CITATION: R. v. Needham, 2015 ONSC 2400
COURT FILE NO.: CR-12-1963
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S.G. Montefore, for the Crown
- and -
PATRICK NEEDHAM
R. Rusonik, for the defence
HEARD: April 8, 9, 10 and 13, 2015
REASONS FOR JUDGMENT
Justice Skarica
Overview
[1] On October 26, 2010, Peel Police officers executed a search warrant at a Toronto apartment looking for drugs. They found none. With the police in the apartment, the accused opened the door and he was arrested. According to the police, he was carrying a bag which contained 354.75 grams of crack cocaine. According to the accused, he was carrying nothing.
Issue
[2] Has the Crown, pursuant to the principles outlined in W.(D.), proven its case beyond a reasonable doubt.
The Facts
[3] A variety of police officers testified for the Crown.
Officer Dhillon – Evidence in-Chief
[4] He is a Peel Regional Police officer and the investigating officer in this prosecution.
[5] On October 26, 2010, he instructed a team of officers – Officer MacLeod, Officer Dykstra, Detective Harrison and Officer Meeker (now Yetta) regarding executing a drug search warrant upon 33 Empress Avenue, Apt. 2915 in Toronto. 33 Empress is a condominium complex in Toronto.
[6] The team entered the condo, and took the elevator to the 29th floor. At approximately 4:20 p.m., using a master key, Officer Dykstra opened the front door. There was not a lot of property in the unit and it did not look lived in.
[7] Officer Dhillon searched the master bedroom. It had three to four pieces of clothing in the closet. There was a bed but the officer was unsure if there was any other furniture. No one was in the unit and the police did not seize any drugs at all.
[8] At 4:57 p.m. Constable Meeker who was observing the video cameras with security downstairs relayed information to Officer Dhillon that a vehicle connected to the target suspect had arrived. The targeted suspect was Carl Needham, date of birth February 22, 1970 and the suspect vehicle was a black Land Rover BJBL 365.
[9] In the apartment were Officers Dhillon, Dykstra, MacLeod and Detective Harrison. At 5:30 p.m., the officers heard a key in the door lock and the door opened. Constables MacLeod and Dykstra were closest to the door and announced to the male entering the apartment he was under arrest. The male attempted to flee and Officers Dykstra and MacLeod pursued him. The door shut when they left the apartment. Officer Dhillon then followed, opened the door and saw Officer MacLeod escorting the accused back to the apartment. The accused was holding – “clutching” – on to a black bag. The bag was taken from the accused and he was “grounded” and handcuffed. The accused was searched by Officers Dhillon and MacLeod. Officer Dhillon testified he “didn’t think” he recovered anything during the search of the accused’s person. He had a note that at 5:32 the police unholstered their weapons.
[10] Officers Dykstra and MacLeod went downstairs to attend to the Land Rover vehicle.
[11] Constable Dhillon remained on the premises. Mr. Needham was seated either on the floor or on a chair. Cst. Dhillon did not view the contents of the bag. Cst. Dykstra took possession of the bag. Cst. Dykstra located a large quantity of cocaine in the bag. Cst. Dhillon never had custody of the drugs. There was a bed in the master bedroom. There were two safes underneath the bed. They were not open. Cst. Dhillon could detect a strong odour of cocaine coming from the safe.
[12] Cst. Dhillon returned to the station with the accused and Cst. Dykstra in a police vehicle.
Constable Dhillon – Cross-Examination
[13] The safes were broken open before Mr. Needham arrived at the apartment. There was nothing in them.
[14] Cst. MacLeod was the exhibits officer.
[15] Cst. Dhillon was not sure where Cst. MacLeod left the exhibits or where they were.
[16] Cst. Meeker was downstairs watching the video surveillance set up by the building security. Det. Harrison was Cst. Dhillon’s supervisor but they took turns regarding who was in charge of the investigation. Officer Dykstra did the briefing before the execution of the search warrant and then Cst. Dhillon took over as the officer in charge (OIC).
[17] Cst. Dhillon did not see Needham with possession of the bag until after Patrick Needham was in contact with the police officers.
[18] Their information was that Carl Needham was using the condo apartment as a stash house for drugs.
[19] At the briefing, Cst. Dhillon had seen a photo of Carl Needham. He knew the accused was not Carl Needham within minutes/seconds of the arrest.
