ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 12-90000360-0000
DATE: 20131108
B E T W E E N:
HER MAJESTY THE QUEEN
Lucas Price, for the Crown
- and -
KARTHICK SELVARATNAM
Peter B. Scully, for the Defendant
Defendant
HEARD: October 7-11, 2013,
at Toronto, Ontario
Michael G. Quigley J.
REASONS FOR JUDGMENT
[1] Karthick Selvaratnam was charged with possession of about 32 grams of crack cocaine for the purposes of trafficking and possession of proceeds of property derived from the commission of a crime, namely $315 in Canadian currency. Both charges arose after the accused allegedly sold crack cocaine to a white male purchaser, who was not apprehended, on Bleecker Street in Toronto on April 7, 2011. At the conclusion of the trial on Friday, October 11, I acquitted the accused for oral reasons given on the record at that time. I was not satisfied that the Crown had proven the case beyond a reasonable doubt, because of numerous problematic inconsistencies that I found to be present in the Crown’s evidence. Those problems, compounded by the evidence of Ms. Deborah Belcourt, left me unsure that the events as described by the officers had transpired as they described them and accordingly, I determined that it would be unsafe to convict and that Mr. Selvaratnam would be acquitted. At the conclusion of my oral reasons, however, I indicated that I would provide further written reasons making specific mention of a number of the problems that I found in the evidence that led me to that conclusion. These are those expanded written reasons.
[2] In this case, all of the essential elements of the trafficking charge were admitted except the possession itself. It was admitted that almost 32 grams of crack cocaine which police claim to have found in the possession of the accused was a quantity which would belie personal use. It would instead meet the requirements of the Criminal Code as evidence establishing trafficking as the purpose for which the crack cocaine was held, in the event that Mr. Selvaratnam was actually found to be in possession of those illegal drugs. It was admitted that those drugs had a wholesale value that range between $1,232 in $1,792, and a street value of about $6,400.
[3] The principal dispute in this case was the credibility and reliability of the evidence given by the police officers relative to what transpired on April 7, 2011 after Detective Constable Oh first started to observe Mr. Selvaratnam near the corner of Wellesley and Bleecker Streets in Toronto, after he emerged from the apartment building at 200 Wellesley Street East.
[4] In summary, the evidence adduced by the Crown was that Detective Constable Racette of 51 Division of Toronto Police Services received information from a confidential source as he came to work at 4 o’clock in the afternoon on April 7, 2011. That source indicated that a drug dealer who lived at 200 Wellesley Street East would soon be leaving his apartment building to do a transaction. D.C. Racette, along with D.C. Wallace, an officer who was in training, and D.C. Oh went to the area of Wellesley and Bleecker streets in Toronto. Two other officers, D.C. Dunk and D.C. Hoeller were going to the area in another vehicle. Racette and Wallace dropped off D.C. Oh at the northwest corner.
[5] He claimed from that distance to have observed the accused exit from the south end of the 200 Wellesley Street East apartment building, and notwithstanding the distance involved, claimed to see him “make eye contact” with a white male person across the street. He then saw him cross the street to join up with that person and start to walk together down Bleecker Street in a southerly direction. D.C. Oh followed them from a distance of 50 feet as they walked almost halfway down Bleecker Street to Carlton. Then, he said he observed a black male come out of the Green P parking lot located south of them, between Sherbourne and Bleecker Streets, about a third of the way north of Carlton to Wellesley, and head north on the west sidewalk on Bleecker Street towards them. That individual appeared to be looking around nervously, keeping an eye out.
[6] The accused and the white male with whom he was walking then met up with and stopped together with the black male in front of the apartment building at 90 Bleecker Street, located just about halfway down the street. D.C. Oh did not recall there being any other pedestrians. D.C Oh said that he observed their conduct from a point that was 50 feet north, but he also acknowledged that there was very little other traffic on the street, and he could not say whether there were parked cars. However, since he had crossed the street from the east to the west side, despite the error in his notes, he claimed that there were no cars that interrupted his ability to see the goings-on involving the accused, the white male and the black male. Although they stood there for some minutes talking, with the black male looking around, presumably for any police surveillance, in D.C. Oh’s evidence they paid no attention to him at all as he pretended to be fumbling with his keys to a car, and speaking loudly in Korean into his cell phone.
