARD: September 26 and 27, 2012

REASONS FOR DECISION

T.D. RAY, J

[ 1 ] On January 13, 2011, Ms. Bray was stopped in her van on McArthur Rd, Ottawa, arrested and charged with three counts of trafficking in crack cocaine contrary to the Controlled Drugs and Substances Act , Section 5(3)A, (January 11, 12 and 13, 2011). She was searched and found to have in her possession $510.00. Ms. Bray was charged with three counts of possession of the proceeds of crime contrary to s. 355 (b) of the Criminal Code of Canada .

[ 2 ] The theory of the defence is that the Crown has not proven beyond a reasonable doubt that she was the ‘Cinderella’ from whom an undercover Ottawa police officer purchased crack cocaine on each of January 11, 12 and 13, 2011. Ms. Bray did not give evidence.

[ 3 ] The Crown called four witnesses – members of the drug team - who all identified Ms. Bray in court as ‘Cinderella’, the person from whom the crack cocaine purchases had been made on one or more of January 11, 12, or 13, 2011. One witness, Sgt. Campbell took close-up photos of Cinderella on January 12, 2011 immediately after the crack cocaine purchase by the undercover officer.

[ 4 ] On the basis of information received from an informant, the undercover officer, Detective Brogan, called a woman she knew as Cinderella at a cell phone number on January 11, 2011, to make arrangements for a crack cocaine purchase. Detective Brogan met Cinderella and made the purchase in Cinderella’s van of $80 at a meeting spot near Bank St. and Wellington. A little boy was in a car seat in the second seating row in the van. She described Cinderella as dark haired, white and with a lip piercing in her moustache area. Cinderella’s voice on the phone when she made the arrangements sounded to be the same as the woman in the van from whom she made the buy. After the drug purchase she gave the drugs to the exhibit officer who packaged them and sent them to Health Canada for examination. It is admitted that what Health Canada examined was crack cocaine. Other members of the drug team noted the licence of the van.

[ 5 ] The next day, January 12, 2011, Detective Brogan again contacted Cinderella, and made a further $80 purchase. This time in the east end of Ottawa. Cinderella drove the same van, and was described by Detective Brogan to be the same person. Although this time the five year old little boy with her in the van was wearing a Karate outfit. It was on this occasion, immediately after the buy that Sgt. Campbell, the surveillance member of the team took photos of Cinderella outside the Karate place where she had taken the little boy. The person portrayed in the photographs bore a close resemblance to Ms. Bray. Sgt. Campbell identified Ms. Bray in court as the person in the photos.

[ 6 ] The third day – January 13, 2011 – the team decided Detective Brogan would make a further, but larger purchase of crack cocaine, and then have Cinderella arrested. Again Detective Brogan telephoned Cinderella and arranged for the buy. The purchase went ahead near McArthur Rd. in the east end of Ottawa for $250 of crack cocaine. Detective Brogan again met Cinderella in her van. She said it was the same person in the same van as on the two previous days.

[ 7 ] After the purchase, Cinderella left in her van, drove south then after a U-turn drove north to McArthur where she turned left and then left into a building parking area where she was arrested and cautioned by a uniformed officer. Throughout the time she left the drug purchase, her van was under continuous observation by Detective Corzato, another member of the drug team. After arrest, Identification in her purse identified her as Angela Bray. Ms. Bray was taken to the Ottawa Police station where she was searched and placed into custody. A search disclosed that she had $510.00.

[ 8 ] After each of the drug purchases, Detective Brogan gave the drugs to the Exhibit Officer who packaged them in the same way and sent them to Health Canada for examination. Affidavits were filed by the Crown with respect to continuity of the seized drug samples. All samples were found to be crack cocaine.

[ 9 ] After Ms. Bray was arrested and the money found, the bills were checked against photocopies of the ‘buy money’ made by Detective Brogan before the drug purchases. Only $260.00 cash in $20 bills was seized. They were checked and found not to correspond with the photocopies. The $250 amount which included one $50 bill with the rest being $20’s, was checked by the exhibit officer, found to match the photocopies and then the cash was returned to the drug team for further buys. He made no note of this matching exercise but relied upon his memory. He did not photocopy the seized money nor have it entered as a police exhibit. The defence takes issue that the cash was not seized and kept as an exhibit, and contends that the loss of the evidence is fatal to the count. There is no doubt that good police investigation would require that the seized money be made a police exhibit, Detective Payment acknowledged in his evidence that at the time, he didn’t know any better. I am satisfied that there was nothing nefarious going on. I am satisfied that Detective Payment was not lying – as was suggested by defence counsel. I accept his evidence that he had an independent recollection of matching the money.

