ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GARY REID
B.G. Puddington, for the Crown
J. Bogle, for the Accused
HEARD: September 23-5, 2013
M.A. Code J.
REASONS FOR JUDGMENT
A. OVERVIEW
1The accused Gary Reid (hereinafter, Reid) is charged in a two count Indictment with possession of methamphetamine for the purpose of trafficking and with assault police. Both offences are alleged to have taken place on July 11, 2008.
2Reid elected to be tried in this Court by judge alone and the trial took place before me on September 23, 24, and 25, 2013. The fact that the trial took place over five years after the date of the offences appears to have been due to a number of defence adjournments of both the preliminary inquiry and the trial.
3The Crown called three police witnesses and the defence called one witness, namely, the accused Reid. Counsel responsibly negotiated a substantial Agreed Statement of Fact, admitting a number of issues that were not realistically open to dispute. Counsel are to be commended in this regard.
4At the end of the short trial I reserved judgment. The two central issues are: first, whether Reid had knowledge that the shopping bag he was admittedly carrying, at the Sheraton Hotel in Toronto on July 11, 2008, contained approximately one pound of methamphetamine; and second, whether Reid pushed the police officer who admittedly approached him in the hotel lobby on that same day.
5These are my reasons for judgment.
B. FACTS
(i) The Crown evidence
6Detective John Margetson has been a police officer for twenty-three years. On the evening of Friday, July 11, 2008, he was in the midst of an investigation in an unrelated case where a search warrant had been obtained and a team of police officers was already in place and ready to execute the warrant. At about 10:30 p.m. the present investigation began, urgently and unexpectedly, when a tip was received from a confidential informant.
7After receiving the tip and deciding to act on it, Det. Margetson and his partner, Cst. Eric Freeman, picked up the confidential informant at 10:50 p.m. and attended at the Sheraton Hotel on Queen Street West in downtown Toronto. The officers were in plain clothes. Det. Margetson dropped off Cst. Freeman and the informant and they entered the hotel lobby while Det. Margetson parked the car. The police had been given a description of a male suspect who was believed to be in possession of a large quantity of “crystal meth”. Upon entering the lobby, Cst. Freeman and the informant went separate ways. The police had a description of the suspect from the informant but they did not ask him/her to make an identification of anyone in the lobby. Once inside the hotel lobby, Cst. Freeman and the informant were no longer together and there was no discussion between them. No questions were asked at the trial before me as to why the police brought the informant to the hotel and, I suspect, such questions might have run afoul of informant privilege.
8Cst. Freeman observed a male seated in a chair in the hotel lobby who matched the description of the suspect. The male was holding a white plastic shopping bag and was looking around the hotel lobby. Cst. Freeman could see that there was a blue box inside the shopping bag. The blue box was labeled “Ziplock” baggies. Cst. Freeman was familiar with this standard product as he buys the same brand of baggies for his home when he shops. I was initially skeptical of this evidence but upon examining the white plastic shopping bag and blue “Ziplock” box in court, when they were produced as exhibits, it was apparent that the bag is not opaque and that the blue box and its label are visible through the white plastic.
9Cst. Freeman was in the lobby for one or two minutes before Det. Margetson arrived. The male suspect had remained seated in the chair in the lobby. Once Det. Margetson arrived, Cst. Freeman indicated the location of the suspect with a nod of his head. The two officers then began to approach the suspect. Det. Margetson confirmed that the suspect was carrying a white plastic shopping bag with a box inside that was visible through the white plastic bag. Det. Margetson did not notice this shopping bag until the suspect stood up and began to walk towards a white male who was approaching from the north side of the lobby. The suspect and this white male met in the centre of the hotel lobby and began to talk.
10At this point, the two police officers reached the suspect who was the accused Reid. The white male and Reid had only been in contact for seconds. Det. Margetson was to Reid’s left and Cst. Freeman was to Reid’s right. The officers felt that they had sufficient grounds for a common law investigative detention but probably not sufficient grounds to arrest.
