ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-0024 and CR-12-0024
DATE: 2014-07-25
B E T W E E N:
Her Majesty The Queen,
Vern Brewer, for the Respondent
Respondent
- and -
Marcel Donald Breton,
The Applicant represented himself
Applicant
HEARD: April 23, 2014,
at Thunder Bay, Ontario
Platana J.
Reasons On Decision
Overview
[1] On December 1, 2009, police executed a search warrant for a handgun and ammunition at a residence at 9082 Mapleward Road in the City of Thunder Bay, occupied by the accused, Marcel Breton. No gun was found, however, in the course of the search, drugs, various assets, such as a boat, ATV, seadoo and equipment, and cash in excess of one million dollars was found.
[2] A subsequent warrant was obtained with respect to a search for proceeds of crime.
[3] Mr. Breton was ultimately charged with four counts under the Controlled Drugs and Substances Act with possession of cannabis resin, possession of cocaine for the purpose of trafficking, possession of cannabis marihuana for the purpose of trafficking, and possession of methylenedioxyamphetamine (ecstasy) for the purpose of trafficking. The same indictment includes a charge of possession of proceeds of property of a value exceeding five thousand dollars knowing that all or part of the currency was obtained or derived directly or indirectly from the commission of an offence contrary to s. 354(1)(a).
[4] On a separate indictment, which on consent was tried together with the above, he was charged with eight counts relating to possession of property knowing that all or part of the property was obtained directly or indirectly from the commission of an offence contrary to s. 354(1)(a) of the Criminal Code. In the same indictment, he was charged with seven counts under s. 462.31(1) of using, transferring the possession of, or otherwise dealing with, Canadian banknotes, knowing the property was obtained directly or indirectly as a result of the commission of a designated offence.
[5] This matter finally reached the trial stage after numerous requests for adjournments by Mr. Breton to obtain counsel, or, having obtained counsel, changed counsel. A new counsel was retained in December 2013. A number of pre-trial motions were held while Mr. Breton had counsel including an application to quash the search warrant, which was denied.
[6] The trial was ultimately scheduled to start June 2, 2014. One week prior, counsel brought a motion to be removed from the record on the basis of a breakdown in communication between he and Mr. Breton. There was apparently a difference of opinion between the two with respect to the nature of written instructions sought by counsel. I commented at the time that it appeared to me that Mr. Breton understood more than he was expressing to the court, and indicated to him that with the age of these charges, the matter was going to proceed to trial, with or without counsel.
[7] Mr. Breton was given an opportunity to speak with duty counsel, and after doing so, repeated that he had lost confidence in his counsel and was seeking an adjournment to obtain new counsel as he did not believe his counsel was acting in his best interest. Having heard the pre-trial motions, I was satisfied that counsel had competently addressed issues which were appropriately brought. After given Mr. Breton and counsel an opportunity to attempt to resolve the relationship, it became apparent that I could not require counsel to continue to represent Mr. Breton without the written instructions counsel had requested, and I permitted counsel to withdraw.
[8] I denied Mr. Breton’s request for a further adjournment, this being the third counsel who had been acting and then discharged, or would not continue to act for him, and this was the second time such request was made on the eve of trial, in this case, on the opening day of trial.
[9] I state in these reasons that I did not find the accused’s position to be totally forthright.
The Evidence
[10] The search team arrived at the property at approximately 10:00 am on December 1, 2009. There was slight snow on the ground. Police knocked on the door. It was opened by a male subsequently determined to be one Joseph Timmermans. Mr. Breton was arrested, and read a caution. I ruled statements after a voir dire to be admissible. In response to being arrested for possession of a firearm Mr. Bretton stated “I don’t have any guns. I don’t hunt.” He did not appear to be under the influence of either drugs or alcohol.
[11] In the course of searching Mr. Breton, officers found a quantity of cash ($755.00) folded in his pocket, as shown in photos 0222 and 0223 in Exhibit 4. He was asked by D/Cst. Gagné, the search co-ordinator, about any drugs in the house, to which Breton replied ‘no’. When asked if there were any drugs in the garage, Mr. Breton shrugged his shoulders.
