ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000310
DATE: 20120202
BETWEEN:
HER MAJESTY THE QUEEN – and – ROBERT ABBATINO
Ian Bell, for the Crown
Herschel Gold, for the Defendant
HEARD: January 16 - 19, 20, 23, 2012
corrick j.
I ntroduction
[ 1 ] Robert Abbatino pleaded not guilty to trafficking in cocaine, possession of proceeds of crime, possession of cocaine for the purpose of trafficking and possession of a prohibited weapon. He was tried by me without a jury.
[ 2 ] The charges arise out of the following facts alleged by the prosecution. On January 31, 2007, Mr. Abbatino sold 2.10 grams of crack cocaine to an undercover police officer for $100.00. When he was arrested on February 8, 2007, Mr. Abbatino had 3.80 grams of crack cocaine in the pocket of his jeans.
[ 3 ] It is also alleged that a can of pepper spray was found in the centre console of the car Mr. Abbatino was driving on February 8, 2007. The Crown is not seeking a conviction on the charge of possession of a prohibited weapon, and I therefore find Mr. Abbatino not guilty on count #5.
The Evidence
[ 4 ] The events in question begin on January 28, 2007, when D.C. Ouellette, acting in an undercover capacity, purchased crack cocaine from a man who called himself “Replay.” Replay gave D.C. Ouellette a cell phone number to call for further drug purchases. The number he gave him was 416.712.1287. Replay was not arrested on January 28, 2007. There is no dispute that the man who sold drugs to D.C. Ouellette on January 28, 2007 was not Mr. Abbatino.
[ 5 ] The investigation of this matter was carried out by Team One of the South Drug Unit of the Toronto Police Service. The officer in charge of the team was Detective Asselin. The road boss or supervisor of the team was D.C. Barnard. The undercover officer was D.C. Ouellette. Other members of the team were D.C. Bell, D.C. Beson, D.C. Taylor and D.C. Awad.
Events of January 31, 2007
[ 6 ] D.C. Ouellette testified as follows. On January 31, 2007, he called 416.712.1287 to arrange to purchase more crack cocaine. A male answered the phone and indicated that he was Replay. D.C. Ouellette said he had $100.00 and needed “a half b” (half of an eight ball of crack, about 1.75 grams). D.C. Ouellette arranged to meet the male at the Coffee Time restaurant located at Lansdowne and Dupont 15 minutes later. Police set up surveillance on the Coffee Time restaurant.
[ 7 ] D.C. Ouellette arrived at the Coffee Time at 8:58 p.m. At 9:15 p.m., a four-door silver Mazda pulled up to the front door of the Coffee Time where D.C. Ouellette was waiting. The driver waved D.C. Ouellette over to the car. The driver was not the same man D.C. Ouellette had dealt with on January 28. They had a brief conversation at the driver’s window in which D.C. Ouellette asked the driver if he was Replay. The driver said yes. When D.C. Ouellette said that he was not the Replay he knew, the driver told him not to worry about it. He said he had the “half b” and told D.C. Ouellette to get in the car. D.C. Ouellette walked to the passenger side of the car and got in the front passenger seat.
[ 8 ] The driver drove north out of the parking lot of the Coffee Time for a few city blocks. While driving, he reached down to his crotch area and produced a clear plastic baggie containing crack cocaine. He gave it to D.C. Ouellette, who gave him five $20 bills of police buy money. The driver told D.C. Ouellette that the crack weighed about two grams. At some point during the transaction, the driver pulled over on the south side of Brandon Street and stopped briefly. The driver returned to the Coffee Time parking lot at 9:19 p.m. D.C. Ouellette asked if he could call him back at the same cell phone number. The driver said he was always around, 24/7. D.C. Ouellette got out of the car and signalled to the surveillance team that he had successfully purchased drugs.
[ 9 ] The surveillance team followed the Mazda to the rear of 138 Claremont Street. D.C. Bell testified that he saw the car go south in a laneway. He drove down the laneway and, at 9:40 p.m., located the Mazda parked at the rear of 138 Claremont Street. The licence plate number of the Mazda was AYBB033.
