ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-G5583
DATE: 2014-10-01
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEAN ROMPRE
Defendant
Brigid Luke, for the Crown
Mark Ertel, for the Defendant
HEARD: September 24 and 25, 2014
T.D. RAY, J.
[1] The defendant pleaded not guilty to three counts as follows:
a. Count #1:THAT HE THE SAID Jean Noel ROMPRE, on or about the 28th day of May in the year 2012 at the City of Ottawa in the East Region unlawfully did for the purpose of trafficking, possess a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: 3 kgs or more of CANNABIS MARIHUANA, contrary to Section 5, subsection 2 of the said Act, thereby committing an indictable offence under Section 5, subsection 3, paragraph A of the said Act.
b. Count #2: AND FURTHER THAT HE THE SAID Jean Noel ROMPRE, on or about the 28th day of May in the year 2012 at the City of Ottawa, in the East Region did possess proceeds of property or a thing, namely money of a value exceeding five thousand dollars to wit: THIRTY-FIVE THOUSAND, ONE HUNDRED AND TEN ($35,110.00) Canadian dollars knowing that all or part of the said proceeds had been obtained by or derived directly or indirectly from an offence punishable by indictment, to wit: possession of a controlled substance for the purpose of trafficking in a Schedule II substance, contrary to Section 354(1)(a) of the Criminal Code of Canada, thereby committing an offence under Section 355(a) of the Criminal Code of Canada.
c. Count #3: AND FURTHER THAT HE THE SAID Jean Noel ROMPRE, on or about the 28th day of May in the year 2012 at the City of Ottawa, in the East Region did possess proceeds of property or a thing, namely money of a value exceeding five thousand dollars to wit: THIRTY-SIX THOUSAND AND FOURTY ($36,040.00) Canadian dollars knowing that all or part of the said proceeds had been obtained by or derived directly or indirectly from an offence punishable by indictment, to wit: possession of a controlled substance for the purpose of trafficking in a Schedule II substance, contrary to Section 354(1)(a) of the Criminal Code of Canada, thereby committing an offence under Section 355(a) of the Criminal Code of Canada.
[2] Counsel indicated that the following were admitted: Jurisdiction, the certificates of the analysts, continuity of exhibits, that the amount of marijuana was in excess of 3 kg and was for the purpose of trafficking, that the amount of cash seized was $71,750 and was the proceeds of crime.
[3] By reason of the defendant’s application to exclude all evidence seized from the defendant’s motor vehicle on March 28, 2012, or alternatively staying proceedings on the ground of abuse of process, on the ground of a Charter breach, the Crown’s principal witness gave evidence through a blended voir dire. The Crown also called another police officer to corroborate certain aspects of its case. Given the admissions, the only issue is whether there was a breach of s. 8 of the Charter of Rights and Freedoms, and whether that breach requires that the evidence seized should be excluded. The defence called no evidence.
[4] While on patrol in his car, Ottawa Police Cst. Benard allegedly stopped the defendant after he was observed running a red light. He claimed that as he approached the defendant’s car, he smelt marijuana, arrested the defendant for possession, and then observed a garbage bag in the back seat, and a bag and box in the trunk. The bags and box contained a large quantity of marijuana, and cash, all of which he seized incident to arrest.
[5] The defendant’s position is that the seizure of the marijuana was illegal since it was not incidental to a valid arrest. He contends that the officer is not credible because he was found not credible in previous proceedings; and further that he lied during the course of the preliminary inquiry.
[6] Cst. Nicolas Benard has been an Ottawa Police officer since 2005. In February, 2009, he was found guilty of discreditable conduct by a hearing officer following an agreed statement of fact because he had lied.
[7] Cst. Bernard said that since 2009, his misconduct has been made the subject of his questioning in 20 to 30 cases in which he has been a witness.
[8] Cst. Bernard was the arresting officer the night of March 28, 2012. He said that he was on general patrol that night – the midnight shift from 20.45 to 7.30am - in uniform and in a marked cruiser. His area of patrol included the Byward Market area in Ottawa. He said that at 22:23 he was stopped in his cruiser on York St facing west, at Cumberland St., and facing a red traffic light. He said he could see the traffic light facing northbound traffic on Cumberland St. As the light facing northbound Cumberland St traffic turned red, he said he saw a vehicle cross the stop line and proceed north through the intersection on the red light. He was unable to estimate the vehicle’s speed except to say it was not speeding. He said there were no obstructions to his sight lines and he could see both the traffic light in question and the stop line through his peripheral vision. He conceded that from his stopped vantage point, it was approximately 80 feet to his left to the stop line in question and approximately 110 feet from that stop line to the stop line at the north limit of the intersection. He switched on his roof lights, turned onto Cumberland St. behind the vehicle and made the traffic stop between Clarence and Murray Streets. He said he stopped approximately a car length behind the other car which was against the west curb, while his cruiser was offset so he could see the driver’s side of the car and also to offer him protection from the traffic as he intended to walk to the driver’s side of the car. Cst. Benard said there was one occupant in the car.
