ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13/90000116/0000
DATE: 20140124
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
VITO CAMILLO BAILEY-RICKETTS and CHRISTOPHER TRELEVEN
H. Amarshi, for the Crown
E. Rolfe, for Mr. Bailey-Ricketts
N. Xynnis, for Mr. Treleven
HEARD: January 20, 21, 22 and 23, 2014
Kelly J.
Reasons for Judgment
[1] The accused, Mr. Vito Camillo Bailey-Ricketts and Mr. Christopher Treleven have been jointly charged with possession of cocaine for the purpose of trafficking and simple possession of cocaine.[^1] Mr. Treleven is further charged with possession of proceeds of crime ($222.20).[^2]
[2] The trial proceeded before me sitting without a jury. Three police officers and one civilian witness testified for the Crown. Neither accused testified and no defence witnesses were called.
[3] For the reasons set out below, I find both accused not guilty.
The Facts
[4] The facts may be summarized as follows:
a. On December 28, 2011 at approximately 1:55 a.m., the accused were traveling westbound on Eglinton Avenue in an Audi sedan. They passed a marked police car that was driven by Police Constable Tyrone D’Souza.
b. P.C. D’Souza looked in his driver’s side mirror and observed that the rear license plate of the Audi was not illuminated in contravention of the Highway Traffic Act[^3]. As a result, he did a u-turn in order to investigate the Audi further.
c. The Audi made a left hand turn onto Kipling Avenue. P.C. D’Souza followed and was traveling approximately 150 meters behind the Audi. P.C. D’Souza observed that the Audi sped up and was traveling at a high rate of speed.
d. P.C. D’Souza was able to get close enough to the Audi to observe and make note of the license plate: ‘BNNZ 567’. He was able to punch the license plate into his computer system and he received the following information: that the Audi was registered to Ms. Kashawna Bogle who had a date of birth of January 1, 1991. She had an address of 2002 Sheppard Avenue East, Apt. 608 in the City of Toronto.
e. P.C. D’Souza eventually sped up and was traveling next to the Audi. He was able to see inside the car. He noticed the accused. Mr. Bailey-Ricketts was driving the Audi. Mr. Treleven was the passenger. He then pulled the police car in behind the Audi.
f. P.C. D’Souza activated his emergency lights to pull over the Audi. It slowed immediately and entered into the curb lane of Kipling Avenue heading south and stopped. P.C. D’Souza parked approximately 10 metres behind the Audi. He identified his location to the dispatcher. He observed the Audi for approximately 20 to 30 seconds and could see that both of the accused were moving side to side and back and forth. He described these actions as “fidgeting”. Such movements were suspicious and made P.C. D’Souza cautious about approaching the Audi.
g. P.C. D’Souza went to the driver’s side of the Audi. The window was already rolled down and Mr. Bailey-Ricketts had his license ready to produce to the officer. P.C. D’Souza examined the driver’s license and advised Mr. Bailey-Ricketts of the reason for the stop.
h. The photo on the driver’s license matched the appearance of the driver. P.C. D’Souza asked Mr. Bailey-Ricketts to provide his name, address and date of birth. That information matched the information contained on the driver’s license.
i. Mr. Bailey-Ricketts provided a permit for the Audi. It was in the name of Ms. Kashawna Bogle with the address and birthdate previously observed when the license plate was run by P.C. D’Souza. When asked who the Audi belonged to, Mr. Bailey-Ricketts was able to repeat the name of Ms. Kashawna Bogle, provide her date of birth and address.
j. When asked if he was the registered owner of the Audi, Mr. Bailey-Ricketts replied “no”, that it belonged to his girlfriend. He, again, provided information regarding Ms. Kashawna Bogle. From this dialogue and other observations, P.C. D’Souza concluded that the Audi was not stolen.
k. P.C. D’Souza asked Mr. Treleven for his name. Mr. Treleven advised that his name was “Adrian Johnson” with a birth date of January 2, 1992.
l. P.C. D’Souza then asked Mr. Bailey-Ricketts to produce proof of insurance. Mr. Bailey-Ricketts looked in the glove compartment for some time (15 to 30 seconds), but was unable to find it. P.C. D’Souza asked him to call Ms. Bogle so that the insurance issue could be resolved.