[ 10 ] On the issue of identification, it is not in question that crack cocaine was sold by Cinderella on January 11, 12 and 13, 2011. There is no evidence to question Sgt. Campbell’s evidence that the photographs he took on January 12, 2011 portrayed Cinderella. The fact that a lip piercing is not visible in the photograph is evidence of poor resolution in the photograph, not that the photograph did not portray Cinderella. There is similarly no question that the driver of the van was Cinderella when she left in the van after the drug buy with Detective Brogan on January 13, 2011. The van with Cinderella as driver was observed from the time she left the place of the drug buy up to the point of arrest, a distance of about 3 blocks. There was simply no evidence to point to any other conclusion that Cinderella and Ms. Bray were one and the same person.

[ 11 ] The defence raises a number of investigative oversights and contends that I should not give weight to the evidence concerning identification. These include:

(a) failure to check that Ms. Bray’s cell phone bore the same number called by Detective Brogan to arrange the buys;

(b) failure to photocopy or enter as a police exhibit the seized $250 cash as evidence of the match conducted by Detective Corzato;

(c) failure to take more photos of the van;

(d) failure to accurately document the drugs seized on January 13, 2011. (Detective Corzato said that he had to correct a file number he had placed on the Health Canada envelope a year later because he had made a mistake), and;

(e) failure to conduct a line-up after arrest to determine if in fact Ms. Bray was identified by Detective Brogan as Cinderella.

[ 12 ] In considering the identification evidence, I expressly give no weight to the in court identification of Ms. Bray. The defence referenced a number of authorities highlighting problems with identification. None of those authorities are of assistance on the facts of this case. While the defence correctly points to a number of investigative problems. I cannot conclude that any of these problems weakens the evidence of any of the identification witnesses.

[ 13 ] I am satisfied beyond a reasonable doubt that the evidence establishes that Ms. Bray was the person from whom the crack cocaine purchases were made on January 11, 12, and 13, 2011; and the same person that was arrested almost immediately afterwards on January 13, 2011.

[ 14 ] On the issue raised by the defence of an absence of continuity of the seized drug samples after the purchases by Detective Brogan I am satisfied that continuity has been established. While there was a file number error made originally, I fail to see a problem identifying the drug samples and the results of Health Canada that the samples were crack cocaine.

[ 15 ] I accept the evidence of Detective Brogan that she gave Ms. Bray $80 on January 11, 2011, $80 on January 12, and $250 on January 13, 2011 for the purchase of the crack cocaine and thereby Ms. Bray was in possession of the proceeds of crime.

[ 16 ] While I accept the evidence of Detective Payment that he checked the serial number of the $250 amount seized from Ms. Bray and they matched the photocopies, I do not accept that a case has been made out that the $80 and $180 amounts are proceeds of crime. They are the property of Ms. Bray and are to be returned to her. There are no competing claims.

[ 17 ] I am satisfied beyond a reasonable doubt that the elements of the offences, trafficking in crack cocaine, a substance included in Schedule I of the Controlled Drugs and Substances Act , to wit: Crack Cocaine, contrary to Section 5, subsection 1 of the said Act , thereby committing and indictable offence under Section 5, subsection 3, paragraph A of the said Act as described in Counts 1, 2, and 3 have been made out. I find Ms. Bray guilty of counts 1, 2, and 3.

[ 18 ] I am also satisfied that the elements of the offences in Counts 4, 5, and 6, that she unlawfully did possess proceeds of property or a thing, namely money of a value not exceeding five thousand dollars to wit: eighty dollars, eighty dollars and two hundred fifty dollars respectively, knowing that all or part of it was obtained or derived directly or indirectly from an offence punishable by indictment, to wit: Trafficking a Controlled Substance contrary to Section 354 (l)(a) of the Criminal Cod e thereby committing an offence under Section 355 (b) of the Criminal Code have been made out beyond a reasonable doubt. I find Ms. Bray guilty of counts 4, 5 and 6.

[ 19 ] In conclusion I find as follows:

Count #1- Guilty
Count #2- Guilty
Count #3 – Guilty
Count #4 – Guilty
Count #5 – Guilty
Count #6 - Guilty

Honourable Mr. Justice Timothy Ray

Released: September 27, 2012

COURT FILE NO.: 11-G5248

DATE: 2012-09-27

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANGELA BRAY Defendant REASONS FOR JUDGeMENT Honourable Justice Timothy Ray

Released: September 27, 2012