[ 10 ] At 10:10 p.m., D.C. Ouellette turned over the drugs he had purchased to D.C. Bell at the police station. D.C. Bell weighed the drugs, put them in a Health Canada envelope and deposited them into the locker system at 33 Division. The drugs weighed 2.10 grams, and tested as cocaine. There is no dispute about the nature of the drug.
Description of Replay
[ 11 ] D.C. Ouellette testified that he was with the driver of the Mazda on January 31 for about 10 minutes and that during that time he had a good opportunity to see the driver’s face. The lighting in the Coffee Time parking lot was good. He testified that he saw the driver’s face clearly as he walked from the Coffee Time to the driver’s side of the car and then back to the passenger side of the car. While he was driving, the driver looked at him when they were talking. He testified that the transaction was very relaxed, and not rushed.
[ 12 ] Although D.C. Ouellette testified that he was with the driver for ten minutes, the surveillance officers testified that the Mazda pulled into the Coffee Time parking lot at 9:15 p.m., D.C. Ouellette entered the Mazda at 9:16 p.m., and exited it at 9:19 p.m. D.C. Ouellette thus was with the driver for about four minutes.
[ 13 ] None of the five other officers, who were conducting surveillance of D.C. Ouellette on January 31, observed the driver of the Mazda. They were only able to describe the silver Mazda. None of them saw the driver get out of the car near 138 Claremont Street.
[ 14 ] D.C. Bell and D.C. Barnard, who were in separate vehicles, both testified that they picked up D.C. Ouellette on January 31 after he was dropped off at the Coffee Time following the drug purchase. They both testified that D.C. Ouellette provided them with a description of the person who sold him the crack cocaine and they both testified that they broadcast that description over the radio. D.C. Ouellette testified that D.C. Bell picked him up. D.C. Taylor, who was the central note taker on January 31, testified that D.C. Bell broadcast the description over the police radio.
[ 15 ] D.C. Bell testified that D.C. Ouellette described the person as male, white, with dark complexion, European looking, or light complexion male black, short hair, moustache, goatee, black winter jacket with fur trim around the hood. D.C. Bell wrote the description down as D.C. Ouellette gave it to him. D.C. Barnard testified that D.C. Ouellette described the person as male, white with dark complexion, short hair, black winter jacket with fur on hood, moustache, and goatee.
[ 16 ] D.C. Ouellette testified that the driver was a 25-year-old male mulatto with very light skin, wide nose, thin moustache, chin hair, short black hair, wearing a black winter jacket with fur on the collar. He recorded this description in his notes on January 31 when he returned to the police station.
[ 17 ] The team members attended a debrief meeting on January 31. D.C. Awad, who was tasked with doing checks on the Mazda and the address of 138 Claremont Street, testified that he saw a photograph of Mr. Abbatino, but did not show it to any other members of the team. D.C. Ouellette testified that he did not see a photograph of Mr. Abbatino. D.C. Ouellette did not view a photo line up.
Events of February 8, 2007
[ 18 ] Prior to the commencement of the investigation on February 8, 2007, a briefing session was held with all of the team members. D.C. Bell testified that the description of the driver provided to the team members on February 8 was slightly different than the one D.C. Ouellette gave him right after the drug transaction. The driver was now described as male, mulatto, large nose and short hair.
[ 19 ] D.C. Ouellette testified that he attempted to contact Replay at the cell phone number he had been given several times between January 31 and February 8, 2007 without success. Detective Asselin testified that the plan on February 8 was to attempt to locate the person from whom D.C. Ouellette bought drugs on January 31, and arrest him. According to Detective Asselin , who was the officer in charge of the investigation, the team was informed at the briefing session on February 8, 2007 that their target was Mr. Abbatino.
[ 20 ] Surveillance on 138 Claremont Street began at 5:25 p.m. on February 8. D.C. Beson testified that he observed the Mazda enter a laneway at 6:43 p.m. and stop at the rear of 138 Claremont Street. D.C. Barnard testified that he saw the driver of the Mazda get out of the car and enter the rear of 138 Claremont Street. The car was left running with someone in it. D.C. Barnard put the following description of the driver over the radio to the other members of the team: male mulatto, 5'10", moustache, goatee, large nose, wearing a fur rimmed hooded jacket and baggy jeans. The driver returned to the car with another male. The Mazda with three men in it was followed to Queen Street and Tecumseh Street, where it parked on the south side of Queen Street. The three men exited the car and walked north across Queen Street into the Hero Burger restaurant at 7:03 p.m.
