Her Majesty the Queen v. Walter Jose Aviles, 2015 ONSC 4580

COURT FILE NO.: 11537

DATE: 2015/07/27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

B. R. Farmer, for the Crown

• and -

WALTER JOSE AVILES

Philip M. Millar, for the accused

HEARD: April 13-14, 2015

LEACH J. (ORALLY)

Overview and preliminary matters

[1] By way of overview, the accused, Walter Jose Aviles, is charged with four offences pursuant to the Controlled Drugs and Substances Act, (“the CDSA”), and one offence pursuant to the Criminal Code of Canada, (“the Code”). The offences are particularized in the indictment, but generally involve:

• One count of possessing cocaine (a Schedule 1 substance) for the purposes of trafficking, contrary to s.5(3)(a) of the CDSA;
• One count of possessing Oxycodone (a Schedule 1 substance) for the purposes of trafficking, contrary to s.5(3)(a) of the CDSA;
• One count of possessing cannabis marihuana (a Schedule II substance), in an amount not exceeding the amount set out for that substance in Schedule VII, for the purpose of trafficking, contrary to s.5(3)(a.1) of the CDSA;
• One count of possessing Diacetylmorphine, also known as heroin, (a Schedule 1 substance), for the purpose of trafficking, contrary to s.5(2) of the CDSA; and
• One count of carrying an unauthorized concealed weapon, (a knife), contrary to s.90(2) of the Code.

[2] The charges stem from events said to have taken place in the early morning hours of January 15, 2013, here in the city of London. Evidence in that regard is outlined in greater detail below. In broad terms, however, the Crown says:

• Police officers were dispatched to a convenience store in downtown London, in response to a man complaining of a recent assault.
• In addition to seeking the help of attending officers to retrieve a missing shoe, the complainant provided a description of his alleged three assailants, including one male, (not the accused), who was known to the complainant and identified by name.
• While still speaking to two attending officers, the complainant then pointed through the convenience store windows to three individuals, (a female and two males, including the accused and the alleged assailant who had been identified by name), who were approaching the convenience store on foot. The complainant identified the three approaching individuals as his alleged assailants.
• The officers on scene then rounded the corner of the convenience store and took immediate steps, (the purpose and characterization of which was disputed by the defence), to physically take charge of the two men, including the accused Mr Aviles. (The alleged female assailant was taken into custody a short time later by another officer who arrived on scene.) The officer who took physical charge of Mr Aviles says, and the Crown contends, that Mr Aviles was immediately placed under arrest for an assault investigation, and told that he was being arrested on that basis. (The defence contends that the initial steps taken by the police were instead merely an investigative detention, short of arrest.)
• Following the initial steps taken by the police to physically take charge of Mr Aviles, the police admittedly then performed searches of Mr Aviles, (which revealed a number of cellular telephones and a wallet containing a sum of cash) as well as a shoulder bag Mr Aviles had been carrying but which had been dropped near the entrance to the convenience store during the initial encounter between Mr Aviles and the police. In particular, a police sergeant, (who arrived on scene after Mr Aviles and his companion had been confronted and physically detained), picked up the dropped shoulder bag before then examining its contents and noticing what he believed to be drugs and related paraphernalia. The sergeant then took the shoulder bag to the officer who had custody of Mr Aviles, and verbally drew that officer’s attention to what he had seen inside the shoulder bag, which prompted that officer to also examine the contents of the shoulder bag. When that officer did so, he too observed what appeared to be several types of narcotics, as well as a digital scale.
• Mr Aviles then was said to have been “re-arrested”, at the scene, for possession of drugs for the purpose of trafficking.
• A further search of the shoulder bag at the scene, (carried out by a different officer who had assumed custody of Mr Aviles), led to, amongst other things, the discovery of a knife concealed in the “top flap” of the shoulder bag.
• After Mr Aviles had been transported to the police station, a further search of his person led to the discovery of a clear plastic “baggie” in one of his coat pockets, apparently containing more drugs.

[3] At the outset of trial, defence counsel indicated that date, time, jurisdiction and identification were not in issue.

[4] Moreover, insofar as the various drug offences are concerned, the defence consented to the filing of certificates of analysis, (confirming the nature of the substances involved in relation to the first four counts of the indictment), to obviate the need for the calling of any Crown witnesses in that regard.

[5] These preliminary indications of admissions and party agreements were supplemented by Crown counsel then rising, at the outset of trial, to indicate his understanding that there was “no issue as to the continuity or nature of the substances”, before seeking permission to file the aforesaid certificates of analysis collectively as an exhibit.

[6] In response, defence counsel confirmed agreement with Crown counsel’s comments and request by saying “That’s fine”.

[7] More generally, I was informed at the outset of trial that all concerned believed the trial outcome would turn primarily on whether the substances and knife discovered by the police should be admitted into evidence or excluded, through application of the Canadian Charter of Rights and Freedoms, (“the Charter”).

[8] In particular, by way of an appropriate formal application, Mr Aviles contends that neither the substances nor the knife should be admissible, insofar as the various items were said to have been discovered and seized by the police pursuant to alleged contraventions of the right of Mr Aviles to be free from unreasonable search and seizure, (pursuant to section 8 of the Charter), and/or the right of Mr Aviles not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances where, the defence says, the items accordingly should be excluded from evidence pursuant to s.24(2) of the Charter.

[9] I was also advised that, in the event the relevant substances were not excluded from evidence, the remaining issue for determination would be whether Mr Aviles was in possession of the substances for the purpose of trafficking, (an issue in respect of which the Crown intended to tender expert evidence from a police witness).

[10] The parties also confirmed their agreement that the entire matter should be addressed by way of a “blended” voir dire and trial proceeding.

Evidence – General Comments

[11] At trial, in addition to numerous exhibits, (including the certificates of analysis mentioned above), the Crown presented testimony from four witnesses:

i. I heard first from Constable Zach Bronson, one of the police officers who initially responded to the complaint of assault, and the officer primarily responsible for taking physical charge of Mr Aviles before later looking inside the shoulder bag.

ii. The second Crown witness was Sergeant Douglas John Austin, a police sergeant who arrived at the scene after Mr Aviles had been initially confronted and detained by Constable Bronson, and who first handled and looked inside the shoulder bag dropped by Mr Aviles.

iii. The third Crown witness was Constable Curtis Thorner, another officer who arrived at the scene after Mr Aviles had been initially confronted and detained by Constable Bronson. While still at the scene outside the convenience store, Constable Thorner assumed custody of Mr Aviles. While still at that scene, and then later at the police station, Constable Thorner also took custody of, or discovered, various items said to have been in the possession of Mr Aviles, including the knife and coat pocket “baggie” mentioned above.

iv. The fourth and last witness called by the Crown was Detective Constable Glenn Bullick, who provided expert testimony in support of the Crown’s assertion that Mr Aviles was in possession of various seized substances for the purpose of trafficking.

[12] While subjecting the Crown’s viva voce witnesses to cross-examination, the defence elected not to call any witnesses.

[13] Although all witnesses in the trial before me were called by the Crown, with Mr Aviles electing not to lead or present evidence, and the exhibits filed emanated from the Crown and police witnesses, I have in mind throughout my entire reasons and analysis the presumption of innocence and the burden of proof upon the Crown.

[14] In particular, according to the constitutional guarantee in s.11(d) of the Charter, Mr Aviles is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to any and all of the alleged offences beyond a reasonable doubt. That is a heavy burden and, in relation to the elements of the charges against Mr Aviles that are not admitted, never shifts.

[15] The accused Mr Aviles has no obligation whatsoever to establish his innocence, and I accordingly attach no significance to the fact that he gave no evidence at trial, although pursuant to R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, I have taken into account that certain evidence presented to me, (e.g., in relation to the events of January 15, 2013), stands uncontradicted in the sense that there is no other evidence to consider in relation to such matters.

[16] In that regard, I also pause to note that, in considering the uncontradicted evidence at trial, and the testimony of Sergeant Austin in particular, I have born in mind the consideration, highlighted by defence counsel, that Sergeant Austin’s contemporaneous duty book notes are somewhat minimal, and that the original more detailed “will say” statement prepared by Sergeant Austin on the morning in question, and entered via the mobile data terminal in his vehicle, failed to “upload” at the time, for reasons unknown. (There was no evidence or suggestion that the failure was deliberate, or that it was otherwise brought about somehow for improper reasons.) When the failure to upload was brought to Sergeant Austin’s attention in June of 2013, he then prepared another “will say” statement, based on his duty book notes and memory of the events, some six months after they had occurred. His lack of a more fulsome and contemporaneous written record of the events he witnessed on the morning in question was reflected, I think, in the admitted inability of Sergeant Austin to recall certain details at trial, (such as the names of all officers he had seen and spoken with at certain times, the precise nature of conversations, and detailed descriptions of particular items he saw on the morning in question). The circumstances therefore arguably put Sergeant Austin’s testimony on a footing more similar to that of many lay witnesses, who frequently do not prepare a detailed contemporaneous written record of their observations to assist with later recollection. However, as with such lay witnesses, I do not regard the absence of a detailed contemporaneous record of Sergeant Austin’s observations as something necessarily fatal to acceptance of his evidence, particularly insofar as it may relate to more significant events which may stand out in his memory. It was instead simply one of many factors to be considered in assessing Sergeant Austin’s credibility and reliability.

[17] Returning to my general observations concerning evidence and onus, although the Crown has the overall onus at trial to establish the guilt of Mr Aviles beyond a reasonable doubt, in relation to the alleged offences, I nevertheless also bear in mind that, insofar as the Charter application of Mr Aviles is concerned, Mr Aviles has the onus of proving, on a balance of probabilities, that there have been constitutional infringements and that evidence obtained as the result of any infringement should be excluded. See R v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 35.

Evidence – General Facts

[18] With the above preliminary observations, I turn now to a more detailed review of the underlying evidence.

[19] While I will have more to say about certain aspects of that evidence later in my reasons, the following findings concerning the events of January 15, 2013, form the basic context of my further analysis:

