COURT FILE AND PARTIES
COURT FILE NO.: CR-12-90000-637-0000
DATE: 2013/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASON DE GIORGIO
Accused
Hafeez Amarshi, for the Crown
Reid D. Rusonik, for the Accused
HEARD: September 16-18, 2013
O’MARRA J.: (Orally)
Reasons for Judgment
[1] Mr. Jason De Giorgio pleaded not guilty to possession of crack cocaine for the purpose of trafficking. However, he admits that he was in possession of crack cocaine for the purpose of selling it. He has brought an application for an order pursuant to Section 24 (2) of the Charter of Rights and Freedoms to exclude the evidence of the crack cocaine found in his possession as a result of breaches of his rights under Sections 8 and 9 of the Charter. The only issue on this trial is whether his detention and subsequent search and seizure of the drugs in his possession was lawful in accordance with his ss. 8 and 9 Charter of Rights.
[2] Mr. De Giorgio admits that on Saturday, August 27, 2011 he was in possession of two baggies of crack cocaine, one weighing approximately 7 grams and the other 9 grams. He asserts that both bags were secreted in the crotch area of his underwear and cut therefrom by an officer with a knife as two other officers struggled to place him under arrest. The police assert that one of the baggies of crack cocaine was seen in plain view in the open driver’s door pocket of the motor vehicle driven by Mr. De Giorgio and following his arrest, a search of his person revealed another baggie of crack cocaine hidden down the back of his pants inside his underwear.
[3] The undisputed circumstances leading to police involvement with Mr. De Giorgio on August 27, 2011 just after 2:00 p.m. on Adonis Court in Toronto are as follows:
• Three police officers of 23 Division working as part of the Community Response Unit (CRU), Constables Daryl Landry, Derrick Lee and James Ure, were on uniform patrol in an unmarked police car in the area of Scarlett Road and La Rose Avenue, an area patrolled daily because of high criminal activity.
• The officers observed a known crack addict, Raymond McNeil at approximately 1:50 p.m. pacing back and forth at the corner of Arcade Drive and La Rose Avenue, a residential area, some distance from his known neighbourhood. Mr. McNeil had been investigated by all of the officers in the past for drug related activities.
• The police stopped to speak with Mr. McNeil to find out why he was there, given the suspicious circumstances. Constable Ure observed that he appeared agitated. He held a tissue in one hand and a quantity of cash in the other. When asked why he was there, he told the officers he was waiting to meet someone to pay him money he owed. He had three $20 bills in his possession. When he was asked what he had in the tissue, on opening it contained a glass crack pipe. The officers did not believe his explanation. Given his history, they suspected he was in the area to meet someone to purchase crack cocaine. The officers let him go his way but continued to observe him from a distance in their patrol car to see if he met with someone.
• Mr. De Giorgio testified he was at home getting ready to attend a barbeque party that afternoon when he received a telephone call from a frequent buyer of crack cocaine known to him as Raymond. Raymond asked to purchase a 60 piece. Mr. Di Giorgio explained that a 60 piece is .6 grams of crack cocaine valued at $60. Mr. De Giorgio had two baggies of crack cocaine at home, one with a weight of approximately 7 grams and the other 9 grams. He explained that the 7 gram quantity had been bought by him at the request of a friend who could not get the quantity from his usual source, so he obtained it for him from his source. The other bag of approximately 9 grams belonged to him for resale. He put both individually wrapped quantities of crack cocaine in another baggie and hid them in the crotch area of his boxer briefs as he prepared to leave his home to meet Raymond. He described the area of his underwear as a pocket where there were two overlapping layers of cloth. He testified that he would normally hide his drugs in his butt cheeks, but because of the large quantity too big to do as he would normally he put it in the crotch area of his underwear. He put the drugs there because he felt it was a safe location the police would not search if he was stopped and frisked. He had been searched many times by the police when he carried drugs and avoided detection. He knew the police were restricted to the extent they could search a person and he felt it was the safest place to carry the drugs. He took with him a digital scale which had the appearance of being a large Zippo lighter.
• After the police left Mr. McNeil they observed him to walk up Arcade Drive to a dead end residential street, Adonis Court and walk up it. There were approximately eight residential homes on the court and a turning circle at the end. A black Alero motor vehicle drove onto Adonis Court and stopped where Mr. McNeil was standing. The Alero was driven by Mr. De Giorgio. Mr. McNeil entered the motor vehicle and sat in the front passenger seat. The motor vehicle was then driven slowly around the circle and came to a stop as the police cruiser was pulled up in front of it. It is at this point the description of events differ greatly as between Mr. De Giorgio and the police officers.
