ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1-606273
DATE: 20120125

BETWEEN:

HER MAJESTY THE QUEEN
The Crown

– and –

RONALD JUNIOR THOMAS
Accused

Chris Greene, for Her Majesty the Queen
C. Israel, for the Accused

HEARD: January 16, 18 and 19, 2012

REASONS FOR JUDGMENT OF BACKHOUSE J. RELEASED JANUARY 25, 2012

[ 1 ] The accused is charged with trafficking in cocaine and possessing proceeds obtained from the commission of an indictable offence.

[ 2 ] Officer Rumney testified as follows. On May 11, 2009, she was working as an undercover officer with a back up team. The plan was to attempt to make an opportunity drug purchase in the Eglinton and Weston Road area. Before setting up in the area, she received two $20.00 bills from Officer Robinson, the serial numbers of which were recorded on a control sheet.

[ 3 ] Officer Rumney walked northbound on the east side of Weston Road where she purchased .13 grams of cocaine from a large Black male wearing a black and red baseball cap with a black and red logo. She paid for it with a $20.00 bill bearing serial number EZC0839144. She gave the pre-arranged “successful buy signal” to other officers set up to observe the transaction. After she left the scene, she was picked up by Officer Birrell. They drove by the accused who had been arrested by uniformed officers from 12 Division. The accused was handcuffed and at the back of a cruiser. She identified the person by his description as the person from whom she had purchased the cocaine.

[ 4 ] Officer Robinson testified that from his vehicle, he observed Officer Rumney in conversation with a Black male who was 6 feet 4 inches tall, wearing a black cap with a red Air Jordan logo, a black jacket with a red shirt underneath and black jeans. At 6:56 p.m. from his vehicle, he observed Officer Rumney in a hand to hand transaction with the person of interest and Officer Rumney to shortly thereafter walk away and give the pre-arranged signal. He transmitted this information over the police radio. From his vehicle, he observed the person cross the street to the west side of Weston Road and enter a pizza restaurant just north of 1162 Weston Road. He identified that person as the accused before the court.

[ 5 ] Officer Nicol testified as follows. At 18:57 he received information from Officer Robinson that the target had crossed to the west side of Weston Road and had entered a pizza restaurant just north or 1162 Weston Road. He did not know who was observing the target between 18:57 and 19:00. At 19:00, through the storefront window, he observed the target inside the pizza shop eating a piece of pizza. He could not recall if the target had a piece of pizza in his hand when he exited the pizza store at 19:01. He observed him go north on Weston Road on the west side of the street. He did not observe the drug transaction. He believed that Officer Birrell was responsible for calling for the target’s arrest.

[ 6 ] Officer Kapliouk testified that he and Officer Oliver, both of 12 Division, were in uniform and out of sight in a scout car when at 19:01 they received a radio transmission to arrest the target who was walking northbound on Weston Road on the west side of the street. They were given the above description of the target. He testified that within 10 to 15 seconds of driving, they saw the person matching the description who stood out because he was a big man. He identified the accused before the court as this person. Both officers conducted a pat down search of the accused. Officer Kapliouk recovered nothing from the accused and had no memory of observing anything recovered by Officer Oliver.

[ 7 ] Officer Oliver testified as follows. When conducting a patdown search of the accused after his arrest, he recovered $20.00 folded up in a square, a small quantity of change and a cellphone, all of which he put in the accused’s baseball hat. He met with Officer Robinson at 12 Division where he compared the $20.00 recovered from the accused with the control sheet, verified that the serial numbers matched, signed the control sheet and returned the money to Officer Robinson. He was unable to say whether the money was presented when the accused was paraded and whether it would appear on the booking video.

[ 8 ] Officer Robinson testified that he was the fund custodian and prepared the control sheet by photocopying the bills and initialling and dating the sheet before providing the two $20.00 bills to Officer Rumney. He then compared the $20.00 bill recovered by Office Oliver to ensure that it was one of the $20.00 bills issued to Officer Rumney. The $20.00 recovered was then returned to the fund so it could be re-used. Officer Robinson did not know what happened to it thereafter.

[ 9 ] The booking video was not entered into evidence. The recovered $20.00 was not photocopied or photographed.

[ 10 ] The accused testified as follows. He was at his cousin’s apartment at 15 Oxford on May 11, 2009 with his cousin, Linton, his cousin’s son, Trestam and a friend, Elijah. Before going to his cousin’s, he had put a $20.00 bill folded up very small in the small pocket of his jeans so that he would not spend it. He also had an additional $5.00. The four of them went together to Weston Road to buy pizza. On the way, they were approached by a lady who repeated “20”, “20”, “20” and appeared to be an addict. They waved her away. He did not sell her cocaine or take $20.00 from her. They went into the pizza store and he bought pizza slices which cost him $5.00. They were there approximately 2 to 3 minutes. They started back to the apartment building when police officers came out of a scout car and arrested him. He was searched and they took his identification, his keys, his phone and $20.00, all of which were put in his hat. The police officer radioed to another officer. An officer arrived in a Ford Venture van who was not one of the officers who has testified in these proceedings. That officer asked if the arresting officers found anything and they said no. The officer who had just arrived then went away, came back and said arrest him for trafficking in cocaine.

[ 11 ] The accused acknowledged that he was wearing the clothes as described above.

[ 12 ] The accused has a lengthy criminal record.

[ 13 ] Linton Brown, Trestam Brown and Elijah Foy all testified that they were together with the accused on their way to buy pizza on May 11, 2009 when a woman approached them looking to buy drugs. They testified that they waved the woman off and that the accused did not stop to talk to her or sell anything to her. Trestam Brown testified that the accused was not out of his sight from when they left 15 Oxford until the accused was arrested. He testified that after the accused had been taken to the ground, another person who appeared to be another undercover police officer was talking to the arresting officers.

[ 14 ] Neither Linton Brown nor Trestam Brown have criminal records. Mr. Foy has 3 failures to comply.

Analysis

[ 15 ] There were 3 witnesses for the accused who claimed that he did not sell any drug when approached by Officer Rumney. This was the accused’s evidence as well. Two of the witnesses did not have any criminal record and their evidence was not successfully challenged in cross-examination.

[ 16 ] Arrayed against this evidence is the police evidence; In particular, that the marked $20 note was found on the accused.

[ 17 ] There is no doubt that the accused matches the description provided by Officer Robinson of the person who he observed in a hand to hand transaction with Officer Rumney. Apart from matching the description, however, there is no reliable evidence of identity. Officer Rumney only drove by after the accused was arrested by Officers Kapliouk and Oliver who had not witnessed the transaction take place. Regrettably, the marked $20 bill was neither photographed nor held as evidence to be adduced at the trial. In this case, production of the best evidence, i.e. the marked bill, would have ended any debate about the accused’s involvement. I have reservations about the voluntary disposal of key documentary evidence without at least making a true copy.

[ 18 ] Although I do not accept the evidence given on behalf of the accused as true, I am not satisfied it is false. In these circumstances, I have concluded that in the absence of the marked bill, I am not satisfied beyond a reasonable doubt of his guilt. The accused is therefore acquitted.

Backhouse J.

Released: January 25, 2012

COURT FILE NO.: 1-7-7283
DATE: 20120125

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – RONALD JUNIOR THOMAS

REASONS FOR JUDGMENT Backhouse J.

Released: January 25, 2012