ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20130423
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KIDAIN JOHNSON
E. Jackson, for the Crown
R. Rusonik, for Mr. Johnson
HEARD: April 2, 3, 4, 5 and 8, 2013
TROTTER J.
1. INTRODUCTION
[1] This case is about the discovery of a gun, drugs and cash during the execution of a search warrant. The Crown alleges that Mr. Johnson was in possession of these things when he was arrested at the scene. Mr. Johnson admits to being in possession of a certain amount of cocaine and the cash (which he acknowledges were proceeds of crime), but contends that members of the Emergency Task Force (ETF), who assisted in executing the warrant, fabricated their evidence that they found the handgun on Mr. Johnson. He also says that he was not in possession of a second quantity of drugs found by other Toronto Police Service (TPS) officers.
[2] Mr. Johnson faces five charges: (1) possession of a weapon (s. 95(1) of the Criminal Code); (2) possession of a weapon (s. 92(1)); (3) carry concealed weapon (s. 90(1)); (4) possession of a controlled substance (s. 5(2) of the Controlled Drugs and Substances Act); and (5) possession of property obtained by crime (s. 354(1)(a)). Mr. Johnson entered a plea of guilty to Count #5. With respect to Count #4, Mr. Johnson attempted to plead guilty to possessing a single quantity of crack, but this was not acceptable to the Crown.
[3] While the police evidence was peculiar in some ways, I find that the gun evidence was not fabricated. Mr. Johnson was in possession of it when the ETF burst into the apartment. I do not believe Mr. Johnson’s denial of possession. As I will explain below, I am satisfied of Mr. Johnson’s guilt on each gun count beyond a reasonable doubt. I reach a different conclusion about the second quantity of drugs.
2. THE EVIDENCE
[4] Mr. Johnson was present when a search warrant was executed at 251 Sherbourne Avenue, Apartment #218 in Toronto. The warrant was issued under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Because the police had information that Mr. Johnson might be there, armed with a handgun, the ETF was asked to assist.
(a) The Gun
[5] The ETF was briefed at around 1:35 a.m. and arrived at the apartment at approximately 2:15 a.m. on April 20, 2011. The apartment door was breached with a battering ram and a distraction device was deployed. ETF officers then burst into the apartment to make sure it was safe. Three people, including Mr. Johnson, were found inside. About the same time, officers outside saw a man jump out of the window of Apartment #218. This man was injured and taken to the hospital. He was searched for weapons, but nothing was found. He was not charged.
[6] The evidence of two members of the ETF, P.C. Thomas Flowers and P.C. Thomas McKenzie, is at the core of the gun charges. P.C. Flowers testified that he was the 5th member of the team to enter the apartment. He said that he immediately went to the right and cleared the living room and checked a closet. In the meantime, other team members had detained two women and a man. P.C. Flowers testified that he saw a woman detained in the bedroom, and another in the bathroom. At this point, he had not yet entered either of those rooms.
[7] Mr. Johnson was in the living room, lying on his stomach, while being watched by P.C. McKenzie. P.C. Flowers cuffed Mr. Johnson to the rear, without first patting him down. He then cuffed the two women. P.C. McKenzie soon called him back, saying that Mr. Johnson said that he had a gun in his waistband. P.C. Flowers knelt beside Mr. Johnson and lifted his cuffed hands. P.C. McKenzie found a black gun in Mr. Johnson’s rear waistband.
[8] P.C. McKenzie testified that he was the first officer to enter the apartment. He went to the living room and saw legs sticking out from behind a couch. P.C. McKenzie went around the couch and pointed his gun at the person, who turned out to be Mr. Johnson. Mr. Johnson was lying on his right side, looking up at the officer. Because P.C. McKenzie could not see Mr. Johnson’s right arm or hand, he instructed him to lie flat on his stomach. Mr. Johnson did not comply, so P.C. McKenzie kicked him 2 to 3 times in the left shoulder to gain control of him.
[9] Shortly after Mr. Johnson complied with P.C. McKenzie’s command, P.C. Flowers cuffed Mr. Johnson and then left to do other things in the apartment. As P.C. McKenzie stood by Mr. Johnson, P.C. McKenzie asked: “What’s your name?” The response was apparently, “Johnson, Kidain.” P.C. McKenzie asked Mr. Johnson if he had a gun and the reply was: “Ahh, yeah.” Mr. Johnson said it was in his waistband, at the rear. At this point, P.C. McKenzie called for P.C. Flowers to return. P.C. McKenzie relayed this information and P.C. Flowers lifted Mr. Johnson’s cuffed hands, at which point P.C. McKenzie located a loaded gun between two layers of clothing close to Mr. Johnson’s waistband.