[12] The search was conducted by a number of officers. In a floor vent near the kitchen door entrance and the stairs leading to the upstairs officers (Cst. Steele) found bundles of money as shown in photos. 0133 – 0135, and 0227 – 0228. there was a total of $15,000.00. All items found were photographed and managed and maintained by the exhibit officer, Cst. Kevin Veillieux
[13] In the course of the search of the residence, Sgt. Graham, the Unit Commander Search Supervisor, asked Mr. Breton for the keys to a garage located on the property. Mr. Breton was advised if he did not have keys, police would breach the door. Mr. Breton directed the police to his coat in an upstairs bedroom where keys were found in a jacket pocket, located in the master bedroom.
[14] In the master bedroom, shown in photos 0059 – 0069, the television set was on. There was a live feed of the area outside the entrance door looking toward the garage, showing the driveway and all entrances to the garage. There was a connection to a VCR and a camera device.
[15] After obtaining the keys to the garage, police entered the garage, and found there was a second section secured by a coded lock. After obtaining the code from Mr. Breton, that unheated part of the garage was accessed.
[16] In the course of the search of the master bedroom, officers found and seized a Canada Post Change of Address Notice for Mr. Breton to a Post Office box number (Exhibit 13).
[17] When cross-examined by Mr. Breton, Sgt. Graham agreed that there could be a number of keys to the locked garage, and that more than one person could have had the code to the unheated part.
[18] Sgt. Mark Maltais was the Commander of the Forensic Identification Unit. He took photos 0506 – 0556 of the various items found on the property which are the subject-matter of the charges.
[19] Cst. Richard Cunningham was assigned to photodocument the search of the house and the entire grounds. When items were found by officers searching, he photographed each. All of these photos are found in Exhibit 4:
• Photos 0222 and 0223 relate to monies seized from Mr. Breton’s pants pocket.
• Photos 0224 – 0226 show monies seized from Mr. Breton’s jacket pocket.
• Photos 0133 – 0135 and 0227 – 0228 shown monies seized from the floor vent earlier referred to.
• Photos 0232 – 0234 show a zip-lock bag containing what was suspected as marihuana, found in a dresser drawer in the upstairs hallway. Photos 0241 – 0243 show suspected marihuana found in the master bedroom closet.
• Photos 0250 – 0251 show a piece of suspected hashish, found in the garage.
• Photos 0128, 0252 – 0259 show three pieces of suspected marihuana found in different places in the basement furnace room.
• Photos 0260 – 0265 show suspected marihuana found in the heated portion of the garage.
• Photos 0268 – 0272 show monies located in a suitcase in the garage.
• Photos 0273 – 0277 show the location in the garage where cash was found in the same location, searchers found suspected cocaine shown in photos 0298 – 0300.
• Also found in the garage were a digital scale [photos 0283 – 0283].
• Photos 0278 – 0280, show a flick knife located on a dresser in the upstairs hallway.).
• Photos 0292 – 0294, and 0304 – 0306 show monies located in a tool box in the garage. Photos 0307 – 0310 show monies which were located in the bottom of a drawer in the unheated part of the garage.
• A pill bottle, containing suspected ecstasy pills, was found on the top shelf of a kitchen cupboard (photo 0311 – 0313).
• Photos 0314 – 0316 show the area of the garage where it was noted the dirt had been disturbed, metal was detected, and a large plastic container was found. The container and contents were taken into the residence. The packaging of the container and contents is shown in photos 0317 – 0329.
• Photos 0332 – 0336 show pills and suspected marihuana found on top of a bookshelf in the living room area of the house.
• Photos 0337 – 0338 show four digital scales found in the garage. Photo 0339 shows a triple-beam balance scale found in the main bedroom.
• Photos 0340 – 0342 shows suspected cocaine found in the heated portion of the garage on top of a small storage box.