11I will set out the two officers’ accounts of the ensuing events separately, as they had different roles and different vantage points. Det. Margetson is a supervisor and he was trained and authorized to carry a taser. As he approached Reid, he turned on the battery power for the taser and held it in his right hand. He was anticipating an exchange of a large quantity of drugs, he was in plainclothes, and there can sometimes be attempts to escape as well as the use of guns in these circumstances. He held his police badge and identity card in his left hand at the level of Reid’s face and said something to the effect, “Hi guy, it’s the police”. Reid’s eyes opened wide in a look of shock, he dropped the white shopping bag, and pushed Det. Margetson in the chest with both hands. The push had the effect of separating Reid from Det. Margetson. Reid then turned and ran towards the escalators at the east side of the hotel lobby.
12Reid only got a few feet away as Det. Margetson deployed the taser and Reid fell to the ground. Det. Margetson estimated that Reid was about seven to ten feet away when he was struck by the taser and fell to the ground. Det. Margetson did not approach Reid, once Reid was on the ground, but stood back and kept the taser wires clear while Cst. Freeman handcuffed and arrested Reid.
13The white male had disappeared and was never arrested. Neither officer saw where he went as they were focused on Reid. The hotel lobby was crowded with baseball fans from a Yankees and Blue Jays game. Det. Margetson’s taser recorded the time of deployment as 11:27 p.m.
14Det. Margetson believed that the taser struck Reid in the back but he was not sure. He agreed that Reid could have turned and been struck in the side. Det. Margetson was sure that he and Reid were not standing face to face, when the taser was deployed, and that Reid was running away. However, he did not see where the taser probes struck Reid, he had no note of the location, and he could not recall the location after more than five years.
15Cst. Freeman’s account was that Det. Margetson held his badge and identity card in front of Reid, that Reid dropped the shopping bag and turned to his left towards Det. Margetson, and that Reid pushed Det. Margetson in the chest with both hands. Cst. Freeman described Reid as “starting to run away” at the point when he was struck with the taser and fell to the ground. Cst. Freeman estimated that Reid’s momentum took him about ten feet away from the original spot where he had been standing.
16Cst. Freeman believed that the taser probes entered the right side of Reid’s body, under the armpit and near the hip but towards the back. Cst. Freeman denied the suggestion that Reid and Det. Margetson were facing each other and that the taser probes struck Reid in the chest.
17Cst. Freeman handcuffed Reid and then searched him, while Reid was still on the ground. Cst. Freeman found one cell phone in Reid’s pants pocket and found a second cell phone on the ground underneath Reid. Cst. Freeman assumed that this second cell phone had been in Reid’s hand or pocket and had fallen out on the ground. He did not think it possible that the second cell phone had fallen out of the plastic shopping bag.
18Cst. Freeman walked Reid out of the crowded hotel lobby. Det. Margetson radioed for a scout car, seized the plastic shopping bag, and walked out behind Reid, holding the taser wires which were still attached to Reid. Det. Margetson checked the blue “Ziplock” box inside the white shopping bag and saw that it contained a zip-lock plastic baggie of what appeared to be “crystal meth”. Reid did not appear to have any difficulty walking out of the hotel lobby, according to both officers, although he was walking slowly.
19At 11:37 p.m., Det. Martetson turned the drug seizure over to a uniformed officer, Cst. Senyk, who was now on the scene. Cst. Freeman turned the seized cell phones over to another uniformed officer, Cst. Gallagher. Custody of Reid was also turned over to these uniform officers. Cst. Senyk testified that she did not observe Reid having any difficulties walking. She did not recall where the taser probes were attached. Reid had to be taken to the hospital by paramedics in order to have the taser probes removed. Det. Margetson agreed that the paramedics will normally remove taser probes, when they arrive at the scene, but occasionally they will insist that the person be taken to the hospital, as in this case. The probes are about a half inch long.
20Det. Margetson and Cst. Freeman left the scene immediately and returned to the earlier investigation that they had been working on. By 11:40 p.m. they were involved in executing the search warrant in this other case at a nearby location on Bay Street where the search warrant team had been waiting for them to arrive.