[ 21 ] D.C. Barnard testified that he observed the three males enter the Hero Burger. He transmitted the following description of the two male passengers in the car: male white, 5'10", with black and grey jacket with fur on the hood, wearing a black LA ball cap with grey pants; male white, 6'2", black jacket, blue jeans and red shirt. D.C. Barnard saw the driver of the car come out of the Hero Burger, retrieve something from the Mazda, and return to the Hero Burger.
[ 22 ] D.C. Ouellette testified that, on February 8, he was in Officer D.C. Beson’s surveillance vehicle following the Mazda. He received information at 7:06 p.m. that the target was coming out of the Hero Burger. He saw the driver of the Mazda cross from the north side of Queen Street to the south side, and proceed slightly east to the Mazda. He then saw the driver walk back across Queen Street to the Hero Burger. According to D.C. Ouellette, he saw the driver head on for a few seconds from a couple of car lengths away. He recognized the driver as the person who sold him crack cocaine on January 31. He informed D.C. Beson that he recognized the driver. D.C. Beson relayed that information over the police radio to other team members.
[ 23 ] D.C. Beson testified that he did not recall D.C. Ouellette being with him in his surveillance vehicle on February 8.
[ 24 ] D.C. Barnard testified that once he received information that D.C. Ouellette had identified the driver, he ordered the three males arrested. At 7:15 p.m., the three males were arrested after they left the Hero Burger, and were approaching the Mazda.
The Arrest on February 8, 2007
[ 25 ] D.C. Beson arrested the driver, Mr. Abbatino, for trafficking in cocaine. Detective Asselin and D.C. Bell arrested the two passengers. Detective Asselin arrested Mr. Clark. He testified that he arrested him for possession of pepper spray and the marijuana that was found in the Mazda. D.C. Bell arrested Mr. Briggs. D.C. Bell testified that he told Mr. Briggs he was being detained because they were investigating the driver of the Mazda for drug offences.
[ 26 ] D.C. Bell seized a cell phone, which fell out of Mr. Briggs’ hand when he was being arrested. The number of the cell phone was 416.712.1287; the number D.C. Ouellette was calling to reach Replay. D.C. Bell described Mr. Briggs as a black male with light skin, almost white, with black LA ball cap, black grey winter coat trimmed with fur on the hood, grey slacks and black shoes.
[ 27 ] D.C. Beson testified that after he arrested Mr. Abbatino, he did a quick pat down search with negative results. He then handed Mr. Abbatino over to Detective Asselin. Detective Asselin testified that D.C. Beson told him that he had not searched Mr. Abbatino, and asked him to do so. Detective Asselin searched Mr. Abbatino and found crack cocaine in the right pocket of his jeans. He arrested Mr. Abbatino for possession of cocaine for the purpose of trafficking. Detective Asselin and D.C. Beson both testified that they transported Mr. Clark and Mr. Abbatino to 14 Division together in D.C. Beson’s surveillance vehicle. D.C. Ouellette testified that he was driven to 14 Division in D.C. Beson’s surveillance vehicle.
[ 28 ] D.C. Barnard testified that shortly after the men were arrested and taken away from the Mazda, he entered the Mazda and located a canister of pepper spray and a bag containing a small amount of marijuana.
[ 29 ] D.C. Beson searched Mr. Clark at 14 Division and discovered a quantity of crack cocaine in his underwear.
Search Warrant Executed on 138 Claremont Street
[ 30 ] D.C. Barnard testified that, on January 31, the plan was to have D.C. Ouellette buy drugs, and not arrest the drug dealer in the hopes that he would lead police to others involved in the drug trade or to a stash house. Detective Asselin also testified that one of the aims in every drug investigation is to attempt to get to a bigger stash of drugs.