• At approximately 3:17 that morning, Constable Bronson and a fellow officer, (Constable Matt Stewart), were on uniform patrol in a marked police vehicle when they were detailed to attend at a convenience store at the northeast corner of Dundas and Wellington streets, in downtown London, where a male person was reporting an assault.
• However, Constables Bronson and Stewart were not the first police officers to arrive at the convenience store and speak with the complainant. Sergeant Austin, (who had heard that officers already had been dispatched to the location), was also in uniform and on regular patrol in a marked cruiser when he was “flagged down” outside the convenience store by the assault complainant, Jeff Stewart, at approximately 3:20am. During what seems to have been a relatively brief conversation, Mr Stewart advised Sergeant Austin that he recently had been assaulted, described and identified an assailant by name, (i.e., Michael Earhart), and directed Sergeant Austin to where he had last seen Mr Earhart; i.e., in an alley behind another downtown store located approximately one block away, to the northwest. Sergeant Austin instructed Mr Stewart to stay where he was, (as other officers were on their way), and then proceeded in his patrol vehicle to the location identified by Mr Stewart, to search for Mr Earhart. At the time, Sergeant Austin was not aware that Mr Stewart was missing any items, and was simply looking for Mr Earhart. (Sergeant Austin candidly acknowledged that he could not recall at trial whether or not he had used his mobile data terminal to look up information relating to Mr Earhart, although he says that would have been standard procedure.) When Sergeant Austin did not find Earhart at or near the alley in question, he remained in his vehicle and continued his search, “crisscrossing” the area in a “grid” pattern; i.e., working his way along other various streets surrounding that location, and looking for “pedestrian foot traffic” fitting the description that had been provided by Mr Stewart.
• In the meantime, Constables Bronson and Stewart arrived at the convenience store on the northeast corner of Dundas and Wellington streets, where they too were met outside by the complainant, Jeffrey Stewart, (who will be referred to hereafter as Mr Stewart, to distinguish him from Constable Stewart). Mr Stewart was said to be in a “nervous” and “concerned” state. He indicated to the two officers that he had been assaulted by two males and a female, in the same alley previously described to Sergeant Austin. Mr Stewart said one of the male assailants was known to him, and once again identified that male by name as “Michael Earhart”. Mr Stewart provided a brief description of the other alleged male assailant, who was said to have a “darker skin tone” and “baggy hip-hop style clothing”. Mr Stewart also asked the two officers for assistance in retrieving a missing shoe that he claimed to have lost during the alleged assault. He personally was fearful and did not want to go back to the scene, so the two officers drove there on his behalf, once again leaving Mr Stewart at the convenience store.
• At or around that time, Constables Bronson and Stewart also used the mobile data terminal in their police vehicle to perform an information search in relation to Michael Earhart, and learned that Mr Earhart was bound by a condition of judicial interim release, (pending the disposition of outstanding charges which Constable Bronson could not recall), requiring that Mr Earhart not be in that area of downtown London; i.e., a specified area bounded to the east by Wellington Street. The two officers also were able to examine a police booking photograph of Michael Earhart.
• When Constable Bronson and Constable Stewart arrived at the rear alley where the assault was said to have occurred, they found Mr Stewart’s missing and matching shoe. The two officers also “looked around” the alley for Mr Stewart’s alleged assailants, but did not see anyone.
• Constables Bronson and Stewart then proceeded back to the convenience store at the northeast corner of Dundas and Wellington, to speak again with Mr Stewart and return his shoe. They found and spoke with Mr Stewart in the same place where they had previously spoken with him; i.e., standing outside the south façade and entrance of that corner store, approximately 10-15 feet from the corner of the building. (The relevant corner store also has a west façade and entrance, and one effectively can look “through” the store, from the sidewalk to the south to the sidewalk to the west, and vice versa, because the store’s southern and western facades are comprised of clear plate glass windows.)
• Constables Bronson and Stewart also notified Sergeant Austin by radio that they had located Mr Stewart’s missing shoe, and were now back at the convenience store with Mr Stewart. In response, Sergeant Austin stopped by the convenience store again to speak briefly with the two officers before once more setting out in his vehicle to continue his search for Mr Earhart, while Constables Bronson and Stewart remained at the store with Mr Stewart. (At trial, Sergeant Austin was able to recall that one of the two officers he spoke to at the store was Constable Bronson, but was unable to recall the name of the other officer on the scene.)
• During the course of further discussion between the two remaining officers and Mr Stewart, he indicated that he was not interested in further police involvement, and that he did not want to press charges in relation to the assault. However, as the two officers were still standing and speaking with Mr Stewart outside the southern façade and entrance to the corner store, along Dundas Street:
  • Mr Stewart then looked northwest through the corner store’s windows, where one could “see up Wellington Street”;
  • Mr Stewart pointed through those windows to three individuals who were approaching the store’s western entrance; and
  • Mr Stewart identified those three approaching individuals as the people who had assaulted him.
• Constable Bronson and Constable Stewart responded to that identification by walking around the exterior corner of the convenience store, and telling the three individuals approaching the store’s western entrance to stop. By that point, at least Constable Bronson also had recognized Michael Earhart, based on the earlier examination of Earhart’s police booking photograph. (There was no evidence one way or the other as to whether Constable Stewart also had recognized Earhart, based on earlier examination of his photograph.)
• The three approaching individuals failed to stop in response to the officers’ directions, and seemed intent on proceeding into the convenience store. Constable Stewart then approached and took hold of Michael Earhart, immediately to the left of the store’s west entrance, and told him he was under arrest for an assault investigation. At the same time, (approximately 3:37am), Constable Bronson took hold of the other male member of the three approaching individuals, (later identified as Mr Aviles), and told Mr Aviles that he was under arrest for an assault investigation. In particular, Constable Bronson physically detained Mr Aviles by taking hold of his left arm, while Mr Aviles was holding on to the western door of the convenience store with this right hand, apparently still intent on trying to enter the building. However, Mr Aviles then let go of the door, at which time Constable Bronson “pinned him up against the wall” of the store while handcuffing Mr Aviles to the rear; i.e., with his hands behind his back. In the process of Constable Bronson handcuffing Mr Aviles, Mr Aviles dropped a grey single-strap shoulder bag he had been carrying, which fell to the ground. (In cross-examination, Constable Bronson described the bag in more detail, indicating that it looked like the sort of bag used to carry a laptop computer. However, he also acknowledged that he was not focused on the bag during his initial encounter with Mr Aviles, and could not indicate the extent to which his memory and description of the shoulder bag at trial were dependent on later examination of a bag brought and shown to him by Sergeant Austin, in the circumstances described below.)
• At some point during this initial encounter with the approaching individuals and their arrest of Mr Earhart and Mr Aviles, Constables Stewart and Bronson also had called for additional police assistance, and other officers began to arrive at the scene, including Sergeant Austin and Constable Thorner.
• Constable Bronson initially indicated that he did not know precisely when those officers would have arrived, in relation to his arrest of Mr Aviles, as Constable Bronson had his back to the nearby streets. Constable Bronson therefore felt unable to say whether the additional arriving officers were present when Mr Aviles dropped the shoulder bag he had been carrying to the ground, (although Constable Bronson was able to confirm that arriving officers would have been in a position to see the bag drop had they arrived at that point and been looking).
• However, Sergeant Austin independently provided evidence confirming the timing of his arrival on scene, in relation to the events described by Constable Bronson. In that regard, Sergeant Austin testified, and I accept, that within just a few minutes of his last attendance at the convenience store, Sergeant Austin heard “someone”, (whose name he could no longer recall), come over the radio indicating that “they” now had two persons, including Mr Earhart, “in custody” back at the convenience store. (In his testimony in chief, Sergeant Austin initially mentioned hearing that news in relation to Mr Earhart, for whom Sergeant Austin had been looking. However, during his later testimony in chief, Sergeant Austin clarified that the announcement in question indicated that two persons now were in custody, back at the convenience store.) In response, Sergeant Austin quickly returned to the convenience store, taking an estimated 2-3 minutes to cover the intervening distance. On arrival there, Sergeant Austin saw two officers, each standing very close to one of two individuals, near the west side door of that convenience store. Sergeant Austin could not recall whether Mr Aviles and/or Mr Earhart had been handcuffed at that point, and later confirmed that he actually had no independent recollection at all as to whether or not they were handcuffed at the scene. However, Sergeant Austin was sure that one of the two officers he saw near the store’s west entrance upon his arrival definitely was Constable Bronson, who was standing there close to Mr Aviles. Sergeant Austin also saw that there was a bag on the ground sitting near the feet of Mr Aviles. This was all before Sergeant Austin then saw Constable Bronson walk Mr Aviles away from the west door of the convenience store, to a nearby police cruiser approximately 20 feet away.
• As in his earlier testimony, Sergeant Austin had difficulty recalling the name of the other officer whom he saw outside the convenience store, a short distance from Constable Bronson, upon his return there. Although Sergeant Austin testified that the officer in question might have been Constable Thorner, I find that it actually was once again Constable Stewart, and that Sergeant Austin arrived at the scene before Constable Thorner, who arrived just a short time later. In that regard, I note and accept, in particular, Constable Bronson’s definite recollection during cross-examination that Constable Thorner’s police cruiser arrived at the scene after Mr Aviles was immediately arrested and handcuffed next to the west door of the convenience store, but before Constable Bronson then walked Mr Aviles away from the building towards that particular cruiser. As Sergeant Austin clearly arrived at some point between those two events, and “walked up to” Constable Bronson and Mr Aviles while they were still standing near the door of the convenience store, I find that he accordingly arrived at the scene shortly after Constable Bronson’s initial contact with Mr Aviles and shortly before Constable Thorner then pulled up in his cruiser, near to the area where Constable Bronson still had Mr Aviles close to the store entrance. (In my view, Sergeant Austin’s memory and evidence concerning the location, attribution and movement of police cruisers was less precise and reliable than that of Constable Bronson. When asked about such matters, Sergeant Austin initially thought he had parked his vehicle at the northwest corner of the intersection, across the street from the convenience store. He then said he might have parked on Wellington street somewhere nearer to the convenience store, and speculated as to how he “would have” parked in relation to another cruiser on the northeast corner if one was there, as suggested by defence counsel. He then acknowledged and confirmed that he really had no specific memory as to where he actually had parked. Moreover, when asked about other police vehicles, Sergeant Austin could simply recall that there were “a couple of cruisers in the area”, and he admittedly was unsure which cruiser belonged to which officer. This was all far less definite than Constable Bronson’s sure memory of Constable Thorner pulling up in his cruiser, after Mr Aviles had been arrested but before Constable Bronson then walked him to Constable Thorner’s cruiser. Moreover, Constable Thorner also was sure that, when he arrived at the convenience store for the first time, Constable Bronson, Constable Stewart and Sergeant Austin were already on scene. To the extent Sergeant Austin may have suggested in his testimony that Constable Thorner and his cruiser were on scene before Sergeant Austin arrived at the convenience store to see Constable Bronson standing with Mr Aviles near the store’s west entrance, I find that Sergeant Austin was mistaken on that point.)
• Returning to the events of that morning, Constable Thorner says he arrived at the convenience store at 3:40am, (i.e., approximately three minutes after the time at which Constable Bronson believes he initially confronted and immediately arrested Mr Aviles). I accept the evidence of Constable Bronson that Constable Thorner’s cruiser arrived from the south, and pulled up on the east side of Wellington Street in the area of the nearby crosswalk entrance; i.e., on the east side of Wellington Street, slightly north of Dundas Street, but to the southwest of where Constable Bronson and Mr Aviles were still standing near the west door of the convenience store.
• On arrival at the convenience store, Constable Thorner saw Constable Bronson, Constable Stewart and Sergeant Austin with two males and a female, (i.e., the female who had approached the store in the company of Mr Aviles and Mr Earhart), standing at the west side of the convenience store. Constable Thorner then exited his cruiser and “immediately dealt with the female involved in the situation”. (She was arrested on other issues, and Constable Thorner eventually turned custody of her over to another officer.)
• In the meantime, (i.e., while Constable Thorner was dealing with the said female), Constable Bronson then led the handcuffed Mr Aviles to Constable Thorner’s cruiser, (which at that point was the police vehicle closest to the site of the arrest). In doing so, Constable Bronson left the shoulder bag that had been dropped by Mr Aviles behind on the ground, without Constable Bronson having instructed any other officer to secure it. While walking Mr Aviles towards the cruiser, Constable Bronson advised Mr Aviles of his right to counsel, and cautioned Mr Aviles that anything he said at that point could be used as evidence. In the circumstances, (i.e., leading a handcuffed Mr Aviles to the cruiser), Constable Bronson relied on memory to convey the content of such advice and cautions, instead of reading standard wording from his duty book.
• During cross-examination, it was fairly and squarely put to Constable Bronson by defence counsel that he actually had not effected or intended to effect an arrest of Mr Aviles at that point in the morning’s events, that Constable Bronson really was just detaining Mr Aviles at the time only for the purpose of an investigation relating to the alleged assault, and that Mr Aviles actually was not placed under arrest until some later point; i.e., sometime after the subsequent discovery of drugs in the dropped shoulder bag, (in circumstances described in more detail below). In support of the suggestion that Constable Bronson had not arrested Mr Aviles for assault at the time in question but had only detained Mr Aviles for the purposes of an investigation, defence counsel highlighted, for example:
  • that the complainant Mr Stewart already had given an indication that he did not want further police involvement in relation to the alleged assault;
  • that Constable Bronson’s “will say” statement included no mention of Constable Bronson having advised Mr Aviles of his right to counsel or providing a caution to Mr Aviles after arresting him for assault; and
  • that Mr Aviles eventually was charged with possession of drugs for the purpose of trafficking, but never formally charged with assault.
• For the time being, I leave to one side a legal determination of whether or not Constable Bronson had reasonable and probable grounds to arrest Mr Aviles, at the point when steps were taken to physically detain him. However, as necessary factual determinations, (forming part of the chronology of events that unfolded on the morning in question), I nevertheless am satisfied and find that Constable Bronson did in fact arrest and intend to arrest Mr Aviles for assault immediately upon approaching and taking hold of him, and before later discovery of the drugs. My reasons for those factual findings include the following:
  • First, Constable Bronson was adamant that he had intended to arrest Mr Aviles for assault and expressly did so, and in my view his testimony in that regard was not shaken in cross-examination. In particular, Constable Bronson confirmed his awareness of the distinction between his power to detain someone for the purpose of investigation without effecting an arrest, (with a corresponding ability to carry out a “pat down” search on such a person for purposes of officer safety), and his power to detain someone by effecting an arrest, (which carries a more comprehensive ability to carry out more extensive and intrusive searches of the person and objects as an incident to arrest). He had intended the latter, and had told Mr Aviles that he was under arrest for assault. Constable Bronson was quite definite about Mr Aviles having been placed under arrest for assault at that point. Without limiting the generality of the foregoing, I accept Constable Bronson’s testimony that he and Constable Stewart in fact did make their arrests “as a matter of public safety”, because of Mr Stewart’s assault allegations and identification of his assailants.
  • Second, Constable Bronson explained that Mr Aviles was not formally charged with assault because Mr Stewart fled the area during the making of the initial arrests for assault. That flight provided the police with subsequent, persuasive and ultimately convincing indications that Mr Stewart really was determined not to have any further involvement in the matter, such that the laying of a formal assault charge against Mr Aviles, (in addition to the formal charges of possession of controlled substances for the purpose of trafficking), would have been pointless. Moreover, as that was known by the time Constable Bronson was preparing his “will say” statement, I think it understandably was not as important to Constable Bronson to document the rendering of a timely caution and reminder of rights in relation to a charge that was not being laid. In my view, such realities still do not undermine the credibility of Constable Bronson’s testimony that, at the time of his initial encounter with Mr Aviles, he intended to arrest Mr Aviles for assault and did so.
  • Third, as defence counsel fairly noted, Constable Bronson’s “will say” statement does indicate and confirm that, at the time of that initial encounter, Constable Bronson “grabbed” Mr Aviles and advised him “that he was under arrest for an assault investigation”.