[20] Cst. Dhillon has no note or memory of every being shown any ID.
[21] Cst. Dhillon agreed that a videotape recorded by the building’s security camera would be a source of valuable information, consistent with getting the best evidence of a crime. There was no effort made to get the security videotape. Cst. Dhillon relied on Cst. Meeker’s observations of the accused going from the underground parking lot to the apartment. Cst. Meeker had said the accused was in the elevator and coming up.
[22] The video would have confirmed the accused exiting the vehicle and coming up the elevator with the bag (satchel).
[23] Cst. Dhillon testified that it was four and a half years ago and he does not know if he thought about the video.
[24] At page 54 of the May 3, 2012 preliminary inquiry (PI) transcript, Cst. Dhillon testified that there was no effort made by anybody on the team to get the video because they did not think they needed the video. They did not think it was investigatively important.
[25] Cst. Dhillon testified that there was no thought of getting independent evidence to refute any suggestions of police fabrication. Cst. Dhillon did not leave any follow up information with security but indicated that does happen in most cases.
[26] Cst. MacLeod was not in the police vehicle when Cst. Dykstra and Cst. Dhillon took the accused to the station. He made a note of that.
[27] Cst. Dhillon does not recall if security called back that there was a woman around.
[28] There were only five officers involved in the search and arrest.
[29] Four officers entered the apartment at 16:20. The apartment had few contents and was sparsely furnished.
[30] The search was completed before 16:57. From 16:57 until 17:30, they were waiting for someone to come in.
[31] Cst. Meeker had told him that, at 16:57, the vehicle had arrived. She did not tell Cst. Dhillon he was on the way up.
[32] The keys to the safe were not located by Cst. Dhillon and he never saw them.
[33] Cst. Dhillon did not see Mr. Needham being arrested and did not know anything regarding those officers unholstering their weapons.
[34] The police were on the lookout for the Land Rover BJBL 365.
Officer Paul MacLeod
[35] He was the exhibits officer.
[36] Carl Needham was the main target. He assisted in executing a drug search warrant at 33 Empress, Apt. 2195.
[37] They arrived at the premises at 4:20 p.m. From 4:20 p.m. to 4:57 p.m., the premises were searched. Det. Harrison found three scales in the kitchen and they were seized as exhibits.
[38] No drugs were located. There was a TV in the living room and minimal clothing in the bedroom. He received information that someone had arrived in a vehicle and a ½ hour later that person was on the elevator and exited on the 29th floor.
[39] The police were waiting inside the apartment around the corner to the left. He does not believe any weapons were drawn.
[40] Mr. Needham attended the apartment just before 5:30 p.m. The door was opened by a key. The officers were wearing police vests and jeans. The officers told Needham they were police executing a search warrant. Mr. Needham retreated outside the door and was stopped, in the hallway, 10 to 15 feet to the left of Apt. 2915. The accused was told he was under arrest for possession for the purposes of trafficking. The accused clenched the bag tightly to his chest.
[41] Csts. Dhillon and MacLeod removed the bag from the accused’s hands and put handcuffs on him. The bag was given to Cst. Dykstra who observed a large quantity of cocaine in the satchel. The drugs were left in the bag and processed at the office. Officer MacLeod took possession of the bag and contents and placed it in the exhibit box and fastened a lid on the box.
[42] Cst. MacLeod went with Cst. Dykstra to check on the Land Rover and left the exhibit box there.
[43] Cst. Dhillon was left in the apartment with the accused. The exhibit box was left in the apartment beside Cst. Dhillon.
[44] Nothing was located in the vehicle. The vehicle search lasted for 10 minutes, not a half hour. They then returned to the residence and left at 6:07 p.m. They arrived at the police station at 6:43 p.m. to process the exhibits.
[45] The bag containing the cocaine was entered as Exhibit 3 with photos of it entered as Exhibits 1 and 2.
[46] There was documentation located in the bag. The contents consisted of a photocopy of a passport, resident card and driver’s licence. This documentation was entered as Exhibit 4.
[47] In the side pocket of Exhibit 3, a variety of bank and customer receipts were located. These were entered as Exhibit 5.
[48] SIM cards were also located in Exhibit 3 at the trial itself. No note had been made of them.