Jason De Giorgio’s Evidence
[4] Mr. De Giorgio testified he saw the police officers behind him when he stopped to pick up McNeil so he drove away slowly to act as though he had just picked up a friend. When the police vehicle pulled up in front of him he stopped his vehicle, and because he had the drugs well hidden in the crotch area of his boxers, he decided to “play the role of a law-abiding citizen”.
[5] The three police officers exited the police cruiser and approached his vehicle. Two of the officers approached the driver’s side and the third went to the passenger’s side. One of the officers told them to get out of the motor vehicle. On exiting his vehicle, he was led to the rear of the car where one of the officers, who he described as the heavy set police officer, said to him that they knew the guy he had picked up very well and they wanted to know what he was doing with him. The officer then gave him a cursory frisk search as he faced the rear of the car. He was asked if he had any drugs on him. He said that he did not. The officer told him he was lying, turned him around, put him in handcuffs and gave him a more thorough search, reaching into his pockets and lifting his pant legs. While it took place, he said he saw the other officer search through the area of the driver’s seat of his car, then the cabin and the trunk.
[6] Also, he heard the officer who was speaking with Raymond tell the other officers that Raymond still had the money.
[7] Mr. De Giorgio was asked his name and on giving it, the officer who had searched the car said he recognized him because he had taken him down before. He told the other officers to search him again. He was being leaned over the open trunk area of the Alero handcuffed when one of the officers pulled down his pants at the waist and started to feel down around his underwear. He said he felt that at that point they were “overstepping bounds”, so he stiffened and started to resist.
[8] One of the officers, who was searching down his pants, squeezed his testicles and buttocks area and then yelled that he had found something. De Giorgio testified that at that point “all hell broke loose”. He started to struggle trying to prevent the police from getting the drugs and he yelled; “Leave me alone, you can’t search me like this”. He was pushed into the trunk. They pulled down his pants. One of the officers yelled at him to stop struggling or he would be tasered. As he was struggling another officer then yelled for someone to give him a knife to cut the drugs from De Giorgio’s underwear. He said a knife was used to cut into his boxer shorts from which both quantities of crack cocaine hidden there were seized.
[9] Mr. De Giorgio testified that he knew his rights and that the police could not search him in that manner.
[10] He denied taking any of the drugs out of his underpants earlier and putting them in the driver’s door pocket with the digital scale, where the police say one of the two quantities of drugs seized that day were found. He said he would not have taken any of the drugs from his underwear and exposed his drugs to a drug user like Raymond in fear that he could be robbed.
[11] He testified that he had intended to drive slowly down the street steering his motor vehicle with his knees, then reach into his underwear and pull out his drugs and without the need of the scale break off, or “chip off” a .6 gram piece of crack cocaine to sell to Raymond for $60.
The Police Evidence
[12] Constable Landry testified that as he exited the cruiser and approached the Alero motor vehicle the driver exited the driver’s door and yelled, “What’s the problem?” He and the driver moved toward the rear of the motor vehicle where he asked him for identification. He verbally identified himself as Jason De Giorgio. Constable Landry had never seen or heard of Mr. De Giorgio before. He was in the process of writing out a contact card when Constable Lee advised that the driver was to be placed under arrest for possession for the purpose of trafficking cocaine.
[13] Constable Lee testified as he went to the driver’s side of the Alero and as Constable Landry spoke to the driver he stepped in between the open car door and the body of the vehicle to scan its interior. He looked down at the driver’s door pocket and saw a baggie of a white-yellow substance he believed to be crack cocaine. He took it out of the pocket, as well as a large Zippo lighter, which on examination was found to be a digital scale. He put them in his cargo pant pocket and then walked to the rear of the motor vehicle where Landry was speaking with the driver.
[14] He told the driver he was under arrest for possession for the purpose of trafficking whereon the driver began to yell and struggle with the officers. Constable Lee put him in a headlock as the other officers pulled at his arms to handcuff him as he struggled with them. Once cuffed, Constable Lee continued to hold the driver in a headlock while the other officers searched him as he still continued to struggle.
