ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-90000311-0000
DATE: 20150709
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KHARY WHITE
Defendant
Elizabeth Bellerose, for the Crown
Ayderus Alawi, for the Defendant
HEARD: June 8-12, 2015
E.M. Morgan J.
[1] The Defendant is charged with two counts of trafficking in cocaine (one count as principal to the offence and another as a party), two counts of possessing the proceeds of crime (one count in relation to possession of police ‘buy money’ and another to other cash found on him), and one count of obstruct justice (in relation to evidence found in his mouth).
[2] The Defendant elected trial before a judge alone.
[3] The incidents in issue occurred between May 31 and June 7, 2013.
I. The first drug deal
[4] On May 31, 2013, an undercover officer from the Toronto Police Services drug squad, Officer Terrance Lazarus, received the phone number of a suspected drug trafficker from an informant. At 6:28 p.m. that day the officer initiated a call to the phone number, and it rang to voicemail. Shortly thereafter he called back a second time and a male voice answered the phone.
[5] Officer Lazarus spoke to the man in patois. He opened the conversation by saying, “Wa gwan fam?” (How are you?). The man answered, “Good still”, a common patois response to a greeting, thereby confirming that he knows and is comfortable speaking patois.
[6] Their conversation continued with Officer Lazarus telling the man that he is looking for drugs. The man said he has “Hard ting”, meaning crack cocaine, upon which Officer Lazarus asked for a “ball”, or 3.5 grams of crack. The man said it will cost $240, and that he’ll get back to him.
[7] A short time later Officer Lazarus called the same phone number, and again the call went to voicemail. A minute later Officer Lazarus called back, and when the man answered the officer asked him if he had a ride to come meet with him. After several more exchanges in which the man on the phone at first said that he was waiting for someone to drive him around, the man finally told Officer Lazarus that he was stranded in Mississauga. Officer Lazarus, still speaking patois, told the man on the phone that it was too far for him to travel there, and that he had meanwhile found another source. He then told the man that he would call him the next week.
[8] The following week, on June 6, 2013, Officer Lazarus called again. He dialed the same number as he had the week before, and a voice that he recognized as the same male, patois-speaking voice answered the phone. The man said that he can deal with him that night, and then asked Officer Lazarus where he was located.
[9] At 4:40 p.m. on June 6th, a briefing was held of Toronto drug squad officers. A team was assembled, including Detective Ryan as the officer in charge, D.C. Neil Chase as the road boss, D.C. Connor monitoring the officer protection kit (a one-way listening device), and Officers Jason Anstey and Oliver Ho participating in the surveillance. Officer Lazarus was tasked with being the undercover officer and completing the drug purchase. To this end, $240 in police ‘buy money’ was issued to Officer Lazarus, which was photographed for later identification.
[10] After several phone calls working out the logistics of their meeting, Officer Lazarus received an incoming call at 7:07 p.m. confirming that the man was on his way to meet him. The man told Officer Lazarus to go to the Weston Road and Highway 401 area to meet him.
[11] The man then called back a short time later to say that he was stuck in Vaughan and could not meet Officer Lazarus after all, but that his friend would come to do the deal. He said that he had arranged for the friend to meet him at Weston Road and the 401. Officer Lazarus testified that all of the incoming calls from the man were from the same phone number that he had originally called the previous week.
[12] Ten minutes later, at 7:17, the officer called the number and told the man that he was getting frustrated waiting so long. Officer Lazarus testified that he put on a tone of impatience in his voice, and suggested to the man that he doesn’t want to deal with him anymore.
[13] Over an hour later, at 8:25, Officer Lazarus received an incoming call in which the same male voice apologized for running him around. The man said that he’ll do the drug deal if Officer Lazarus meets his friend at the Weston Road and Highway 401 car wash. The Officer agreed, and told him that he doesn’t want any more delays. The man answered that there would be no problem, and that his friend was already there waiting to meet him.
[14] At 8:44, the same man called Officer Lazarus and told him, “My boy’s at the car wash.” Half an hour later, at 9:15, Officer Lazarus arrived at the car wash, parked in the first bay facing south, and called the man to tell him he was there. Two minutes later the man called him back to say that his friend was on his way.
