ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CF-15-90000036

DATE: 20150903

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NGUYEN SON TRAN

Defendant

Kandia Aird, for the Crown

Kim Schofield, for the Defendant

HEARD: June 19, 30, July 2-3, July 17, September 3, 2015

E.M. Morgan J.

[1] Who spilled heroin on the console of the Defendant’s Toyota Camry?

I. The blended voir dire

[2] On January 13, 2014, the Defendant was stopped in his car for a driving infraction. He was arrested and charged with possession of heroin when the officer who pulled him over spotted white powder visible on the centre console of his vehicle. The Defendant was subsequently re-arrested and charged with possession for the purpose of trafficking once his car was searched and a larger quantity of drugs was found.

[3] The police officers who searched his car seized 11.01 grams of heroin neatly wrapped in plastic and carefully tucked away behind the steering column. They seized another 0.32 grams of loose heroin powder spilled on the console of his car. In addition, the police found 0.65 grams of heroin in the back seat of the police scout car where the Defendant was placed just after his arrest and where he sat while being driven to the police station.

[4] The trial before me sitting as judge alone commenced with a blended voir dire. If the drugs seized by the police are admissible, the testimony and other evidence presented during the evidentiary hearing will count as trial evidence. The question on this application is the admissibility of the seized drugs; that question, in turn, depends on whether the police officers that searched the Defendant and his automobile were acting within their lawful authority, or whether the Defendant’s rights were breached by that search.

II. The traffic stop

[5] Several police witnesses testified as to the initial encounter between the Defendant and the police officers leading to the Defendant’s arrest on January 13, 2014. The Defendant himself also testified. Each of those narratives tells a slightly different version of events. These differences are crucial to a determination of whether the search of the Defendant’s car was a lawful one.

[6] P.C. Jeffrey Tout testified that at 4:45 p.m. that day he was driving a marked police van, and was stopped on Broadview Avenue at Gerard Street observing traffic. He indicated that, looking westbound, he saw a white Toyota Camry pass through the intersection on a red light and nearly hit a pedestrian. Officer Tout said that he followed the car into a Green P parking lot nearby and approached the driver when the car pulled over.

[7] The Defendant was the sole occupant of the vehicle. Upon request the Defendant produced his driver’s license, insurance, and vehicle permit, which Officer Tout then took back with him to his own vehicle and relayed the information over the radio to the police dispatcher. While waiting for the dispatcher to get back to him with respect to the documents, Officer Tout said that he heard the Defendant rev his car engine and saw the Defendant’s car rocking back and forth. Officer Tout indicated that he had pulled his police van in front of the Defendant’s Toyota, and at this point became concerned about his van if the Defendant were to try to pull away.

[8] Officer Tout stated that just as he was exiting his own vehicle to approach the Defendant again, he was advised over the radio about charges of possession for the purposes of trafficking pending against the Defendant. He also testified that when he approached the driver’s side window of the Toyota, the Defendant was turned toward him as if trying to block his view of something in the car with his body.

[9] Officer Tout stated that at that point he saw a quantity of white powder spilled on the centre console of the Toyota. Given the information he had just received from the dispatcher, Officer Tout said that he concluded that the powder was likely an illegal drug. He testified that he told the Defendant to get out of the car, and that the Defendant, who is disabled, did so with the help of crutches. Officer Tout then placed the Defendant under arrest for possession of a controlled substance.

[10] A somewhat different version of the traffic stop was told by the Defendant on the witness stand. The Defendant indicated that he was indeed driving in the Broadview and Gerard area, and that when stopped at a red light he by chance saw in the car next to him D.C. Benjamin Elliot, whom he recognized as the officer that had arrested him the previous year. Officer Elliot was riding in a car driven by his partner, Sgt. Michael Taylor. The two police officers were wearing ordinary street clothes and were riding in an unmarked vehicle.

[11] The Defendant testified that roughly a year previously, he had been arrested by Officer Elliot and plead guilty to possession of heroin in respect of drugs found in the same Toyota Camry as he was driving that day. According to his guilty plea, the Defendant was driving the car which contained drugs which belonged to someone else. At the time of the Defendant’s previous arrest, the car was searched and heroin was found inserted behind the steering column, in the same place that Officer Elliot found the drugs this time around.

[12] The Defendant testified that after passing through a traffic light, he pulled into a parking lot near Broadview and Gerard. He said that a uniformed policeman – Officer Tout – approached his car. According to the Defendant, he had not run a red light and there was no traffic reason for him to have been stopped.

[13] The Defendant stated that as Officer Tout approached his car, he was speaking on a cell phone. The Defendant could not make out the entire conversation, but was sufficiently within earshot of Officer Tout to hear him say into the phone the phrase, “Exactly him”. It was as if Officer Tout was verifying the Defendant’s identity to the person on the other end of the line.