[49] The accused used a key to get in the apartment. It was in the accused’s hand. Cst. MacLeod seized other keys on the same key chain. Three Century keys were found on the accused that did not belong to the residence. They were entered as Exhibit 6. Exhibit 7 consists of two keys that are keys to the residence found on the accused.
Officer MacLeod – Cross-Examination
[50] The chronology was that the bag was seized and he did the exhibits prior to the vehicle search. After the vehicle search, the bag was searched and the police got the personal documents.
[51] It was suggested that the original testimony of Officer MacLeod was the accused was arrested, the officers checked the vehicle and then found the documents. Now the testimony is that the accused was arrested, the exhibits were left with Cst. Dhillon and the documents were found before going to the vehicle.
[52] Cst. MacLeod denied finding the ID documents in the vehicle. The photos were taken back at the office even though they had cameras at the scene.
[53] The officer was asked how he resisted the temptation to take photos of the ID in the bag.
[54] The officer’s notes are not numbered. On the seventh page, after 16:57, there is a note of Patrick Needham Driver’s Licence (DL) number with an address of 7 Howland in Brampton. The officer indicated he could have got the DL from Mr. Needham. No driver’s licence was seized and there is no note of any DL being found on him.
[55] There is a note at 17:38 of a brown satchel shortly after the accused’s arrest. There are no notes of finding any documents of identification on the accused’s person. He was not sure of where Cst. Meeker was when they went to search the car. It is possible she came to the apartment. Cst. MacLeod made the decision to go to search the car and leave the exhibits behind. He had previously been disciplined for misplacing a drug exhibit. He denied finding keys for the safe in the car.
[56] There are no pictures of the keys in the safes. He has no notes of finding the keys or finding the cell phones that were seized.
[57] Cst. MacLeod drove back by himself. He does not recall who was in the vehicle. He does not recall how many vehicles went to the building for the search. He does not recall details of the clothing in the apartment. In the print notice report used for the bail hearing, there was no indication of drugs being found in the bag. Cst. MacLeod could not recall who prepared the report.
[58] In re-examination Cst. MacLeod indicated drugs are removed and photographed in the drug office. The safe keys were located on the accused but not together.
[59] The ID documents had relevance and were placed in a separate exhibit bag. The receipts had no relevance and were left in the bag. The three SIM cards were ordered to be provided to counsel for examination overnight. The overnight examination reveals that two of them had nothing on them and the Fido card had one phone number on it.
Officer Dykstra
[60] On October 26, 2010, he was a Peel Police officer who participated in the search at Apt. 2915.
[61] The apartment was entered at 4:20 p.m. by way of a master key. He searched the second bedroom and found nothing of substance.
[62] At 4:57 p.m., Cst. Meeker advised that a black Land Rover had pulled into the underground.
[63] At 5:30 p.m. the accused opened the door and stepped inside. He then turned and fled down the hallway for about 10 to 15 feet. Cst. MacLeod brought him back. The accused had a black bag over his shoulder. Cst. Dykstra looked inside and observed crack cocaine. He turned the bag over to Cst. MacLeod.
[64] Cst. Dykstra then took part in the vehicle search. The vehicle was quite clean and nothing was found.
[65] From 4:20 to 4:57, they were searching a two bedroom apartment.
[66] At 4:57, they were packing up and getting ready to leave. When the accused was arrested, no weapons were drawn. Exhibit 2 shows what he saw – drugs in the bag. He did not see the papers next to the crack cocaine. He did not search Mr. Needham.
Officer Dykstra – Cross-Examination
[67] Previous surveillance had revealed that Carl Needham in the black Land Rover had frequented the condo unit and the police believed that the condo was being used as a stash house.
[68] Nothing was found in the search of the apartment and no ID was found connecting Carl Needham to the apartment. It was suggested that the search of the apartment would not take long and it would take just seconds to bring the few exhibits into the exhibit box. Yet at 16:57, 37 minutes later, they were still there when the Land Rover arrived. It was worth waiting to see if Carl Needham appeared.
[69] Cst. Dykstra never searched the rest of the bag. He opened it up, saw a large quantity of drugs and turned it over to the exhibits officer.
[70] At the fifth page of his notes, he has a notation at the bottom half of the page, “I take the bag and search”. By search, the officer indicated he opened the bag.