  • I now return to the evidence, and my further findings of fact, concerning the events of the morning in question.
• After walking Mr Aviles over to Constable Thorner’s cruiser, but before placing Mr Aviles in the rear of that vehicle, Constable Bronson searched the pockets of the coat and trousers being worn by Mr Aviles. Although Constable Bronson initially made reference to Mr Aviles wearing a “red hoodie” with pockets, he corrected himself during cross-examination, (after being taken to his “will say” statement indicating that Mr Earhart had been the one wearing the “red hoodie”). Constable Bronson candidly acknowledged that Mr Aviles had in fact been wearing a “pea coat” at the time of his arrest, and that his initial memory of Mr Aviles having worn a red hoodie was flawed.
• Constable Bronson indicated that his reason for searching Mr Aviles was “officer safety” and “public safety”, (and in particular, “to make sure there were no weapons”). In performing that safety search of the pockets of Mr Aviles, Constable Bronson found two cellphones as well as a wallet – which in my view are precisely the sort of solid and bulky items likely to be discovered by a “pat down” search done for the purpose of safety.
• After Constable Bronson had secured Mr Aviles in the rear of Constable Thorner’s police cruiser, he examined the contents of the wallet he had taken from Mr Aviles, looking for something that might identify the person he had just arrested. In doing so, he noted that the wallet contained money, (which Constable Bronson did not count at the time), and a health card with a digital photo of Mr Aviles.
• Constable Bronson acknowledged that, during the measures just described, (i.e., walking Mr Aviles to Constable Thorner’s cruiser, searching Mr Aviles, placing Mr Aviles in the cruiser, and searching the wallet), from effecting the arrest at approximately 3:37am until approximately 3:44am, he personally had not been looking at the shoulder bagged dropped by Mr Aviles “because there were other officers on the scene” by then. Constable Bronson candidly acknowledged that, during those seven minutes, (assuming those time indications are accurate and precise), he did not know where the shoulder bag was or what was happening to it.
• In my view, however, the whereabouts of the shoulder bag during those intervening minutes were fully accounted for by the evidence of Sergeant Austin, which I accept in that regard. As already noted, when Sergeant Austin arrived at the scene, Constable Bronson and Mr Aviles were still standing near the west door of the convenience store, with the dropped shoulder bag near the feet of Mr Aviles. However, in Sergeant Austin’s words, “when he [Mr Aviles] was escorted away to the cruiser” by Constable Bronson, Sergeant Austin picked up the bag that had been at the feet of Mr Aviles, “a few seconds later”, “to make sure it followed the two of them”. I accept Sergeant Austin’s explanation that he did so because the bag was sitting “in front of the door” to the convenience store, with “other civilians in the area”, and Sergeant Austin accordingly did not want to leave the bag unattended. He therefore was going to move it to a location closer to Constable Bronson and Mr Aviles, by the cruiser to which Mr Aviles had been taken. However, acting on his understanding that arrests of Mr Aviles and Mr Earhart already had been made at that point, Sergeant Austin decided to first carry out what he described as a “quick look” inside the bag to see that it didn’t contain a weapon, and a firearm in particular, that might injure someone, (including any police officer to whom he would be turning over the bag). In relation to his understanding that Mr Aviles had already been placed under arrest by that point, Sergeant Austin readily admitted that he had not been present to see or hear exactly what was done at the time when Mr Aviles and Mr Earhart were arrested. However, I accept Sergeant Austin’s testimony that, when he decided to look inside the bag, he nevertheless was acting under a sincere belief that the two men already were under arrest, based on the earlier “over the air” announcement that police had two men in custody back at the convenience store, and Sergeant Austin’s subsequent observations of what was happening after his return to that location. In that regard, I also note that Sergeant Austin made an entry in his duty book notes that morning, indicating “both in custody” when he arrived back at the convenience store at 3:37a.m.
• To perform his intended “quick look” inside the bag that had been at the feet of Mr Aviles, before turning it over to Constable Bronson, Sergeant Austin opened it by undoing a zipper across its top. At trial, Sergeant Austin could not recall precisely where he was when he did that, although he says it would have been “where it sat or at the car”. After opening the bag, Sergeant Austin looked through its contents for what Sergeant Austin felt would have been no more than a minute “at the very most”. Sergeant Austin was sure that, while doing so, he saw various items at the time which he believed to be “drug-related paraphernalia”, based on his experience. However, at trial, he could not recall exact details of what he had found or seen in that regard, apart from having seen a scale and “some packets of drugs”, and he acknowledged that such further details also were not in his replacement “will say” statement. In any event, having found and seen what he did on the morning in question, he decided at that point to turn the bag over to Constable Bronson, and draw Constable Bronson’s attention to the items Sergeant Austin had seen inside.
• At approximately 3:44am, (as recorded in Constable Bronson’s documented timeline), Sergeant Austin therefore brought the shoulder bag to Constable Bronson, spoke with Constable Bronson, and turned the bag over to Constable Bronson. Sergeant Austin did so by placing the opened shoulder bag on the trunk of the cruiser in which Constable Bronson had secured Mr Aviles, and telling Constable Bronson what he had found inside. (Although Sergeant Austin was unsure of whether Mr Aviles had been secured inside the vehicle at that point or not, or whether Constable Bronson was “in the process” of doing that, I prefer the evidence of Constable Bronson on that point. In that regard, Constable Bronson was sure that Mr Aviles had been secured in the rear of the cruiser by the time Sergeant Austin approached him with the bag, and Constable Bronson’s testimony in that regard makes sense to me. In particular, I think it unlikely that Sergeant Austin would have been inclined to distract Constable Bronson by engaging him in conversation, and/or by handing Constable Bronson objects, while Constable Bronson was still focused on securing Mr Aviles in the police cruiser. Even if Sergeant Austin had only looked inside the bag for no more than a minute, I therefore think it much more likely that he would have waited until Mr Aviles had been fully secured in the rear of the police cruiser before handing the bag to Constable Bronson and speaking to him about its contents, and in my view, that is what happened.) I also find that Sergeant’s Austin’s eventual remarks to Constable Bronson about the bag’s contents included an indication that, when looking inside the bag, Sergeant Austin had seen a leather box containing several types of narcotics and a digital scale. (Constable Bronson recalled Sergeant Austin making that remark at the time. At trial, Sergeant Austin did not dispute having made such a remark, or having opened up anything else he found inside the bag. He instead indicated that he simply had no recollection of having said or done that, while also candidly acknowledging that such a remark suggested that he had in fact conducted a more comprehensive search of the bag’s contents; i.e., by opening the bag and a leather box inside, to examine its contents. In any event, I accept that such a remark was made, and that Sergeant Austin did indeed search the bag’s contents at least to that extent; i.e., by opening the bag and then opening the leather box he had found inside.)
• I pause to note that the undisputed evidence of Sergeant Austin having chosen to bring the bag to the officer obviously in charge of Mr Aviles provided, in my view, further support for my finding, already noted, that Sergeant Austin arrived at the scene after Mr Aviles had been immediately arrested and handcuffed near the west door of the convenience store, but before Mr Aviles was walked to the nearby cruiser, and while the relevant bag was still at the feet of Mr Aviles. In particular, were that not the case, (e.g., if Sergeant Austin had come upon the scene only sometime after Constable Bronson had walked Mr Aviles away from the location where he had been immediately arrested and handcuffed, and therefore away from where the bag initially had dropped near the feet of Mr Aviles, thus leaving the bag on the ground near the store with no further visible connection to Mr Aviles), Sergeant Austin would have had no basis for his obvious belief that the bag should be taken to the officer who had Mr Aviles in custody, rather than to other officers on the scene, such as Constable Stewart or Constable Thorner, who had taken charge of other individuals. In particular, Sergeant Austin candidly acknowledged during his testimony in chief that he had no memory or note of having asked Constable Bronson whether the bag on the ground belonged to or was in the possession of Mr Aviles when he was arrested, or of having been told that it did. Sergeant Austin said that he accordingly may have made what he described as “an assumption” in that regard. In my view, however, it was an inference rather than an assumption, based on Sergeant Austin having seen the bag lying on the ground near the feet of Mr Aviles. Moreover, in my view, it was a reasonable inference, based on that physical proximity.
• To the extent it may not already be clear in my reasons, I also pause to note and expressly confirm that, for the reasons I have given, although Constable Bronson described the bag Mr Aviles had dropped and the bag brought to him by Sergeant Austin as a “shoulder bag” that was “grey” in colour, and Sergeant Austin described the bag he initially saw at the feet of Mr Aviles and then turned over to Constable Bronson as “black”, and something resembling a “backpack” that nevertheless was smaller than a conventional backpack and more in the nature of a student “book bag”, I find that Constable Bronson and Sergeant Austin were in fact describing the same bag, which I will continue to describe as the “shoulder bag”.
• Turning back to the events of the morning in question, after Sergeant Austin turned over the bag and spoke with Constable Bronson, he then departed and, in his words, “cleared the scene” so that he could return to his supervisory duties. Acting on his own, Constable Bronson then went into the already opened shoulder bag, saw and pulled out a closed leather box, opened and looked inside it, and personally saw a digital scale and plastic bags containing what appeared to be, (based on Constable Bronson’s experience), narcotics that included powdered cocaine, crack cocaine, and “some sort of pill”. I accept Constable Bronson’s testimony that, at the time, he restricted his search of the contents of the shoulder bag to an examination of that leather box, because the prevailing light conditions were not ideal for searching. I also accept Constable Bronson’s testimony that, at least on that occasion, he then put the leather box back into the shoulder bag after looking at its contents.
• At that point, (approximately 3:45am), Constable Bronson then “re-arrested” Mr Aviles, (then still in the rear of Constable Thorner’s police cruiser), for possession of drugs for the purpose of trafficking, contrary to the CDSA. Constable Bronson once again then advised Mr Aviles of his right to counsel, and cautioned him that anything said by Mr Aviles could be used in evidence, (with Constable Bronson this time reading the standard wording from his duty book). Mr Aviles indicated his desire to speak with a lawyer, and Constable Bronson indicated that arrangements in that regard would be made once Mr Aviles had been taken back to the police cells. Throughout this process, Mr Aviles remained calm, and was not argumentative.
• At approximately 3:51a.m., Constable Bronson then turned custody of Mr Aviles over to Constable Thorner, (who apparently had completed his interaction with the female who was arrested before then returning to his cruiser, in which Mr Aviles had been secured). In doing so, Constable Bronson advised Constable Thorner that Mr Aviles was under arrest for possession of drugs for the purpose of trafficking. (Constable Thorner has no note or memory of Constable Bronson mentioning the arrest of Mr Aviles for assault, and I find it was not mentioned at the time.)
• In the course of examination-in-chief and cross-examination, Constable Bronson did not mention what items he also may or may not have turned over to Constable Thorner or retained at the time he was transferring custody of Mr Aviles over to Constable Thorner. Nor was he asked about that by Crown counsel or defence counsel. However, Constable Thorner was asked about such matters, and gave the following testimony, which I accept:
  • When transferring custody of Mr Aviles to Constable Thorner, Constable Bronson also turned over a number of specified items, namely: a wallet, a baseball cap, and a shoulder bag. (Constable Thorner described the bag in question as a “grey single strap backpack”, but I find it was the same shoulder bag originally dropped by Mr Aviles, and described in somewhat different terms by Constable Bronson and Sergeant Austin.)
  • However, before the shoulder bag was turned over to Constable Thorner by Constable Bronson, the drugs Constable Bronson had found inside it were removed. In particular, Constable Bronson maintained custody of the drugs and the box in which they had been found, (which Constable Thorner described as a “box for a wallet”), and those items travelled back to the station with Constable Bronson, separately from Constable Thorner, Mr Aviles and the shoulder bag.
  • At the time of these transfers, Constable Bronson did not provide Constable Thorner with any express information about who may have had possession of the items that were being turned over to him at the scene.
• After transferring custody of Mr Aviles and the said items to Constable Thorner, Constable Bronson then left with Constable Stewart and Mr Earhart for the cells of the London Police Department, where Constable Bronson initially assisted Constable Stewart with the booking of Mr Earhart.
• Before he left the convenience store scene, Constable Thorner took further steps to again caution Mr Aviles and advise him of his right to counsel. He also made further observations in relation to Mr Aviles, and carried out further searches of the items that had been turned over by Constable Bronson. In particular:
  • Constable Thorner noted that, when he assumed custody of Mr Aviles, the clothing of Mr Aviles included a black pea coat, black “jogging pants”, and a black baseball cap.
  • Constable Thorner counted the money in the wallet that had been turned over to him, and found that the relevant amount turned out to be $160.00 in Canadian currency. (The denominations were not noted by Constable Thorner. However, as noted below, they were recorded by Detective Constable Bullick during his later inspection of the wallet.)
  • While still at the convenience store, Constable Thorner also conducted his own search of the shoulder bag that had been turned over to him. In doing so, he found, concealed inside the top flap of the bag, a large knife, (entered as an exhibit at trial), with a red and black rubber grip, and a steel blade that was edged on both sides, with serrations on the top. Beyond that, the only items found inside the shoulder bag by Constable Thorner were three cellular phones. (Whether or not they included the two cellular phones Constable Bronson previously had seized from Mr Aviles after conducting his safety “pat down” search, and if so, how and why they had been placed in the shoulder bag instead of being kept and turned over separately, were not matters Constable Bronson was asked about during examination-in-chief or cross-examination, and Constable Thorner candidly indicated that he did not know how they came to be in the shoulder bag.) Again, Constable Thorner explained that all drugs and drug paraphernalia already had been removed from the shoulder bag, and retained in the custody of Constable Bronson, before the shoulder bag was turned over to Constable Thorner.
• At 4:02am, after completing his further searches of the wallet and shoulder bag while still outside the convenience store, Constable Thorner left the scene, with Mr Aviles still secured in the rear of his cruiser, to transport Mr Aviles to the cells of the London Police Department.
• Constable Thorner arrived at the London police cells with Mr Aviles at approximately 4:29am, and began booking Mr Aviles. During that process, Constable Thorner carried out a further search of the person of Mr Aviles and his clothing. In doing so, Constable Thorner located a clear plastic bag, knotted at the top and containing a white powder, (later confirmed to be cocaine), inside the front right exterior pocket of the pea coat Mr Aviles had been wearing. (That baggie was not discovered by Constable Bronson during his earlier search of Mr Aviles, immediately before placing Mr Aviles in Constable Thorner’s cruiser. In my view, however, that also seems consistent with Constable Bronson having conducted a “pat down” search of Mr Aviles, focused on the detection of more bulky items such as the wallet and cellular phones that were discovered by Constable Bronson and removed from the pockets of Mr Aviles.)
• In the meantime, (i.e., while Constable Thorner had transported and started into the process of booking Mr Aviles), Constable Bronson had been occupied, (as noted above), in assisting Constable Stewart with Mr Earhart. However, once Mr Earhart had been booked in, Constable Bronson returned to the cell bay, where Mr Aviles was still with Constable Thorner. In that regard, Constable Bronson “stood by” while Constable Thorner completed the process of booking in Mr Aviles, and personally did not perform any further searches of Mr Aviles or his belongings. However, Constable Thorner did draw Constable Bronson’s attention to the knife that had been found in the shoulder bag. Moreover, at approximately 5:15am, Constable Thorner took custody of the leather or “wallet” box containing the drugs and digital scale, (which Constable Bronson previously had retained in his custody), before Constable Thorner then categorized the various items and put them into an evidence bag. (That was the testimony of Constable Thorner, which I accept. In his testimony, Constable Bronson did not mention turning the box or its contents over to Constable Thorner. However, he also was not asked about that during examination-in-chief or cross-examination.)
• In relation to the various items discovered and seized, I also note the following:
  • Constable Bronson indicated that, to his knowledge, the knife was not examined for fingerprints. Constable Thorner confirmed his similar but broader understanding and belief that none of the seized items had been examined for fingerprints.
  • Constable Bronson confirmed his understanding that the cellular phones seized from Mr Aviles had been subjected to further examination. However, that was done by someone other than Constable Bronson, who was not involved in that examination process, and Constable Bronson did not know the results of that examination. For his part, Constable Thorner also confirmed that the cellular phones had been sent for examination, to “determine who owned the phones”, but he had never seen the reports of those examinations, and Constable Thorner did not know the results of the examination, or details of whether anyone had tried to obtain passwords or look at text messages.
  • Constable Bronson confirmed that no identification associated with Mr Aviles was found in or with the seized items, (including the shoulder bag), apart from the aforesaid health card found in the wallet taken from Mr Aviles by Constable Bronson.

