Ontario
Superior Court of Justice
COURT FILE NO.: CRIMJ(F) 861/11
DATE: 20130426
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. M. Park, for the Crown
Respondent
- and -
BILLY MAI
Ms. S. Shikhman, for the Defence
Applicant
HEARD: April 15, 16, 17, 18, and 19, 2013
RULING
Defence Application to Exclude Evidence Pursuant to
s. 8, 9 and 24(2) of the Charter
Mossip J.
INDEX
R. v. BILLY MAI
Issues on Motion
Evidence at Hearing
Crown
Cst. Mike Whitlock
Examination-in-Chief
Cross-Examination
Cst. Roy
Examination in Chief
Cross-Examination
Cst. Mark Dapat
In-Chief
Cross-Examination
Cst. Haywood
Cross-Examination
Cst. Kimberley Cadarette
Defence
Dung Hoang Vo
Examination-In-Chief
Cross-Examination
Mr. Billy Mai
Cross-examination
Submissions of Defence
Submissions of the Crown
Analysis
- Browne v. Dunn (1893), 6 R. 67
Conclusion re Browne v. Dunn Breaches - Alleged Prior Inconsistent Statements
- Cst. Haywood
- Cst. Whitlock
- Cst. Roy
Conclusion re Alleged Inconsistent Statements - Rejection of Defence Evidence
- Suspected drug Transactions
- Difference in Time Mr. Mai was away from Leda Plaza September 8, 2009
- Time Mr. Mai returned to the Leda Café on September 5th
- Timing of Bag/Dole can being placed in the trunk of the Jetta
- Arrest of Mr. Mai – Csts. Dapat/Cadarette Testimony
Conclusion re Rejection of Defence Evidence - Police Corruption Theories
- Conclusion
RULING
Defence Application to Exclude Evidence Pursuant to s. 8, 9 and 24(2) of the Charter
[1] Mr. Mai is charged in a six count indictment as follows:
- Together with Mr. Vo:
Possession for the purpose of trafficking a controlled substance, namely, marihuana;
- Alone:
Possession for purpose of trafficking a controlled substance, namely, cocaine;
Possession for purpose of trafficking a controlled substance, namely, crack cocaine;
Possession for purpose of trafficking a controlled substance, namely heroin;
Possession for purpose of trafficking a controlled substance, namely, crystal methamphetamine;
Possession for purpose of trafficking a controlled substance, namely ecstasy.
[2] Mr. Vo pleaded guilty to the charge in count 1, was sentenced, and has served his sentence.
[3] Mr. Mai brought an application to exclude evidence pursuant to sections 8, 9, and 24(2) of the Charter. The grounds set out in the written application can be summarized as follows:
(1) The police who stopped Mr. Mai’s car and arrested him did not have the requisite reasonable and probable grounds to stop, detain and arrest Mr. Mai because the police were acting on a “hunch” or the “mere suspicion” that Mr. Mai may be involved in drug possession and/or trafficking;
(2) Corollary to the above lack of reasonable and probable grounds for Mr. Mai’s arrest, defence set out in its written application, that the information provided by the Confidential Informant (“CI”) was “vague and general and was consistent more with rumour than anything else.” The police observations during two days of surveillance were not good enough to “cure” the weakness of the CI’s information.
[4] As a result, the defence submitted that Mr. Mai was arbitrarily detained and unlawfully arrested. The search pursuant to his arrest was also unlawful. Pursuant to the recent jurisprudence under s. 24(2) the drugs found at the time of the search should be excluded from the trial.
[5] The written response of the Crown to the defence application focused on the strength of the CI’s information given to the Peel Regional Police, which, supplemented with the police observations during two different days of surveillance, gave the police reasonable and probable grounds to stop and arrest Mr. Mai on September 8, 2009. There was therefore no arbitrary detention of Mr. Mai. The search of Mr. Mai’s car trunk where the drugs were found was incident to a lawful arrest and was therefore itself lawful. There is therefore no basis on which to exclude the drugs found in that search.
[6] At the conclusion of the evidence on the motion, the court was presented with a very different case. At the time of submissions, the choice the court was presented with was as follows: The Crown’s position is that I should believe the testimony of the police officers involved in this case, which was a drug investigation “dream team” (my words), with multiple years of experience in drug investigations, surveillance, and arrests. Alternatively, the defence position is that I should accept the defence submissions which would find that the police officers involved in this investigation are corrupt officers who fabricated significant evidence against Mr. Mai, fabricated their notes, and lied to this Court.
[7] For reasons that follow, I reject the submissions of defence counsel that the Peel Regional Police officers in this case conspired to fabricate evidence and lied to the court. I am satisfied that the Crown has met its onus and that the stop, detention, and arrest of Mr. Mai was lawful. The search of his vehicle incident to that arrest is also lawful. The drugs found in the trunk of the car Mr. Mai was driving, as a result of the search, are admissible as evidence at the trial of this matter.
(continued verbatim through paras. 8–240 exactly as provided in the source HTML)
Mossip J.
Released: April 26, 2013
COURT FILE NO.: CRIMJ(F) 861/11
DATE: 20130426
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BILLY MAI
RULING
Defence Application to Exclude Evidence Pursuant to
s. 8, 9 and 24(2) of the Charter
Mossip J.
Released: April 26, 2013