[15] Officer Lazarus testified that at 9:19 p.m., a heavyset male approached his vehicle and entered his car on the passenger side. Some drug conversation ensued, after which Officer Lazarus gave him the police buy money and the man gave him what he believed to be (and which laboratory tests confirmed is) crack cocaine. Once the exchange was completed, Officer Lazarus gave his colleagues the ‘deal done’ signal, and the heavyset man was arrested.
[16] At 9:23, the original man called back and asked Officer Lazarus if he had seen his friend. The officer, sounding frustrated, told him that he had not seen him. After a further exchange, in which the original man called back to say his friend had been there and Officer Lazarus insisted that he didn’t show up, the man on the phone said that he would come meet him himself. Officer Lazarus let the man know that he was frustrated and that he thought the man was disrespecting him, and told him that he would not deal with anyone else in the future but him personally. According to Officer Lazarus, the man answered, “Alright, sir.”
[17] The officer then departed the scene and went to the 12 Division station for a debriefing and processing of the first arrest. That debriefing concluded at 10:50 p.m.
II. The second drug deal
[18] At 11:18 that same night, Officer Lazarus called the same phone number as he had been calling, and the same voice answered, “Ya?” Officer Lazarus asked the man if he was going to “make this thing right”. The man said that he was watching a basketball game, and that he would then come meet Officer Lazarus at the McDonald’s at Highway 401 and Weston Road.
[19] Officer Lazarus advised D.C. Chase of these new arrangements, and a road briefing took place among the police team. Officer Lazarus was re-issued the same $240 in buy money, and placed it in his left pant pocket where it would be accessible. The same police crew went out with him as had gone to the earlier meeting.
[20] At 12:08 a.m. (now June 7, 2013), Officer Lazarus called the same phone number. The man told him that he was on his way and would be there in 10 minutes. At 12:28, Officer Lazarus received an incoming call from the man, who asked where he was. The officer advised him that he was waiting in the parking lot of McDonald’s. After several more calls, they finally located each other.
[21] Officer Lazarus testified that at that point a black man wearing a hoodie came over to his car and spoke with him. As he did so, Officer Lazarus noted that it was the same voice as he had been hearing and speaking with on the phone. In a visual identification, Officer Lazarus identified the man that approached his car in the early morning of June 7, 2013 as the Defendant.
[22] The Defendant entered Officer Lazarus’ car and sat in the front passenger seat. Officer Lazarus asked him if he had the product, at which he answered “Ya”, and pulled out three baggies from his front pocket. The Defendant said that he wanted to see the money, and in return partly showed Officer Lazarus the baggie that was covered with his hand.
[23] Seeking a compromise between insisting on holding the drugs and handing the money to the man without taking hold of the drugs, Officer Lazarus told the Defendant to put the baggies in the cup holder in the centre console of his car. The officer then handed over the buy money, which he testified he put in the Defendant’s right hand. Just as they were completing this exchange, the Defendant saw Officer Ho walking in front of the car and asked Officer Lazarus, “Who’s that?” Officer Lazarus testified that it was very tense in the car, and that the Defendant locked the doors thereby locking them both in the vehicle.
[24] According to Officer Lazarus, the Defendant then grabbed the baggies from the cup holder as Officer Lazarus struggled to unlock the car. At that point, Officer Ho came up to the passenger side door and shouted, “Police”. At this, the Defendant put his hands up and appeared to the officers to put the baggies in his mouth. Officer Lazarus testified that he was not sure whether the Defendant actually swallowed the drugs or simply held them in his mouth.
[25] Officer Anstey came over to assist Officer Ho in arresting the Defendant. Officer Lazarus told Officer Anstey that the money was on the seat of the vehicle. Officer Anstey testified that he told the Defendant to “Spit it out”, and that Officer Ho tried to get the drugs out of the Defendant’s mouth. At some point during the brief struggle, the baggies with the drugs in them ended up on the floor of Officer Lazarus’ car.
[26] The Defendant was placed under arrest. Officer Anstey seized the drugs and took photographs of the buy money. The several officers then left the area and returned to 12 Division for a de-briefing session.