[20] Cst. Cunningham’s only other involvement was on December 8, 2009 when he received a banker’s box, sealed with CFS seal #2K4283 from D/Cst. Quarrel which he transported to Orillia by air and turned it over to CFS analysts.
[21] D/Cst. Kevin Veilleux was the exhibit officer. He would receive items found by other officers. It was his task to maintain custody and continuity of everything found and seized. His evidence is that the money seized from Mr. Breton’s pants pocket totalled $755.00. His jacket pocket contained $1,515.00. The packages of money found in the vent totaled $15,000.00. Monies found in the suitcase in the garage totalled $9,750.00. In other areas, $15,780.00. The total of the money found in the toolbox was $1,750.00, and on a shelf in the cold part of the garage, $9,800.00. The total of this is $54,350.00.
[22] He was present when a large Tupperware container containing packaged money was found buried in the garage floor. The money was not counted at that time as the container was sealed. On December 3, Cst. Veillieux, together with Cst. Quarrel and Cst. Lisa Black, broke the seal on the container. The plastic bags inside were counted – 30 of them – and the first and last bills were taken out of each bag, and the container was then resealed. The money was then counted through a cash counter, and a reconciliation sheet was then prepared. The currency was packaged in bundles of $5,000.00 or $10,000.00. The total amount seized in the container was $1,174,970.00, exclusive of the bills that were removed for testing.
[23] During the process of counting the monies seized, officers performed a CRATS test to determine the age of the bills. The Bank of Canada was contacted, however, as there was over 44,000 bills, a selection of bills was removed from the container. Andrea Waldrum is a team leader in the quality control of banknotes Bank of Canada, in the Currency Production and Services division. Information was provided on 24 bills which were analyzed. Her report, Exhibit 22, shows the dates when the bills were received at the Bank of Canada, and when they were shipped to Regional Distribution Centres in Montreal and Toronto. All of the bills were distributed between October 2007, and May 2009. Ms. Waldrum testified that placing metallic holographic strips on $20.00, $50.00 and $100.00 bills began in 2004. She acknowledged in cross-examination by Mr. Breton that there were older security tags on banknotes prior to 2004.
[24] Cst. Jeffrey Scott is an O.P.P. canine officer. On December 2, 2009, he attended the residence to be searched with his two search dogs – one for explosives and firearms, and one for drugs. His evidence is that he always brings both dogs on any type of search. The firearms dog found nothing. As a result of various of the suspected drugs seen in plain view, the second dog was used.
[25] Cst. Justin Dubuc was assigned to search the residence. he located an aspirin bottle on a shelf in the kitchen which, he believed was possibly ecstasy (photos. 0311 – 0313). He agreed in cross-examination by Mr. Breton that the pills were accessible to anyone in the house.
[26] Constable Joseph Ladouceur assisted in the search of the furnace room. He located what he believed to be marihuana as shown in photos 0127 – 0133, and 0252 – 0258. On December 2, he located Canada Trust deposit receipts showing $1,000.00 cash deposits transferred into the account of Irene Breton.
[27] D/Cst. Robert Steele, currently the Regional Intelligence Co-ordinator, was involved in the search of the living room. He looked into a heating duct and, using a flashlight, saw a bundle of money, depicted in photos 0133 – 0134, and later photographed in photos 0227 and 0228. He advised Cst. Veillieux of the find, and he retrieved the money and placed it on the floor for Cst. Veillieux.
[28] Dennis Smith, now retired, was a D/Cst. with the OPP at the time of the search. He located and seized the knife, Exhibit 7, on the top of the dresser in the upstairs hallway, shown in photos 0278 – 0280. In cross-examination by Mr. Breton, he was asked to confirm that it was what is known as a “flick knife”. The officer demonstrated which confirmed that it could be opened with a flick of the wrist.