[ 31 ] D.C. Barnard also testified that they wanted to arrest the men as far away from 138 Claremont Street as possible. According to D.C. Barnard, when the investigation began on February 8, there was not enough evidence to obtain a search warrant for 138 Claremont Street. He agreed with defence counsel that they required more evidence such as finding drugs on Mr. Abbatino, another undercover purchase from Mr. Abbatino, or more evidence of Mr. Abbatino coming and going from 138 Claremont Street.
[ 32 ] D.C. Awad was in charge of preparing an affidavit to obtain a warrant to search 138 Claremont Street, apt. 206. He remained in the office preparing the search warrant on February 8 and did not participate in the surveillance or the arrest of the three men. He testified that he was adding details to the information to obtain a search warrant as he received them from the crew on the road. He included the details of the arrest of the three men, including the fact that Mr. Abbatino was found in possession of crack cocaine, in the information to obtain a search warrant and faxed it to the telewarrant office at 10:42 p.m. The application was denied at 11:20 p.m. According to D.C. Awad, the justice of the peace wanted further information about why the warrant had to be executed immediately. Notwithstanding that the warrant had been denied, Detective Asselin and other officers attended 138 Claremont Street to “freeze the premises.” A warrant was ultimately issued at 2:12 a.m. on February 9, 2007. It was executed but nothing was found. The residence was that of Mr. Abbatino’s mother.
Mr. Abbatino’s evidence
[ 33 ] Mr. Abbatino testified. In January and February 2007, he was 22 years old. He has a grade 10 education. He lives in Toronto with his common-law spouse and their daughter. He admitted that he has the following criminal record: 2003, dangerous driving; 2005, possession of a Schedule 1 substance; 2006, possession of a prohibited firearm, possession of a Schedule 1 substance and fail to comply with a recognizance; 2011, possession of a Schedule 1 substance and fail to comply with a recognizance.
[ 34 ] Mr. Abbatino denied selling D.C. Ouellette crack cocaine on January 31, 2007, and denied possessing crack cocaine on February 8, 2007. He denied owning or using a cell phone with the number 416.712.1287.
[ 35 ] Mr. Abbatino testified that his mother and siblings live at 138 Claremont Street, and that he went there often. He admitted driving the silver Mazda to Hero Burger on February 8, 2007. He denied driving it on January 31, 2007. According to Mr. Abbatino, he had borrowed the car twice from a man known as “Downstairs Joe”, who lived in the same apartment building as his mother. He did not know who the registered owner of the Mazda was, but knew that Downstairs Joe had the key to it. He did not see the Mazda parked at the apartment building all the time. Both times he borrowed the car he drove it to Hero Burger.
[ 36 ] Mr. Abbatino admitted that he had used the nickname “Replay” in 2004 and 2005. He stopped using that name when he was convicted of possession of cocaine, which was in November 2005. He also admitted that he “more or less” resembles the description D.C. Ouellette gave the court of the man who sold him drugs on January 31.
Analysis
Mr. Abbatino’s evidence
[ 37 ] I start by assessing Mr. Abbatino’s evidence. In the context of all of the evidence, and particularly in light of the weaknesses of the evidence presented by the prosecution, I am unable to reject his testimony. I do not reject his evidence for the following reasons:
▪ His demeanour as a witness was good. I do not wish to overemphasize this factor; however, he gave his evidence in a polite and forthright manner. He is not a sophisticated or well-educated witness, but he responded to the questions. He was not argumentative nor did he embellish points that were in his favour. He appeared to me to be honest.
▪ He readily admitted facts that were against his interest. He admitted driving the silver Mazda, using the nickname “Replay”, being a frequent visitor to 138 Claremont Street, and bearing a resemblance to the description given by D.C. Ouellette.
▪ He gave a detailed account of the events of February 8, 2007. He testified that he had a good recollection of the events, even though they occurred five years ago. This is reasonable given that he was arrested on a public street at 7:16 in the evening, and taken down to the ground by police officers. This was an out-of-the-ordinary event for him as opposed to the police officers, most of who testified that they had participated in hundreds, and even thousands, of drug investigations.