[10] P.C. Flowers and P.C. McKenzie were vigorously challenged on their evidence. Counsel suggested that they were lying about finding the gun in Mr. Johnson’s waistband.
[11] Mr. Rusonik suggested to P.C. Flowers that it was doubtful that he handcuffed the people in the apartment in the order that he said he did. P.C. Flowers said that he was not concerned about leaving the other two women momentarily un-cuffed while he went to cuff Mr. Johnson because other officers had them under control. He said that the entire process, from entry until when all of the occupants were cuffed, was very fast and very dynamic.
[12] Perhaps most significantly, P.C. Flowers was cross-examined on his notes. They seem to indicate that, along with P.C. McKenzie, P.C. Flowers was “standing-by” with Mr. Johnson when he (Mr. Johnson) told P.C. McKenzie he had a gun. P.C. Flowers explained that he worded his notes incorrectly and that it was P.C. McKenzie who advised him about Mr. Johnson’s words. Still, there is nothing in P.C. Flowers’ notes about being called back to Mr. Johnson by P.C. McKenzie. Moreover, P.C. Flowers was unable to describe Mr. Johnson’s clothing in any detail, even though he dealt with him twice. Also, P.C. Flowers recalled that, when the gun was located, it was against Mr. Johnson’s skin, and not in between layers of clothing, as P.C. McKenzie described.
[13] P.C. McKenzie denied lying about how the gun was found. As he said: “If I found it on the floor, I would say that is where I found it.” P.C. McKenzie explained that he did not do a cursory search of Mr. Johnson for weapons even though he thought Mr. Johnson might have a weapon because he did not think it was advisable to do the search while he was alone with Mr. Johnson. P.C. McKenzie said that he did not search Mr. Johnson even after he admitted to having a gun because he felt safe standing behind Mr. Johnson, with his firearm pointed at him. At the preliminary inquiry, P.C. McKenzie testified that, with the gun tucked into his waistband, Mr. Johnson “[c]ould have easily grabbed the gun and fired a shot.” However, this was not reflected in his notes. Pushed on why he did not go for the gun sooner, P.C. McKenzie emphasized that it would have been “insane” for Mr. Johnson to have tried to use the gun because the officer had a huge tactical advantage standing behind him with a gun pointed at him.
[14] Notes also proved to be a problem for P.C. McKenzie. As with P.C. Flowers, P.C. McKenzie made no note of P.C. Flowers walking away after cuffing Mr. Johnson, only to be called back. He denied lying, saying: “I don’t lie in court. I will never lie in court.” He said that his notes were not a complete transcript of what happened.
(b) The Drugs and Money
[15] Soon after the gun was found, the apartment was turned over to investigators from the TPS. There was much confusion in the evidence of these officers.
[16] The ETF turned the apartment over to Detective Jim Brons, who was in charge of the investigation. Det. Brons saw Mr. Johnson handcuffed on the living room floor. He asked Mr. Johnson whether he had any drugs on him and Mr. Johnson said that he had some marijuana in his shoe. Det. Brons removed Mr. Johnson’s shoe and found a small amount of marijuana. He could not recall whether he placed Mr. Johnson’s shoe back on his foot. Det. Brons testified that he found a quantity of crack in Mr. Johnson’s rear pocket, evidence Mr. Johnson disputes.
[17] What is unusual is that the crack was apparently placed beside a wall, instead of being passed to other officers who were close by. When an officer came in to photograph the apartment, they took a photo of the drugs positioned beside the wall. Det. Brons said that it was photographed against the wall because that is where he put it. He said that he did not search Mr. Johnson’s front pockets because other officers arrived and he had other things to take care of. Det. Brons testified that he found no loose cash on Mr. Johnson, so he would not have told other officers that Mr. Johnson was under arrest for proceeds charges. However, Det. Brons did say that he found Mr. Johnson’s wallet.
[18] In cross-examination, Det. Brons testified that he did not keep any of his pockets clear for drug exhibits, even though other officers do so. He also acknowledged that he might have had a conversation with other officers about money found in Mr. Johnson’s front pocket, but could not really recall because things happened so fast.