[29] Lonnie Nichols is a team leader in the audit records department of Canada Revenue Agency. He has access to data bases of individuals and corporations who file tax returns, and T4 returns. His evidence is that there were no tax returns filed by Mr. Breton from 2001 – 2008. There was one T4 in 2008 in the amount of $14,796.00. There were no business accounts registered in Breton’s name, and no GST or HST RETURNS. In cross-examination, he acknowledged that gifts were not taxable.
[30] Cst. Leonard Hardy assisted in the search of the outbuildings and located the currency found under a drawer in the northwest corner of the heated part of the garage, as shown in photos 0273 – 0277. In the same location, he found a bag of what he suspected was cocaine shown in photos 0275 and 0276. The contents of the bag of suspected cocaine were subsequently photographed and shown in photos 0298 – 0303. He contacted Cst. Veillieux who took charge of the currency and the plastic bag.
[31] In the course of searching the garage, he also located Exhibit 14, a bill of sale for a snow machine to Adam Breton, Mr. Breton’s son, then age 3. Elisa Leal, Adam’s mother, testified that she provided no money for the purchase of the machine. She further stated that the handwriting on the bill of sale appeared to be Marcel’s.
[32] Ms. Leal testified that with respect to a 1981 Camaro found in the garage, the licence plate used to belong to her, but that she had never purchased that vehicle from Bradley Pollock, as shown in Exhibit 17.
[33] D/Cst. Jarrett Anderson testified with respect to monies found in a toolbox in the garage, shown in photos 0292 – 0294.
[34] D/Sgt. Brad Duce was part of the team searching the outbuildings. He located monies found in a drawer in a dresser unit in the garage, shown in photos 0307 – 0310, close to where the Camaro was parked.
[35] D/Cst. Robert Bonhan was one of the officers who searched the garage. He located what he believed to be a piece of hashish in a toolbox shown in Exhibit 4, photos 0292 – 0293. shown also in photos 0250 – 0251. That was turned over to Cst. Veillieux. He also located a black bag, shown in photos 0268 – 0272, with currency stored in the zippered pockets. He further located Exhibit 8, digital scales, shown in photos 0337 – 0338.
[36] Norman Sneddon, now retired, was a Senior Forensic Analyst with the OPP in 2009. Following a voir dire, I permitted him to testified as an expert in the field of fingerprint analysis. His report filed as Exhibit 23, shows that he received 384 exhibits consisting of plastic bags and bills of Canadian currency. He found no prints on the currency. On the plastic bags he found a total of four areas of ridge detail. Comparison results to four named persons, including Mr. Breton, were inconclusive. There was one hit comparable to the right middle finger of Mr. Breton.
[37] In reviewing photos 0321 – 0324, he testified that the manner in which the currency was packaged, in plastic bags in the large Tupperware container, created a good opportunity for prints to be degraded, due to compression, and exposure to moisture.
[38] D/Sgt. Peter Currie, of the Asset Forfeiture Proceeds of Crime, Money-laundering unit of the OPP, was permitted to testify, following a voir dire, as an expert to give an opinion on drug trafficking, including the packaging and use of money to obtain assets and in using the proceeds and disposal of monies obtained in drug trafficking. He testified that the role of cash in drug trafficking is to acquire assets. For street level trafficking, a usual transaction is $20.00, which is then bundled. Above street level trafficking the usual bundles consist of $1,000.00, $2,000.00, $5,000.00 and $10,000.00, usually bound with elastic bands. The usual procedure is to change $20.00 bills into $50.00 or $100.00 bills, which allows for a fast and efficient count.
[39] His evidence was that traffickers are usually deterred from using banks, and will store the money, some for quicker access, and more securely stored for long terms. The money is then used to purchase assets, generally using cash payments. He testified that more experienced traffickers will have friends, or companies, purchase assets in their name.
[40] Ron Popowich was qualified as an expert, following a voir dire, to render an opinion on indicia of drug trafficking, the distribution of drugs, and the hierarchical nature of the trafficking industry. He testified, and was permitted to file a report, Exhibit 31, which included what he referred to as a “Will State”. He had no part in the search, but was given information in the General Occurrence Report, information as to the quantity of drugs, and the nature of the packaging.