[27] Two telephones were seized from the Defendant – a Samsung and a Nokia. Another phone – a Blackberry – had been seized from the earlier arrestee. Officers Lazarus and Anstey did a phone check and called the number that Officer Lazarus had been calling. This test verified that one of the phones that they found in the Defendant’s possession rang when they dialed the number. A check of the text messages demonstrated that one of the phones was forwarded to ring to the other, but the text messages came in to the one to which they were directed.
[28] Officer Anstey testified that one of the Defendant’s telephones had a number of calls from Officer Lazarus, and that both phones had text messages from the Blackberry that had been seized from the heavyset man in the earlier arrest.
[29] The certificates of analysis verify that the substances in the baggies retrieved from the floor of Officer Lazarus’ car tested as cocaine (1.14 grams), codeine (2.43 grams), and cocaine (2.81 grams).
[30] Another member of the police team, Officer Spencer Fraser, testified that he searched the Defendant after his arrest and seized a total of $320 that he found in the Defendant’s wallet. Officer Fraser surmised that these funds must be proceeds of crime.
[31] No other indicia of trafficking – customer lists, drug paraphernalia, etc. – were found on the Defendant. Apparently, some car keys were also seized from the Defendant at the time of his arrest and were noted in the police report; however, none of the police witnesses could recall any keys associated with the Defendant, and no vehicle was ever seized nor was any evidentiary value attached to the keys.
III. The defense position
[32] Counsel for the defense makes a number of points in addressing the factual background of this case.
[33] In the first place, he submits that the Crown places undue reliance on Officer Lazarus’ voice identification evidence of the Defendant as the participant in the telephone calls preceding the drug deals. He points out that in R v Portillo, 2003 5709, at para. 41, the Court of Appeal stated that such identification evidence is inherently frail.
[34] Defense counsel also notes that the fact that the man on the phone speaks patois is inconclusive of his identity and that, in fact, there is no evidence in the record of how many patois speakers live in the greater Toronto area or the extent to which carrying on a patois conversation increases the probability that the man on the phone was the Defendant. Officer Lazarus may have believed that the voice on the telephone was that of the Defendant, but defense counsel asks rhetorically: “Was it?”
[35] Second, defense counsel points out that when the Defendant was arrested he was not in physical possession of either the drugs or the buy money. Both were left lying in Officer Lazarus’ car. Counsel contends that in these circumstances there is no hard evidence of a drug deal at all.
[36] Third, the defense argues that the confusion over one of the Defendant’s cell phones being forwarded to the other means that no one can be sure of who was calling whom. Defense counsel argues that without the evidence of the telephone conversations, it is impossible to know what these meetings were really about or to pinpoint the Defendant’s involvement in the first drug deal.
[37] Finally, defense counsel states that there is no evidence at all to suggest that the money found in the Defendant’s wallet represents proceeds of crime. He submits that this cannot be presumed by the Crown, but rather must be proved along with all of the other offenses with which the Defendant is charged.
IV. Analysis and approach to the evidence
[38] As always, I must keep in mind that “the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence”: R v Lifchus, 1997 319 (SCC), [1997] 3 SCR 320, at para 36.
[39] I am cognizant of the fact that the evidence must be considered in its totality: R v. L (CO), 2010 ONSC 2755, at para 6. If there is evidence pointing to a potentially conflicting narrative, and I am unable to resolve the conflicting evidence, I will necessarily be “left in a state of reasonable doubt”: R v Challice (1979), 1979 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).
[40] Having said that, “something less than absolute certainty is required” since that would set the Crown’s burden impossibly high: R v Starr, 2000 SCC 40, [2000] 2 SCR 144, at para 242. Here, on the totality of evidence, I am not, as Code J. described it in R v Edwards, 2012 ONSC 3373, at para 20, left in “a state of indecision or uncertainty” as to where the truth lies.
[41] The theory of the defense with respect to the voice identification evidence rests on a faulty premise. As counsel for the Crown points out, Officer Lazarus does not rely on the Defendant’s telephone voice in identifying him; he relies on visual identification. Officers Lazarus, Ho, and Anstey ultimately met the Defendant in person at the time of his arrest. They certainly do not have to rely on voice recognition to identify him as the person involved with the second drug transaction of June 6-7, 2013. Officer Lazarus sat in his car right next to the Defendant during their meeting, and Officers Anstey and Ho personally took the Defendant into custody.