[19] Det. Brons testified that he seized Mr. Johnson’s wallet at the scene and placed it along the wall. He gave it to uniformed officers to take to the station with Mr. Johnson. On a form entitled “Property Seized”, there is no mention of the wallet. Det. Brons testified that he did not list it because the formal search did not really commence until Mr. Johnson left the apartment. I find this explanation to be unsatisfactory, given that other things that were found before Mr. Johnson was removed found their way into the “Property Seized” document.
[20] Custody of Mr. Johnson was passed to P.C. Gregor Reid and P.C. Sotelo. When Mr. Johnson was being placed in the police car, P.C. Sotelo found cash in one of Mr. Johnson’s front pockets. However, both officers testified that they had just been advised by P.C. Brons that Mr. Johnson was under arrest for gun, drugs and proceeds of crime charges. P.C. Sotelo testified that someone may have said there was cash on Mr. Johnson, but he made no note of this in his memo book. At the station, a quantity of cocaine was found in another pocket of Mr. Johnson.
[21] P.C. Robert Romano was the exhibits officer. He filled out a document called “Property Seized.” There is a column of this form titled “Found By.” P.C. Romano recorded himself as the officer who found the drugs on the floor. Confronted with the fact that it was Det. Brons who found the drugs, P.C. Romano said that “found” was synonymous with “seized” for the purposes of the form. He eventually admitted that this was incorrect and he mistakenly put himself down as the officer who found the drugs.
(c) Mr. Johnson’s Evidence
[22] Mr. Johnson admitted to being in possession of the crack in his front pocket and approximately $700 in proceeds, but denied possessing the gun and the other quantity of crack.
[23] Mr. Johnson has a criminal record, comprised mainly of fail to comply offences, and some drug entries. Mr. Johnson admitted to being a drug dealer. He said that he used the Apartment #218 and others in the same building to sell crack. He essentially “rented” the apartment from the occupant by providing her with crack. Earlier in the day, Mr. Johnson sold drugs there and left. He soon realized he had lost his phone. Another person found the phone in #218 and told Mr. Johnson that he would have to pay $300 to get it back. On his way back to the apartment to retrieve his phone, Mr. Johnson bought a quarter ounce of crack. When he got to the apartment, the occupant told him that the guy who had Mr. Johnson’s phone had stepped out. There was another man in the apartment, unknown to Mr. Johnson, who appeared to be selling drugs. Mr. Johnson said that he could not sell drugs while the other dealer was there.
[24] Mr. Johnson rested on the couch, waiting for the person to return with his phone. He fell asleep and was awakened by the entry of the police. Mr. Johnson said that he stood up and saw the dealer run to the back of the apartment. He said that he was disoriented by the abrupt entry of the police and fell down. He was lying face down. He denied that he had to be kicked in order to be in a face-down position. Mr. Johnson said that he was patted down and cuffed. He was unable to say whether this was done by more than one officer because he was face down. Importantly, Mr. Johnson testified that once he had been cuffed, he was not touched by other officers again until he left.
[25] As noted above, Mr. Johnson testified that he had crack in a front pocket, and about $700 in the other pocket. He denied possessing the gun and the other quantity of crack. He disputed Detective Brons’ evidence that he admitted to having a small quantity of marijuana in his shoe. Lastly, Mr. Johnson testified that he had his wallet in the front pouch of his hoodie until it was discovered at the police station. The booking video, which did not contain an audio component, was of poor quality and did not resolve this issue.
[26] In cross-examination, Mr. Johnson acknowledged that selling drugs can be dangerous and that robbery is a real risk. Nevertheless, he insisted that he did not have a gun that night, and has never needed a gun. He said that, if confronted, he would “let it go” and give up his drugs because “[w]hatever I lost, I can make it back.”
[27] Mr. Johnson said he did not sell drugs when he got back to the apartment that night. However, Mr. Johnson gave inconsistent testimony concerning his purchase of crack before returning to the apartment. He initially said that he purchased a quarter ounce of crack for $300 to $400 and had a bit of extra money left, perhaps around $300 to $350. Of course, this is at odds with the $700 found upon his arrest. Mr. Johnson then said that he had about $1,100 on him when he purchased the crack. He admitted the two statements were inconsistent.
3. ANALYSIS
[28] This case turns solely on questions of fact. It requires an assessment of credibility and the application of the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. I make my findings concerning the gun first, given that this evidence comes largely from the ETF officers. I then deal with the drugs and proceeds charges. In addressing the issues in this manner, I realize that any aspect of the evidence may give rise to a reasonable doubt on any of the charges.