[20] As noted above, I also received testimony from Detective Constable Bullick, (hereafter referred to as “Detective Bullick”). He had no direct involvement in the events that took place on January 15, 2013. However, he did conduct a later examination of the various items that were seized that morning, was present during the other testimony presented at trial, (pursuant to an agreed exception to the witness exclusion order), and was tendered by the Crown as an expert witness qualified to present expert opinion evidence concerning indicia of possession of controlled substances for the purpose of trafficking.

[21] In that regard, an expert report and curriculum vitae prepared by Detective Bullick were entered as agreed trial exhibits, after which he was sworn and asked, during an initial extended voir dire, numerous questions about his experience and training to confirm his qualification as an expert witness.

[22] I will not reiterate that voir dire evidence in detail here, as the defence accepted, and I made an independent formal finding, (as other judges have in the past), that Detective Bullick should be permitted to give expert opinion evidence as requested, pursuant to application of the four criteria set forth by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. However, by way of summary:

• In addition to being satisfied that the anticipated expert opinion evidence was highly relevant to the issues before me, (particularly as to whether controlled substances had been possessed by Mr Aviles for the purpose of trafficking), that the anticipated evidence was necessary, (given that indicia of “possession for the purpose of trafficking” lay beyond the ordinary experience of the trier of fact), and that there was no applicable exclusionary rule, I was of the view that there was considerable evidence confirming that Detective Bullick had extensive experience and training in relation to such matters that properly qualified him as an expert in this area.
• Evidence in that regard included confirmation that he has not only engaged in formal training and ongoing self-directed study in relation to the nature, effects and trafficking of controlled substances, (such as those involved in this case), but that he also has spent many years actively working with units focused on drug-related matters, investigations and incidents here in the City of London. That in turn has led to extensive direct experience in terms of interaction with drug users and dealers, cultivating and dealing with reliable confidential informants and community workers well versed in London’s drug culture, participating in undercover operations involving surveillance and authorized drug-related wiretaps, and witnessing drug transactions.
• All of this has resulted in Detective Bullick having extensive knowledge about the nature of the controlled substances involved in this case, their effect on individuals, their street values, the hierarchy of drug suppliers and dealers, and the intricacies and indicia of drug trafficking, (including dealer practices and the items commonly used by and associated with those trafficking in controlled substances).

[23] Having been qualified as an expert witness, and relying on his own examination of the various items seized by the police, Detective Bullick then gave extended testimony providing further details as to their nature and significance, which supplemented and highlighted the evidence in that regard already supplied by his written report.

[24] In particular, Detective Bullick focused on the following items seized from Mr Aviles:

• the three cellular telephones;
• the $160 in Canadian currency found in the wallet of Mr Aviles, (which included seven $20 bills and two $10 bills);
• the black leather “wallet box” which, (with the exception of the clear plastic “baggie” of cocaine found in a coat pocket), contained all of the narcotics and suspected narcotics seized from Mr Aviles;
• the small black digital scale, (which Detective Bullick found to be operational at the time of his examination), also found inside the wallet box;
• the knife described above, (which Detective Bullick found to be a “foot long” knife);
• 4.2 grams of cocaine (mixed with Phenacetin);
• 9.4 grams of cocaine (mixed with Phenacetin);
• 7.2 grams of Phenacetin;
• 0.5 grams of heroin;
• Five “TEC” oxycodone pills, (each containing “ratio-Oxycet”, meaning a mixture of 5mg of oxycodone and 325mg of acetaminophen); and
• 1.5 grams of marihuana.

[25] In his written report and oral testimony, Detective Bullick emphasized, as indicia of possession of controlled substances for the purpose of trafficking, (which collectively supported his view that was the intended purpose of such possession in this case), matters that included the following:

• The presence of Phenacetin. In that regard, Detective Bullock explained that Phenacetin is a substance originally used as a fever reducing pain medication, which nevertheless is no longer used for human consumption as it was found to be carcinogenic and particularly harmful to the human kidney. Its use for human consumption has been banned by several countries, (including its removal from the legal Canadian market in 1973), and its legal use generally now is restricted to research within the scientific community. However, Phenacetin is now improperly but commonly used by those who traffic in drugs to dilute or “cut” pure cocaine. In particular, Phenacetin can be mixed with cocaine to maintain the bulk weight of product being sold or supplied by those trafficking in cocaine, (and the weight-based prices charged by such traffickers), while the traffickers actually part with less “real” cocaine during such transactions. Moreover, unlike other substances used to dilute or “cut” cocaine, Phenacetin will retain or increase its weight during the process used to convert cocaine into “crack” cocaine. Phenacetin therefore is extremely popular with and valued by drug traffickers, as it facilitates their maximization of profit. Conversely, there is no rational reason why drug users would possess Phenacetin, as adding it to the cocaine they purchase would only reduce the effectiveness of the drug while adding significant health hazards to the “mixed” product intended for human consumption. The presence of Phenacetin outside the scientific research community, especially in significant quantity, (such as the 7.2 grams of unmixed Phenacetin found in the possession of Mr Aviles), therefore was a strong indication of trafficking in controlled substances. That inference is reinforced by testing confirming that Phenacetin already had been mixed with the cocaine found in the possession of Mr Aviles. (In cross-examination, Detective Bullick conceded that common use of Phenacetin by traffickers as a “cut”, in the manner described, meant that users of cocaine therefore also were likely to have amounts of Phenacetin in their possession. However, Detective Bullick also emphasized that it was pretty easy, especially for drug users, to tell the difference between pure Phenacetin “on its own” and cocaine. Phenacetin not yet mixed with cocaine, such as that found in significant quantity in this case, therefore was still a strong indication of possession for the purpose of trafficking.)
• The presence of the digital scale. In that regard, Detective Bullick explained that the possession of such a scale by drug traffickers is “extremely common”, as traffickers use such devices to accurately “weight out” and dispense drugs for sale, in accordance with customer requests and drug prices commonly based on weight. Immediate personal possession of such a device is particularly helpful for street level drug traffickers who meet customers with varied demands at various locations. Moreover, weighing drugs for sale “in front of” customers is done as a “show of good faith”. In this case, presence of the digital scale independently provides an indication of possession of controlled substances for the purpose of trafficking. However, the fact that the scale in this case was stored in the same package as seized narcotics, (including cocaine not yet weighed and subdivided into more common and “typical” sale weights and packages), and Phenacetin “cut” not yet mixed with cocaine, strongly reinforces the inference. (In cross-examination, Detective Bullick acknowledged that the digital scale had not been subjected to any chemical analysis, to indicate whether it contained residual traces of any particular drug. He also acknowledged that some users of medicinal marihuana use a scale to measure dosages. However, Detective Bullick firmly believed that presence of this particular scale, in the same container as various controlled substances, provided a strong indication of intended use of the scale to weigh those substances, and therefore a strong indication of possession for the purpose of trafficking.)
• The packaging of the seized illegal drugs. In that regard, Detective Bullick emphasized that, with the exception of the “baggie” of cocaine found in the coat pocket of Mr Aviles, all of the seized illegal drugs were located together in the same wallet box containing the aforesaid digital scale. Just as packaging of the digital scale with unmeasured cocaine and unmixed Phenacetin “cut” supports an inference that the scale was intended for use in drug trafficking, the packaging of the various seized controlled substances with unmixed Phenacetin “cut” and the digital scale supports a reciprocal inference that each of the controlled substances in the wallet box was possessed for the purpose of trafficking. (On the subject of “packaging”, Detective Bullick acknowledged in cross-examination that items seized from Mr Aviles did not include anything, such as additional baggies, into which smaller weighted amounts of cocaine might be divided. However, Detective Bullick emphasized this did not mean Mr Aviles would not have access to such a container or containers when the drugs would be measured and supplied. It also was suggested to Detective Bullick that the presence of different drugs actually negated the probability of trafficking, on the basis that traffickers were more likely to deal with one type of product and one supplier, thereby simplifying their business. However, Detective Bullick rejected the premise of the suggestion, noting that, while it was possible for traffickers to have only a limited and very focused inventory, and that occasionally happened, it actually was not common. To the contrary, trade “in kind”, varying levels of sophistication and resources, and inconsistent sources of supply, made it likely that a street level trafficker would have a more diversified “inventory” of drugs at any given time.)
• The quantity of drugs found and their value. In that regard, I already have noted the quantity of each drug found in this case, (defined in terms of weight). However, Detective Bullick provided further evidence about the effects of each drug and common rates of consumption by drug users, as well as evidence about user habits and the current street value of the various drugs found in this case. In particular, in his written and oral evidence:
  • Detective Bullick noted that, while drugs will affect individual users in different ways and produce side effects to varying degrees, regular users of cocaine normally consume no more than 1.0 to 3.5 grams of the drug in one day, and that consumption of 3.5 grams of cocaine in one day would represent a “very, very high amount” of daily use, which would exacerbate the drug’s primary effects and side effects, and corresponding harm to the human body. To get to that very high level of consumption within a single day, a user would have to develop a significant tolerance for the drug.
  • Detective Bullick also emphasized that cocaine addiction is expensive, and the nature of addiction typically requires drug users to consume a great deal of their disposable income on the product, making the simultaneous purchase of larger amounts cost prohibitive for most users, who also use smaller purchases to control their addiction. Moreover, cocaine users know that possession of larger amounts is indicative of trafficking, with corresponding exposure to more serious drug charges. Drug users, in contrast to drug traffickers, therefore tend to avoid possession of larger quantities of cocaine.
  • Based on his knowledge of the street value of drugs seized in this case, Detective Bullick indicated that the 13.6 grams of cocaine collectively taken from Mr Aviles was worth approximately $1,360 if sold “at the gram level”, and approximately $800 to $1,100 if sold in 1/8 of an ounce quantities. The seized heroin, if sold at the “tenth of a gram level”, had a street value of $100 to $200. The five seized TEC pills had a collective approximate street value of $10 to $15. The seized marihuana, if sold “at the gram level”, had an approximate street value of $15 to $30.
  • Based on the above considerations, it would be unusual for a user, (as opposed to a trafficker), to have such quantities of drugs, with that kind of value, in their personal possession. In that regard, Detective Bullick acknowledged that, considered independently, the volume and value of some of the drugs seized might not suggest possession for the purpose of trafficking. For example, the amount of heroin seized was “not a lot of heroin in the scheme of things”, and the five seized TEC pills were at “the low end of Oxycodone in terms of potency”, with a relatively modest value. Similarly, Detective Bullick readily acknowledged that the quantity and value of marihuana seized was “not a lot”, and that it would not be surprising these days to find someone in possession of such quantities for personal use. However, possession of heroin in London was extremely rare and, again, apart from the additional cocaine located in a coat pocket, the various types of seized drugs were not found independently but together in the same container.
  • Considered in context, the relatively large volume of cocaine, the total value of the various drugs, and the fact they were found together, collectively pointed towards possession of each drug for the purpose of trafficking rather than possession for personal use.
  • In cross-examination, it was suggested that such a quantity of drugs was not necessarily inconsistent with personal use; for example, if the person possessing the drugs was a recreational drug user who in fact purchased and/or was transporting the drugs for himself and other individuals, and who intended to share and consume the drugs gratuitously with other members of that group at a later time, in the context of a party or otherwise. In response, Detective Bullick observed, (correctly in my opinion, given the wide definition of “trafficking” in section 2 of the CDSA, considered below), that such conduct would still constitute “trafficking” in controlled substances. Moreover, for reasons already mentioned, there would be no logical reason why recreational users of such drugs, even if pooling their resources and drugs for sharing at a party or similar event, would purchase or employ Phenacetin.
• The presence of multiple cellular phones. In that regard, Detective Bullick noted that possession of multiple cellular phones by drug users was uncommon. To the contrary, drug users rarely have more than one cellular phone, in part because of the financial constraints and pressures associated with drug use and addiction, (noted above). In fact, most drug users at the street level are unable to maintain even one cellular phone. (During cross-examination, Detective Bullick acknowledged that a drug user with sufficient money to purchase cocaine, a relatively expensive drug, would have the means to purchase a cellular phone instead. However, he was adamant that street level drug users commonly did not possess multiple cellular phones.) In contrast, and for a variety of reasons, it is extremely common for drug traffickers to possess multiple cellular phones, in order to avoid detection and otherwise facilitate their ongoing business activity. In particular:
  • Knowing that cellular phones contain information capable of being used by police investigators for the purpose of law enforcement, (e.g., to establish identities and confirm drug activity), traffickers regularly employ one cellular phone for their ongoing personal and legal uses, (a cellular phone which they intend to retain), that is separate and different from one or more other cellular phones used for illegal drug trafficking activities, (which are therefore cellular phones capable of being quickly and regularly discarded without corresponding loss of the trafficker’s personal information).
  • Use of additional cellular phones also facilitates ongoing sales and maximization of profits from drug trafficking, as users wanting drugs are told to use a number associated with a particular phone rather than a particular supplier. In other words, a particular cellular phone can then be passed from one drug trafficker to another, during periods of sleep or incarceration, thereby allowing the traffickers to maintain and maximize sales to a cultivated network of drug purchasers.
  • For similar and related reasons of product organization and consumer network maintenance, drug traffickers also commonly employ different cellular phones and associated numbers for the different types of drugs they supply. For example, one phone can be dedicated to cocaine sales, while another phone can be dedicated to a different drug product. In that way, disposition or transfer of one cellular phone and associated consumer network will not result in permanent or temporary loss of access to the other consumer network.
  • Wholesale drug suppliers, who provide street level dealers with product, also frequently give their street level dealers a particular cellular phone to be used only for maintaining contact with the relevant wholesale supplier. In that way, such wholesale suppliers not only maintain contact with their downstream supply network, but also shield themselves from detection by dealing only with and through recognized telephone numbers.
  • For all these reasons, the possession of multiple cellular phones is a common and strong indication of drug trafficking.
• The knife that was found in the shoulder bag. In that regard, Detective Bullick explained why the knife pointed to possession of controlled substances for the purposes of trafficking, and why it was being carried for use as a weapon, based on his knowledge and experience of the drug culture in London. In particular, those engaged in such “street level” drug trafficking frequently carry such a weapon for at least two purposes:
  • First, for their own protection, as the nature of their business requires such traffickers to meet as many customers as possible, in clandestine locations and situations where the “thirst for profit” in this very violent industry exposes street level drug dealers to risks of being robbed, assaulted or otherwise “ripped off” by other traffickers and/or by customers. Carrying such a knife gives such dealers a certain “reputation”, “image” or “presence” on the street that deters others from “shorting” or attacking such dealers, which in turn allows them to maintain levels of business.
  • Second, such street level traffickers use such knives for offensive purposes of intimidation, “projecting power” so as to settle disputes with other traffickers, deter disrespectful customers, and/or collect debts by assaulting “delinquent” customers who fail to pay for drugs.
  • During cross-examination, it was suggested that drug users also might carry weapons for protection, if they were sufficiently “sophisticated” to be aware of the dangers associated with drug transactions. In that regard, Detective Bullock specifically acknowledged that a lot of homeless people are drug users, and that some homeless people carry weapons for their protection. However, Detective Bullick was adamant that, in his experience, drug users normally do not carry weapons when they go to purchase drugs.
• The location where Mr Aviles was arrested. As noted above, Mr Aviles and his companions were seen, and he was arrested, while approaching a particular convenience store on the northeast corner of Wellington and Dundas streets in downtown London, at approximately 3:37 in the morning. Detective Bullick testified that the location itself is significant, as it is known for its high frequency of street level drug trafficking. (In addition to knowing of that location’s general reputation in the London drug community, Detective Bullick personally has been involved in numerous undercover drug investigations, observations and “take downs” at the location, where he has seen that “hand-to-hand” drug transactions are common.) While the possibility of attendance at such a convenience store for innocent reasons is obvious, the location reinforces an inference of possession for the purpose of trafficking, when considered together with the other evidence and factors relied upon by Detective Bullick.
• The cash found in the seized wallet. In that regard, Detective Bullick candidly acknowledged that, on its own, the $160 in Canadian currency found in the possession of Mr Aviles, was not an indication of drug trafficking, as there clearly are other reasons, (not associated with drug trafficking), why a person might possess that amount of cash. Having said that, Detective Bullick testified that the amount of cash and particular currency denominations found on Mr Aviles were consistent with someone trafficking in drugs at street level, particularly since street level drug trafficking is a “small cash business” wherein most transactions are made using $20.00 bills. Taken with the other evidence and considerations noted above, the presence of such cash in such denominations therefore also reinforced Detective Bullick’s opinion that the evidence seized from Mr Aviles collectively indicated that the seized substances were possessed for the purpose of trafficking. (In cross-examination, Detective Bullick did not dispute that the amount of cash found in the possession of Mr Aviles was somewhat low in relation to the total street value of the drugs that were found, and that Mr Aviles was not in possession of smaller cash denominations, such as $2 coins or $5 dollar bills, corresponding to the individual sale price of each individual 5mg TEC tablet. However, Detective Bullick noted that one could draw no significant inferences in that regard without also knowing the time at which a drug trafficker had started to sell product. In that regard, he emphasized that drug trafficking is a clandestine business that operates 24 hours a day, seven days a week. A drug trafficker detained shortly after the particular time at which he or she started selling drugs that day therefore might very well be in possession of a low amount of cash relative to the total street value of the product being carried, and/or may not yet have made sales in exchange for lower denominations.)

[26] I note that, beyond these various considerations, Detective Bullick also regarded the presence of different controlled substances in the same wallet box as a further indication of possession for the purpose of trafficking. In that regard, Detective Bullick provided detailed descriptions of the different effects or “highs” experienced by users in relation to each controlled substance, and emphasized that, in his experience, he has never encountered a user with four different drugs carried on their person for personal use, (as opposed to possession for the purpose of trafficking). The implicit if not explicit corollary is that persons Detective Bullick has encountered, with such multiple drugs, had them for the purpose of trafficking. (During cross-examination, Detective Bullick indicated that he has commonly encountered drug traffickers supplying multiple types of drugs from a common container.)

[27] I will have more to say during the course of my analysis about whether the indicia of possession for the purpose of trafficking identified and relied upon by Detective Bullick and the Crown collectively satisfy me that such a purpose has been proven beyond a reasonable doubt.

[28] However, I will indicate now that, for a number of reasons, I reject and do not rely upon this particular proffered evidence, (i.e., of simultaneous personal possession of four different controlled substances combined with Detective Bullick’s stated experience that he has never encountered such possession by a user rather than a trafficker), as support for the Crown’s position in relation to possession for the purpose of trafficking. In that regard:

i. Detective Bullick himself conceded, during examination-in-chief, and in a more detailed way during cross-examination, that it was certainly possible for one drug user to use all four types of controlled substances, with the implication that simultaneous possession of all four different drugs was not inconsistent with intended personal use.

ii. More generally, in my view the evidence of Detective Bullick on this particular point raises concerns similar to those emphasized by the Supreme Court of Canada in R. v. Sekhon, 2014 SCC 15, [2014] S.C.J. No. 15, where the majority found that the trial judge should not have relied on testimony, from a police officer called as an expert witness, that the officer personally had never encountered importation of drugs by a “blind courier”; i.e., by someone who did not know about the commodity they were importing. The issue before the court was whether the accused knew about cocaine in a hidden compartment, and the Supreme Court found that the particular expert testimony in question should not have been accepted or relied upon by the trial judge because it did not satisfy the necessity and relevance criteria set forth in R. v. Mohan, supra. In particular, the proffered expert testimony was not necessary, as an accused’s knowledge was not a matter “technical or scientific in nature”, or otherwise beyond the knowledge and experience of the trier of fact. The proffered expert testimony was not relevant or probative, as a fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other unrelated accused persons. In the case before me, I doubt that the “necessity” concern applies to the proffered expert testimony of Detective Bullick concerning the simultaneous possession of different drugs as an indicator of possession for the purpose of trafficking, as such matters do, in my view, generally fall outside the knowledge and experience of triers of fact. However, I think the “relevance” concern does apply, in relation to that particular testimony of Detective Bullick. In particular, while individuals in possession of multiple drugs previously and personally encountered by Detective Bullick might have possessed such multiple drugs for the purpose of trafficking, their guilt in that regard should not be a factor in the independent determination of the guilt or innocence of Mr Aviles.

[29] Returning to other evidence of Detective Bullick, I note his acknowledgment, during cross-examination, that there was no evidence before the court of certain other indicia of drug trafficking that are often found and relied upon in other cases of this nature. For example:

• There was no evidence that the cellular phones taken from Mr Aviles contained any text messages or other information to confirm his ownership of the phones, or other drug trafficking activity such as communication with regular drug suppliers. (However, Detective Bullick clarified that it proved impossible to recover any information from several of the phones when they were analyzed.)
• Detective Bullick also confirmed his understanding, similar to that of Constables Bronson and Thorner, that neither the cellular phones nor the knife had been checked for fingerprints.
• There also was no “debt list”, (i.e., of drug user customers who might owe money to a drug trafficker).
• There also were no observations of Mr Aviles having engaged in any “hand to hand” or other type of drug transactions.

Analysis

[30] With all of the above evidence in mind, I turn now to an analysis of whether the Crown has proven the guilt of Mr Aviles beyond a reasonable doubt, in relation to the various counts on the indictment.

[31] I begin in that regard by consideration of the essential elements of the relevant offences.

ESSENTIAL ELEMENTS – POSSESSION FOR THE PURPOSE OF TRAFFICKING

[32] In relation to counts 1 through 4 of the indictment, each dealing with possession of a specified controlled substance for the purpose of trafficking, (the “PFP” offence), contrary to s.5(3), 5(3)(a.1) and 5(2) of the CDSA, (depending on the particular count of the indictment in question), for me to find Mr Aviles guilty, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

i. that Mr Aviles was in possession of a substance;

ii. that the substance in question was indeed the controlled substance specified in the relevant count of the indictment;

iii. that Mr Aviles knew that the substance was that substance, (i.e., the substance specified in the relevant count of the indictment); and

iv. that Mr Aviles had possession of that controlled substance for the purpose of trafficking in it.

[33] In relation to the first essential element of the PFP offence, a person may have a substance in his or her possession in a number of different ways – only one of which is actual physical possession of a substance, (e.g., by holding it in his or her hand, or by keeping it in his or her pocket). Generally, a person who has actual physical control of a substance has that substance in his or her possession. It does not matter how long a person has a substance in his or her possession, as long as I am satisfied beyond a reasonable doubt that the requirements of possession have been met. In this context, “substance” has its ordinary meaning, and generally means any material thing, in any form.

[34] In relation to the second essential element of the PFP offence, a controlled substance is any substance that a person cannot legally buy, sell or possess without government authorization. Pursuant to the CDSA and its Schedules, cocaine, oxycodone, cannabis marihuana and diacetylmorphine (heroin) are all controlled substances.

[35] In relation to the third essential element of the PFP offence, the focus is on the accused’s knowledge of the nature of the substance; i.e., on whether the accused knew that the substance in question was indeed the controlled substance specified in the relevant count of the indictment. In that regard, “knowledge” is a state of mind, and in particular, the accused’s state of mind. Crown counsel may prove the requisite knowledge of the accused in a number of different ways; e.g., by proving that the accused actually knew or was aware that the substance in question was that specified in the relevant count of the indictment, or that the accused was aware of the need to make an inquiry about the nature of the substance but deliberately failed to do so because he or she did not want to know the truth about it.