Trafficking and possession of proceeds charges
[ 38 ] I turn now to the evidence presented on behalf of the prosecution. I begin with the identification evidence. D.C. Ouellette is the only officer who was able to describe the person who sold him drugs on January 31. The description he gave immediately following the transaction was “male, white, with dark complexion, European looking, or light complexion male black, short hair, moustache, goatee, black winter jacket with fur trim around the hood.” This description included nothing about the person’s nose or hair colour. Sometime later that night he wrote the following description in his notes: “ 25-year-old male mulatto with very light skin, wide nose, thin moustache, chin hair, short black hair, wearing a black winter jacket with fur on the collar.” At the briefing session on February 8, the target was described as male mulatto with a large nose and short hair. By this time, D.C. Awad had identified the target as Robert Abbatino. Detective Asselin testified that the team knew who they were looking for on February 8, although the other officers deny that.
[ 39 ] The frailties of eyewitness identification evidence are well recognized by Canadian courts. The court’s concern about the frailties of such evidence is heightened in circumstances where the length of time the witness saw the person was brief, where the person identified and the witness are strangers, and where identification processes employed are flawed, and where there is no other evidence connecting the person identified to the offence. These circumstances are present in this case.
[ 40 ] D.C. Ouellette spent, at most, four minutes on January 31, 2007, with a person he had never seen before. Although D.C. Ouellette and the surveillance officers testified that the Coffee Time parking lot was well lit, D.C. Ouellette spent less than one minute in the parking lot with the driver of the Mazda. The Mazda drove up to the door of the Coffee Time at 9:15 p.m., and left at 9:16 p.m. Between 9:16 and 9:19, when D.C. Ouellette was dropped off at the Coffee Time again, the car was being driven through city streets at night. The car pulled over at some point when the drugs were exchanged for money, but it could not have been for long. D.C. Ouellette testified that this was not a rushed transaction, that it felt like it took about ten minutes. In fact, it took about three minutes.
[ 41 ] In addition to the brief time D.C. Ouellette spent with the driver on January 31, the process used to have D.C. Ouellette identify the driver on February 8 was flawed. Even if I accept the evidence of the officers that they did not know the name of their target on February 8, they did know that their target was the person who had driven the Mazda to the Hero Burger. Asking D.C. Ouellette to look at the driver as he crossed Queen Street is akin to showing a witness a photograph of a single suspect. Courts have consistently held that such an identification process does not produce reliable identification evidence.
[ 42 ] Also, approximately 23 minutes before D.C. Ouellette identified Mr. Abbatino, D.C. Barnard had broadcast a detailed description of Mr. Abbatino, including his clothing, after seeing him get into the car behind 138 Claremont Street. D.C. Beson testified that he was able to identify Mr. Abbatino as their target on the basis of D.C. Barnard’s description even though he had never seen Mr. Abbatino before.
[ 43 ] Finally, the evidence is unclear about where D.C. Ouellette was when he saw Mr. Abbatino cross the street. I am unable to determine D.C. Ouellette’s vantage point and assess his ability to see Mr. Abbatino as a result. He does not know if the vehicle he was in was parked or moving at the time. He testified that he was in D.C. Beson’s vehicle when he identified Abbatino, and that he returned to 14 Division that evening in D.C. Beson’s vehicle. D.C. Beson does not recall being with D.C. Ouellette that evening. He testified that he was parked right behind the Mazda on Queen Street, and when the arrests were ordered, he and Detective Asselin got out the vehicle to arrest the men. They then transported Mr. Abbatino and Mr. Clark to 14 Division in the same vehicle. It seems unlikely that two of the arrested men would be transported in the same vehicle as the undercover officer.
[ 44 ] While it is true that Mr. Abbatino has some of the features noted in the description D.C. Ouellette provided immediately after the drug transaction, and the one he recorded in his notes, it is noteworthy that Mr. Briggs shares some of those features as well. A photograph of Mr. Briggs filed as exhibit #16, shows he has short dark hair and a wide nose. Mr. Abbatino is not Mulatto. He is a white man. Mr. Briggs is not Mulatto, although D.C. Bell described him as a light-skinned black man. He is a white man. Mr. Briggs was wearing a black/grey winter coat trimmed with fur. He and Mr. Abbatino are the same height. I point this out simply to illustrate that D.C. Ouellette did not describe a strikingly unique individual.