[71] At page 69 of his March 2 preliminary hearing testimony, the officer testified that it was him who searched the bag and located a large quantity of what he believed to be crack cocaine. Part of his concern was that there could be a firearm in the bag.
[72] There was no ID on the accused.
[73] Cst. Dykstra could not say why the exhibits officer went down to search the vehicle. The two who searched the vehicle were the two who arrested the accused. He could not say why Cst. Meeker did not go.
[74] Cst. Dykstra has a note regarding the accused’s arrival but no note he was going upstairs and does not know if Cst. Meeker called to advise that the accused was going upstairs. He searched the bedroom without the safes. He believes there was a dresser. The closet had some clothing but he could not say if it was women’s clothing. There are no pictures of the bedroom.
[75] He and Cst. Dhillon transported the accused back to the station.
[76] He does not remember if they got a call from security.
[77] Cst. Meeker was downstairs watching the video cameras. He did not try to get video camera evidence despite agreeing that videos of the lobbies and elevators could provide undeniable evidence.
[78] He cannot remember if he wrote the print notice for the bail hearing. The synopsis makes no reference to the satchel containing drugs.
[79] It was an agreed statement of fact that disclosure was provided to the accused on March 11, 2011.
Officer Karen Meeker
[80] She is a Sergeant with the Peel Regional Police.
[81] On October 26, 2010, she was a constable in this investigation.
[82] At the preliminary inquiry, she forgot her original notes. At trial, she testified that her notes were at her home – she cannot find them. A tornado hit her residence. She did not know her notes were missing until she needed them. Normal procedure is to leave notes at the station but she is permitted to take them home as required. She has never reported the notes missing. Multiple notes may be missing – she cannot say. She has not reported them to be missing. Due to her maternity leave, she took multiple notes home for cases that were still open. She cannot recall when she realized they were missing. Just yesterday, she discovered her notes were missing. Her information was that she would not be testifying on Tuesday of this week. It was yesterday she realized her notes were lost. She never looked for the notebook before.
[83] Her role on October 26, 2010 was to monitor the building’s security cameras for the black Land Rover. She was not involved in the search. The police arrived at the building at 4:07 p.m.
[84] At 4:56 p.m. she observed the target black Land Rover with licence BJBL 365, enter the building. The driver used a card to access the building. The vehicle proceeded to the P4 parking garage. She notified Cst. Dykstra that the vehicle had entered the underground garage at 4:57 p.m. She used her cell phone. She did not see anyone exit the vehicle.
[85] She went down at 5:26 p.m. She saw a black male carrying what looked like a black bag or purse over his shoulder and across his chest. Exhibit 3 is what he was carrying. She was not in uniform. The man went to the elevators. She tried to make a call but there was no reception.
[86] She then went back to the elevator and at 5:32 p.m. tried to get a hold of her team. At 5:45 they advised her they had a male in custody and at 5:48 p.m. she proceeded to Apt. 2915.
[87] Officer MacLeod had the black bag or satchel. The male under arrest was the same male she saw earlier. She saw the drugs that were located. She did not search the vehicle. She left with Det. Harrison who had originally driven her to 33 Empress.
Officer Meeker – Cross-Examination
[88] When she was watching the surveillance video, she took no notes of the names of the security personnel.
[89] In the underground, she could not make the phone call to the team. She has no note of that. She tried to phone in the lobby up until 5:45 but she has no note of that.
[90] When she went down to the underground, she did pass by him. She did see a picture of Carl Needham at the briefing but was not certain if the black male was Carl Needham.
[91] She was still downstairs at 5:45 because she had to get her things. It took her 15 minutes. It was not necessary for her to go up – there were four other officers there.
[92] At 16:56, when he arrived, she has nothing about how he accessed the building in her notes. It was an oversight.
[93] At 17:26 she saw the male with the satchel. She made that note in the upstairs lobby. At p. 23 of the May 3, 2012, preliminary hearing she testified she could not recall where she made the notes – either in the lobby or in the apartment. She explained that she was referring to all her notes.
[94] She now recollects she made the notes in the lobby.
[95] Despite seeing people coming and going in the elevators and underground parking lot, it never occurred to her to seize the videos. She had observed the event and was an eyewitness. At p. 25 of the preliminary hearing transcript, she testified that it was Cst. Dhillon’s job to do that. At trial, it was suggested that she testified she did not think of it. She indicated that it was not her position to get the video.