[36] As for the fourth and final essential element of the PFP offence:

• The focus is on what the accused had the substance for, and what he or she was going to do with it.
• Pursuant to the wide definitions set forth in section 2 of the CDSA:
  • to “traffic” means to sell, administer, give, transfer, transport, send or deliver something to someone, or to offer to do so; and
  • to “sell” includes offering or exposing something for sale, to have a thing in one’s possession for sale, and to distribute, (whether or not such distribution is made for consideration).
• To “transport” means to carry a substance in order to distribute it to others.
• It does not matter whether money or anything else of value actually changes hands, as long as the accused possessed the substance to provide it or offer to provide it to someone else.
• A person may traffic in a substance in any of these different ways, and proof of any one of those ways, beyond a reasonable doubt, is enough to establish this final element of the PFP offence.
• “Purpose” is a state of mind, and in particular, the state of mind of the accused; i.e., the purpose for which he or she had possession of the substance.
• It makes no difference whether the accused changed his or her mind about selling or distributing the substance, so long as, at some time, the accused possessed the substance for the purpose of selling or distributing it to others.

ESSENTIAL ELEMENTS OF OFFENCE – CARRYING CONCEALED WEAPON

[37] In relation to count 5 of the indictment, dealing with the carrying of a concealed weapon, contrary to s.90(2) of the Code, for me to find Mr Aviles guilty, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

i. that Mr Aviles carried a weapon;

ii. that the weapon was concealed; and

iii. that Mr Aviles meant to conceal the weapon.

[38] In relation to the first essential element of the “carrying a concealed weapon” offence, (i.e., that Mr Aviles carried a weapon):

• The word “carry” has its usual meaning. Moreover, a person “carries” a weapon if it is in another object over which the person has care and control. It is not necessary for the accused to have the weapon on his or her person. See R. v. Hanabury (1970), 1982 CanLII 2861 (QC CA), 1 C.C.C. (3d) 438 (P.E.I.S.C.).
• “Weapon” is defined by s.2 of the Code to mean anything used, designed to be used or intended for use in causing death or injury to any person, or for the purpose of threatening or intimidating any person. The term includes but is not limited to a firearm.
• In the absence of evidence to the contrary, the concealment of certain objects, (such as a handgun, switch-blade knife or brass knuckles), the unlawful purpose of the object may be assumed or implied. However, where the object could be used for a peaceful purpose, (such as a hunting knife or steak knife), the prosecution must establish that the object is being concealed for an unlawful purpose, in that the object was intended to be used as a weapon. See R. v. Constantine (1996), 1996 CanLII 11099 (NL CA), 46 C.R. (4th) 105 (Nfld.C.A.).

[39] In relation to the second essential element of the “carrying a concealed weapon” offence, (i.e., that the weapon carried by Mr Aviles was concealed):

• The focus of the essential element is on the way in which an accused carried the weapon.
• “Concealed” means that steps have been taken to hide the weapon so that it would not be observed or come to the notice of others. Simply placing or wrapping the weapon in some form of case, container or bag is not enough. See R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199.

[40] In relation to the third and final essential element of the “carrying a concealed weapon” offence, (i.e., that Mr Aviles meant to conceal the weapon he carried):

• The focus of this essential element once again is on an accused’s state of mind, and in particular, on his or her state of mind when he or she carried the concealed weapon.
• Crown counsel must satisfy me, beyond a reasonable doubt, that the accused concealed an object he knew to be a weapon, so that others would not see or notice it when he carried it.
• To determine the accused’s state of mind, and what he meant to do with the weapon, I am to consider all the evidence, including the surrounding events, and the circumstances in which they happened, to shed light on the accused’s state of mind.

[41] With those general considerations in mind, I turn to the specifics of this case, and a consideration of whether the Crown has proven the essential elements of each charge on the indictment beyond a reasonable doubt.

[42] In doing so, I nevertheless intend to consider, as threshold matters, the Charter and “continuity” issues raised by the defence.

[43] In particular, if certain evidence should be excluded pursuant to a successful Charter application by Mr Aviles, and/or certain evidence should be regarded as unreliable because of legitimate continuity concerns, thereby giving rise to reasonable doubt, those issues should be addressed and resolved before making determinations as to whether the Crown has presented admissible and reliable evidence sufficient to prove the essential elements of each alleged offence beyond a reasonable doubt.

Charter application

[44] As noted above, by way of an appropriate formal application, Mr Aviles contends that neither the substances nor the knife should be admissible, insofar as the various items were said to have been discovered and seized by the police pursuant to alleged contraventions of the right of Mr Aviles to be free from unreasonable search and seizure, (pursuant to section 8 of the Charter), and/or the right of Mr Aviles not to be arbitrarily detained, (pursuant to section 9 of the Charter), in circumstances where, the defence says, the items accordingly should be excluded from evidence pursuant to s.24(2) of the Charter.

[45] I turn first to the question of whether or not Mr Aviles has satisfied his general onus of proving, on a balance of probabilities, that his section 8 and/or 9 Charter rights were violated.

PARTY POSITIONS

[46] I will return in more detail to issues raised by the parties, in relation to alleged breach or breaches of the Charter, but believe the general position of the defendant in that regard may be summarized broadly as follows:

• The defence argued that, when Mr Aviles was physically restrained by Constable Bronson, there was in fact no intended or purported arrest of Mr Aviles for assault, and Mr Aviles was in fact only the subject of an intended investigative detention relating to the assault complaint. (For the reasons noted above, I disagree and have made corresponding factual determinations to the contrary.)
• The defence argued in the alternative, and in any event, that Constable Bronson did not have reasonable and probable grounds to arrest Mr Aviles, such that the arrest and detention were unlawful, and therefore violated his section 9 right not to be subjected to arbitrary detention and imprisonment. Moreover, as that initial detention was unlawful and arbitrary, any searches flowing from that detention, (including the search of the shoulder bag and the pocket of the coat worn by Mr Aviles), were said to be unlawful and unreasonable in the circumstances, and therefore intrusions that violated the section 8 right of Mr Aviles to be secure from unreasonable search or seizure.
• In the further alternative, the defence argued that, at most, Constable Bronson only had sufficient grounds to engage in an investigative detention of Mr Aviles in relation to the assault complaint. On that basis, the defence submitted that searches of the shoulder bag, leading to discovery of controlled substances, were unrelated to the assault offence and unlawful intrusions into the privacy of Mr Aviles, violating the section 8 right of Mr Aviles to be secure from unreasonable search and seizure.

[47] In response, the position of the Crown concerning alleged breaches of the Charter, (summarized in similarly broad terms), was as follows:

• When Mr Aviles was physically restrained by Constable Bronson, the officer intended to arrest Mr Aviles for assault and did so. The situation therefore was one of arrest, not investigative detention.
• Subjectively and objectively, Constable Bronson had reasonable and probable grounds to believe that Mr Aviles had assaulted the complainant Mr Stewart, and therefore to lawfully arrest and detain Mr Aviles for assault. There accordingly was no breach of the section 9 rights of Mr Aviles.
• The lawful arrest gave rise to searches, (including searches of the shoulder bag and the pocket of the coat worn by Mr Aviles), that were incidental to the arrest and valid. There accordingly was no breach of the section 8 rights of Mr Aviles.

[48] Before turning to an assessment of these respective arguments, I pause to note a number of general principles relevant to the application of sections 8 and 9 of the Charter.

GENERAL PRINCIPLES – SECTIONS 8 AND 9

[49] In that regard, our Supreme Court has emphasized that detention and search issues should be kept analytically distinct, because they stem from different police powers and must respect different Charter rights. See R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paragraph 36.

[50] In relation to section 8 of the Charter, general principles and considerations include the following:

• Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable searches and seizures, which extends at least so far as to protect the right of privacy from unjustified state intrusion. Its purpose requires that unjustified searches be prevented. It may not be reasonable in every instance to insist on a prior authorization order to validate governmental intrusions upon individuals’ expectations of privacy. For example, exigent circumstances may require immediate action for the safety of police and/or to secure and protect evidence. However, prior authorization, where feasible, is a precondition for a valid search and seizure, and it follows that warrantless searches are ordinarily inconsistent with s.8 of the Charter, and prima facie unreasonable under s.8. A party seeking to justify a warrantless search bears the onus of rebutting the presumption of unreasonableness. See Canada v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; and R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at paragraph 52.
• In that regard, a warrantless search will respect s.8 if the search is authorized by law, and both the law and the manner in which the search is conducted are reasonable. See R. v. Feeney, supra, at paragraph 46.
• However, the long-standing common law power of “search incident to arrest” is an exception to the general rule that a search conducted without prior authorization is presumptively unreasonable. That common law power is regarded as “eminently sensible”, and “essential for the protection of police officers carrying out their all too often dangerous duties”. See R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paragraph 33.
• In particular, at common law, after making a lawful arrest, a police officer has the right to search the person arrested and take from his person any property reasonably believed to be connected with the offence charged, or which might be used as evidence against the person arrested on the charge, or any weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape. See R. v. Rao, 1984 CanLII 2184 (ON CA), [1984] O.J. No. 3180 (C.A.), at paragraph 38.
• That automatic right of police officers to search incident to lawful arrest, and seize anything in the arrested person’s possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape, or provide evidence against him, arises at common law but has survived introduction of the Charter. That common law right must nevertheless be exercised in a manner consistent with the fundamental values enshrined in the Constitution. To that end:
  • The search must be for a valid objective in pursuit of the ends of criminal justice, (such as the discovery of an object that may be a threat to the safety of the police, the accused or public, or that may facilitate escape or act as evidence against the accused). Such searches, made incidentally to arrest and justified, are not limited by necessity.
  • The purpose of the search must not be unrelated to the objectives of the proper administration of justice, (which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions).
  • The search also must not be conducted in an abusive fashion, and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at paragraphs 49, 56, and 61-62.

• Moreover, if the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of that doctrine must be respected. The most important of those limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier v. Langlois, supra, (i.e., protecting the police, protecting the evidence, and discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. See Cloutier v. Langlois, supra, at paragraph 59; and R v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paragraphs 19-20 and 25.
• A warrantless search incident to an investigative detention also may be Charter compliant, in the required sense of being authorized by a reasonable law, and carried out in a reasonable manner. However, it is important in that regard to maintain a distinction between police search powers incidental to arrest and the more limited police search powers incidental to an investigative detention. In particular:
  • The latter context does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds. Nor does it erode the obligation to obtain search warrants where possible.
  • The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a “pat-down” search incident to an investigative detention. However, such a search power does not exist as a matter of course, or in all circumstances. The officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. It must be grounded in objectively discernible facts to prevent “fishing expeditions” on the basis of irrelevant or discriminatory factors.
  • Both the detention and the pat-down search must be conducted in a reasonable manner. In particular, the investigative detention should be brief in duration and not impose an obligation on the detained individual to answer questions posed by the police.

See R. v. Mann, [2004] 3 S.C.R. 359, at paragraphs 37, 41, 43 and 45.

[51] Applicable general principles relating to s.9 of the Charter include the following:

• While section 9 provides that everyone has the right “not to be arbitrarily detained”, it is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision. See R. v. Mann, supra, at paragraph 20.
• A police officer may lawfully arrest an individual without a warrant if the officer has subjective and objective grounds to make the arrest. In particular, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, (which requires the officer to have an honest belief, supported by objective facts, that the suspect committed the offence). However, those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest. See R. v. Storrey, [1990] 1. S.C.R. 241 at paragraph 17; and R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 51.
• The totality of the circumstances relied upon by the arresting officer, including the dynamics within which the officer acted, and his or her experience, will form the basis of the objective assessment as to whether there were reasonable and probable grounds for an arrest. In making that assessment in any given case, trial judges should not engage in after-the-fact dissection of an officer’s grounds, and individual facts and observations, considered in isolation. Trial judges also must appreciate that arrests often are made in a fast-moving, dynamic situation without the benefit of lengthy reflection. See R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.), at paragraph 4; and R. v. Palmer, [2010] O.J. No. 4739 (S.C.J.), at paragraph 21.
• Moreover, police can and should continue their investigation subsequent to an arrest, and an arrest which is lawfully made therefore does not become unlawful simply because the police intend to continue their investigation after the arrest. See R. v. Storrey, supra, at paragraphs 25 and 28.
• Short of arrest, a police officer also has a more limited power to detain a person for investigative purposes. That power may be exercised on the basis of an officer’s reasonable suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence; i.e., an expectation that the targeted individual is or was possibly engaged in some criminal activity. The “reasonable grounds” or “reasonable suspicion” standard requires something more than mere suspicion, but something less than a belief based upon reasonable and probable grounds. What distinguishes the two standards is merely the degree of probability demonstrating that the person is involved in criminal activity. In particular:
  • “Reasonable grounds” justifying a detention for investigative purposes means reasonable grounds to suspect that an individual is involved in particular criminal activity. The concept is a matter of possibilities.
  • “Reasonable and probable grounds” justifying an arrest means reasonable grounds to believe that an individual is or has been involved in a particular offence. The concept is a matter of probabilities.