[ 45 ] Finally, with respect to the identification evidence, Mr. Bell submits that there is circumstantial evidence that supports D.C. Ouellette’s identification of Mr. Abbatino. The first piece of circumstantial evidence is the fact that Mr. Abbatino is arrested on February 8 in the same car used on January 31. Mr. Abbatino testified that he borrowed the car on February 8 from his mother’s neighbour to go to Hero Burger. There is no evidence before me, other than Mr. Abbatino’s testimony, about the ownership of the Mazda. The neighbour did not own the Mazda, but permitted Mr. Abbatino to drive it on two occasions. The Mazda was not always parked behind 138 Claremont Street. It is not known who else had access to that car. Mr. Bell submitted that Mr. Abbatino could have called evidence about the ownership of the car, but chose not to. However, the onus to prove the case is on the prosecution. Mr. Abbatino is not obliged to prove anything. The Crown has access to motor vehicle records and could have proved the ownership of the vehicle.
[ 46 ] The second piece of circumstantial evidence is that Mr. Abbatino is associated with 138 Claremont Street, where the drug dealer parked the Mazda after the transaction on January 31. If the car is in the possession of someone who lives at 138 Claremont Street, it makes sense that it would be parked there whether Mr. Abbatino drove it or not.
[ 47 ] Thirdly, Mr. Abbatino admits using the name “Replay.” I do not find this compelling given the evidence that the person who sold D.C. Ouellette drugs on January 28, 2007 also referred to himself as “Replay.” That person was not Mr. Abbatino.
[ 48 ] Two further pieces of circumstantial evidence relied on by Mr. Bell are that Mr. Abbatino’s friend, Mr. Briggs, was found in possession of the cell phone used to set up the drug transaction on January 31, and that his other friend, Mr. Clark, was found to have crack cocaine secreted in his underwear when he was searched at 14 Division following his arrest. This, according to Mr. Bell, suggests a joint enterprise between the three men. Other than Mr. Bell’s submission, there is no evidence to suggest that Messrs. Briggs, Clark and Abbatino were engaged in a joint cocaine distribution enterprise. Mr. Bell also submitted that Mr. Abbatino could have called evidence about the ownership of the cell phone, but did not do so. For the same reason Mr. Abbatino is not obliged to call evidence about the ownership of the Mazda, he is not obliged to call evidence about the ownership of the cell phone. This evidence is equally available to be called by the prosecution, who bears the onus to prove the charges.
[ 49 ] The final piece of circumstantial evidence Mr. Bell points to in support of the identification evidence is the fact that Mr. Abbatino was found in possession of crack cocaine when he was arrested on February 8. I am not convinced beyond a reasonable doubt that Mr. Abbatino was in possession of crack cocaine on February 8, and therefore this piece of evidence cannot support the identification evidence.
[ 50 ] In my view, the reliability of the evidence identifying Mr. Abbatino as the person who sold D.C. Ouellette drugs on January 31, 2007 is questionable, and when considered together with Mr. Abbatino’s evidence, I am not satisfied of Mr. Abbatino’s guilt beyond a reasonable doubt and I find him not guilty of counts #1 and 2.
The possession for the purpose charge
[ 51 ] On February 8, 2007, D.C. Beson arrested Mr. Abbatino for trafficking in cocaine. D.C. Beson testified that once the take down was called, he identified himself as a police officer to Mr. Abbatino, put Mr. Abbatino on the ground and told him he was under arrest for trafficking in cocaine. D.C. Beson handcuffed Mr. Abbatino and did a quick pat down search for weapons. The pat down search included patting down over Mr. Abbatino’s front right jeans pocket. He found nothing. In his notes, D.C. Beson wrote, “searched male, negative results.”
[ 52 ] D.C. Beson turned Mr. Abbatino over to Detective Asselin. Detective Asselin testified that D.C. Beson told him that he had not searched Mr. Abbatino and asked him to do so. Detective Asselin testified that he conducted a pat down search of Mr. Abbatino, and found a quantity of crack cocaine in his front right jeans pocket. Detective Asselin could not remember how he found it, or how it was packaged. He made no note about how the crack was packaged. He testified that he arrested Mr. Abbatino for possession of cocaine for the purpose of trafficking. Detective Asselin agreed that D.C. Beson knows how to conduct a pat down search. He testified that a person would be able to feel the hard piece of crack on a pat down search even without going into the pocket.