21The blue “Ziplock” box that contained the drugs was produced in court. It has a tear in the top of the box. Det. Margetson did not recall having to tear the box open, in order to see the clear plastic baggie of “crystal meth” inside. However, he acknowledged that he was not sure on this point.
22Det. Margetson became aware that Reid’s defence counsel, Marshall Sack Q.C., had asked the police to obtain any hotel video surveillance of the lobby that might exist. Det. Margetson twice sent officers to the hotel to try to obtain any video surveillance, without success.
23The only potential prior inconsistency that was put to Det. Margetson and Cst. Freeman, in cross-examination, was their failure at the preliminary inquiry to mention the fact that the confidential informant accompanied them to the Sheraton Hotel. They both agreed that they did not mention this part of the narrative. Det. Margetson testified that there was some discussion with Crown counsel at the time, to the effect that the informant should not be mentioned. As I read the only part of the preliminary inquiry transcript that was put to the witnesses, they were never asked whether the informant was present and they never testified that he/she was not present. It appears that the topic never came up. Det. Margetson’s notes disclosed the fact that the officers picked up the informant at 10:50 p.m., the next portion of his notes was edited out, and then at 10:59 p.m. the notes indicate “to Sheraton Centre Hotel”. There was no application brought to review the editing of this part of the notes in order to determine whether the edited portion was properly protected by informant privilege.
(ii) Agreed Statement of Fact
24As noted at the beginning of these reasons, the parties negotiated an Agreed Statement of Fact which resulted in a shorter and more focused trial.
25The Agreed Statement of Fact, in substance, admitted proof of four main points, as follows:
First, the substance seized from the blue “Ziplock” box in the white shopping bag tested as methamphetamine;
Second, the quantity of this substance was 498.39 grams, that is, about 1.1 pounds;
Third, this quantity of methamphetamine is consistent with possession for the purpose of trafficking and would not be an amount possessed for personal use;
Fourth, the value of this quantity of methamphetamine would depend on the way it was sold but, at the pound level, its value would range from $16,503 to $19,804.
(iii) The defence evidence
26Reid is now forty-five years old. He was forty years old at the time of the events in question. He has no criminal record other than a dated conviction for break and enter from a time when he was eighteen years old. He was and is a certified electrician. He had attended U.B.C. for two years and came close to having a career in professional football with the B.C. Lions. His father was an electrician and he eventually went into the family business. He was making about $80,000 a year in 2008 from his employment as an electrician. He testified that he now earns much more than that. He had no financial issues at the relevant time.
27He was living with his future wife at the time of the relevant events. They had been dating for a number of years and became engaged in 2007. In late 2007, Reid moved in with her and they lived in a townhouse that she owned in Scarborough. She was and is a school teacher. They each had a son from a prior relationship and the two boys lived with them. They were to be married on July 19, 2008, which was eight days after Reid’s arrest on the present charges.
28Reid testified that he was never involved with drugs, other than briefly trying marijuana when he was young. He was an athlete and he had no interest in drugs. He also testified that he is and was a devout Christian.
29He explained how he came into possession of the pound of methamphetamine on July 11, 2008. It began when he met a general contractor named Mike at a Christmas party in December 2007. Mike bought and sold and decorated houses and he said that he always needed electricians. They exchanged business cards. In early 2008, Mike called and hired Reid to do a minor electrical job at his home. However, no other work materialized from the relationship until July 2008 when Mike called about a job. He said that he and a friend had bought a house with an unfinished basement. They wanted Reid to do the electrical work in the basement before they brought in the drywallers.