[96] She did not go down to search the car – it was Officers MacLeod and Dykstra.
[97] She is not tight with the other team members, but there were no disputes either.
Defence – Patrick Needham
[98] Mr. Needham indicated that the Exhibit 3 satchel and the cocaine within are not his.
[99] He works full time as a carpet installer and part time painting at night.
[100] He has no criminal record.
[101] In 2010, he lived at 7 Hallen Road in Brampton with his mother. His brother lived there as well.
[102] His brother rented a room at the condo apartment at 33 Empress so he could bring girls there.
[103] Their mother is religious and only tolerates a regular girlfriend – not other girls.
[104] Mr. Needham met a married woman at a bar and arranged to meet her at the condo apartment at 5:00 p.m. on October 26, 2010. She called him earlier that day on his cell phone to make the arrangement. He only had one cell phone.
[105] Mr. Needham had a girlfriend but she does not check his phone.
[106] The married woman called him Junior – he does not want the girls to know his real name.
[107] He went to family court before this meeting and asked to borrow his brother’s Land Rover.
[108] When he arrived at the apartment building at 5:00 p.m., he was on time but she was not.
[109] He drove into the parking lot at 5:00 p.m. and spoke to her over the phone. She agreed to come for 6:00 p.m. He exited the vehicle to go upstairs. He had to wait until somebody came out at the elevators before he could go in.
[110] He went upstairs to see if the sheets were clean. He left his wallet in the van – he did not want the woman to go through his wallet (it had happened before).
[111] He made the photocopies of his ID documents for family court.
[112] His licence was in his wallet which he got back when he was released from jail.
[113] After his arrest, Officer Dhillon and two other officers drove him back to the police station. He had one cell phone, not four. He had one key to the apartment. He got it from his brother. He does not recall any other keys. The Century keys were not his. He did not know what was in the vehicle – it was not his.
[114] When he got to the apartment, he knocked and then opened the door.
[115] Somebody yelled Carl Needham – he stepped back from the door.
[116] The police drew their firearms – two came out and said you’re under arrest.
[117] They took him inside and called him his brother’s name. They searched him but he had no ID. They thought he was Carl. They took the apartment key and vehicle key. He gave permission for them to search the car.
[118] They came back up and said your name is Patrick.
[119] He first learned of the satchel with drugs when he got disclosure from his lawyer on March 11, 2011. It was then he asked to get the video from the apartment. When he was booked he was charged with possession for the purpose but was not told or given any explanation for the bag.
[120] He did not know about the safes under the bed. There was something in the van that you touch and the garage door opens.
Accused – Cross-Examination
[121] The accused lives with his mother. In 2010, his sister and younger brother Carl lived there as well. He is married to Vandela. He has been married to her for four years. One to two years before that she was his girlfriend.
[122] The married lady he was to meet at 33 Empress was only known to him as “Lynda”.
[123] He does not know how long his brother Carl used 33 Empress as a “sex pad”.
[124] Carl’s girlfriend was the registered owner of the Land Rover.
[125] Carl is not here at this trial as a witness because of friction due to this incident happening.
[126] The accused did not rent the apartment – he was short of money.
[127] On October 26, 2010 he went to a government office and made the Exhibit 4 photocopies.
[128] He normally kept his pay stubs in his wallet. He worked on and off and got paid every two weeks. He got pay stubs in September/October, 2010 but he does not recall for sure.
[129] Exhibit 4 contains the documents that were folded in his wallet. There is a 2009 cheque stub but no pay stubs in Exhibit 4.
[130] He asked his brother to use the apartment first. The girl was going to pick him up. He never had sex with her before. He got to the underground about 4:56 p.m. He did not go up right away because she called to cancel and he was trying to get her to come. She agreed to come for 6:00 p.m. He went upstairs before 6:00 p.m.
[131] The apartment is furnished. It has a bed and dresser. In the living room, there is just a TV.
[132] He does not know who lives in the other room.
[133] He went up to change the sheets. He has been there three times before. The sheets were inside the bathroom. He did not know if the other roommate would show up. He was going to lock the bedroom door. Before he entered the apartment, he knocked on the door. He was lying to the girl about his name. He left his wallet with the Exhibit 4 documents in the vehicle. The Exhibit 4 documents are folded in four and would fit in his wallet.