m. P.C. D’Souza returned to the police car to conduct some further checks. He punched in the license plate on the permit and discovered that Ms. Bogle was currently charged for driving without insurance. He then punched in the name of Mr. Bailey-Ricketts and received some information from CPIC. As he was in the police car, Mr. Bailey-Ricketts approached to advise that he was unsuccessful in contacting Ms. Bogle. He also told P.C. D’Souza that he believed the Audi was not insured, that Ms. Bogle was four months pregnant and that she could not afford the insurance.
n. P.C. D’Souza then told Mr. Bailey-Ricketts that the Audi would have to be towed because it was not insured. He provided two options: (i) the Audi could be towed to his own home at his own expense of $180 to be paid immediately; or (ii) the Audi would be towed to the pound and kept there until he paid the $180 towing fee and $50 for each day the car remained in the pound. Mr. Bailey-Ricketts said he did not have the money to pay the towing fee and returned to the Audi.
o. P.C. D’Souza called dispatch for back-up. He then called the towing company. Following that, he approached the Audi and asked both accused to get out.
p. While on the sidewalk, P.C. D’Souza asked Mr. Treleven his name again. He provided the name of “Adrian Johnson” with a date of birth of January 2, 1992 and an address of 34 Corby Avenue. He produced no identification to P.C. D’Souza. (Mr. Treleven identified himself in a similar fashion to P.C. Lee.). P.C. D’Souza also asked Mr. Bailey-Ricketts what he was doing out that night and he responded that he was on his way to Shopper’s Drug Mart to get some medication for his girlfriend who was pregnant and feeling sick.
q. When P.C. Lee (and his partner) arrived on scene, P.C. D`Souza briefed them and started to search the Audi to ensure there was no valuable property inside of it before it was towed. He used a flashlight to do so. The search commenced in the glove box. While doing this, he noticed a portion of a white plastic bag sticking up from the area between the passenger seat and the centre console. The bag was tied in several knots. He pulled up the bag and opened it to look inside. He observed two smaller bags which contained a white substance later determined to be crack cocaine. He likened the size of the bags to a ping pong ball and that only 25% of it was showing above the seat.
r. Thereafter, P.C. D’Souza arrested Mr. Bailey-Ricketts. He was found to be in possession of $64.00 and one cell phone.
s. P.C. Lee arrested Mr. Treleven. Found on Mr. Treleven were two cell phones and $222.20. Nothing of further interest was found on either of the accused or in the Audi following a more fulsome search of it.
Analysis
(i) The Drug and Proceeds Offences
[5] There is no direct evidence that either of the accused had knowledge of the crack cocaine in the Audi. Accordingly, the case is a circumstantial one. Although the narcotics were found in close proximity to both of the accused, I have not been persuaded beyond a reasonable doubt that either of the accused were aware that the crack cocaine was in the Audi and therefore knowledge has not been proven beyond a reasonable doubt.
[6] I find that reasonable doubt has been raised for the following reasons:
a. The Audi passed the marked police car on Eglinton Ave. at close range. It then made a turn onto Kipling Ave. as did the police car. P.C. D’Souza continued to follow the Audi for approximately 4 to 5 minutes. He was approximately 100 metres behind the Audi and described visibility as good. There was little or no traffic in the area. P.C. D’Souza said that he had “no problem keeping his eyes on the vehicle” so that presumably, if either of the accused had looked through the back window or in the rearview mirror, they would likely have observed the marked police car behind them. It would have been obvious to them that they were being followed by a police car, but at no time during this 4 to 5 minute period did Mr. Bailey-Ricketts do anything to modify his driving (i.e. by changing direction or turning off Kipling Ave.) despite knowing that the Audi was being followed by a marked police car.
b. At one point during the drive south on Kipling Ave., the police car was approximately 10 metres behind the Audi and at another point, the police car pulled up beside it so that P.C. D’Souza could make observations of the occupants. Presumably the accused were equally able to observe the police car next to them. P.C. D’Souza did not describe any gestures of the occupants that would lead him to conclude that they were surprised by the police presence or nervous about it. Again, there was no attempt to “lose” the marked police car at this point nor did Mr. Bailey-Ricketts modify his driving.