[9] After conducting a CPIC and motor vehicle check, he exited his cruiser; and observed that the driver had shut off the engine of his vehicle and had begun to get out of his car. Cst. Benard said he told the driver to get back in his car. He did, but left his left foot outside the car. He said he had safety concerns because it was unusual, from his experience for a driver after being stopped, to try to get out of the car. He approached the car cautiously and slowly. As he approached the driver’s door, at a distance of 12 ft., he said he smelled a strong aroma of fresh marijuana. He believed the smell was coming from the car and observed the driver leaning over the console when he was about 10 ft. away.
[10] Cst. Benard said that when he got to the driver’s door, he told the driver he had run a red light and asked for his ownership and insurance. He thought the driver seemed very nervous. The driver gave him his licence. Cst. Benard said he leaned in the car window and found the marijuana smell overwhelming. . The driver then seemed to remove his keys from the ignition and again tried to get out of the car. Cst. Benard told the driver to get back in his car. He thought the driver seemed nervous and hesitant; and he thought maybe he was going to flee. He said he asked the driver if he had marijuana in the car, and decided to arrest the driver for possession, but he wanted a second officer there. So he radioed for another officer with his shoulder mike. Cst. Benard said he then asked the driver to exit his vehicle and stand at the front of the cruiser. The driver seemed hesitant and nervous, but then he saw Cst. Fairbairn arriving and parking adjacent to his own cruiser. At that moment, the driver reached into his pocket, so Cst. Benard arrested the driver for possession at 22.31 hours. He said he observed the driver’s shoulder slump and he stopped being nervous. He then learned he had a cell phone in his pocket and had intended to call a lawyer. Cst. Benard took the defendant to Cst. Fairbairn’s cruiser, while he returned to the defendant’s vehicle. He said he found a small bag of green leafy material in the console. He said he smelled marijuana coming from the back seat and after pulling down the back seat latch to gain access to the trunk, was overwhelmed with the marijuana odour. He found a garbage bag in the trunk filled with marijuana and under it, a white plastic bag and a shoe box containing a lot of bundles of thousand dollar bills. A sergeant arrived to witness the findings go into property bags. He arrested the defendant for possession for the purpose of trafficking and the defendant was taken to the police station.
[11] Cst. Benard was cross-examined thoroughly concerning his previous evidence with respect to his discreditable conduct offence in 2009; and his ability to see the stop line and the red light as he was stopped on York St. It became clear to me that Cst. Benard had been cross-examined a number of times previously on the subject of his professional misconduct, because of his manner of responding. While he admitted that in February, 2009 he had lied when he called in to report that another police officer friend was sick and wouldn’t be able to attend court that day, he persisted in denying that he knew when he called that he actually said he was the other police officer calling. That would have been impersonation of a police officer. He admitted he lied to the Ottawa Police professional standards investigator when he was first interviewed. He agreed that five days later when he had been interviewed a second time by Ottawa Police professional standards that he heard the audio tape of his call in which he said he was the other police officer. Cst. Benard’s answers were unresponsive when asked if he had intentionally represented himself as the other police officer when calling in sick for him. Even more bizarre was his refusal to acknowledge that during the preliminary inquiry, he had said that “even now”, he couldn’t say what he had said during that call in 2009; and tried to suggest that his answer had been “unclear”. He tried to intimate that his answer meant after his call but before he heard the tape. In re-examination, it became even more bizarre when he said that “now” meant after he heard the recording in 2009. That made even less sense. There was nothing unclear about his answer. He repeated his answer twice during the preliminary enquiry; it was very clear. He said that he had not remembered at the time of the preliminary enquiry that he had impersonated Cst. Chisholm, a police officer, when calling in sick for Cst. Chisholm. I find that Cst. Benard was seriously, obviously, and intentionally lacking in candour on this subject.
[12] Cst. Benard denied that he had pulled the defendant over and stopped him without reason just to see what he might be able to find.