[15] Constable Ure advised that he felt a hard object under the applicant’s clothing in the area of his left buttocks. Constable Landry pulled the back of Mr. De Giorgio’s pants and underwear out and saw a clear plastic baggie containing white rocks. He reached in and pulled out a baggie which contained crack cocaine. None of the applicant’s clothing was removed or pulled down as described by De Giorgio.
[16] Constable Lee testified that after De Giorgio was handcuffed and the additional drugs were located on his person De Giorgio kept yelling at the officers “Fuck, I can’t go back to jail”. He tried to pace back and forth. He was told to calm down and directed to sit in the rear of his car with his feet out through the door. There he was advised of his rights to counsel. When he was asked whether he understood his rights he responded, “Yeah, but I can’t go to jail…let me go from here and I’ll help you guys.” Constable Lee then cautioned him and asked if he understood to which he responded “Yeah, I know I’ve been through this so many times before, I can help, swear I can really help you guys get a lot more than this. This is small potatoes to what I can get you. You have my name and cell and if I don’t come through you can take out a warrant for my arrest.”
[17] Mr. De Giorgio initially denied in evidence he attempted to offer up another dealer then corrected himself and said he had only offered to get them more drugs if they let him go, but the officers said they didn’t want anything unless it came with a person.
[18] The arrest took place at approximately 2:09 p.m. and at 2:12 p.m. two officers, Constables Renton and McDonald, were dispatched to attend the location of De Giorgio’s arrest and to transport him to 23 Division.
[19] Constable McDonald testified that he and Renton arrived at the location at approximately 2:30 p.m. and took possession of Mr. De Giorgio. They arrived at the station at 2:53 p.m. and paraded him before the booking sergeant at 3:01 p.m. During the course of the booking procedure and later when he was removed to go through a level three search, Mr. De Giorgio made no complaint about the circumstances of his arrest. McDonald testified that had he done so he would have noted and brought it to the attention of the booking sergeant.
[20] All of the officers testified that they had no prior knowledge of De Giorgio before that afternoon. Further, none had used a knife to cut the drugs from his underwear as he described in evidence. They denied having a plan to find out whether McNeil had given money to the unknown driver in order to justify a detention and search of the person he met, failing which a story was concocted by the three officers which entailed finding of drugs in plain view in the car to justify the arrest and subsequent search.
[21] None of the officers had a clear recollection of when exactly they made up their notes, whether some were made during events and later at the end of shift, or all at the end of shift. All agreed that they would have made notes together at some point before the end of shift, but noted their own recollections.
Credibility
[22] Counsel for De Giorgio argued that there were a number of “unlikelihoods” and “likelihoods” relating to the officers’ evidence from which inferences should be made to cause the court to doubt the veracity of their evidence and to accept De Giorgio’s evidence. He argued it would be unlikely De Giorgio, an experienced drug dealer, would have left his car door open and exposed a bag of crack to plain view. Further, the court should accept his unchallenged evidence that because he had been unsuccessfully searched by police many times before without his “stashes being discovered” it is more likely he followed his usual practice of hiding his drugs in areas too private for the police to search in public.
[23] Officer Ure testified that when he got to the back of the car he saw De Giorgio facing the vehicle. It is unlikely he would have been in that position unless Landry had turned him in that direction to search him. He suggests that Ure’s observation corroborates De Giorgio and undermines Landry who said he was speaking with him. I find the suggestion unconvincing in a situation that not as static
[24] When the police made a photocopy of the two quantities of crack cocaine seized they did so with them together, (Exhibit #2). Counsel argued that it was unlikely that the police would have mixed two separately discovered baggies of crack cocaine together without first having noted some way to differentiate as between them, which they had not. It was more likely that they were photocopied that way because the quantities were found together.
[25] He argued that Constable Lee would not have taken the time to look at the Zippo disguised scale before moving to take control of De Giorgio to prevent his flight or physical aggression as a result of the discovery of the drugs in the car door. I do not find it as unlikely as counsel suggests. I note that the Zippo lighter scale is easily discernible as being a scale by simply opening it. Moreover, Mr. De Giorgio was in the presence of Constable Landry and it was only when Constable Lee moved to the location of De Giorgio and Landry that he advised De Giorgio was under arrest for possession for the purpose of trafficking.
[26] Other likelihoods described by counsel in argument are:
• That Constable Lee found the scale in the door pocket would have provided an inspiration for making a false claim that drugs were there as well.