[134] When he left the car, he had been waiting for someone to open the doors to the elevator. He does not know if it was Cst. Meeker who opened the doors to the elevator. When he opened the door, the officers had their weapons in their hands. He was scared and stepped back. They had “Police” marked on their chest. They said “Carl Needham”. He said no. They put their weapons back and grabbed him. It happened fast. The officers said, “Carl Needham, you’re under arrest”. The search warrant was for his brother Carl. He does not recall his brother with drugs. Carl never “done” drugs around him. He does not know about Carl’s 2003 drug arrest.
[135] The accused denied the drugs were his or that he was transporting them for his brother.
[136] He did not know about the safes. He did not know about the keys shown in Exhibits 8 to 11.
[137] He had one of the keys shown in Exhibit 7. He had a single key to the apartment and a single key to the vehicle.
[138] He never met the woman that his brother was renting the apartment from.
[139] The accused testified that he never had a bag. When he got the disclosure, he instructed his lawyer to get the security video which would establish he never had a bag. He had no reason to have a bag. He had been to the apartment before but he did not have his own key. His brother gave him the car key and a single key to the apartment. He disagreed with the suggestion that he knew about his brother’s drug dealings.
Reply Evidence
[140] On consent, Officer Harrison was permitted to be called by the Crown in reply.
[141] Officer Harrison is currently a Staff Sergeant with the Peel Police Service. On October 26, 2010, he was a detective with the Peel Police Service.
[142] Officer Harrison attended the search with his team in executing the search warrant on October 26, 2010. The search started at 4:20 p.m. From 4:20 p.m. to 4:57 p.m. he searched the kitchen area. He located a variety of scales in a remote part of the kitchen cabinets and seized them. He was searching from 4:20 p.m. until 5:30 p.m.
[143] From 4:57 p.m. to 5:30 p.m., they were waiting for the accused to arrive. He first observed the accused when the accused was brought into the apartment by other officers. The accused had a dark brown satchel over his shoulder. He recognized Exhibit 3 as the satchel the accused was wearing. Officers MacLeod and Dykstra brought the accused in. None of the officers had their weapons drawn. Needham was taken to the ground and would not let go of the satchel. Officer Dykstra took the satchel and saw a quantity of cocaine within. The accused was transported back to the station by Officers Dykstra and Dhillon.
Cross-Examination of Officer Harrison
[144] Officer Harrison has no note of seeing the cocaine in the satchel. He has a note of being told there was cocaine in the satchel.
[145] He has no note of the accused struggling trying to hold on to the satchel.
[146] He has no notes of the safe being searched.
[147] He was not involved with Patrick Needham from the point of his arrival to his leaving.
[148] At the beginning of the trial, Officer Harrison was out of the country. His wife had scheduled a trip before the trial date was set.
[149] There was no running log kept of where items were found as per normal police practice.
[150] There was no log of seizures after Needham’s arrival.
[151] He did not feel it was necessary to obtain any videos. He was aware that the building had scanners and was not aware if videotapes were being recorded. He does not believe keys were found to open the safe.
[152] Photos were not systematically taken. No fingerprint examination of the seized scales was done. That is usually not done.
[153] The performance of the drug squad is judged in part by the number of arrests made.
[154] At 4:57 p.m. he was still searching. There, up to that point, had been no meeting to discuss results. He does not recall the form of ID used to identify Patrick Needham. He does not recall any phones being seized.
[155] He drove back by himself. All five of the team members gathered back at the station and had discussions.
The Law
[156] This is a case of credibility involving the police on the one hand and the accused on the other.
[157] The test I am to apply is outlined by Justice Cory in R. v. W.(D.), [1991] 1 S.C.R. No. 742, as follows at paras. 27 and 28:
27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.
28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well [page758] instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
[158] Dealing with W.(D.) step 3 first, the police version is at first blush simple and compelling: Carl Needham was using 33 Empress, Apt. 2915 as a place to stash his drugs. While the police were conducting a search of the premises, Carl Needham’s brother, Patrick Needham, walked into the apartment carrying a bag with a significant amount of cocaine in it.