[ 53 ] Mr. Abbatino testified that D. C. Beson arrested and searched him by putting his hands in his pockets and patting down his waist, his socks, the top of his shoes, under his arms, his back, chest and arms. D. C. Beson did not find anything. According to Mr. Abbatino, Detective Asselin asked D.C. Beson if he had searched him. D.C. Beson replied that he had and had found nothing. Detective Asselin said, “let me double check,” and proceeded to conduct the same search D. C. Beson had just conducted. Mr. Abbatino testified that Detective Asselin found nothing, and did not tell Mr. Abbatino that he had found drugs, or that Mr. Abbatino was being charged with an additional charge of possession for the purpose.
[ 54 ] Detective Asselin did not inform D.C. Beson that he found crack cocaine on Mr. Abbatino even though they drove back to 14 Division together and even though he testified that D. C. Beson had specifically asked him to search Mr. Abbatino. Detective Asselin did not inform any of the other officers either.
[ 55 ] D.C. Awad paraded Mr. Abbatino before the officer in charge of 14 Division. He informed the officer in charge that Mr. Abbatino was facing charges of trafficking in cocaine and possession of proceeds of crime. D.C. Awad testified that another office informed him of the charges against Mr. Abbatino before he paraded him. He could not recall which officer told him the charges.
[ 56 ] Detective Asselin later turned the drugs over to D.C. Taylor, who weighed them, put them in a Health Canada envelope and deposited them into the locker system at 14 Division. D.C. Taylor testified that at 8:25 p.m. on February 8, Detective Asselin turned over a piece of light grey plastic knotted at the top that contained 1 large chunk of crack cocaine, 4 smaller pieces of crack cocaine and some crumbs. The drugs weighed 3.80 grams, and tested as cocaine. There is no dispute about the nature of the drug.
[ 57 ] The conflicting evidence of D.C. Beson, Detective Asselin and Mr. Abbatino related to the possession for the purpose of trafficking charge must be assessed in the context of all of the evidence related to the events of February 8. I find, on the basis of all of the evidence, that one of the goals of this investigation was to search 138 Claremont Street, which the police suspected was the stash house. In furtherance of that goal, D.C. Awad was assigned to prepare an affidavit to obtain a search warrant for that address well before the take-down and when the police had no grounds to believe any of the occupants of the car, much less Mr. Abbatino, would be in possession of any contraband. D.C. Awad remained in the office on the evening of February 8 preparing the affidavit, adding details as the officers conducting the surveillance of Mr. Abbatino provided them to him.
[ 58 ] D.C. Barnard testified that the original plan on January 31 was to have D.C. Ouellette buy drugs from Replay and follow Replay in the hope that he would lead the police to others involved or to a stash house. Detective Asselin testified that it was a goal of every drug investigation to locate, among other things, the stash house. He believed that 138 Claremont Street was a stash house.
[ 59 ] Both D.C. Barnard and Detective Asselin testified that, prior to the investigation on February 8, they did not have enough evidence to obtain a warrant to search 138 Claremont Street. D.C. Barnard testified that they needed more evidence, such as another undercover drug purchase from Mr. Abbatino, more evidence connecting Mr. Abbatino to 138 Claremont Street or finding drugs in Mr. Abbatino’s possession when he was arrested, to strengthen their grounds for a search warrant.
[ 60 ] Officers Beson, Awad and Asselin testified that it was important that all three men in the Mazda be arrested together on February 8 to prevent the leakage of information about the arrest to the occupants of 138 Claremont Street, who could then destroy evidence prior to the execution of the search warrant. Detective Asselin testified that the two passengers were going to be detained and their involvement with Mr. Abbatino was going to be investigated. When the take-down was called, Detective Asselin approached Mr. Clark and Mr. Briggs and told them to get on the ground. Once they were arrested and taken away from the Mazda, D.C. Barnard searched the Mazda and found a small amount of marijuana (.76 grams) and a canister of pepper spray. Detective Asselin testified that, ultimately, he arrested Mr. Clark for possession of the marijuana and pepper spray found in the Mazda. Notwithstanding this, D.C. Beson informed the officer in charge of 14 Division that Mr. Clark was charged with possession for the purpose when he paraded him at 7:59 p.m. D.C. Beson testified that D.C. Barnard had informed him of the charge Mr. Clark was facing.