30Reid attended at the house in Markham on Monday, July 7, 2008 and Mike introduced him to his partner Anthony. Reid quoted a price of $1,500 for the job, to be paid in three installments of $500 over the three days that it would take Reid to complete the job. Mike gave Reid the first $500 and he began the work on Tuesday, July 8, 2008. He did the work in the evening, after finishing his regular job. He would arrive at the house at about 5:00 p.m. On the Tuesday, while Reid was working on the job, Mike and Anthony were both present and they were drinking wine. Reid heard them arguing upstairs. He heard Anthony tell Mike something to the effect, “if you think that you and your drug addict ex-boyfriend can get away with this, you have another think coming”. It was apparent to Reid that Mike and Anthony were in a homosexual relationship. Reid testified that, as a Christian, he was uncomfortable with their homosexuality. He put on his headphones and tried not to overhear what he thought was a lovers’ quarrel between Mike and Anthony. It was an environment that he did not want to be around.
31The next day, Wednesday, July 9, 2008, only Anthony was present. Anthony paid Reid the second $500 installment and Reid completed most of the work. He did not go to the job on Thursday, July 10, 12008.
32Friday, July 11, 2008, was Reid’s last day on the job. He arrived early, at about 4:00 p.m., and completed the last remaining aspects of the job. Only Anthony was present and Reid asked him for the final $500 installment. Anthony replied that Mike was responsible for payment and he called Mike on the telephone. Anthony put the phone on speaker and Reid asked, “what’s going on, who is paying”. Mike replied, “don’t worry, meet me downtown and we’ll have a drink to celebrate your upcoming wedding and I’ll pay you”. They were to meet at the bar off the lobby of the Sheraton Hotel and have a drink and then Mike would pay Reid the $500 that was owing. Reid agreed to this arrangement. Later in his testimony, in cross-examination, Reid elaborated that the arrangement was to meet downtown “around 7:00, 7:30, in a couple of hours” or simply “within the next couple hours”. He testified that the arrangement was vague.
33Reid testified that he left Anthony at the Markham house at about 5:30 p.m. The house was located at Highway 7 and Kennedy. It was reasonably close to Reid’s home in Scarborough which is in the area of Markham and Sheppard. Reid testified that, as he was leaving the house, Anthony gave him a white shopping bag with a box inside and told him that Mike had left it at the house. Anthony asked Reid to give it to Mike. Reid took the shopping bag and threw it in his tool bag and put his tool bag in his car. He saw that there was a cell phone in the shopping bag and he inquired about it. Anthony told him that the cell phone belonged to Mike. Reid did not inquire about the box in the shopping bag and he did not see that it was a “Ziplock” box.
34Reid assumed that the shopping bag somehow related to the argument between Mike and Anthony that he had heard on Tuesday evening and that, perhaps, Mike had been kicked out of the house and these were belongings that he had left behind. Reid later testified that he thought the bag contained paint samples for decorating. Finally, he testified that he thought the bag might contain something of a sexual nature and that he did not want to know what it was. Once again, he testified that he found homosexual matters to be distasteful and he did not want to have anything to do with the box. He had heard something about drugs during the argument on Tuesday evening, and he knew that Mike and Anthony both drove expensive cars, but he did not suspect that the bag had anything to do with the drug trade.
35Reid had seen a letter downstairs at the house with the name “Mike Nanwolf” on it. He assumed that this was Mike’s full name. He never learned Anthony’s full name. He was doing a cash job for Mike and Anthony and he had no ongoing relationship with them. He had no bills or records for the job. He does cash work all the time as an electrician, in order to avoid tax.
36Read initially testified that he made one stop at the bank, after leaving Anthony at about 5:30 p.m. at the Markham house, as he had to write cheques for his employees. He then drove to the Sheraton Hotel and sat in the bar and drank a beer and made some phone calls, while waiting for Mike to arrive. He waited at the bar for about forty-five minutes to an hour, which was long, until Mike called and said he was right around the corner. Reid replied, “you’re lucky because I was ready to leave”.
37Reid later testified, in cross-examination, that it was between 5:30 and 6:00 p.m. when he left Anthony and that he made two stops before going downtown. The first stop was at the bank machine where he made a deposit and wrote cheques to his employees. The second stop was to drop off the cheque for one employee, who lived in Scarborough. Then he went downtown. He later added that there was a third stop, as he also went to his own home in Scarborough before going downtown. It was about 7:30 p.m. before he left his home and drove downtown to the Sheraton Hotel. He arrived at the hotel at about 8:00 p.m. and waited for about an hour until Mike called.