[7] He claimed to have watched a drug transaction take place from 50 feet away directly in front of 90 Bleecker Street, by the fire hydrant, and to have seen the green color of $20 bills changing hands, a clear plastic package being pulled out by the accused from the waistband of his pants, and a small package being given to the white male, who then left and proceeded across the street and in an easterly direction disappearing between two buildings on the other side of the street.
[8] The accused and the black male continued to talk for a few minutes, and then started walking south. When they got to the Green P parking lot, they turned west and started walking through that parking lot in a southwesterly direction. D.C. Oh claimed he could see this from the east side of Bleecker, where he stood and watched as the two men walked across the parking lot.
[9] Meanwhile, the evidence of other two police officers was that after dropping off D.C. Oh, the unmarked van that Racette and Wallace were driving and which was allegedly well known by local drug dealers, went back out to Sherbourne Street and headed in a southerly direction and then entered the Green P parking lot. They said that they parked at its very southwest corner, in a direct line of view, I note, to the front driveway of the apartment building at 392 Sherbourne Street on the west side of that street. That was where Deborah Belcourt lived, and the corner of the driveway of her building was where she stood as she watched as the entire takedown occurred.
[10] The evidence of the two officers, Racette and Wallace, was that the two males, the accused and the black male, walked in a south westerly direction across the parking lot directly towards their van and when they came within 10 to 15 feet of it, the two officers exited the van and arrested those two individuals. D.C. Wallace searched the accused and located a baggie of crack cocaine on the accused, hidden down the front of his pants, together with a small quantity of money, $315 Canadian, and two cellular telephones. D.C. Racette arrested and searched the black male, now known to be Shane Jones, but he found nothing contraband in his possession. He determined to let him go. Nonetheless, it appears that Jones was not permitted to leave until at least a half an hour later, at or about the time that the transport of the accused to 51 Division appears to have commenced, after the other two officers, D.C.’s Dunk and Hoeller arrived in the silver unmarked car.
[11] D.C. Racette stated that it took him 15 to 20 seconds to do a pat-down search of the black male and he said that it was “as he completed that search” that he heard D.C. Wallace advise him that Wallace had found contraband on the accused. However, D.C. Wallace’s evidence was that it took him considerably longer to do his search of the accused, because he “worked his way from the outside in”, and indeed he acknowledged that he had located the $315 in one pocket and the two cell phones in another pocket before he pulled out the waistband of the accused’s pants and pulled out the tail of the plastic baggie that he said was sticking up from the accused’s waistband underneath his shirt. In all, D.C. Wallace said it took him a good two minutes to conduct his search of the accused.
[12] The evidence of the officers was that the arrest was entirely uneventful and the suspects were entirely cooperative. Although it appeared to take some 40 minutes to then transport the accused to 51 Division to be booked, they were all insistent that nothing unusual or memorable had taken place in that parking lot. However, as indicated below, what Ms. Belcourt claimed to have seen was very memorable.
[13] It goes without saying, as the Crown emphasized, that the burden of proof rests on the Crown to prove possession of the crack cocaine for the purposes of trafficking and possession of the money as proceeds derived from crime, beyond a reasonable doubt.
[14] However, even before hearing and considering the evidence of Ms. Deborah Belcourt, I agree with counsel for the defence that there were a number of unexplained and difficult to reconcile aspects of the manner in which these events transpired as relayed to the court in the evidence of the three officers, considered as a whole. Those difficulties left me uneasy that the events they described happened as they described them. There were aspects of their evidence, given separately, that made no sense to me, and that could not be reconciled with the totality of the evidence of all three of them.