• It was unlikely that the officers did not have a plan to first determine if McNeil had parted with his three $20 bills to justify searching the person McNeil met given that Constable Ure asked him if he still had the $20. I find Ure’s explanation that he asked McNeil if he still had the $20s because he was trying to see if a transaction had taken place to develop reasonable grounds to make an arrest. His explanation is not a contradiction of his evidence that he had no plan. He asked it because he knew McNeil had the $60 and he suspected he was going to use it to buy crack cocaine.
• It was unlikely Constables Lee and Landry would not have been told by Constable Ure that McNeil still had the 20s. I accept his explanation that he did not convey that De Giorgio still had the money because it was a dynamic situation and things happened quickly.
• It was unlikely the police simply gave up on their suspicion McNeil was meeting with a dealer who would be in possession for the purpose of trafficking simply because McNeil still had $60 and the reasonable grounds they anticipated they were going to get in order to search the suspected dealer had not developed.
• If Mr. De Giorgio had resisted as claimed why was he not charged for the resistance?
• It is unlikely that Mr. De Giorgio would resist being searched to avoid discovery of one quantity of crack knowing that the other quantity had already been discovered.
• It is unlikely that the officers did not use the fact to try to control his compliance.
• It is unlikely that Constable Lee was able to note a difference in the size of the quantity in the baggie he claims to have seized from the car and the one removed from De Giorgio’s pants held in Landry’s hand when he engaged in the struggle with Mr. De Giorgio. Counsel contends that Lee’s noting it is an attempt to “bootstrap” the story he decided to make up to constitutionally justify the search of De Giorgio, and make more credible his evidence they were seized separately.
• Similarly, it is unlikely that Constable Lee would note something as an aid to memory consistent with his general practice, such as “look at inside of car and do a scan from outside of car as I do with any vehicle stop”. Rather, he wrote it to constitutionally justify his search, where he would have had no other grounds. I found Lees response that he not only made notes for himself but also for the Crown and defence, who will have copies to explain what he did and why he did it, as candid and credible.
• It is unlikely that Constable Lee searched the Alero when he was the officer who had placed De Giorgio under arrest and had control of him. This suggestion is similarly unconvincing, in light of the fact that there were three officer working together with one person under arrest.
• It is likely the police disregarded De Giorgio’s s. 8 rights given they disregarded Mr. McNeil’s ss. 8 and 9 rights earlier in stopping him on the street. I am satisfied that the police at that time, as noted in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 at para 32, a realistic appraisal of the situation would lead a reasonable person to conclude McNeil was not precluded from choosing to cooperate with the police, there being no evidence to the contrary. Moreover, there was nothing in the evidence that suggested that a demand was made of him to reveal what was in the tissue. At the scene involving De Giorgio, if the investigative detention rationale evaporated on learning that Mr. McNeil still had the $20s in his possession and a transaction had not taken place, and thereby De Giorgio’s s. 9 rights were engaged, it was for the briefest of moments until Lee sees what he suspects is crack cocaine in the driver’s door pocket.
[27] Counsel noted a number of other speculative “unlikelilhoods” and “likelihoods” the most serious of which was that the police corroborated in fabricating their notes to concoct a common script and falsify a finding of the drugs in the motor vehicle and to deceive the court.
[28] With respect to the unlikelihoods outlined by counsel, none of them, in my view, either individually or collectively undermines the credibility of the individual officers. Further, each suggestion in relation to an individual officer only detracts from the principal allegation that the officers orchestrated, concocted and scripted their notes to justify detention, arrest, and search of the applicant and to deceive the court about those events.
[29] I have reviewed the notes of the officers in detail, as highlighted for comparison by counsel (Exhibits 8, 9, and 10). Much of the chronology of events is the same, which is to be expected in the circumstances of three police officers working together involved in the same event. Even though the chronology is basically the same, there are different descriptions, for example, Constable Landry starts his notes describing the nature of the patrol at 13:50 “Patrolling buildings along La Rose Avenue”, whereas Constable Lee wrote “Patrolled area of 45 La Rose”, and Constable Ure wrote “In area of 45 La Rose Avenue”. All are similar, but differ in terms of the description of the patrol area.
[30] More important, each of the officer’s notes reflects their individual activities and personal observations when they occurred during the course of events. For example, Constables Landry and Lee, who approach the driver’s side of the Alero, describe in their notes after the driver exits the car and he is heard to say: “What’s the problem?” the following respectively:
Landry: speak w/ driver at rear of car - advise that we know his passenger well and are curious why he is here meeting with him in this area - male appears very nervous and sweating a lot - request ID from male
Lee: escort speaks to male at rear of car – driver’s door is still open – look at inside of car and do a scan from outside of car the same as I do with any vehicle stop – I notice in the driver’s door panel a baggy – clear…
[31] Constable Ure, who deals with McNeil, makes no mention of anything said by the driver, but notes after driving the cruiser to a stop facing the Alero: “I exit police car and speak to McNeil – I ask McNeil to come over to my car.”