38Later still, in cross-examination, Reid testified that it took him about forty-five minutes to an hour to get downtown and that it was 8:30 or 9:00 p.m. when he arrived at the Sheraton Hotel. He arrived about three hours after he had made the arrangement, over the phone, to meet Mike for a drink and to get paid. Reid testified that, after waiting for a while, Mike arrived at the Sheraton Hotel and they met in the lobby, at about 9:30 p.m. It was not as late as 11:00 p.m. when he met up with Mike and was arrested by the police.
39When it was suggested to Reid that the taser was deployed at 11:27 p.m., he agreed that it could have been that late that he met up with Mike in the hotel lobby and was arrested by the police. He explained that it was the time he spent waiting for Mike at the Sheraton Hotel that was “throwing him off” in his time estimates. He testified that he made a lot of phone calls, while waiting for Mike, either relating to preparations for his wedding or to his fiancé. He explained that he probably waited for Mike for more than an hour. He testified that he was ready to leave the Sheraton Hotel when Mike did not come. His fiancé was getting angry with him for not coming home when they had a lot of things to do. He testified that he was irritated as he had been kept waiting and Mike had not arrived. His final estimate was that he may have been waiting for Mike at the hotel for about two or three hours.
40Reid’s account during his evidence in chief was that he received Mike’s call to the effect that he was just around the corner, he paid his bill at the bar, and then he saw Mike approaching in the lobby. He got up, left the bar, and walked out into the lobby to meet Mike. The lobby was crowded with baseball fans. In cross-examination, Reid’s account was that he left the bar at some earlier point, moved out into the lobby, and sat on a couch just outside the entrance to the bar. This is where he was seated when he saw Mike approach.
41Reid’s initial account, during examination in-chief, was that he met up with Mike in the middle of the lobby and expressed exasperation that Mike made him wait for an hour. Mike asked Reid to come and have a drink. Reid declined this invitation and demanded the $500 that he was owed. Mike then asked Reid to follow him to the bank machine and Reid agreed.
42Reid testified that he and Mike had taken about three steps towards the bank machine when Reid saw a figure and a hand in front of his face. He lifted up his hands and took two or three steps back. At this point, as he stumbled backwards, his knee buckled or gave way due to an old football injury that had never healed properly. It had been operated on several times, most recently in 2005. Reid took four or five more steps backward and was hit in the chest with the taser.
43Reid denied running from the police. He did not see Det. Margetson. He only saw a figure and a hand at his left side. Reid is a big man, weighing 260 pounds, and he walked carefully and with a limp because of the knee injury. Reid was unsure whether he turned to his left, towards Det. Margetson, but he was sure that he did not push or strike the officer in the chest and he was sure that he did not flee. He had difficulty walking and he does not run, although he agreed that he could run if he was in danger.
44The exact part of Reid’s body where the taser probes attached was the subject of considerable evidence. Reid testified that one of the probes struck the right side of his chest. It was deep in his skin and it left a small scar or dark spot. He tried to show the location of the scar, with some difficulty, as he could not see it himself in court without the aid of a mirror. I did see a small mark on his skin, just to the right of the sternum or centre of his chest, which appeared to be the scar that he was trying to show the court. The second probe attached below the first probe and it did not leave a scar. Reid agreed that this second probe might have struck close to his hip. The medical records from St. Michael’s Hospital were filed as an exhibit. They referred in two places to the taser probes being embedded in the “rt lateral chest”. There was also a reference to the probes being “6 mm. deep”. Reid disagreed with the suggestion that the probes struck him in the side or in the “lateral” part of his chest. They were in the centre of his chest. Both probes were removed at the hospital.
45Reid testified that the police searched him and seized his cell phone. They also seized the white shopping bag and then opened the blue box and showed him the pound of white powder. He had never seen the drugs before and would never have taken the shopping bag if he knew that it contained drugs.