[41] With respect to the four one ounce bags of cocaine found, he noted that the certificate of analysis showed a 69% level of purity. He stated that is higher than one would expect to see sold by a mid-level trafficker, and that the street level sold in Thunder Bay is generally lower than 50% pure. He further noted that four one ounce bags found, with no evidence of any mechanism for the personal use of cocaine, no evidence of materials used to package the one ounce bags into smaller gram units, and the presence of digital scales indicates that one ounce bags are ready for sale. Four one ounce bags for sale means mid to high level trafficking. That quantity is higher than what would be expected for personal use.
[42] With respect to the marihuana, he noted the two ziplock bags and the presence of scales. He also noted there were no signs of a marihuana user found. His opinion is that this quantity is for trafficking.
[43] He expressed no opinion on the purpose of the hashish found.
[44] His evidence on the ecstasy pills found was that as people buy the pills one at a time, having fifty pills means they are for resale.
[45] He further testified that, if someone had accumulated 1.2 million dollars over a period of five years from the sale of drugs, that person would be considered a high-level trafficker.
[46] Terry Hascher has known Mr. Breton for 30 years. He described the relationship as “very good friends”. They have helped each other with favours. He stated that Marcel asked him if he could put a truck Marcel had purchased into Hascher’s name for insurance purposes. In commenting on Exhibit 14 (Bill of Sale), he stated that was the truck. His evidence was that people that owed him money had put it onto a bank draft. I found his evidence on how payment was made very confusing and evasive. He used the truck once.
[47] Sgt. William Quarrel, of the Thunder Bay Police, was an asset forfeiture officer with the Joint Forces Drug Unit. On December 1, 2009 he was called to the search location. On reviewing some of the documents which had been found in the residence, seeing the amount of money found and the assets on the property, a second search warrant was obtained. Numerous documents were found as noted in Exhibits 11 – 19.
[48] On December 2, in the master bedroom of the residence, he found the documents in Exhibit 19: tax bill in the name of Irene Breton; vehicle licence renewal application for a motorcycle in the name of Marcel Breton; receipt from a firm of lawyers made out to Marcel Breton; and an order for a Toshiba laptop in the name of Marcel Breton. He noted the presence of a surveillance camera and television in the bedroom.
[49] He also testified as to the items as photographed in Exhibit 3. These included a Bobcat (photos 0506 – 0509); a boat and motor (photos 0510 – 0512); a backhoe attachment (photos 0513 – 0514); a Seadoo (photos 0518 – 0519); a skidoo (photos 0520 – 0522); and ATV (photos 0523 – 0526); a Bayliner boat (photos 0527 – 0531); a John Deere law tractor (photos 0536 – 0538); a Camaro (photos 0539 – 0541); a Chevrolet truck (photos 0552 – 0556). Sgt. Quarrel testified that all of the items were left on the property. From December 2009 until the time he testified at trial, no one has come forward to claim ownership of any of the items seized.
[50] Sgt. Quarrel was involved in the processing of the money found in the buried container and described in detail the process for counting the money, which involved three officers. He prepared Exhibit 23. There were 30 separate packages of money wrapped in separate packages, and bills were bundled in the packages. The bundles were held together with elastics with five or ten thousand dollars in each package. The top and bottom bills from each package were removed and ultimately placed in an exhibit envelope and sealed with a CFS seal.
[51] In the course of giving evidence, the officer requested and was granted to use his notes to refresh his memory as to the specific packaging. In order to expedite the evidence, and to provide Mr. Breton with detailed information for cross-examination, I permitted the officer’s notes to be copied, and made an exhibit.
[52] He testified that when the packages containing the currency was opened, it was damp, some had mould on it and some were stuck together. The entire count took 19 hours. The bills which were not removed, were then re-sealed, and placed back in the police vault.