[15] In the brief list that follows, I have listed some of those evidentiary difficulties that caused me to be unsure that the events happened as the officers described them:
(i) It made no sense to me that D.C. Oh could have stood only 50 feet north of the accused and the white male, when they were joined by the black male, have stood there on the phone looking south at them for the entire time, at least 10 to 15 seconds before the transaction, and then watched the transaction, while the black male was looking north, and not have raised suspicion to those persons allegedly about to consummate a drug transaction. This was particularly striking given that there was no other pedestrian traffic on D.C. Oh’s admission. Further the accused and the black male continued to talk for a few minutes after the white male departed, and that was when D.C. Oh said he crossed again to the east side of Bleecker, but would then have been even closer to the suspects, and yet they were not suspicious of him;
(ii) D.C. Oh claimed that he was able to see the two males walking southwest across the Green P parking lot towards D.C. Racette’s unmarked van from a distance of about 150 feet and that he saw the arrest take place, and then walked in to join them. He said he walked to a distance that was only 5 to 10 feet away from the accused and the black male, and yet he tried to convince me that he did not see what was going on. Conveniently, notwithstanding that both D.C. Racette and D.C. Wallace knew that D.C. Oh had arrived on foot from Bleecker Street, neither of them could remember what he was doing. D.C. Wallace thought he was looking around for possible third parties who might try and intervene as the two were being arrested;
(iii) It is a fundamental problem with his evidence that from the location on the photographic exhibit where D.C. Oh marked the point on the west side of the street from which he watched events transpire in the Green P parking lot, if the evidence of D.C. Racette and D.C. Wallace is accepted relative to the location of the van, it would not have been visible to D.C. Oh because the houses on the east side of Bleecker Street would have broken his line of vision. That southwesterly location where Wallace and Racette said the van was located was the same location where Ms. Belcourt said it came to be parked when she saw the rapid speed takedown that she described in her evidence;
(iv) Although D.C. Oh claims that he was whispering part of the time or speaking very softly into the cell phone to D.C. Wallace but at other times speaking loudly in Korean, D.C. Wallace appeared to have no difficulty at all hearing everything that D.C. Oh described, and yet he made no mention of hearing any foreign language spoken. Yet from a distance of 50 feet, and being concerned about being discovered, D.C. Oh continued to talk consistently on the phone in a volume of voice that caused no problem to D.C. Wallace listening from the other end. One wonders how that voice was not also audible to the accused and the other two males in that case;
(v) D.C. Oh insisted that he was not involved in any way in the search of the two individuals in the parking lot, but Ms. Belcourt’s evidence was that she “watched the Asian man walk across the parking lot to where the other two had arrested the accused and the black male”, Shane Jones, and that the Asian man participated in that search;
(vi) In cross-examination, one astonishing answer was that D.C. Oh did not know who had transported the accused to 51 Division, and yet he testified that he was present in that vehicle to accompany that trip. He certainly must have known which of the officers was driving the silver vehicle that was allegedly used to transport the accused to 51 Division;
(vii) D.C. Oh was asked what was going on in that parking lot for the 40 minutes that it took from the time that the notes recorded the arrest had taken place until the time that the accused was received at 51 Division, given that it is only a 5 to 10 minute drive away. D.C. Oh’s response was telling. Even though no accusation has been made by defence counsel, D.C. Oh volunteered that “nothing was going on in that parking lot. There was no funny business going on.” However, it had not been suggested to him that there had been any “funny business going on at” that point, and it seemed to be a proleptic answer that betrayed the opposite;
(viii) It made no sense that D.C. Racette and D.C Wallace took the unmarked van south to park it in that Green P parking lot, given the distance it was located away from the corner of Wellesley and Bleecker where they dropped off D.C. Oh to observe the suspect. It was suggested in argument that the police officers knew the drug transaction was going to take place on Bleecker Street, but that is not correct. Nothing in D.C. Racette’s evidence about the information he received from the confidential source disclosed that the transaction would take place halfway between Wellesley and Carlton Streets, conveniently close to the Green P parking lot where the arrest ultimately took place. There was evidence that drug transactions “sometimes took place on Bleecker Street”, but the police had no evidence here that the suspect emerging from 200 Wellesley Street East would go in a southerly direction. It was just as likely that he could go north east, or west, so it made no sense that Racette and Wallace would have taken that van such a distance away from their partner and left him alone without support almost a quarter mile away. It made more sense, consistent with Ms. Belcourt’s evidence, that they came tearing into that parking lot after the transaction when D.C. Oh would have told Wallace by cell phone that was the direction the suspects were going;
(ix) D.C. Wallace said it took him two minutes to search the accused, that is, that it would have been the better part of two minutes before he found the illegal drugs in the plastic baggie with the tail allegedly sticking up through the waistband of the accused’s trousers. Yet D.C. Racette had indicated that he knew within 15 to 20 seconds after they both started searching their respective suspects, and after he finished searching Shane Jones, that D.C. Wallace had found the crack cocaine on the person of the accused. Their evidence cannot co-exist;
(x) The timeframe involved from 16:48 when D.C. Wallace turned the accused over to D.C. Dunk, who by that point had arrived with D.C. Hoeller in the silver car, until the time that the accused was paraded at 51 Division at 17:22 is problematic. No reasonable explanation could be provided by any of the officers. Clearly the distance from the parking lot on Sherbrooke Street to 51 Division at the corner of Parliament and Front Streets would not have taken more than 10 minutes to drive, even with traffic. This leaves a half hour to account for and yet there is nothing in the evidence that accounts for it. Curiously, however, if it only took D.C. Racette 15 to 20 seconds to search the black male, Shane Jones, to determine that he had no contraband on his person, then it makes no sense that he would have been detained for as long as he was detained before being released. Deborah Belcourt watched him being detained from across the street on Shelbourne Street. He was detained for a considerable period of time, the time it took her to smoke two cigarettes, and not released until after P.C. Dunk was leaving in the silver vehicle along with D.C. Oh and the accused, even though that was substantially after that search would have been completed. No other reasonable explanation was provided on why Shane Jones was kept detained for that long. The only inference that arises is that he was kept there for much longer because the events themselves took much longer as Ms. Belcourt describes them.