[42] As for the first drug transaction of that night, Officer Lazarus’ voice identification of the Defendant is somewhat more important. The officer testified that he spoke with the Defendant on the phone numerous times, but that the person he actually met and who engaged in the drug transaction was the Defendant’s friend, not the Defendant himself. Nevertheless, as a consequence of the first arrest, Officer Lazarus and the Defendant arranged to meet later; and, most importantly, they actually did meet. There can be little doubt that the man with whom the officer spoke is the man with whom he ultimately met.
[43] During final submissions, I asked defense counsel why the Defendant would have turned up to meet Officer Lazarus in a parking lot after midnight if he was not the person on the phone earlier that night. Why would he have showed up at the precise Weston Road and Highway 401 location and gotten into the Defendant’s car if he were not the man who had arranged the drug deals on the phone?
[44] There is no possible answer to that question except to acknowledge that the Defendant was indeed the individual with whom Officer Lazarus spoke in setting up the drug deals. Given the conversations described by Officer Lazarus and the meeting that then ensued, I am left with no doubt whatsoever in this regard. The Defendant is the man who had discussed the drug transactions with the undercover officer over the telephone. It was the Defendant who arranged to send a friend to deliver the drugs in the first drug deal of the night, and it was the Defendant who met Officer Lazarus himself to deliver the drugs in the second drug deal that night. Not only did the conversations take place; the meetings and the deliveries all took place.
[45] As for the second argument put forward by the defense – that the Defendant was not in physical possession of either the drugs or the money at the moment of his arrest – that is true only in the most literal sense. The reason that the drugs and money ultimately fell to the floor of Officer Lazarus’ car is that something of a melee ensued once the Defendant caught sight of Officer Ho approaching the car just as the drug deal concluded.
[46] Officer Lazarus witnessed the Defendant leave the buy money on the console of his car, and had seen the baggies in the Defendant’s hand. Officer Lazarus also witnessed the Defendant putting the baggies in his mouth, and Officer Anstey witnessed the Defendant holding the plastic baggies in his mouth, told him to spit them out, and then witnessed them moments later on the car floor.
[47] Under the circumstances, there is no doubt that the Defendant exchanged drugs for money. He was, to be sure, arrested in a context which led both the drugs and the money to be strewn inside Officer Lazarus’ car. That does not undermine the evidence that the drugs and money were in his possession immediately prior to his arrest. The Defendant had the drugs in his hand while still sitting in the car, and Officer Lazarus testified that he had handed the buy money directly to him just before the Defendant caught sight of Officer Ho.
[48] Moreover, the testimony of Officers Lazarus and Anstey make it clear that upon his arrest the Defendant attempted to obstruct them in the exercise of their duty by hiding the drugs in his mouth. This was, among other things, a dangerous situation, since swallowing a quantity of crack cocaine could represent a serious health hazard for the Defendant. Had it not been for Officers Anstey and Ho being able to get the Defendant to spit out the drugs, the situation may have deteriorated in a serious way.
[49] Turning to the question of the confusion over the cell phones, there is really no confusion at all. One of the Defendant’s ringers was forwarded to the other. A simple test of dialing the phone number showed that the Defendant had been receiving the calls placed by Officer Lazarus and that Officer Lazarus had been receiving calls from the Defendant. Moreover, the Defendant had been receiving texts from the earlier arrestee who the Defendant had identified to Officer Lazarus as his friend. The so-called confusion over the cell phones is, with the greatest of respect, much ado about nothing.
[50] Finally, defense counsel does make a cogent point about the $320 seized from the Defendant’s wallet. There is no evidence that these funds are the proceeds of crime. While the Defendant was also found in possession of the police buy money – which, of course, does represent proceeds of crime – the $320 found on the Defendant’s person was his own money; or, at least, there is no evidence to suggest that those funds were anything but his own money. Without more, the $320 cannot be considered proceeds of crime.
V. Disposition
[51] I find the Defendant guilty on two counts of trafficking cocaine, one count of obstruct justice, and one count of possession of the proceeds of crime. He is not guilty on the second count of possession of the proceeds of crime.
Morgan J.
Date: July 9, 2015
COURT FILE NO.: CR-14-90000311-0000
DATE: 20150709
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KHARY WHITE
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: July 9, 2015