See R. v. Mann, supra, at paragraphs 23, 27 and 33-34; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paragraph 75; and R. v. MacKenzie, supra, at paragraph 38.

• While reasonable suspicion is required to effect a detention for investigative purposes, the overall reasonableness of a decision to use that power of detention must further be assessed against all of the circumstances, most notably, the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference. While police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. In particular, individual liberty interests are fundamental to the Canadian constitutional order, and any intrusion on them therefore must not be taken lightly. Police officers therefore do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch. Nor can it become a de facto arrest. See R. v. Mann, supra, at paragraphs 34-35.
• However, while reasonable suspicion must be grounded in objectively discernible facts, which can then be subjected to independent judicial scrutiny, (e.g., to prevent the police from engaging in indiscriminate or discriminatory practices), it is equally vital that the police be allowed to carry out their duties without undue skepticism or the requirement that their every move be placed under a scanning electron microscope. Common sense, flexibility and practical every day experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. See R. v. MacKenzie, supra, at paragraphs 41, 65 and 73.

[52] With the above principles in mind, I now turn to an assessment of whether there have been breaches of the section 8 and/or 9 Charter rights of Mr Aviles in this case.

CHARTER BREACH - ANALYSIS

[53] In that regard, it was common ground that the section 8 breach determination depended in large measure on whether the police were exercising a lawful power of search at material times, and if so, the nature of that right, so as to determine whether the power in question was exceeded or exercised in an unreasonable manner.

[54] Given that accepted reality, it seems to me that the logical starting point is not section 8, but the circumstances in which Mr Aviles was detained, which in turn effectively shifts the initial focus of my analysis to the question of whether or not there was a contravention of the section 9 Charter right of Mr Aviles not be arbitrarily detained.

[55] As noted above, a detention will not be characterized as “arbitrary” if it is lawful.

[56] Moreover, the physical detention of Mr Aviles was “lawful” if it was either a lawful arrest or a lawful investigative detention. (Again, the Crown says it was the former while defence says it properly was the latter, or perhaps neither.)

[57] As noted above, I already have found, in the course of my factual determinations, that Constable Bronson intended to arrest Mr Aviles for assault and expressly did so, immediately upon approaching and taking hold of Mr Aviles.

[58] Of course, the fact of that purported arrest for assault does not resolve the necessary legal determination of whether the purported arrest was a lawful one, in terms of there being “reasonable and probable grounds” in the sense demanded by the authorities.

[59] In my view, however, at the relevant time, and having regard to the totality of the circumstances, there were reasonable and probable grounds, both subjectively and objectively, to arrest Mr Aviles for assault.

[60] Without limiting the generality of the foregoing, I note that, in the circumstances that prevailed at the time:

• Constable Bronson and Constable Stewart had received a report of an assault directly from the alleged victim, along with a description of three alleged assailants.
• They had gone to the scene of the alleged assault, where they had found evidence, (in the form of the complainant’s missing and matching shoe), providing at least some objective corroboration that the alleged assault had indeed occurred in the place and manner alleged by the complainant.
• By gesture and word, in the presence of Constable Bronson and Constable Stewart, the complainant then expressly identified three approaching individuals as his assailants.
• The accuracy of that identification was buttressed by the reality that it conformed in significant respects to the complainant’s previous account and description of his assailants; for example, in terms of the number and gender of the three individuals, the fact that the group included Mr Earhart, (whom Constable Bronson recognized from Mr Earhart’s previously examined police photograph), the fact that Mr Aviles does have brown-coloured skin, (something observed by me during the course of trial and acknowledged by defence counsel during the course of closing submissions), and the fact that the three individuals were approaching the officers’ location from the direction where the assault was alleged to have occurred.
• As noted above, Constable Bronson therefore felt, at the time in question, that an arrest of Mr Aviles was required “as a matter of public safety”, because of Mr Stewart’s assault allegations and identification of his assailants. In my view, Constable Bronson was indicating his belief that Mr Aviles had indeed participated in the indictable offence of assault, as there was no other basis at the time for any conclusion that an arrest of Mr Aviles was necessary or appropriate to further “public safety”.

[61] In those circumstances, I accept and find that Constable Bronson had an honest belief that Mr Aviles had committed the indictable offence of assault. Moreover, as noted in the previous paragraph, Constable Bronson’s belief in that regard was supported by objective facts. The subjective component of “reasonable and probable grounds” required to effect a lawful arrest was therefore satisfied when Constable Bronson took physical control of Mr Aviles.

[62] As for the required objective component of “reasonable and probable grounds”, I find that the grounds relied upon by Constable Bronson in arresting Mr Aviles for assault also were justifiable from an objective point of view, in the sense that a reasonable person placed in the position of Constable Bronson would conclude that there were indeed reasonable and probable grounds for the arrest.

[63] Without limiting the generality of the foregoing, my considerations in that regard include the following:

• As noted above, Constable Bronson had received a report of an assault directly from the alleged victim, along with a description of three alleged assailants, and had found objective corroboration that the assault had indeed occurred in the place and manner alleged by the complainant. The complainant also then expressly identified three approaching individuals as his assailants, in circumstances where the accuracy of that identification was supported by the reality that it conformed in significant respects to the complainant’s previous account and description of his assailants.
• In my view, it was entirely sensible and expected, in those circumstances, that the officers would make an arrest for assault at that point, rather than effect a detention merely for investigative purposes. The circumstances justified not only a reasonable suspicion that Mr Aviles had been involved in the alleged assault, but a reasonable belief that Mr Aviles had been involved in the alleged assault.
• In particular, I disagree with the suggestion that the reasonableness of the officers making arrests for assault at that point, (rather than detaining the individuals merely for investigation), is substantially undermined by inherently subjective debate as to whether the clothing being worn by Mr Aviles, (which included not only the pea coat but also black “jogging pants” and a black baseball cap), should properly be characterized as “baggy hip hop style clothing”; i.e., the characterization used by Mr Stewart during his earlier description of the unknown male assailant’s clothing. Immediately prior to the arrest, Mr Stewart was pointing to the three particular individuals who were approaching, including Mr Aviles, and expressly identifying them as his three assailants, regardless of how one might characterize their clothing.
• Nor, in my view, is the reasonableness of the officers making arrests for assault at that point substantially undermined by Mr Stewart’s prior indication that he did not wish further police involvement in relation to the matter. In that regard, I am not inclined to agree with any general proposition that police should not make an arrest in circumstances where they have reasonable and probable grounds to believe that an indictable offence by identified perpetrators has been committed, and those identified perpetrators are immediately to hand, simply because the apparent victim may at that moment seem hesitant to pursue the matter further, with a corresponding possibility that the apparent victim ultimately may be unwilling to press charges. Moreover, on the facts of this particular case, the reality is that, when the identified perpetrators were approaching, the officers were still discussing the matter with Mr Stewart, who may or may not have changed his mind about further police involvement and the ultimate laying of charges. Furthermore, whatever the prior indications he may have given to the officers, in my view Mr Stewart then effectively did signal his request for some type of further police involvement by pointing to the three approaching individuals, and verbally identifying them as his assailants.
• Nor, in my view, is the reasonableness of the arrest undermined by the fact that Constable Bronson occasionally made reference to “arrest for assault” and reference to “arrest for an assault investigation”. As noted above, our Supreme Court has confirmed that police are expected to continue their investigation after an arrest, and such an intention does not render an otherwise lawful arrest unlawful. Again, see R. v. Storrey, supra, at paragraphs 25-28.
• Having regard to all these considerations, and the reality that events were unfolding very quickly without Constable Bronson having the benefit of lengthy reflection, (as the complainant noticed and identified his alleged assailants within seconds of their approaching the location where Constable Bronson was still speaking with the complainant), I think any reasonable person placed in Constable Bronson’s position also would conclude that there were reasonable and probable grounds to arrest Mr Aviles for assault.

[64] For the above reasons, I find that Constable Bronson effected a lawful arrest of Mr Aviles for assault, when he was physically detained.

[65] As there was a lawful arrest, and therefore a lawful detention, that detention of Mr Aviles cannot be regarded as arbitrary.

[66] Mr Aviles accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of his section 9 Charter right not to be subjected to arbitrary detention and imprisonment.

[67] That still leaves, for determination, the question of whether there was a violation of his section 8 right to be secure from unreasonable search and seizures.

[68] In that regard, I agree with defence counsel, (and Crown counsel did not dispute), that there were in fact a number of relevant searches carried out by the police, including searches which can be grouped into four categories which occurred in sequence:

i. Constable Bronson’s initial “pat down” search of Mr Aviles, (after he was walked to Constable Thorner’s cruiser), which resulted in discovery and seizure of cellular telephones and a wallet containing currency;

ii. successive searches of the shoulder bag then carried out by Sergeant Austin and Constable Bronson outside the convenience store, the first of which, by Sergeant Austin, resulted in initial discovery of narcotics and the digital scale, which prompted the second “confirming” search by Constable Bronson, who then seized those objects;

iii. Constable Thorner’s subsequent search of the shoulder bag while still outside the convenience store, which resulted in discovery and seizure of the knife and an additional cellular phone; and

iv. Constable Thorner’s search of the coat pockets of Mr Aviles, at the police station, which resulted in discovery and seizure of additional narcotics.

[69] In my view, however, all of these searches were incidental to the lawful arrest of Mr Aviles. To be more specific, the searches mentioned in the first two categories noted above were incidental to the lawful arrest of Mr Aviles for assault, and the searches mentioned in the last two categories noted above were incidental to the “re-arrest” of Mr Aviles for possession for the purpose of trafficking.

[70] Moreover, I accept and find that the items revealed by Constable Bronson’s initial “pat down” search, and by Sergeant Austin’s initial search of the shoulder bag, were discovered pursuant to searches reasonably carried out, incidental to the arrest of Mr Aviles for assault, for “any weapon or instrument that might enable the arrested person to commit an act of violence”. The intention to search for weapons, incidental to the arrest of Mr Aviles for assault, was expressly confirmed by the testimony of Constable Bronson and Sergeant Austin, and I find no reason to doubt their credibility in that regard. In particular, although defence counsel highlighted the failure of Sergeant Austin and Constable Bronson to detect the knife concealed in the flap of the shoulder bag, I note the following:

• First, when the shoulder bag was examined by Sergeant Austin and then by Constable Bronson, it effectively had already been placed beyond the reach of Mr Aviles. In the circumstance, Sergeant Austin indicated that his immediate focus was directed towards confirmation that the bag did not contain a firearm; i.e., a weapon inherently capable of more easily causing greater harm to officers or others if it was inadvertently mishandled, (in comparison with other weapons). His focus therefore would have been on areas of the bag more likely to contain a firearm.
• Second, Sergeant Austin expressly indicated and emphasized that he took only a “quick look” inside the bag. His search of the bag admittedly was not thorough or complete.
• Third, Sergeant Austin indicated that he simply had to unzip the top of the bag to open it, (rather than open any flap, such as that in which the knife was concealed), which in turn suggests that Sergeant Austin actually may not have handled the flap of the bag when looking inside it. If he handed the bag to Constable Bronson in the same manner, (and the evidence indicated that it was handed to him in an open fashion), the same considerations would have applied to Constable Bronson’s search of the bag’s contents, which was primarily directed towards confirmation of the narcotics and drug paraphernalia already mentioned by Sergeant Austin.
• Fourth, when he examined the shoulder bag, Constable Bronson understandably was focused on confirming the information Sergeant Austin had conveyed about narcotics and drug paraphernalia seen inside the bag, and he expressly indicated that he otherwise did not complete a thorough and complete search of the bag because of the prevailing light conditions.

[71] In my view, there really is nothing to suggest that the relevant searches which led to discovery of the first two cellular phones, wallet, and contents of the wallet box were exercised in any manner that was inconsistent with the principles and restrictions emphasized in Cloutier and Langlois, supra.

[72] In particular, I think such searches for the stated reason of safety and detection of possible weapons, in the context of dealing with a prisoner who was an alleged assailant, were objectively reasonable in the circumstances.

[73] I accordingly find no section 8 breach, as far as those searches and corresponding discovery of that evidence is concerned.

[74] In my view, those discoveries in turn provided reasonable and probable grounds for the “re-arrest” of Mr Aviles for possession of controlled substances for the purposes of trafficking. (Once he personally confirmed the presence of substantial narcotics and drug paraphernalia in the bag Mr Aviles had been carrying, Constable Bronson had an honest and subjective belief, supported by objective facts, that Mr Aviles was engaged in drug trafficking. To the extent necessary, I find that a reasonable person in Constable Bronson’s position also would have concluded that there were reasonable and probable grounds in that regard.)

[75] That “re-arrest” in turn led to the further “category three” and “category four” searches of the shoulder bag and coat pockets carried out by Constable Thorner incidental to that arrest. At a minimum, and in accordance with Cloutier v. Langlois, supra, those searches were for the valid objective of discovering evidence capable of being used against the accused, in relation to the charge of possession of controlled substances for the purpose of trafficking.

[76] In my view, nothing about those further searches, (leading to discovery of the additional cellular phone, concealed knife and additional “coat pocket” narcotics), suggests that they were unrelated to the objectives of the proper administration of justice, or that they were conducted in an abusive fashion.

