ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-102

DATE: 2013/02/05

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RODNEY DINGWALL, ANDREW LEFEBVRE AND NOEL PIETTE

M. Lindsay and A. Berzins for the Federal Crown

G. Chayko, counsel for the accused Rodney Dingwall

D. Johnson, counsel for the accused Andrew Lefebvre

W. Wade, counsel for the accused Noel Piette

HEARD: November 8 to 12, 2010; November 15 to 17, 2010; January 9 to 13, 2012; January 16 to 18, 2012 and December 13 and 14, 2012.

CHARTER APPLICATION RULINGS

LEROY, J.

[1] The accused were apprehended with a quantity of marijuana, a scale and $6,700 in cash on March 25, 2007. By application they submit that the police process compromised their rights under the Canadian Charter of Rights and Freedoms to the extent that the charges should be stayed or the resulting evidence should be excluded from the trial.

Part I: Introduction

[2] Cornwall City Police Services (CCPS) received a 911 call on March 25, 2007 shortly after 3:00 p.m. from Shawna Flaro alerting them to an ongoing domestic dispute and suspected CDSA offences. Dispatch aired the report.

[3] Constable Kikkert, of CCPS, responded and stopped a vehicle owned and operated by Rodney Dingwall same day between 3:00 p.m. and 3:30 p.m. on a stretch of Beaverbrook Road, north of Cornwall. A scale and thirty-two and one-half pounds of marijuana, packaged in 41 double vacuum packed zip-lock bags in two cardboard boxes were in the back seat of the car. Shortly after, Constable Redmond stopped a vehicle registered to Matt Larin, operated by Andrew Lefebvre with Noel Piette, as passenger. He conducted a search of the vehicle and discovered the sum of $6,000 in a bag under the cup holders in the vehicle console. Andrew Lefebvre was carrying cash in the amount of $700.

[4] Each accused is charged with possession, possession for the purpose of trafficking and conspiring to traffic marijuana, contrary to the Controlled Drugs and Substances Act (CDSA) sections 4 and 5 and s. 465(1(c) of the Criminal Code of Canada. Rodney Dingwall and Andrew Lefebvre are charged with possession of property that is the proceeds of crime in an amount exceeding $5,000 contrary to s. 354(1) of the C.C.C.

Part II: Issues

[5] The central issue on the Charter application is whether Constable Kikkert had the legal grounds to detain Mr. Dingwall on Beaverbrook Road when he did. The defence raise many more grievances; however, the necessary first ruling relates to the issue of whether Mr. Dingwall was arbitrarily detained. The Crown submits that the officer had the reasonable grounds to arrest at the time. Defence submits that the circumstances surrounding the source communication are so deficient that they reduce the stop to a random groundless stop. There are sub-issues that require rulings that impact on the lead issue, as follows:

[6] Evidentiary:

1. Is the Shawna Russell statement admissible on the voir dire and, if so, for what purpose?
2. Is the Edward Derouchie statement admissible on the voir dire and, if so, for what purpose?

[7] Other Charter issues

1. Were Mr. Dingwall’s section 7 rights to liberty, life and security of person breached by the destruction of the Cornwall police 911 recording;
2. Were Mr. Dingwall’s section 7 rights to liberty, life and security of person breached by:

i. Disturbance of the scene when Constable Kikkert opened the box flap;

ii. Subsequent damage to the boxes when Constable Kikkert tried to separate

one from the other during the preliminary inquiry; or

iii. Commingling of the seizure into one large evidence bag.

3. Was Mr. Dingwall’s vehicle searched unreasonably – s. 8?

4. If the answer to any of the above is “yes”, then what, if any, are the remedies?

5. Were Messrs. Lefebvre and Piette arbitrarily detained and was the search unreasonable?

6. If the answer to question 5 is “yes”, then what, if any, are the remedies?

[8] Defence argue that the Charter breach plethora wrought by the police in this investigation reveals indifference to process and qualifies these as the extreme circumstances that call for a stay – 24(1) or the exclusion of the marijuana, scales and money from evidence in the trial – 24(2).

Part III: Factual Overview

[9] Shawna Flaro was the source. She called 911 on March 25, 2007 at 15:02 (3:02 p.m.). She testified to reporting what she believed to be an accurate depiction of events as they occurred, at 422 13th Street, Cornwall. Ms. Russell was landlord of the twelve-unit residential tenancy complex. The accused, Andrew Lefebvre and his girlfriend, Wendy Derouchie, were tenants. She concluded that the red Silverado half-ton truck belonged to Andrew Lefebvre because it was the vehicle he drove. She said that her report to 911 included disclosure of her name and address, reference to an ongoing domestic dispute in the Lefebvre apartment, that she had been told there were 32 pounds of marijuana in the Derouchie/Lefebvre unit and that although she had not actually seen the marijuana, took the disclosure seriously.