[32] I am satisfied that the suggestion that the officers orchestrated the production of their notes as suggested by counsel is specious, and without substance. I found the officers’ evidence to be reliable, given in a straight forward, candid and compelling manner.
[33] On the other hand, I find the evidence of Mr. De Giorgio not to be credible because of a number of implausibilities and his tendency to embellish. First and foremost, is his account of the officers having pushed him into an open trunk of the Alero, while he was struggling and yelling, pulling his pants down in broad daylight on a Saturday afternoon in a quiet residential area and then one of them using a knife to rip and cut at his underwear to extract drugs he had hidden there. He said that when they started to look in his pants all hell broke loose. He described the search conducted by the officers at the time of his arrest as being equivalent to a level three search, which he had experienced in the past. A level three search is a complete strip search. There is no evidence of any injuries, which one might expect to result from the use of a sharp edged instrument to cut away at his underwear crotch area, as all hell was breaking loose.
[34] Mr. De Giorgio was quite vocal about knowing his rights, yet he made no complaint about the circumstances of his arrest and search when transported by other officers to the division, paraded on video before the booking sergeant or searched at the police station.
[35] Secondly, I find Mr. De Giorgio’s explanation for there being no need to have a quantity of drugs out in the open in the car to sell to Raymond as not only implausible but defies any common sense. He intended to drive his vehicle slowly down the road using his knees and to extract his quantity of drugs in his underwear as opposed to the other similarly sized quantity of drugs supposedly belonging to another dealer, break off a 60 piece without using a scale to sell to his buyer, Raymond. It begs the question as to how he would be able to differentiate between the two similarly sized quantities and why he would not use a scale he had handy to weigh the quantity being sold?
[36] In assessing Mr. De Giorgio’s credibility I also take into account his lengthy criminal record, in particular the crimes of dishonesty, such as robberies.
[37] In the circumstances, I find it just as plausible that Mr. De Giorgio had taken a quantity of drugs from his hiding place in his underwear to chip off a 60 piece to sell to Raymond when the police arrived whereon Mr. De Giorgio put the exposed drugs and scale in the driver’s door pocket.
[38] Mr. De Giorgio described the officer who spoke with him initially as the heavy set police officer. In observing the three police officers and considering their evidence as to height and weight it is obvious to me that Constable Lee at 220 lbs., the officer who looked into the car and found the drugs is the much larger, heavy set officer of the three.
[39] I find the description provided by Mr. De Giorgio as to the manner by which the drug transaction was to have occurred as incredible. Further, I do not accept Mr. De Giorgio’s evidence that as the officers struggled to arrest and searched him they pushed him into the trunk of the Alero and used a knife to cut and rip at his underwear to obtain the drugs he had secreted therein.
[40] I accept, in the circumstances, that the police had a reasonable belief to support investigative detention based on the police officer’s knowledge of McNeil and their observations of his earlier behavior on that occasion to suspect that Raymond was about to engage or had engaged in a drug transaction with the driver of the Alero motor vehicle, Jason De Giorgio. I accept that when Mr. De Giorgio got out of the motor vehicle he exposed the crack cocaine in the driver’s door pocket to plain view as described by Constable Lee, which provided the basis to arrest and search Mr. De Giorgio.
[41] The police had reasonable grounds to detain Mr. De Giorgio on suspicion that he was engaged in a drug transaction and on finding a quantity of crack cocaine which was exposed to plain view provided the basis to arrest and to conduct a search.
[42] In the result, I am not persuaded that Mr. De Giorgio’s ss. 8 or 9 Charter Rights were violated. The drugs seized shall be admitted into evidence.
[43] Further to the admissions made by Mr. De Giorgio that he was in possession of the crack cocaine for the purpose of trafficking I find him guilty.
A.J. O’Marra J.
Released: October 24, 2013
COURT FILE NO.: CR-12-90000-637-0000
DATE: 2013/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JASON DE GIORGIO
Accused
REASONS FOR JUDGMENT
A.J. O’Marra J.
Released: October 24, 2013