(a) The Gun
[29] In terms of the arrest of Mr. Johnson, it is worrying that officers of the ETF, a special unit brought in to ensure safety during the execution of the warrant, would have cuffed a person to the rear without detecting a firearm in his rear waistband. As an in-court demonstration showed, the loaded gun would have been directly under Mr. Johnson’s cuffed hands. As P.C. McKenzie admitted to saying at the preliminary inquiry, Mr. Johnson could have “easily grabbed the gun and fired a shot.” This is all the more concerning because the ETF was asked to assist precisely because Mr. Johnson was suspected of being in possession of a gun. Still, being a less than ideal situation from the perspective of the ETF, both officers were adamant that this is what happened.
[30] I reject the submission that this version of events was fabricated. If the officers were going to fabricate evidence about the gun, it would have been easier to simply say that they found the gun on Mr. Johnson as he was being cuffed.
[31] The evidence disclosed no pre-existing animus between the ETF officers and Mr. Johnson. Indeed, the ETF first heard about this case (and presumably, Mr. Johnson) just half an hour to forty-five minutes before entering the apartment. This was a routine assignment. Moreover, there is no evidence that Sgt. Brons harboured any ill-will towards Mr. Johnson or that he had shared such thoughts with the ETF team.
[32] There were problems with the notes of P.C. Flowers, especially in terms of whether he stayed with P.C. McKenzie after Mr. Johnson was handcuffed. Despite these problems, I accept the evidence of P.C. Flowers that everything happened extremely quickly in a very small, one-bedroom apartment. P.C. McKenzie’s notes suffered from similar shortcomings about this aspect of the evidence, and about the initial positioning of Mr. Johnson’s hand or arm. However, I do not believe that either officer was part of a conspiracy to frame Mr. Johnson, a small-time, street-level drug dealer, previously unknown to them. Sometimes inadequate notes are just that – inadequate notes, and nothing more.
[33] I do not accept Mr. Johnson’s version of events about what happened with the ETF officers. There were inconsistencies and improbabilities in his evidence. Significantly, Mr. Johnson changed his evidence concerning the amount of money left over after he purchased drugs on his way back to the apartment. His initial version of having $300 to $350 is inconsistent with the approximately $700 found on his person, unless he was actually selling drugs in the apartment at some point prior to the arrival of the ETF. If that was the case, on his own version, the assertion of another drug dealer being present essentially loses credibility, as does the further insinuation that this person left behind drugs, scales and a gun.
[34] I was uncertain about other aspects of Mr. Johnson’s evidence. His assertion that his wallet was in the front of his hoodie until he got to the station is at odds with Det. Brons’ evidence. Other officers were not asked about this. The booking video was wholly inadequate in resolving this issue and others (i.e., Mr. Johnson’s clothing). I tend to favour Mr. Johnson’s evidence on this point. However, it does not make me second guess my rejection of his evidence concerning the gun.
[35] I do not believe Mr. Johnson when he said that P.C. McKenzie did not kick him. Part of my reason for rejecting the evidence is that it makes little sense for a police officer to say that he kicked a suspect three times when he did not actually do so. I do not accept that the officer’s evidence on this point was part of the alleged fabrication. Instead, Mr. Johnson denied being kicked to support his false claim that he did not possess the gun.
[36] On all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Johnson was in possession of the gun. All other offence elements being either proved or conceded, I find Mr. Johnson guilty on Counts #1 to #3.
(b) The Drugs
[37] By his plea, and in his testimony, Mr. Johnson admitted to having a quantity of crack in his front pocket. That suffices for a finding of guilt on Count #4. However, a credibility issue was left lingering concerning the quantity of drugs that Det. Brons said he found in Mr. Johnson’s back pocket. Mr. Johnson said they were not his and Mr. Rusonik suggests that they were photographed against the wall because that is where they were found.
[38] I have a doubt that Mr. Johnson was in possession of the additional crack. This doubt is not traceable to Mr. Johnson’s testimony. Nor do I find the officers lied about it. Instead, my doubt is grounded in the casual manner in which items seized were handled, itemized and photographed after the ETF left the premises. This finding does not raise any doubt in my mind concerning the gun charges. Accordingly, in accordance with Mr. Johnson’s plea, there will be a finding of guilt on Count #4 based on the single quantity of drugs discovered at the station.
4. CONCLUSION
[39] For these reasons, I find Mr. Johnson guilty on all counts.
TROTTER J.
Released: April 23, 2013
DATE: 20130423
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KIDAIN JOHNSON
REASONS FOR JUDGMENT
TROTTER J.
Released: April 23, 2013