[13] Cst. Fairbairn, a five year veteran police officer, said that he arrived at the Cumberland St location at 22:30 hours, parked about 15 ft. behind Cst. Benard’s cruiser, and immediately “could smell” marijuana. He said it was “fresh” and reminded him back of his Police College training days when he was taken to a grow op. He said when he actually exited his vehicle he got a very heavy smell.
[14] Cst. Fairbairn said that in the course of his experience on patrol in the market he had frequently stopped on York St facing north- about 15 times a shift- and that he could see the stop line on Cumberland and the traffic light facing it simultaneously. He said that he has observed about 20 cars running the red light at that location while he had been stopped.
[15] The defendant, in submissions, argued that the onus was on the Crown to establish that Cst. Bernard had made the traffic stop on reasonable and probable grounds, and that the Crown had failed to meet the standard. He contended that Cst. Benard was an unmitigated liar whose evidence ought not to be accepted. He argued that his evidence concerning his peripheral vision of the defendant and the traffic light simultaneously made no sense. The defendant argued that the Crown had failed to meet its onus, the search of the defendant’s car was illegal, and the evidence ought not to be admitted.
[16] The Crown argues that the onus was on the defendant to establish a Charter breach and that while Cst. Benard failed in his evidence in a number of respects, his evidence of the traffic stop should be accepted. She pointed to the corroborating evidence of Cst. Fairbairn.
[17] If I were to accept on a balance of probabilities that Cst. Benard had reasonable and probable grounds to conduct the traffic stop, then I would have to find the search of his motor vehicle was legal. If I were to find that I was not, on a balance of probabilities, able to accept that Cst. Benard had reasonable and probable grounds, then, I would have to find the search was illegal, and then consider whether the items seized must be excluded.
[18] I am satisfied that while it is for the defendant to establish a Charter breach, it is for the Crown to establish on a balance of probabilities that Cst. Benard had reasonable and probable grounds to stop the defendant the evening of March 28, 2012, before he conducted his search of the defendant’s car.[^1] This case is troubling because I must weigh the evidence of a police officer who is not only a proven liar, but lied at the preliminary inquiry, and was unresponsive in evidence before me. I remind myself that Cst. Benard is a professionally trained witness who according to him has given evidence on countless occasions, but whose evidence had all of the hallmarks of either a liar, or someone who did not understand their obligations in the witness box.
[19] While the professional misconduct findings in 2009 are of concern, it was his evidence before me that I found troubling. He obfuscated, avoided the question, answered the question he wished had been asked, and generally was unresponsive. While the cross-examination was robust, it was respectful. I could see no reason for his virtual refusal to be forthcoming about the 2009 incident. Needless to say his refusal to be forthcoming concerning the 2009 incident, and not being truthful about his preliminary inquiry evidence which was very clear, raises serious questions concerning his evidence about the events leading up to the defendant’s traffic stop. To put it bluntly, how would I know when he is being candid and truthful, and when he is not? Ordinarily, in weighing the evidence of a witness, one can simply weigh the consistencies and inconsistencies internal to the evidence and balance it against other evidence. Here we have the unfortunate situation of a police witness who has created suspicion about the reliability of his own evidence through his own obfuscations and untruths.
[20] Cst. Bernard’s evidence concerning the traffic stop is fairly straightforward. He said he was stopped at the stop line on York St. in the Byward Market and saw the defendant in his car cross in front of him on a red light. Quite frankly, on his evidence alone, and because of his demonstrated unreliability, I am left with a serious doubt. However, I do have the evidence of Cst. Fairbairn who corroborated most, if not all, of the circumstances described by Cst. Benard. I found Cst. Fairbairn to be straight forward and believable. Having regard to the added weight of Cst. Fairbairn’s evidence, I am satisfied on a balance of probabilities that the traffic stop conducted by Cst. Benard was as he described it. I find that the traffic stop was conducted after reasonable and probable grounds had been established. The search is therefore legal.
[21] Having regard to the admissions noted above, I find the defendant guilty beyond a reasonable doubt of Counts 1, 2, and 3
Honourable Justice Timothy Ray
Released: October 1, 2014
COURT FILE NO.: 12-G5583
DATE: 2014-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEAN ROMPRE
Defendant
REASONS FOR JUDGMENT
Honourable Justice Timothy Ray
Released: October 1, 2014
[^1]: R v. Plummer, [2007] OJ. No. 2818, 74 W.C.B. (2d) 609 @ para 95 (ONSC)