46Reid was released on bail on the weekend of his arrest. On Monday, July 14, 2008, acting on the advice of his mother who was a former special constable, he called security at the Sheraton Hotel and inquired about any video surveillance in the hotel lobby. He was told that there was video surveillance and that the hard drive was kept for two years. He met with defence counsel, Mr. Sack, but decided not to retain him until after receiving disclosure. It was not until five months after his arrest, on December 10, 2008, that he retained Mr. Sack. On January 14, 2009, Mr. Sack wrote a letter to the Crown asking that efforts be made to secure any video surveillance evidence from the hotel. A letter from the Crown, dated August 26, 2010, was filed. It set out the history of various unsuccessful attempts to secure any video surveillance evidence that might exist at the hotel.
47Reid did not attempt to contact Mike and Anthony as he had nothing further to do with them. Reid agreed that the pound of methamphetamine was valuable and that Mike and Anthony were taking a risk in trusting him with it and leaving it with him for some six hours, assuming or hoping that he would not look at it and call the police.
C. ANALYSIS
48The law of possession requires proof of knowledge and control of the thing that is unlawfully possessed. There is no dispute that Reid had control of the shopping bag containing one pound of methamphetamine on the relevant date. By his own admission, he had sole custody of the bag with the drugs for a period of about six hours. Furthermore, it is admitted that the quantity of methamphetamine is consistent with the purpose of trafficking and is not consistent with personal use. Accordingly, the only issue on Count One is whether the Crown has proved that Reid had knowledge that the shopping bag contained methamphetamine. See: R. v. Beaver (1957), 1957 14 (SCC), 118 C.C.C. 129 (S.C.C.); R. v. Terrance (1983), 1983 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.). The law of assault requires the intentional application of force without consent. There is no dispute on Count Two that pushing Det. Margetson in the chest, if it occurred, constitutes all the essential elements of an assault. See: Criminal Code, s. 265.
49Reid testified and denied any knowledge of the drugs in the plastic shopping bag and denied ever pushing Det. Margetson. His account must be assessed in accordance with the well known principles relating to the burden of proof on the Crown and its application to the credibility of exculpatory evidence. See: R. v. Nimchuk (1977), 1977 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.); R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.); R. v. D. (W.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).
50I am satisfied that Reid’s explanation as to how he came to have control of the pound of methamphetamine, and his denial of pushing Det. Margetson, are not true. There are a number of reasons that lead me to this conclusion, as follows:
First, Reid’s account was inherently improbable. Mike and Anthony were acquaintances who had employed him for only three days in relation to a relatively minor electrical job. The pound of methamphetamine had a value of, at least, $16,000. Although the drugs were inside a “Ziplock” box, that may have been closed, they were not well hidden or secured. The box could easily be opened and the drugs could easily be discovered. It is not rational to suggest that relatively major drug dealers, who both had cars, would give up custody of a valuable cache of drugs to someone they did not know well, solely for the purpose of a short drive downtown, and would then go on to leave him with sole control of the drugs for a period of about six hours. To paraphrase the well known pronouncement of O’Halloran J.A. in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 at 356-7 (B.C.C.A), Reid’s story is not in “harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions”. See, also: R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 at 174 (Ont. C.A.); R. v. G. (M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 at 355-6 (Ont. C.A.);