c. P.C. D’Souza said that he became suspicious of the accused when he observed them following the stop. He said that he could see them fidgeting, moving their heads and shoulders, leaning forward, etc. However, he also conceded that the movements, especially exhibited by Mr. Bailey-Ricketts, were consistent with reaching over to the glove compartment, perhaps to locate the paperwork that was presented when he approached the Audi. Accordingly, I find little probative value in these actions by the accused.
d. Mr. Bailey-Ricketts was cooperative and polite at all times. He pulled the Audi over immediately following the emergency lights being activated on the police car. He had his window rolled down and his documents ready for production when P.C. D’Souza approached the Audi. He answered questions without delay and it appears the information he provided was accurate. He looked for proof of insurance when asked to do so and made an attempt to speak with the registered owner of the Audi to see if she could assist. When she could not and when Mr. Bailey-Ricketts determined that the Audi was not insured, it was he who approached P.C. D’Souza to advise him of that information.
e. Mr. Bailey-Ricketts was advised, when he was talking to P.C. D’Souza at the police car, that the Audi would have to be towed. Mr. Bailey-Ricketts returned to the Audi while P.C. D’Souza remained in the police car for a few more minutes. This would have been an ideal opportunity to either dispose of the crack cocaine and/or conceal it better if he knew it was there. It does not appear that either was done in anticipation of the Audi being towed.
f. The timeline disclosed in the evidence would have permitted the accused plenty of time during which they could have either disposed of the crack cocaine or made a better effort to conceal it if they knew of its existence. That timeline is as follows:
Occurrence
Estimated Time
The marked police car followed the Audi on Eglinton and Kipling Avenues.
4-5 minutes
The marked police car pulled in behind the Audi, and both cars stopped. P.C. punched some information into his computer and got out of his car to approach the Audi.
1-2 minutes
After speaking with the accused in the Audi, P.C. D’Souza returned to his car and did further checks. Mr. Bailey-Ricketts approached the police car and the two had a discussion about towing the Audi. Mr. Treleven was alone in the Audi at this point. Mr. Bailey-Ricketts returned to the Audi after being told it would be towed and P.C. D’Souza remained in the police car.
4-5 minutes
Officer Lee arrived at 2:00 a.m. and the accused are advised at 2:25 a.m. that the crack cocaine has been located.
25 minutes
Based upon the above-mentioned timeline, it appears that the accused might have been aware of the police presence for at least 9 to 12 minutes and were definitely aware of it for 5-7 minutes. During this time they could have easily disposed of the crack cocaine or completely concealed it. They had another 25 minutes to interrupt the search of the Audi to advise that between them, they had $180 to arrange for the towing or to advise that there were no valuables inside the Audi such that an inventory search was not needed. At no time did the accused attempt to arrange the tow themselves.
g. At no point did either of the accused make any attempt to dissuade P.C. DSouza from conducting the search of the car. For example, they were within 10 metres of the Audi when the search began. They did not attempt to frustrate the search by advising P.C. DSouza that there was nothing of value in the Audi, nor did they say anything to the effect of: ‘whoa, wait a minute officer, we have discovered that we actually have the money for the tow so there is no need to search the car’.
h. The accused were found with over $180 between them. One would have expected that if they were knowingly in possession of crack cocaine as suggested, they would have opted to pay the $180 towing fee which would have prevented the necessity of the inventory search that led to the discovery of the crack cocaine.
i. Mr. Treleven was described as calm and cool throughout his interaction with P.C. Lee and Mr. Bailey was cooperative with officer D’Souza. There was no change in demeanor or behaviour noticed by any officer at any time, including the period that P.C. D`Souza was searching the Audi in the presence of the accused who were close by.
j. Although the reason provided by Mr. Bailey-Ricketts for being on the road at approximately 2:00 a.m. (going to Shoppers Drug Mart to get some medication for his girlfriend) may have seemed suspicious at the time, such a reason was confirmed by the evidence of Ms. Bogle. Ms. Bogle testified that she had loaned the Audi to Mr. Bailey-Ricketts for just that purpose: to go to Shoppers Drug Mart to get her nausea medication amongst other things.
