ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000708-0000
DATE: 20150917

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CONRAD CARTER

Defendant

S. Siew, for the Crown

S. Agbakwa, for the Defendant

HEARD: June 22, 23, 24, 25, 26, 2015

REASONS FOR JUDGMENT

B. P. O’MARRA, J.

overview

[1] On January 31st and February 3rd, 2011, an undercover police officer purchased cocaine from a man he knew only as “James”. On February 7th, 2011, the undercover officer was shown a photographic lineup. He identified the fourth photo shown to him as the man who sold him the drugs. It is agreed that this was a photo of Conrad Carter. On February 19th, 2011, Conrad Carter was arrested. He faces two counts of trafficking in cocaine and two counts of possession of the proceeds of crime related to those transactions.

[2] Mr. Carter pleaded not guilty to the four counts on the indictment. Counsel agreed that the trial would proceed as a blended hearing related to the following:

(1) An application by Mr. Carter to stay the charges based on alleged lost evidence. This relates to the cell phone number used by the undercover officer to contact the suspect and related records.

(2) If the charges are not stayed, a trial on the merits.

This blended hearing is appropriate in this case since an application based on alleged lost evidence should be determined only after completion of all the evidence.

[3] The crown called nine police witnesses. Mr. Carter did not testify and the defence elected to call no further evidence.

THE EVIDENCE

Events of January 25, 2011

[4] This was the date of the first contact between the undercover officer and the suspect. The officer had been given information regarding a suspected cocaine dealer at 1855 Jane Street, apartment 806, in Toronto. He was also provided the name of “James” as a suspect and a cell phone number of (647) 830-4923. The undercover officer called that number and was speaking to James when the call was interrupted by another call to the undercover officer. The officer then terminated the call to James. There was no further contact on that day.

Events of January 31, 2011

[5] Shortly after 7:00 p.m. the undercover officer called the same number he had been given for James and spoke to that person. The officer identified himself as “Kevin” from the Weston and Lawrence area. He asked James for a “40”, which referred to $40 worth of cocaine. The person he was speaking to told the officer to come to the “1855 building”.

[6] At approximately 7:13 p.m. the undercover officer attended a briefing of the Toronto Police. He had no idea who James was and no further name for the suspect was mentioned at the meeting. The undercover officer received buy money of $40 in the form of two $20 bills. The briefing was concluded at approximately 7:17 p.m.

[7] The undercover officer drove to 1855 Jane Street and arrived at approximately 7:30 p.m. He contacted James by cell phone. The officer was told by James to come to the 7th floor stairwell. The officer took the elevator to the 6th floor and went into the stairwell. He then texted James at approximately 7:36 p.m. to indicate that he had arrived. Shortly thereafter a male person arrived from a lower stairwell. They were between the 6th and the 7th floor in the stairwell. The undercover officer described the person he was speaking to as a male, black, approximately 18-20 years of age, wearing a black toque, blue t-shirt, and blue jeans. He had a thin build. He had what the officer described as a broader nose, and bushy sideburns that were like “chops”. The lighting in the area where they met was very good. The man confirmed with the officer that he had spoken with him earlier by phone. Based on this the officer assumed that this was James. The voice sounded like the person he had spoken to on the phone. James asked about the money. The transaction was completed. The meeting between the two men lasted between 1.5 and 2 minutes. They were face-to-face, approximately 1 foot apart. The officer had never seen this person before.

[8] The undercover officer returned to the station. He turned the drugs he had purchased over to Officer Robert Nicol.

[9] Officer Nicol had been part of the cover team at 1855 Jane Street. He had observed the undercover officer to enter and later leave the apartment building.

[10] Officer Dan Robinson had attended the briefing at 7:13 p.m. His role was to provide the buy money and later be part of the surveillance/cover team for the possible interaction with the suspected drug dealer. At that stage the police did not have a photo or a name of the suspect. Before the undercover officer arrived at the address Officer Robinson had been there and went to the 8th floor to view #806. He actually walked past #806 and indicated it was the only door with that number on it. He set up surveillance in the north stairwell approximately 30 metres away from #806. Shortly after 7:33 p.m. he observed a black male to exit #806. He described the man as having a thin build, dark blue t-shirt and wearing a toque. From his vantage point Officer Robinson could see the doorway but not the door. The unknown male walked towards Officer Robinson in the north stairwell. Officer Robinson went up a few levels to the 10th stairwell. From his position he observed the man he had seen exit #806 go to the 9th floor and enter the hallway. Officer Robinson next saw the man at approximately 7:45 p.m. He heard someone coming from the 6th floor stairwell. Officer Robinson had returned to the north stairwell at the 8th floor after he had received information that the undercover officer was in contact with the suspect at approximately 7:44 p.m. Officer Robinson positioned himself on the 8th floor north stairwell to observe #806 to see if the suspect returned to that unit. He heard someone coming from the 6th floor below him. Officer Robinson went to the 9th level and observed the suspect enter the 8th floor hallway. Officer Robinson then went to the 8th floor hallway. He observed the man he had observed earlier re-enter #806. This was at approximately 7:46 p.m. The man was of the same stature and wearing the same clothes he had observed when he exited #806. Officer Robinson was not in a position to see the face of this individual. Based on his observations he could not say how many people lived at or had access to #806. Officer Robinson advised that at a debrief later that evening the undercover officer was not present.

[11] Officer Marc Beausoleil has been a member of the Toronto Police Service for 26 years. He was part of the drug team involved in this case. He attended the briefing earlier that evening. The officers did not have a full name or photograph of the suspect. Officer Beausoleil was part of the surveillance team. At approximately 7:25 p.m. he was in the area of 1855 Jane Street but was not in a position to observe the undercover officer or the suspect. At approximately 7:51 p.m. Officer Beausoleil saw Officer Robinson leave the building. He believed that he came out of the south stairwell. Officer Beausoleil was present at a debrief later that evening. Officer Birrell was in charge at the debrief. The suspect was still an unknown person. Officer Beausoleil believes that the name “James” came up at the debrief. The undercover officer was not present. Those present were Officers Robinson, Birrell, Nicol and Beausoleil. In cross-examination Officer Beausoleil denied the suggestion that the name Conrad Carter was mentioned by anyone at the debrief.

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B. P. O’Marra, J.

Released: September 17, 2015