Second, Reid’s account was internally inconsistent and it evolved and changed in significant ways, as his testimony progressed. His initial account was that he made one stop at the bank, after leaving Anthony at the house at about 5:30 p.m., and he then went downtown to the bar at the Sheraton Hotel where he waited for forty-five minutes to an hour until Mike called to announce his imminent arrival at the hotel. Reid paid his tab at the bar, saw Mike approach in the lobby, and walked out into the lobby to meet him. His eventual account was that he made three stops – at the bank machine, at an employee’s home, and at his own home – before he went downtown to the Sheraton Hotel bar, that he may have waited for Mike for as much as two or three hours, and that he moved from the bar to a couch in the lobby at some point and waited there until Mike arrived at about 11:30 p.m.. These changes in Reid’s account appeared to arise, during cross-examination, as he realized certain difficulties with his initial account. The difficulties particularly related to the timing of his eventual meeting with Mike and so the times and the number of various intervening events evolved. As the length of time that Reid had sole control of the drugs increased, the timing of the meeting proposed by Mike became vague and uncertain, such that their initial arrangement over the telephone at 5:30 p.m. may have simply been an agreement to meet in the hotel bar “within the next couple of hours”. In short, Reid’s manner of testifying was not internally credible. See: R. v. G. (M.), supra at 354;
Third, the police witnesses were credible and they contradicted Reid on a number of important points. Det. Margetson and Cst. Freeman had different vantage points but they both gave substantially consistent accounts of Reid sitting in a chair in the hotel lobby with the plastic shopping bag, getting up to meet the white male, turning towards Det. Margetson when he held up his badge and identity card, dropping the bag, pushing Det. Margetson in the chest, and then starting to flee. This is evidence inferring consciousness of guilt, which Reid denies. See: R. v. White and Coté (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 at para. 19 (S.C.C.). Both officers testified in a forthright manner. They were careful not to over-state their evidence, they were not defensive or rigid, and no significant inconsistencies were put to them. Det. Margetson was fair and helpful to the defence, in conceding that the blue “Ziplock” box could have been closed and in also conceding that the taser probes could have struck Reid somewhere other than in the back. In short, I found both officers to be careful, measured, consistent, and credible witnesses. The fact that they contradict Reid on important points – concerning the alleged assault and attempted flight – provides a further basis for disbelieving Reid. See: R. v. D. (J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.); R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Beteta-Amaya, 2011 ONSC 6633 at paras. 50-54.
51The defence attacked the thoroughness and reliability of the police investigation, noting the failure to obtain any video surveillance evidence, the failure to obtain witness statements from any of the civilians in the hotel lobby, and the failure to search the two seized cell phones in order to determine their ownership. This is a traditional way of testing and challenging the reliability and completeness of the Crown’s proof. See: R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 at paras. 56-67 (Ont. C.A.). However, I am not persuaded by the criticisms of the police investigation in this case. The police did make efforts to obtain any relevant video surveillance from the hotel, according to the evidence in the trial record, and there is simply no admissible evidence that video surveillance ever existed and/or was preserved by the hotel. As to the alleged lack of civilian witness statements, Det. Margetson and Cst. Freeman cannot be criticized for handing over Reid and the various seizures to the uniformed officers and immediately returning to the task of executing a search warrant in another case, which had been interrupted by the informant’s tip in the present case. The uniformed officers, such as Cst. Senyk, were not cross-examined as to whether they or any other officers sought out civilian witnesses in the hotel lobby and, if not, why not. Accordingly, the trial record is inadequate in relation to the issue of whether potential civilian witnesses could and should have been interviewed. Finally, the failure to search the two cell phones, in order to establish ownership, is a difficult argument to make, given the uncertainty in the applicable law in 2008 concerning cell phone searches. See, e.g.: R. v. Manley (2011), 2011 ONCA 128, 269 C.C.C. (3d) 40 at paras. 35-39 (Ont. C.A.). For all these reasons, I was not persuaded that there were deficiencies in the police investigation that undermine its reliability or credibility or its completeness.