[159] My review of the evidence reveals a number of concerns about the police investigation as follows:
(1) No one bothered to get a copy of the building security videos which would have established beyond all doubt that Mr. Needham had the bag in his possession in the underground parking lot and in the elevator and it would be easy to infer he had the same bag seconds after leaving the elevator and entering the apartment. As Officer Meeker put it at p. 25 of the May 3, 2012 preliminary inquiry, “Me personally, I do like to rely on video surveillance is – the best kind of evidence to have.
(2) The accused’s bail synopsis appears to make no reference to the drugs being found in the black bag.
(3) Disclosure was made on March 11, 2011. This appears to be the first time that the accused is informed about drugs found in a bag he was carrying.
(4) The accused, through his lawyer, on March 16, 2011 requested that the police obtain a copy of the video taken on the arrest date – October 26, 2010 – from the building security. The videos are no longer available as they were taped over every 30 days.
(5) The exhibit officer, Officer MacLeod, testified in-chief, that prior to leaving the residence for the final time at 6:07 p.m. and after searching the vehicle, he searched the bag and located cocaine and various documentation in the name of Patrick Needham. He indicated, “I didn’t identify where the ID was in the bag.” The photo in Exhibit 2 clearly shows the cocaine tucked against what could be or could not be the ID documents. Given the importance of the location of these two vital pieces of evidence, it is hard to fathom how an experienced exhibits officer could make no note of it.
In cross-examination, the time line changed and Officer MacLeod confirmed that he originally had said he searched the bag after searching the car but now was indicating he located the ID documents before searching the vehicle. He had made a mistake in his earlier testimony.
At the office, Officer MacLeod took a picture of the cocaine in the bag. Officer MacLeod did not take a photograph of the ID documents in the bag indicating, “I didn’t have the temptation I guess”. The ID documents were taken out of the bag but the remaining documents were left in the bag because they were not relevant.
(6) Officer MacLeod’s notes are not numbered. There is a note of his driver’s licence number before his note of the satchel being turned over to him. Officer MacLeod’s explanation is that he got that DL information from the original driver’s licence. He has no note of the accused’s driver’s licence being found on him although he searched him.
Constable Dhillon has no note or memory of ever being shown ID. Constable Dykstra indicated that there was no ID on the accused.
Officer Harrison does not recall what form of ID was used to identify the accused.
(7) The officers arrived at 4:20 p.m. and four of them searched a sparsely decorated apartment. Officer MacLeod said the search did not take long. Yet at 4:57 the officers were still there when Officer Meeker phoned them that a Land Rover had arrived.
(8) Officer MacLeod and Officer Dykstra did the search of the vehicle downstairs. Officer MacLeod had to leave his exhibits behind. Officer Meeker, who knew where the car was, testified she returned to the apartment shortly after the accused’s arrest. Officer MacLeod has no recollection of her being there although conceding it was very possible that she was.
(9) There were no pictures of the keys opening the safe. Officer MacLeod has no note of which key opened which safe. He has no note of who gave him the safe keys and no note of finding them himself. He has no note of someone giving him the cell phones or of finding them himself. There were no pictures taken of the other bedroom and no reason given as to why or why not. The safes were opened before the accused arrived. They reeked of cocaine but there was nothing in them.
(10) Officer Harrison was contradicted in his evidence by the following officers:
(a) Officer Harrison says he returned to the station by himself. Officer Meeker says she went back to the station with Officer Harrison.
(b) Officer Harrison says he was still searching at 4:57 p.m. There had been no meeting up to that time to discuss results. Officer Dhillon testified the search was completed before 4:57 p.m. Officer Dykstra testified that at 4:57 p.m. they were packing up and getting ready to leave. Officer MacLeod believes that the officers had a discussion regarding the results of the search as they were collecting their belongings and getting ready to leave.
(c) Officer Harrison testified that he does not believe keys were found to open the safe. Officer MacLeod says keys to the safe were located on the accused and he took pictures of them along with the other keys in the accused’s possession – see Exhibit 8 – 11. However, Officer MacLeod has no note of who gave him the safe keys.
(d) Officer Harrison does not recall any phones being seized. Officer MacLeod testified someone gave him cell phones but has no note of finding them himself.
In addition to the concerns outlined above, Officer Harrison testified that there was no running log of where items were found; there was no log of seizures after Needham’s arrival; photos were not systematically taken; no fingerprints were taken of the seized scale items; no videos were seized or requested. Officer Harrison confirmed that the performance of the drug squad is judged in part by the number of arrests made.
