ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No: CR-11-90000218-0000
(C56934)

BETWEEN:

HER MAJESTY THE QUEEN

v.

CHRISTOPHER ITALIANO AND MOHAMED ABDUL-HAMID

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE MR. JUSTICE B. O’MARRA

ON: Tuesday, January 22, 2013

361 University Avenue,
Courtroom #7-3
Toronto, Ontario

APPEARANCES:

K. Benzakein (Ms.) For the Crown
J. Christie For Mr. Italian
R. MacDonald for Mr. Abdul-Hamid

Tuesday, January 22, 2013:

THE COURT: Good morning, everyone. And I know we’re starting a little late, and it’s no one’s fault, there were circumstances beyond everyone’s control and we’re here ready to go. Mr. MacDonald, I’m glad to see you got back from your important duties in Colorado.

MR. MACDONALD: Yes, it was a great weekend, Your Honour.

THE COURT: I was thinking there was a distinct change you might have been stuck there with the weather, but we’re glad to see you back.

MR. MACDONALD: It’s good to be back.

THE COURT: Everything went well? Good, okay. So, I’m prepared this morning then to give an oral ruling on the Charter application brought on behalf of Mr. Abdul-Hamid.

R U L I N G

B. O’MARRA, J.(Orally):

The Applications

On November l9th, 2008, Mr. Abdul-Hamid was stopped by members of the Toronto Police Service as he drove his vehicle. He was arrested at gunpoint and a kilo of cocaine was found in a shoebox lying on the rear passenger floor. He now applies, pursuant to Sections 8 and 9 and 24(2) of the Charter to exclude the cocaine as evidence on his trial.

The position of the Applicant is as follows:

1. The arrest was not authorized by law since the police did not have reasonable and probable grounds.

2. More specifically, Detective Asselin did not have reasonable grounds when he directed other officers to arrest the Applicant in a “high risk” takedown.

3. The seizure of the box containing the cocaine was not incident to arrest.

Overview

Shortly after noon on November l9th, 2008, plainclothes members of the Toronto Police Service set up surveillance on a residence at 36 Celt Avenue. At l:30 p.m., they observed Christopher Italiano, who is co-accused on this Indictment. Mr. Christopher Italiano was observed to arrive at that residence in a vehicle and to go into the residence. At l:35 p.m., Mr. Italiano came back out of the residence carrying a distinctive-looking shoebox. He got into his vehicle and drove away. At l:49 p.m., Mr. Italiano stopped his vehicle curbside at an intersection on St. Clair Avenue. And at that time, Mr. Abdul-Hamid entered Mr. Italiano’s vehicle by the passenger door. At l:51 p.m, Mr. Abdul-Hamid left Mr. Italiano’s vehicle carrying the distinctive shoebox and entered a separate vehicle and drove away. At 2:00 p.m., Mr. Abdul-Hamid, who I will hereafter refer to as the Applicant, was stopped by police and arrested at gunpoint. The shoebox containing the kilo of cocaine was found on the floor in the rear-passenger area.

The Evidence

The information that led members of Toronto Police Service to set up surveillance on 36 Celt Avenue is important on these applications.

Michele Santonato

Sergeant Mancuso of the Toronto Police Service has had some years of experience working in regard to drug investigations and as well, the handling of Confidential Informants.

Sergeant Mancuso had received information from two Confidential Informants. He had worked with those sources in the past. Confidential Informant number one, he had spoken to by telephone. He knew him by name, he knew his approximate age, the ethnic community of his origin and the neighbourhood that he lived in. He also knew whether or not that Confidential Informant had a record. He further had information as to the motivation of that Confidential Informant. He had had multiple prior contacts and that informant was carded and issued a number by Toronto Police Service. The information received from the Confident Informant number one had never been acted on in the sense of leading to searches or arrests. Sergeant Mancuso described the information received from Confidential Informant number one as mainly intelligence-type information.

Confidential Informant number one provided information to Sergeant Mancuso in regard to Michele Santonato and the information was as follows, and I am just summarizing the officer’s evidence:

• That Michele Santonato was a large scale drug dealer specifically in cocaine;

• That Mr. Santonato was violent and paranoid and kept a firearm.

• The Informant did not know where the drugs were kept, but advised Officer Mancuso that Mr. Santonato was involved in drug dealing on a multi-kilo level.

• That information that Officer Mancuso had was also conveyed to Detective Asselin.

Confidential Informant number two was known to Officer Mancuso. The officer knew some of the background of that person and whether he had a record. He had information as to the motivation of Confidential Informant number two. Number two was also a carded informant. Information from Confidential Informant number two had led on prior occasions, had resulted in seizures or arrests, and I will return to that issue when I consider the issue of credibility in terms of information supplied by the Confidential Informants. Sergeant Mancuso said that the seizures and arrests that had been based, at least in part on information from Confidential Informant number two, had taken place before the arrest of Mr. Abdul-Hamid.

The information from Confidential Informant number two with whom Sergeant Mancuso had more history than with number one, was as follows:

• That Michele Santonato was, and these are my words to summarize his evidence, Michele Santonato was a large-scale cocaine dealer;

• He dealt within the Italian community in the St. Clair area;

• He dealt on a multi-kilo level and of some significance is that Sergeant Mancuso had spoken to Confident Informant number two by phone very recently, very shortly before the events of November l9th, 2008;

• That information was passed on to Officer Asselin by Sergeant Mancuso;

• Officer Asselin, and I will refer in more detail to this later, indicated that if the information from Confidential Informant number two was based solely on “word on the street”, that it would not be compelling.

Sergeant Mancuso, as I’ve said, had more of a history with Informant number two than with number one. He described the information from both informants as very general. For instance, it was very general as to quantity and location, although both informants numbers one and two referred to drugs on a kilo level. Sergeant Mancuso said that the information was more than gossip but not specific in details. He said it was “word on the street” and that was the reason that the police did not go to a search warrant step in regard to information provided by these two informants. Sergeant Mancuso confirmed that neither Informant number one as number two provided information as to where the drugs were held or information about specific transactions or that one or either of them had had direct dealings with Mr. Santonato. Sergeant Mancuso could not recall if he had asked either or both of the informants how they knew their information. The officer did not think that the informants knew each other, but he also made clear that for obvious reasons he could not ask one informant if they knew the other. And while it may be self-evident, that makes sense, bearing in mind the critical importance of the protection of Confidential Informants. So the officer did not ask if they knew each other and he could not have asked. He did say that the two informants were from different cultural backgrounds and he did not think that they had interacted. And, in fact, on this application there is no evidence that the two informants, the only the information is that there are two informants from different cultural backgrounds and there’s no evidence that they colluded or shared information.

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THE COURT: Thank you. I want to thank all counsel. I have the benefit of your submissions, your material, including Mr. Christie, your participation and the scheduling worked out that I had days out to work on this and it was needed because I can assure you that I appreciate the sensitivity of a case rests on confidential informants and I think you were totally right to litigate this and gentlemen, Mr. Italiano and Mr. Abdul-Hamid, I can tell you, you both have been very well represented in these proceedings and the Crown did a very good job too. You have been very helpful to me. Thank you.

MS. BENZAKEIN: Thank you, Your Honour.