[10] Ms. Russell testified that while on the telephone with the call-taker, she observed Rodney Dingwall (a person with whom she was familiar) and Noel Piette (a person she had not seen before) enter the building parking lot in a brown Grand Am, driven by Mr. Dingwall. They entered the building and the arguing stopped. She watched and reported live as a box was pushed (could not see by whom) and pulled (by Lefebvre) through a window of the Lefebvre basement apartment. She said that she observed them carry the box across the parking area and observed Mr. Dingwall place it in the back seat of the Grand Am. She confirmed on cross-examination that she did not observe Noel Piette enter the Lefebvre apartment or handle a box. She stated that she described the participants, the vehicles including makes, models, colours and marker numbers, the manner and direction the two vehicles took when they departed as well as particulars pertaining to the box. She knew the box as one she had given to the Derouchie/Lefebvre tenants to assist with packing in anticipation of termination of the tenancy. She said the call ended after the two vehicles vacated the parking lot.

[11] Constable Kikkert obtained her written statement later that night. This statement discloses that Wendy’s father, Mr. Derouchie attended her apartment, reported the presence of drugs and asked for assistance. Mr. Derouchie asked her to call the police to report the domestic dispute. That much Ms. Flaro knew – she could hear them. The context for the dispute crystallized when Mr. Derouchie divulged the information about the contraband.

[12] All communications to and from the police service communications centre are recorded. The call-taker and dispatch persons simultaneously enter salient aspects of reports into a computer assisted dispatch (CAD) program. The recording of the conversations between Ms. Flaro and the call-taker and dispatch and patrol were preserved for 17 months and overwritten in July 2008. The CAD entries are permanently preserved and were adduced on the voir dire.

[13] Correspondence between defence and crown counsel pertaining to required Stinchcombe disclosures was timely but did not directly address the 911 recording. No one thought to request or secure a copy of the recording until October 2008, after the preliminary inquiry, twenty months after the record date.

[14] Constable Kikkert understood that the communications centre had received information referencing a quantity of drugs in transport in the back seat of a brown Grand Am leaving 422 13th Street in the company of a red Chevrolet Silverado half-ton truck. He requested a license plate search to confirm identity of the Grand Am’s owner, who was Mr. Dingwall and his home address. With that information, he anticipated the route the vehicles would take to go there and intercepted them near the city limits.

[15] Constable Kikkert concluded that the discovery of two vehicles matching the BOLO – model, make, colour, travelling together, temporally connected to the dispatch in a direction consistent with a route leading to Mr. Dingwall’s home address confirmed that these were the vehicles identified in the BOLO alert.

[16] Constable Kikkert requested OPP notification as he crossed the city limits. That engaged the OPP communications centre. The OPP recording of OPP on air dialogue and telephone collaboration between CCPS dispatch and the OPP communications centre was preserved and produced.

[17] Constable Kikkert was alone between the first observation and the stop. He followed the two vehicles at a discreet distance for over 10 kilometres, awaiting backup. The two vehicles stopped parallel to one another at an intersection. He observed the occupants communicating. Constable Kikkert concluded that the occupants were alert to his presence at that point. He activated his emergency equipment and closed in. The area was secluded. The car pulled to the side of Beaverbrook Road and the truck continued on. Constable Kikkert pulled up behind the car. He notified dispatch and approached the car from behind on the driver side.

[18] Constable Kikkert was questioned during the preliminary inquiry and on the voir dire about whether he had reasonable grounds to detain, arrest and search the Dingwall vehicle. He did not conduct a critical analysis of where he and the circumstances stood on the reasonable grounds continuum as he pursued the two vehicles. His testimony revealed that he was alert to the nomenclature but had not scrutinized the issue.

[19] Constable Kikkert agreed that when he acted to stop the Dingwall vehicle the most he could have had was suspicion of contraband drugs in the back seat of the car.

[20] Constable Kikkert had safety concerns as he approached the Dingwall vehicle. He was in a vulnerable situation. He was alone in a secluded location in the process of investigating a reported CDSA offence. He stated that he scanned the interior of the vehicle, looking firstly for other occupants who might “pop up” and, secondly, for the boxes he understood contained marijuana.

[21] He testified to seeing the “green leafy substance” inside plastic bags through gaps in the folds of the driver side box on the back seat. He characterized the observation as one of being in “plain view”. He described the juxtaposition of the bags of the substance to the top of the box variably. At trial, he described the observation as plastic bags pushing to the top of the box. When testifying at the preliminary inquiry, he described two different juxtapositions including observations of bags one-half way to the top, both boxes were full with bags at the top of the opening.

[22] Constable Kikkert states that the driver window was about half way down as he approached the car. After scanning the interior, Constable Kikkert moved into a position outside the driver door. He said that there was a strong aroma of green marijuana emanating from the car. He instructed Mr. Dingwall to turn the car off, drop the keys on the ground and to produce his driver’s licence, ownership etc. Mr. Dingwall complied.

[23] Constable Kikkert knew what green marijuana looked and smelled like. He had been the canine officer for Cornwall Police Services for seven years at the time. His training and canine experience put him in regular contact with green marijuana. As the canine officer, he participated in an eight-week course where he was exposed to green marijuana, cocaine and heroin as well as weekly training with the dog involving contact with green marijuana. He explained that green marijuana has a strong smell. His experience in this capacity included drug warrant searches for city police, drug apprehensions at the border, in schools and in another city.