k. The bag containing the crack cocaine only became obvious to P.C. D`Souza when he looked inside the Audi with a flashlight and nobody was sitting in either the driver or the passenger seat. Only a small portion of the bag was visible in that particular state (about one-quarter of an inch). The crack cocaine, itself, was not visible. Accordingly, it would not be readily apparent from the sight of one-quarter inch of the bag that it contained crack cocaine.
l. No photos were taken of the bag in the condition it was found and there is no evidence that either the passenger or the driver could have seen the bag where it was found if simply sitting in the Audi. For example, I did not hear any testimony that upon seeing the bag, P.C. D`Souza put himself in the position of the accused in either the driver or passenger seat with the bag in place as he found it to see if it would have been visible to either of the accused. As such, there is no certainty as to the exact amount of the bag exposed and whether it was visible to the accused.
m. There was no other evidence in the Audi or on the accused to suggest that either of the accused was in the drug trafficking business. For example, there was no scale or any Ziploc bags found in the Audi. Crown Counsel submits that the fact that Mr. Treleven was in possession of two cell phones that were ringing during the investigation leads to an inference they were used for the purposes of drug trafficking. While that may be, there may be inferences drawn that the two cellphones were used for a legitimate purpose (i.e. one for employment and one for personal business). Further, the evidence disclosed that each phone rang only once and not several times or continuously to suggest that they were being used for a business enterprise at approximately 2:00 a.m. on the date in question.[^4]
n. Crown Counsel submits that an inference can be drawn that it is the accused who possessed the crack cocaine in the Audi because it is inconceivable that other parties would leave such a valuable commodity (i.e. approximately $1,900 worth of crack cocaine) unattended in a vehicle. The value of these narcotics is not one the owners would risk losing.[^5] However, a competing inference can also be drawn. If the accused were aware of the existence of the crack cocaine, it is hard to believe that they would leave such a valuable commodity in a vehicle that was going to be towed at the behest of the police and left in a pound.
o. The fact that Mr. Treleven was in possession of $220 may lead to an inference that he was in the trafficking business due to the existence of the two phones and the crack cocaine. That may be but $220 is hardly a significant amount of money to be carried in this economic climate.
p. Mr. Treleven provided a false name to police which, again, is suspicious but it is clear that there were 14 “hits” for bail compliance checks on his home such that the only possible inference is not restricted to consciousness of guilt for these particular offences.
q. At no time did Mr. Treleven try to leave the scene despite the fact he was not being investigated for any reason. He was free to leave at any time but did not do so.
[7] Although the proximity of the bag containing the crack cocaine to the accused may raise some suspicion, the bag (and particularly the contents) was not readily visible in the Audi. As I say, there may be reason to be suspicious but I am not satisfied that the only reasonable inference to be drawn from the proven facts is guilt.[^6] Viewing the circumstances both individually and cumulatively, it cannot be said that the only reasonable inference is that the accused knowingly possessed the crack cocaine.
[8] For these reasons, both accused will be acquitted of counts 1 and 2 on the indictment. Mr. Treleven will also be acquitted of the proceeds of crime charge: count 4.
Kelly J.
Released: January 24, 2014
COURT FILE NO.: 13/90000116/0000
DATE: 20140124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
VITO CAMILLO BAILEY-RICKETTS and CHRISTOPHER TRELEVEN
reasons for SENTENCE
Kelly J.
Released: January 24, 2014
[^1]: Contrary to sections 5(2) and 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[^2]: Contrary to sections 354(1)(a) and 355(b) of the Criminal Code, R.S.C., 1985, c. C-46. A charge of obstructing police by giving a false name against Mr. Treleven was dismissed at the request of Crown Counsel after all of the evidence was heard. As such, it was not necessary to address the Charter application to exclude the utterances.
[^3]: R.S.O. 1990, c, H. 8
[^4]: See: R. v. Bryan 2013 ONCA 97
[^5]: See: R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.) at paras. 45-46
[^6]: See: R. v. Rush, [2001] O.J. No. 1645 (C.A.) at para. 1