These are just some examples of the difficulties that I had with the evidence of the police officers considered as a whole in the context of this case.
[16] The Crown may regard these as matters of detail, but for me these were more than matters of detail, and for these officers, these details cannot be reconciled. They call into question in a general way the manner in which the officers indicated that these events transpired. Those concerns with the consistency of their evidence, and my inability to determine how certain things could have happened as one officer described them when taking account of seemingly conflicting evidence of another, leave me unsure of exactly what happened.
[17] That was before I got to the evidence of Ms. Belcourt. She was a surprise witness. As I said at one moment to Mr. Scully, I was waiting for the penny to drop. Clearly she was the penny.
[18] As the Crown acknowledges, from her vantage point at 392 Sherbourne Street at the point where the circular driveway intersects the sidewalk on the west side of Sherbourne Street, Ms. Belcourt had a clear and unimpeded view across Sherbourne Street to the Green P parking lot run by the municipality of Metropolitan Toronto where officers Racette and Wallace stopped and searched Shane Jones, the black male, and the accused. She told the court that she watched while she smoked two cigarettes, claiming that it took 20 minutes for the search of these two individuals to be completed and she knew that because that was the length of time it took to smoke those two cigarettes. As a reformed smoker, I understood that evidence corroborated her story of the length of time she watched what transpired.
[19] I found her to be a credible witness and I also found her evidence to be reliable, despite her past issues as a crack cocaine addict. She has worked hard to clean her life up and has evidently had some success at that. She acknowledges that she still occasionally uses crack cocaine, that she is not totally out of the woods, but that those self destructive aspects of her life are now under significantly more control than they were several years ago. I did not find her to have an anti-police demeanor or disposition that caused her to give the evidence that she did, but clearly she was disturbed by what she saw and described what she said transpired when the police officers searched these two individuals in the Green P parking lot across from 392 Sherbourne Street.
[20] If there were small variations in her evidence between what she said in chief and some of the answers that she provided to Crown counsel in cross examination, in my view those were not the product of having embellished her evidence or having exaggerated it, but rather a product of having a bit too much enthusiasm and clear nervousness in testifying. She was candid to a fault about herself, including her former convictions for possession of crack cocaine for personal use. She even acknowledged against interest before the court that the fine that was levied against her in Sudbury in 2006 when she was convicted of a cocaine possession offence, remained unpaid. She was candid about her former offences and the hard life that she has led and about the efforts that she has made to turn herself around and that she brought her children up to be supportive and to believe in the police. She had no reason to fabricate her evidence and indeed the consistency of much of her evidence with at least part of the officers’ evidence shows that it was not fabricated.
[21] She was earnest and doing her best to be helpful and she acknowledged some of the weaknesses of her ability to observe, but equally, she was unwilling to acknowledge Crown suggestions to her that she had not seen the bare skin of the accused’s buttocks when she said the police strip-searched him in the parking lot looking for the drugs.
[22] At the end, I do not decide this case on the basis of her evidence, although plainly I am required to take her evidence into account together with the rest of the evidence that I heard in determining whether or not the Crown has discharged its obligation to prove these charges beyond a reasonable doubt. However her evidence, taken together with the internal consistency problems that I find existed in the police officers’ evidence, when taken in total, cause me to be unsure of what transpired and to necessarily conclude that the Crown has not discharged its burden to prove the elements of the offences relative to this accused person beyond a reasonable doubt.
[23] The charges are dismissed.
Michael G. Quigley J.
Released: November 8, 2013
COURT FILE NO.: CR 12-90000360-0000
DATE: 20131108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KARTHICK SELVARATNAM
Defendant
REASONS FOR JUDGMENT
Michael G. Quigley J.
Released: November 8, 2013