[14] I note parenthetically that Officer Tout testified that he usually does have a cell phone, but that he cannot specifically recall having his cell phone with him on the day of the Defendant’s arrest. Officer Elliot recalls having a cell phone on him that day. Another police officer attending at the scene, D.C. Fraser Douglas, also recalls having his cell phone with him that day, but testified that he cannot recall whether anyone at the scene used a cell phone.

[15] The Defendant testified that no more than two minutes after he was stopped, Officer Elliot and Sgt. Taylor arrived on the scene. He said that it was Officer Elliot who removed him from the driver’s seat after retrieving his crutches from the car. The Defendant is disabled, and explained in his testimony that he is partly paralyzed in his legs and one arm. Officer Elliot was aware from their encounter the previous year that the Defendant has a disability that requires him to use crutches. According to the Defendant, Officer Elliot immediately placed him under arrest for possession of heroin, and then proceeded to search his car.

[16] Yet another version of the initial contact with the Defendant was narrated at trial by Officer Douglas, who claimed that it was he, and not Officer Elliot and Sgt. Taylor, who was first at the scene in assisting Officer Tout with the search and arrest. Officer Douglas related that upon his arrival in the parking lot, he was told by Officer Tout that there were drugs in the Defendant’s car. He said that he did not see the white powder himself, but that after the Defendant was removed from the vehicle he proceeded to conduct a search of the car.

[17] According to Officer Douglas, a police car with Officer Elliot and Sgt. Taylor arrived shortly after him. He said that he and Officer Elliot together conducted a thorough search of the Defendant’s car. The tapes of the radio conversations between the various officers and the police dispatchers, however, suggest that Officer Douglas’ timing is off. He confirmed in his testimony that he advised the dispatcher of his arrival at the parking lot to assist Officer Tout, radioing in with the phrase “Mark me out with the neighbourhood safety unit.” This communication took place at 5:19 p.m.

[18] Sgt. Taylor, on the other hand, radioed from his car at 4:51, half an hour before that time, to say that he and Officer Elliot were on their way to the scene and that they would arrive there in “two minutes”. Apparently, they were right in the Broadview and Gerard area when Officer Tout radioed about the Defendant having been stopped, although both Officer Elliot and Sgt. Taylor denied having seen the Defendant in his car moments before entering the parking lot. In any case, it is clear from the timing of the statements over the police radio that Officer Elliot and Sgt. Taylor were on the scene before Officer Douglas arrived.

[19] This timing is confirmed by the drawings several of the witnesses produced showing the configuration of automobiles in the parking lot at the time of the Defendant’s arrest. Officer Tout showed his own car to be in front of the Defendant’s Toyota, with Sgt. Taylor’s car almost directly behind the Defendant’s Toyota.

[20] The Defendant produced a drawing of his memory of the automobiles showing that Sgt. Taylor’s car was indeed directly behind him, and that a third police car – that of Officer Douglas – was behind and to the right of that one. In other words, unless some complex and inexplicable maneuvering of automobiles was done during the course of the Defendant’s arrest, Officer Elliot and Sgt. Taylor had entered the lot and pulled up behind the Defendant before Officer Douglas arrived in his vehicle.

[21] This is a minor inconsistency, and could be chalked up to faulty memory of an innocuous fact were it not for the suspicion that Officer Douglas, in asserting that he arrived on the scene first, was attempting to deflect attention from the front-and-centre roles played by Officer Elliot and Sgt. Taylor. As related below, Officer Douglas went on to testify that it was he that conducted the thorough search of the Defendant’s vehicle, even though it was made clear by both Officer Elliot and the Defendant that it was Officer Elliot who did the real search.

[22] The most striking inconsistency in the testimony, however, belongs to Officer Elliot and Sgt. Taylor. This important portion of the evidence is related two partners’ explanations of why they came to assist Officer Tout in the first place.

[23] Officer Elliot testified that in January 2014 he was in the major crimes unit, and in the late afternoon of January 13th he was on general patrol with Sgt. Taylor. Officer Elliot stated in his examination-in-chief that he did not see the Defendant in his car as the Defendant had suggested; rather, he said that his attention was alerted when he heard over the radio that PC Tout had stopped a motor vehicle whose license plate he recognized from his arrest of the Defendant the previous year.

[24] Indeed, Officer Elliot was quite emphatic that the first four letters of the Defendant’s license plate – BJAV – stuck in his mind from last year’s arrest. He testified that after hearing the Defendant’s license plate, his memory and the connection to the prior arrest started to flow. He recalled that the Defendant was arrested for transporting heroin in a car with exactly the same license plate as that which he heard Officer Tout read to the dispatcher.