(11) Officer Meeker’s evidence was particularly disconcerting.
At the preliminary hearing, she forgot her original notes. There are no page numbers in the notes. At trial, she testified that they were lost in a tornado along with notes of a number of other ongoing files. Police policy requires them to be stored at the station but she was permitted to take them home due to her maternity leave. The trial started Tuesday but she only discovered for the first time they were lost Wednesday, the day before her testimony. She had never looked for them before. She has never reported any of her notes to be missing. This evidence, if true, is astounding.
This officer is a police sergeant and one would think that, if her home was damaged with her notes in that home, any responsible officer would make it an immediate priority to recover them and/or report them lost.
Her role was to go to security and watch the videos. She took no note of the names of the other security personnel. When the accused left the vehicle, she was in the underground and could not call out. She went up to the lobby and attempted to call the officers in the lobby. She has no notes of these attempted calls from 4:57 p.m. to 5:45 p.m. She never asked the security personnel for copies of the videos – it did not cross her mind. At the preliminary hearing, she basically testified that it was someone else’s job i.e. the OIC, Cst. Dhillon.
[160] To conclude, this was not a stellar investigation. The officers were aware that there was video evidence which could establish the accused’s guilt or innocence. Even though there were five of them, no one bothered to get it. There is no reference to drugs in a bag in the bail synopsis – an incredible oversight in the circumstances. The evidence from the officers is clear that the accused’s ID was in the bag with the drugs. Yet before Cst. MacLeod gets the bag he has a notation of the accused’s DL details. He now assumes he got it from the accused’s original driver’s licence. No such DL was seized by that officer. The other two officers involved in the arrest have no recollection of ever seeing a driver’s licence. The officer’s notes are not numbered which makes a chronology of exact events difficult. Further, Officer MacLeod changed his evidence regarding exactly when he searched the bag, which evidence is critical in these circumstances.
[161] Given these and other gaps in this investigation, I have a reasonable doubt as to the accused’s guilt.
[162] Regarding step two of W.(D.), does the accused’s evidence raise a reasonable doubt?
[163] He testified he borrowed his brother’s car in order to meet a married woman for a sexual tryst at 5:00 p.m. at an apartment his brother was renting. The police evidence is that he arrived at 4:57 p.m. He testified that his date tried to cancel and he was able to talk her out of it and then he left the car. She was coming for 6:00 p.m. This would explain the half hour delay before the accused exited the car. He says he never had any brown bag with drugs and the video would confirm it. This is why he requested the video evidence in March after he got disclosure. He did not request it earlier because he did not know about the bag. The bail synopsis is consistent with this testimony.
[164] The safe which reeked of drugs was opened before he got there. After his arrest, the girl he was meeting arrived at around 6:00 p.m. and she phoned him while he was with the officers. One of the officers he was with took the call and told her to go. Officers Dykstra and Dhillon testified they escorted the accused back to the station. They did not deny getting this call – they simply could not recall it.
[165] I note that the accused has no record and was not seriously contradicted in cross-examination by a very capable Crown Attorney. The Crown says the ID documents could not fit into his wallet. However, there was no evidence regarding the wallet he was using at that time. It was returned to him after his arrest but there is little else in evidence about it other than the accused saying it was similar in nature.
[166] His evidence is simply he had no bag and was going to the apartment for a love making session. In the circumstances of the evidence itself and the surrounding evidence, I find that this evidence of the accused raises a reasonable doubt pursuant to step 2 of the W.(D.) road map.
[167] Regarding step 1, I am not sure if I believe all of the accused’s evidence. For example, it is difficult for me to believe, given his brother’s criminal record and the surveillance evidence, that the accused was totally unaware of his brother’s connections to the drug world. I do not need to explore step 1 of W.(D.) any further as I am satisfied, pursuant to steps 2 and 3 of W.(D.) that the accused’s evidence raises a reasonable doubt and that further the Crown has failed to prove its case beyond a reasonable doubt, respectively.
Justice Skarica
Released: April 13, 2015
CITATION: R. v. Needham, 2015 ONSC 2400
COURT FILE NO.: CR-12-1963
DATE: 20150413
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PATRICK NEEDHAM
REASONS FOR JUDGMENT
Justice Skarica
Released: April 13, 2015