[ 61 ] D.C. Bell arrested Mr. Briggs. He informed Mr. Briggs that he was being detained as part of a drug investigation related to the driver of the Mazda.
[ 62 ] Mr. Bell submitted that it was not significant that D.C. Awad paraded Mr. Abbatino and told the officer in charge that he was facing a charge of trafficking and of possession of proceeds, and said nothing about a possession for the purpose charge. According to Mr. Bell, all of the officers testified that it was not uncommon that the parading officer would not inform the officer in charge of all the charges facing the arrested person. I do not agree with that description of the officers’ testimony. Officers Ouellette and Bell did not testify about this at all. D.C. Beson testified that the officer in charge may not be informed of all of the charges because they may not all be known at the time of parading. D.C. Awad testified that the officer in charge needs to know the charges an arrested person is facing. D.C. Barnard went further and said that it was his practice to inform an arresting officer if he seizes something so that the officer in charge can be informed of the charges when the arrested person is paraded. Only Detective Asselin testified that the officer in charge does not have to know all the reasons the arrested person is being detained.
[ 63 ] Finally, it is noteworthy in this context that Officers Asselin, Barnard and Beson attended at 138 Claremont Street at 11:35 p.m. to “freeze the premises.” According to D.C. Barnard, they could not wait for the search warrant due to unforeseen wrinkles in the case. D.C. Awad testified that he faxed the information to obtain a search warrant to the telewarrant office at 10:42 p.m. The warrant was denied at 11:20 p.m. The justice of the peace wanted more information about why the warrant had to be executed immediately. A search warrant was eventually obtained at 2:10 a.m. It was executed at 138 Claremont Street and nothing was found.
[ 64 ] To summarize some of the difficulties with the prosecution evidence surrounding the arrest and search of Mr. Abbatino and the Mazda on February 8:
• D.C. Beson searched Mr. Abbatino and found no contraband
• Detective Asselin said that D.C. Beson told him he had not searched Mr. Abbatino
• Detective Asselin conducted the same kind of pat-down search on Mr. Abbatino but found cocaine; he agreed that D.C. Beson would have been able to feel the cocaine if he had done a search
• Detective Asselin arrested Mr. Abbatino for possession for the purpose, but did not tell D.C. Beson about this although they drove back to the station together and he said that D.C. Beson had asked him to search Mr. Abbatino
• D.C. Awad, who paraded Mr. Abbatino, did not mention the possession for the purpose charge to the officer in charge because he had not been told about it
• An important object of the events on February 8 was to search 138 Claremont, but by 11:20 p.m. the request for a search warrant had been refused; nevertheless the police attended 138 Claremont without a warrant to “freeze the premises.” A search warrant was not issued until 2:10 a.m.
• The evidence of the officers related to the reason Mr. Clark was arrested is inconsistent. Detective Asselin testified that he arrested Mr. Clark for possession of the pepper spray and marijuana found in the car (although they were not found until after Mr. Clark had been, at least detained and handcuffed). D.C. Beson informed the officer in charge that Mr. Clark was charged with possession for the purpose of trafficking at the parade.
[ 65 ] This constellation of circumstances undermines the reliability of the police evidence that Mr. Abbatino was found in possession of crack cocaine to the point that I have a reasonable doubt, particularly in light of Mr. Abbatino’s denial, which I am unable to reject.
[ 66 ] For these reasons I have concluded that the Crown has not met the very high onus to prove the possession for the purpose of trafficking charge beyond a reasonable doubt.
[ 67 ] For the reasons I have given, I find Mr. Abbatino not guilty of all of the charges.
Corrick J.
Released: February 2 , 2012
COURT FILE NO.: CR-10-90000310
DATE: 20120202
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – ROBERT ABBATINO
REASONS FOR JUDGMENT Corrick J.
Released: February 2 , 2012