[25] In fact, Officer Elliot went so far as to indicate that the license plate was so familiar to him that he did not have to refer to any papers or to any other reference to accurately record the Defendant’s license plate as BJAV 836 in his notes. According to Officer Elliot, hearing the license plate during the radio exchange between Officer Tout and the dispatcher triggered his recollection of the Defendant and prompted him to attend at the parking lot to assist Officer Tout.

[26] This account was confirmed in the notes of Sgt. Taylor. His notebook, which was read to him in cross-examination and which he confirmed for the record, makes specific reference to his having heard the Defendant’s license plate. Sgt.Taylor’s notes state: “Overheard on radio that PC Tout #5255 has vehicle stop in Green P parking lot on Gerard Street East, Ontario marker BJAV 836. DC Elliot has investigated this before.”

[27] Remarkably, the dispatch tapes, which were played in full at the hearing, make no mention whatsoever of the Defendant’s license plate. If the license on the vehicle stopped by Officer Tout was known to Officer Elliot and Sgt. Taylor, it was from something other than the radio calls to which they attributed this knowledge. In cross-examination, Officer Elliot responded to this revelation by saying dryly, “It appears I was mistaken.” Having been caught placing great emphasis on supposedly hearing something that turns out never to have been said, he seemed lost for words.

[28] For his part, Sgt. Taylor denied having heard the license plate number over the radio, and equally denied that his notes say that he heard the license plate over the radio. At the same time, he was at a loss to say how or why he wrote the Defendant’s exact plate number into his notes as something that he had heard over the radio prior to attending at the Green P lot. Moreover, although this notes make it obvious that he already knew who the Defendant was before he and Officer Elliot arrived at the parking lot, in cross-examination he denied that Officer Elliot had filled him in on the Defendant’s identity.

[29] Sgt. Taylor’s explanations for the discrepancies in his notes and his testimony were evasive and weak. Ultimately, he said little more than that this is just the way he happened to write the incident up. He concluded, somewhat dismissively, that his notes “might not be in chronological order”. Like Officer Elliot, he had no real explanation at all for the false information that the two Officers so coincidentally shared.

III. The search

[30] There are also several versions of how the search of the Defendant’s vehicle proceeded. Officer Douglas says that he conducted a thorough search of the car, and that he was assisted in this once Officer Elliot arrived on the scene. Officer Douglas does concede that it was Officer Elliot who eventually found the drugs on the driver’s side of the car. He expressed surprise that he missed finding them himself, but indicated that he had focused on the passenger’s side and back seat while Officer Elliot searched the driver’s seat and surrounding area.

[31] Officer Elliot’s description of the search differed significantly from that of Officer Douglas. He indicated that he found the drugs in the Defendant’s car very quickly after commencing his search. He said they were hidden behind the steering column, in precisely the same place that the Defendant had hid them the previous year. He explained that he did not need any assistance in the search as he was experienced with this Defendant and knew exactly where to look.

[32] The Defendant’s narrative was entirely different. He stated that Officer Elliot searched the car thoroughly and did not find anything. He said that eventually the Officer got frustrated and told him to say where the drugs were hidden, or else he would call in a dog unit. According to the Defendant, he said nothing in response, and Officer Elliot returned to searching the car and eventually came out holding the drugs wrapped in plastic. According to the Defendant, as Officer Elliot emerged from the car, he said out loud, “I found it.”

[33] One of the more bizarre aspects of the search is that a Scene of Crime Officer (“SOCO”) was called to investigate and record the state of the Defendant’s vehicle after it was searched, and not before. This officer, P.C. Erika Machacek, testified at trial and provided precious little in the way of helpful information. She testified that on Sgt. Taylor’s instructions she paid specific attention to the white powder that was spread around the centre console of the car. She photographed the console and seized the powder for evidence. It was unclear why she was the one who seized the drugs, as that is not typically the SOCO’s function.

[34] What was clear is that the functions that are typically done by a SOCO – gathering fingerprints and other forensic evidence from the crime scene – were useless under the circumstances. The Defendant’s vehicle had already been thoroughly searched and the evidence at the scene had been disturbed by the searching officers. The one scenario on which a SOCO relies – an undisturbed crime scene – had already vanished by the time she was called.

[35] Officer Machacek all but conceded the oddity of the circumstances under which she was called to the scene, although straight answers were difficult to obtain from her. She indicated that as a SOCO she has training in preserving the integrity of a crime scene, but was barely willing to concede that in conducting the search before calling in the SOCO, the Officers had acted contrary to best practices and had effectively spoiled the integrity of the scene.

[36] Officer Machacek was what can only be described as a nervous witness. Her testimony was hesitant, her answers were tentative, and she was far more evasive and argumentative than one would expect from an officer trained to collect and explain forensic evidence.

[37] The impression that Officer Machacek gave in her testimony was that she knew she had be