[77] I therefore similarly find no section 8 breach, as far as those searches and corresponding discovery of that evidence is concerned.

[78] In the result, Mr Aviles accordingly has not satisfied me, on a balance of probabilities, that there was any constitutional infringement of his section 8 Charter right to be free from unreasonable search and seizure.

CONSEQUENCE OF CHARTER BREACH DETERMINATION

[79] As I have found no breach of the section 8 or section 9 Charter rights of Mr Aviles, consideration of how s.24(2) of the Charter otherwise may have applied is unnecessary and inappropriate.

[80] The Charter application brought by Mr Aviles is dismissed, and the Charter accordingly has no bearing on the admissibility of any of the evidence relied upon by the Crown.

Continuity

[81] I turn next to the matter of continuity concerns raised by the defence.

[82] In particular, in the course of closing submissions, defence counsel highlighted certain aspects of the evidence which were said to raise continuity concerns, which in turn might suffice to create reasonable doubt about whether the Crown had proven all essential elements of the offences charged in the indictment. For example:

• Defence counsel repeatedly characterized the police handling of evidence in this case as “sloppy”, and submitted that police should be held to a high standard in that regard in relation to a case involving serious charges, some of which carry a mandatory minimum sentence.
• Defence counsel suggested that there were serious and fundamental concerns in relation to continuity, in relation to the shoulder bag said to have contained the narcotics and concealed knife; i.e., that the bag was the subject of varied descriptions, and that the bag could have been lying unattended for several minutes before it was said to have been picked up by Sergeant Austin.
• Defence counsel suggested it was concerning that drugs supposedly seen and located in the shoulder bag by Sergeant Austin and Constable Bronson were not in that bag when it was then searched by Constable Thorner. In that regard, defence counsel suggested there was no legitimate reason why the narcotics would have been removed from the shoulder bag and transported separately to the police station, (from the shoulder bag and Mr Aviles), and rhetorically asked where the wallet box containing the narcotics and scale had gone in the meantime. That too was said to be a significant continuity issue.
• The absence of evidence as to how all the cellular phones seized from Mr Aviles had found their way into that bag was also said to be a concern.
• It was said to be “disturbing” that neither Sergeant Austin nor Constable Bronson felt the weight of the knife during their searches, which “then appeared” in the shoulder bag when it was searched again by Constable Thorner;
• Such continuity concerns were said to be compounded by the absence of any cellphone analysis or fingerprinting to confirm that the various objects relied upon by the Crown actually had a demonstrable connection to Mr Aviles.
• For all these reasons, defence counsel suggested there were continuity concerns in relation to how various items were said to got “from Mr Aviles, to the police station, to being labelled in evidence”.

[83] In my view, such submissions should be rejected for a number of reasons, and continuity concerns do not, in this case, give rise to any evidence admissibility or reliability concerns giving rise to reasonable doubt.

[84] First, I think defence submissions, suggesting the existence of reasonable doubt in this case based on concerns about continuity, should be rejected largely as a general matter of trial fairness. In that regard:

• While the rights of an accused are of fundamental importance in a criminal proceeding, “trial fairness” is not a concept that operates exclusively in one direction, in favour of the accused.
• In this case, as noted above, counsel for both sides rose at the outset of trial to confirm certain admissions, and make it clear what would not be in issue. In that regard, Crown counsel expressly indicated his understanding that there was “no issue as to the continuity or nature of the substances”. Defence counsel voiced no disagreement with that general statement, and to the contrary, said in response to Crown counsel’s expressed understanding and request to file the certificates of analysis as an agreed exhibit, “That’s fine”.
• Later in the trial, Crown counsel once again referred expressly to his understanding that defence admissions included an admission in relation to continuity. In particular, following qualification of Detective Bullick as an expert witness, Crown counsel opened his substantive examination in chief of Detective Bullick with the comment “You were here this morning when we filed the certificates of analysis as Exhibit 1, and the admission that there’s no dispute as to continuity and the nature of the substances, so I’ll get right to the point here…” Once again, defence counsel did not interject or otherwise express any disagreement with or qualification of that general statement and Crown counsel’s indicated understanding that defence admissions included an acknowledgment that there were no continuity concerns, at least in relation to the seized substances underlying counts 1 through 4 of the indictment.
• In my view, at least in relation to continuity of the narcotics underlying counts 1 through 4, the defence effectively signaled a deviation from Crown counsel’s repeatedly stated understanding, and expressly raised continuity of evidence concerns, only during the course of final submissions, after the Crown had closed its case – at which time defence counsel suggested that he had only intended a more narrow continuity admission in relation to the narcotics; i.e., the continuity of anything sent by the police to the Centre of Forensic Science.
• In these particular circumstances, I generally think it would be entirely unfair to permit the defence to raise and rely on such continuity concerns, at least insofar as the controlled substances underlying counts 1 through 4 are concerned. Such an approach unfairly assumes that the evidence presented by the Crown would have been the same, in the absence of the perceived defence admission and acknowledgment regarding continuity of the seized substances. It ignores the possibility, if not probability, that Crown counsel would have devoted far more time and attention to matters of continuity during examination of each Crown witness; e.g., by asking Constable Bronson for his testimony concerning his handling of the seized substances between the time he noticed them in the shoulder bag and the time he turned custody of the substances over to Constable Thorner at the police station.

[85] Second, in relation to continuity concerns regarding the narcotics and other evidence, (including the cellular phones and knife relied upon by the Crown), and implicit if not explicit suggestions that they may not actually have been found or located in the manner and places outlined by the officers in their testimony, defence arguments about continuity of evidence concerns raise, in my view, more particular issues of trial fairness associated with what is commonly referred to as “the rule in Browne v. Dunn” (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). In that regard:

• That decision of the House of Lords, and the Canadian authorities which have embraced and followed it through the intervening years, generally emphasize that a party who intends to contradict or impeach an opponent’s witness must direct the attention of the witness to that fact by appropriate questions during cross-examination, so that the witness has an opportunity, while in the witness box, of making any explanation that is open to him or her. From the outset, the “rule” was characterized as one “essential to fair play and fair dealing with witnesses”.
• In this case, to the extent the defence implicitly suggests that the police officers involved in this case failed to maintain adequate possession and custody over seized items to ensure continuity and/or prevent contamination or tampering, and/or that the officers were not telling the truth about how and where items were located, thereby giving rise to reasonable doubt as to whether such things did happen to the evidence, those suggestions should have been put squarely to the Crown witnesses. However, that was not done. In particular, I note again that Constable Bronson was not asked in chief or cross-examination about his handling of various seized items, (including the cellular telephones, wallet and narcotics), after he discovered them.
• In R v. McNeill (2000), 2000 CanLII 4897 (ON CA), 144 C.C.C. (3d) 551 (C.A.), our Court of Appeal noted that contravention of the rule in Browne v. Dunn may be remedied in numerous ways. One method is the recalling of witnesses, but I think that would have been entirely inappropriate after the Crown had closed its case, the defence had confirmed its intention to call no evidence, and the parties had embarked on closing submissions, at which point reliance on continuity concerns first came to the fore in this case. Another alternative is to factor the absence of cross-examination into account when assessing the credibility of a witness or witnesses. In this case, I think implicit or explicit suggestions of evidence contamination and/or tampering should be seen as having little or no impact on the credibility and reliability of Crown witnesses, when there was nothing in evidence to suggest such concerns and the officers in question were given no opportunity to address any such suggestions.

[86] Third, I think it must be remembered that proof of continuity is not a requirement of law. Gaps in continuity accordingly are not fatal to the Crown’s case unless those gaps are capable of giving rise to a reasonable doubt about the integrity of an exhibit, and in that regard, there must be something more than mere speculation or “fantasy of the mind” that the exhibit might have been interfered with. In the absence of evidence to support such speculation or theories, reasonable doubt based on suggested continuity problems does not arise. In that regard, see MacFarlane, Frater and Proulx, Drug Offences in Canada (3d ed.), at paragraphs 16.80 to 16.130, and authorities such as the following: R. v. Castell, [1973] O.J. No. 992 (C.A.); R v. Oracheski (1979), 1979 ALTASCAD 140, 48 C.C.C. (2d) 217 (Alta.C.A.); R. v. DeGraaf (1981), 1981 CanLII 343 (BC CA), 60 C.C.C. (2d) 315 (B.C.C.A.); and R. v. Kalashnikoff, [2000] B.C.J. No. 440 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 129.

[87] In this case, I think the Crown provided evidence, not challenged in cross-examination, and not contradicted by other evidence, indicating an unbroken chain of custody in relation to all of the seized items relied upon by the Crown in support of the charges in the indictment.

[88] In particular, while the particulars of transfer may not have been explored in detail, (which in my opinion is not surprising given Crown Counsel’s express understanding that continuity was not an issue), in my view the evidence indicated and confirmed that:

• the shoulder bag went from Mr Aviles, to Sergeant Austin, to Constable Bronson, to Constable Thorner;
• the narcotics in the shoulder bag went, in that bag, from Mr Aviles to Sergeant Austin to Constable Bronson, who then removed the narcotics from the shoulder bag and maintained custody over them until they were handed over to Constable Thorner at the police station;
• the knife in the shoulder bag went, in that bag, from Mr Aviles to Sergeant Austin to Constable Bronson to Constable Thorner, (although it was only the last officer who detected its presence in the bag that was being successively transferred); and
• the wallet and cellular phones went from Mr Aviles to Constable Bronson to Constable Thorner, (regardless of the precise manner in which they were transferred to Constable Thorner).

[89] In my opinion, there was no evidence whatsoever to support any suggestion that the seized items and evidence relied upon by the Crown was in any way the subject of contamination, tampering or improper identification. Suggested concerns in that regard accordingly are mere speculation.

[90] For all these reasons, I reject defence suggestions that continuity concerns undermine the admissibility or reliability of the Crown’s evidence, or otherwise give rise to reasonable doubt.

Further analysis and conclusions

[91] With resolution of the above issues, I turn finally to the remaining analysis required; i.e., to determine whether the Crown has proven the essential elements of each charged offence beyond a reasonable doubt.

[92] In relation to counts 1 through 4, dealing with possession for the purposes of trafficking:

• I find that Mr Aviles was in possession of the various substances underlying those counts of the indictment. The substances in question were either in the shoulder bag being carried by Mr Aviles, or in his coat pocket. The bag and its contents were in the physical control of Mr Aviles, and the content of his pockets were in his actual physical possession.
• It was not disputed, and it was confirmed by the certificates of analysis filed collectively as an exhibit, that the substances in question are indeed the controlled substances specified in counts 1 through 4 of the indictment.
• In my view, Mr Aviles knew the nature of the substances in his possession. They were among the few items located in the bag he was carrying, and/or his coat pocket, and their drug related nature was immediately apparent to Sergeant Austin, Constable Bronson and Constable Thorner. At the very least, Mr Aviles was aware or should have been aware of the need to make an inquiry as to the nature of the substances in his possession.
• With the specified exception I have expressly indicated, I found the expert testimony of Detective Bullick, concerning the presence of numerous indicia of possession for the purpose of trafficking, to be comprehensive and compelling. In my view, points and criticism raised in cross-examination were answered by Detective Bullick in a satisfactory manner that left the thrust of his opinion largely intact. While it is true this case does not display each and every one of the possible indicia of drug trafficking one might find in such cases, (such as debt lists, text messages, and observed hand-to-hand transactions), I reject the suggestion that there is any “checklist” of criteria that definitely must be satisfied in that regard, or that failure to lead evidence of certain indicia is somehow fatal to making out the fourth essential element of the offence. The essential question is whether the evidence that has been presented confirms the presence of indicia that collectively are sufficient to prove possession for the purpose of trafficking beyond a reasonable doubt. In my view, that has been done in this case.

[93] In relation to counts 1 through 4 of the indictment, I therefore find that the Crown has proven all essential elements of the offences charged, beyond a reasonable doubt.

[94] In relation to count 5 of the indictment, dealing with the carrying of a concealed weapon:

• The knife was in the shoulder bag, and the shoulder bag was being carried by Mr Aviles. He therefore was “carrying” the knife. Moreover, I accept the evidence of Detective Bullick that, at a minimum, the knife was intended to be used for the purpose of threatening or intimidating others, defensively and/or offensively. Mr Aviles accordingly was carrying a “weapon”, within the meaning of section 2 of the Code.
• There is no question that the knife was “concealed”, in that steps had been taken to hide it so that it would not be observed or come to the notice of others. Those steps were sufficiently effective that the knife escaped detection by Sergeant Austin and Constable Bronson, when they were examining the bag and its contents.
• Having regard to all of the evidence, including the surrounding events and circumstances in which they happened, I find that Mr Aviles also meant to conceal the weapon he was carrying. My reasons in that regard include the generally clandestine nature of the drug trafficking in which he was engaged, repeatedly emphasized by Detective Bullick.

[95] In relation to count 5 of the indictment, I therefore find that the Crown has proven all essential elements of the offence charged, beyond a reasonable doubt.

[96] Stand up please, Mr Aviles.

[97] For the reasons set out above, I find you guilty of all counts set forth on the indictment. The verdicts should be noted and documented accordingly.

“Justice I.F. Leach”

JUSTICE I. F. LEACH

Released: (Orally) July 27, 2015