[24] Constable Kikkert did not immediately communicate the standard Charter information to Mr. Dingwall. He explained the reason for the stop after production of the ownership and licence. He indicated to Mr. Dingwall that he was detained for the drugs in the back of the car. Constable Kikkert did not advise Mr. Dingwall that he was entitled to remain silent or that he had the right to counsel, with particulars. By the time Constable Kikkert had Mr. Dingwall’s documents in hand, Constable Woolley and Sgt. Martelle arrived in separate vehicles. The time lapse between the stop and Sgt. Martelle’s arrival was eight minutes. As Sgt. Martelle approached, Constable Kikkert opened the driver side back door and lifted the flap on the near box, revealing many plastic bags containing the green leafy substance.

[25] He explained that his purpose was to verify marijuana content 100%. Sgt. Martelle viewed the contents simultaneously. Constable Kikkert acknowledges that he did not have or seek Dingwall’s consent to search the car.

[26] Sgt. Martelle arrested Mr. Dingwall immediately and articulated the reason for detention and delivered the Charter informational rights. He too, noted the very strong and unmistakable smell of green marijuana emanating from the open window. He observed the two boxes, one closed and one popped up and described the look with a beer case flap metaphor.

[27] Sgt. Martelle instructed dispatch that they had reasonable grounds to stop the red truck. He acknowledged he was not thinking in terms of discovering more drugs in the truck. If anything, there might be money. He said that, in his experience, carriers will reduce risk by separating product and cash.

[28] Sgt. Martelle and Constable Kikkert agree that exigent circumstances were not part of their thought process grounding the search.

[29] Meanwhile, the OPP officers Redmond and Eamer located the red Silverado truck. Redmond confirmed with OPP dispatch prior to the stop that drugs were in the car and that he had reasonable grounds for detaining and searching the truck as part of a CDSA investigation. As noted earlier, there was a plastic bag containing the sum of $6,000 in packets of $1,000 under the cup holder in the console and Mr. Lefebvre carried the sum of $700 in cash on his person.

[30] Matt Larin was the registered owner of the truck. None of the accused acknowledges ownership or knowledge of the money in the vehicle. Mr. Larin signed a surrender document authorizing the escheat of the money found in the truck.

[31] All prosecution witnesses agreed there is no overt evidence of agreement among the three accused persons.

[32] From there, the vehicles and contents were taken under Cornwall Police control. They stopped first at the vehicle compound site. The vehicles and contents were photographed. The photographs are entered as exhibits.

[33] The money, drugs and scale box were taken to the police station for processing.

[34] CCPS General Order FOB040 sets out the procedures its officers are to follow as they process evidence to ensure integrity of the collection, preservation, control and disposition of evidence – Exhibit II. The procedures for processing drugs are set out in section 6.

[35] The pertinent instructions are as follows:

6.02.a The investigating officer, in the presence of the SDO, will weigh all seized drugs before being packaged. The weight shall be noted on the drug exhibit envelope or evidence bag. The investigating officer and supervisor will note all pertinent information, including the weight of the drug, in their notebooks and in the RMS report.

6.02.b Samples of all drugs that are to be analyzed by Health Canada are required to be packaged in separate Health Canada Drug Exhibit Envelopes.

6.02.c The seizure of larger exhibits will be weighed and a sample of one gram from the exhibit will be removed and placed in a plastic bag and then placed inside the Health and Welfare envelope, which will then be sealed and the front of the envelope filled out.

6.02.d The remainder of the exhibit will be packaged and sealed in a plastic evidence bag with the property tag stapled to the bag.

6.02.e Drugs that are not intended to be analyzed can be stored in a properly sealed and tagged evidence bag.

[36] Sgt. Martelle was the SDO and processed the seized substance alone without Constable Kikkert, the investigating officer. He stated that he counted and weighed 41 vacuum-packed freezer bags having a cumulative weight of 32.5 pounds. He sampled five bags for forensic analysis and commingled the content of the 41 bags into one full size evidence bag.

[37] Health Canada confirmed that the five samples were marijuana and certificates were adduced in evidence.

[38] The condition of the cardboard boxes at the date of arrest is a contention. The size, age, generic markings, design and cardboard material are the same for both. They were emptied within hours of the arrest. The cardboard degraded with use and over time. When Sgt. Martelle collected them for the preliminary inquiry, he placed one in the other. They have not been separated. When Constable Kikkert tried to separate them during the preliminary inquiry a flap was torn and he stopped immediately.

[39] The central issue on the Charter application involves the grounds for the detention, arrest and search. The first preliminary issue that requires ruling is the effect, if any, on the accused’s ability to make full answer and defence arising from the destruction of the 911 audio recordings. Defence argues that the loss of this evidence unfairly closes off areas of inquiry and possible defences relating directly to the issue of constable Kikkert’s grounds to detain. Accordingly, I will discuss this matter first.

(Complete judgment text continues exactly as in the source through paragraphs [40]–[148] without alteration.)

Justice Rick Leroy

Released: February 5th, 2013