[53] Sgt. Quarrel’s next involvement was to travel with Cst. Cunningham to Orillia with all the currency. Using the same process, but with different officers, the money was recounted. Some additional bills were noted. The final count of all monies seized by the police, including monies seized from Mr. Breton personally, and the money in the 30 bags found in the Tupperware container was $1,235,600.00. Also in the count police found a $100.00 (U.S.) bill, and a counterfeit $100.00 bill.
[54] Sgt. Quarrel also testified that the registered owner of the 1981 Camaro (photos 0539 – 0541) was shown on Exhibit 17 to be Bradley Pollock.
[55] Irene Breton, the accused’s mother, testified that after her husband, the accused’s father, died, he left her with approximately $800,000.00 in RRSP’s, a house and a restaurant. She stated she has given Marcel about $50,000.00 since 1998. She testified that, on Marcel’s suggestion that it would be a good investment, she purchased 9028 Mapleward Road, she thinks in 2007. She never kept anything there. Marcel lived in the home and paid her $1,000.00 per month rent and also paid hydro, telephone and taxes. Her evidence is that he worked in the bush with machines, and that he fixed things for people in the garage.
[56] Caroline Stone met Mr. Breton in the summer of 2013. The initially friendly relationship turned into a romantic one by the end of the summer, and she began to live with him. The relationship ended when he assaulted her. During the relationship, he spoke of the charges against him. He told her of the money found in the Tupperware container, and showed her where it had been buried off the property until he brought it in to clean it as it was getting mouldy. He told her that it was drug money which he had acquired over five years.
[57] She testified also that he told her that he had stashed $100,000.00 in the attic, and when he went back later, after the search, $10,000.00 was missing. She further stated that he told her that the search officers had missed a kilo of cocaine, which came from Peru, and which was wrapped in a blanket upstairs. Mr. Breton suggested to her in cross-examination that “it was far-fetched to believe” that the search team missed it.
[58] With respect to the drugs seized, Cst. Veillieux, together with Sgt. Graham, prepared Exhibit 21, a Drug Offence and Disposition Report. Samples were taken of each suspected drug found, and were submitted for testing in secure envelopes to Health Canada. Notices of Intention to Produce Certificates of Analyst were served. The Certificates confirm that the nature of the suspected substances were as noted in the counts of the indictment.
[59] Catlin Dorval was called as a witness by Mr. Breton. She had a previous on/off relationship with him. She knows the property on Mapleward Road and said that she had access to the garage. In cross-examination, she said that the garage was unlocked and that others had access to it. Her evidence is that the marihuana found in the heated portion of the garage (Exhibit 4, photo 0265) was hers. She said that the suitcase containing money, the marihuana and the BB gun (photo 0266) were hers. She testified that the four one once bags of cocaine, together with the bundle of money found in the garage (photos 0301 – 0303) were hers. She stated that she was hiding it there, trying to keep things from him. She acknowledged in cross-examination that the suitcase was in plain view (photo 0268).
[60] In cross-examination, she stated she had placed these items ‘some in a wooden box’, but that she could not remember where. She stated that she would stash money and drugs in different places in the garage and the house. When cross-examined by the Crown about her evidence that the suitcase containing money, shown in photos 0269 – 0272, was hers, she said there was about $2,000.00 in it, which she described as “petty cash”. In another response, she estimated there was $5,000.00 in the suitcase. When questioned about the amount of money in the bags located next to the cocaine (photos 0295 – 0300) she stated it appeared to be $2,000.00. she said she had no memory of how much cocaine she had there. When asked by the Crown shy she had not claimed the money if it was hers, she stated that she has sold paintings “under the table”. She acknowledged this was the first time she had claimed the money was hers.
[61] The evidence is that no one has claimed any of the items since they were seized.
... (continues exactly as in the decision through paragraphs 62–114)
___”original signed by”
Mr. Justice T. A. Platana
Released: July 25, 2014
COURT FILE NO.: CR-10-0024 and CR-12-0024
DATE: 2014-07-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Marcel Donald Breton,
Applicant
REASONS ON DECISION
Platana J.
Released: July 25, 2014
/mls