The defence also attacked the credibility and reliability of the police officers’ testimony on the basis of the taser evidence and on the basis of an alleged failure to initially disclose the confidential informant’s attendance at the hotel. Neither of these attacks was persuasive. The taser evidence in unclear as to where the probes struck Reid. The best evidence is found in the hospital records which refer to Reid’s “right lateral chest” as the location of the probes. Reid disagreed with the use of the word “lateral” and testified that the probes struck him in the central area of his chest. The police officers were not rigid or sure on this point and they did not disagree with the “right lateral chest” description, assuming it referred to the side of the chest or to the part of the rib cage underneath the arm. The hospital witnesses were not called to clarify what they meant by “right lateral chest” or to decipher some of their other illegible handwriting. In short, the evidence on this point was unhelpful and inconclusive. As to the failure to disclose the confidential informant’s attendance at the hotel, when the officers testified at the preliminary inquiry, this fact was arguably pointed to in Det. Margetson’s disclosed notes, in spite of some editing to protect informant privilege. The officers were never questioned on this issue at the preliminary inquiry and they appear to have carefully avoided the topic, after discussions with Crown counsel, presumably because of sensitivities concerning informant privilege. No judicial review of the editing of Det. Margetson’s notes was ever sought. In all these circumstances, there is no basis to be critical or concerned about the police officers’ evidence, or lack of evidence, relating to the informant’s attendance at the hotel.
52I should add that both parties took the position that Reid had put his character in issue, mainly on the basis that he repeatedly testified that he is and was a devout Christian. He initially raised this topic as an explanation for his distaste or discomfort with the homosexual context for the argument that he overheard, between Mike and Anthony, on the Tuesday evening. He raised the topic again when explaining his discomfort or disinterest, concerning what was in the box that he was carrying, as he thought that it might be some sexual object belonging to Mike. Finally, he raised the topic when explaining why he did not want to confront Mike and Anthony, after his arrest.
53It is arguable that Reid’s repeated assertions concerning his Christian faith were simply part of his explanations for his conduct in the above three situations. I am not convinced that he ever put his character in issue in the sense of asserting that he was an honest witness, or that he was not a drug trafficker, because of his Christian faith or beliefs. Nevertheless, I will address the issue on the assumption that counsel are right and that Reid did put his character in issue.
54The Crown submitted that Reid’s assertion of good character was rebutted by his homophobia, by his apparently regular practice of tax evasion, and by his old criminal record for break and enter. Given that I have concluded that there are strong reasons to disbelieve Reid, all of which are unrelated to character, his assertion of his own good character (if he made such an assertion) carries little weight on its own. No independent or extrinsic witnesses testified in support of Reid’s good character. In addition, some of Reid’s own admissions, such as his practice of tax evasion, did tend to neutralize any assertion of good character. See: R. v. NcNamara et al (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 at 317-318 and 342-354 (Ont. C.A.). For all these reasons, I attached no weight to the alleged character evidence, one way or the other, in relation to credibility or in relation to culpability. See: R. v. Dees (1978), 1978 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont. C.A.); R. v. Tarrant (1981), 1981 1635 (ON CA), 63 C.C.C. (2d) 385 (Ont. C.A.).
55In the result, there are three powerful and persuasive reasons for completely disbelieving Reid’s account, as set out above. In addition, none of the attacks on the police officers’ evidence were persuasive. I reject Reid’s story concerning how he came to be in control of a pound of methamphetamine on the date in question. His account was not truthful and it does not raise a reasonable doubt. On the other hand, the police officers’ evidence was credible and I am satisfied that Reid did drop the shopping bag, did push Det. Margetson in the chest, and did attempt to flee, once Det. Margetson showed Reid his badge and identity card.
56The inference that Reid had knowledge of the illegal contents of the shopping bag is the only reasonable inference in all the circumstances. It is a rational common sense proposition, that people generally know the contents of shopping bags they are carrying, particularly when the contents are valuable. In addition, Reid’s conduct in waiting in the hotel lobby with the shopping bag and getting up to meet the white male, as the white male arrived and approached, suggests a purposive plan of some kind. His further conduct, upon the arrival of the police, in dropping the shopping bag, pushing the police officer, and attempting to flee, infers consciousness of guilt in the sense of an awareness that he was engaged in unlawful activity. In all these circumstances, I am satisfied that the Crown has proved guilt beyond reasonable doubt on both Count One and Count Two. There will be convictions on both counts.
M.A. Code J.
Released: October 9, 2013
COURT FILE NO.: 12-90000243-0000
DATE: 20131009
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GARY REID
REASONS FOR JUDGMENT
M.A. Code J.
Released: October 9, 2013