ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(F)917/15
DATE: 2015 10 30

B E T W E E N:

Her Majesty the Queen

Ostap Melnik, counsel for the Respondent

Respondent

• and -

Clifford Wilson

Steven Safieh, counsel for the Applicant

Applicant

HEARD: October 14, 15, 16, 2015

REASONS FOR JUDGMENT

Justice F. Dawson

1Clifford Wilson is charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The offence date is June 22, 2014.

2The accused’s trial proceeded as a judge alone trial in two stages. First, I heard an application to exclude the incriminating evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms for alleged violations of ss. 8, 9, 10(a) and 10(b) of the Charter. I reserved judgment and then heard evidence the next day on the issue of whether, should I admit the evidence, the accused was guilty of possession for the purpose of trafficking as opposed to simple possession.

3Crown counsel agreed that if the evidence was excluded on the Charter application the accused should be acquitted. Counsel for Mr. Wilson agreed that his client was not prejudiced by the bifurcated procedure as he did not intend to call any evidence. He also agreed that if the evidence was admitted possession was established.

Overview of the Evidence

4On June 22, 2014 Cst. Jane Peach of the Peel Regional Police was in uniform driving a marked police car eastbound on Queen Street in Brampton. At 1:40 p.m. she saw a grey SUV leave the parking lot of the Beer Store located at Queen and Beech streets. The vehicle pulled out onto Queen Street behind her and was driving very slowly, below the speed limit.

5Cst. Peach slowed her vehicle and moved to the curb lane. The other vehicle passed her, still moving slowly. She noted that the vehicle was weaving in its own lane. She ran a check on the vehicle’s licence plate and determined that the licence plate sticker on the vehicle had expired. Cst. Peach described how she stopped the vehicle on the south side of Queen Street as she proceeded eastbound.

6Cst. Peach got out of her vehicle and approached the driver’s window of the subject vehicle.

7At about that time acting Sgt. Amanda Drexler pulled her marked police car up behind Cst. Peach’s cruiser. Drexler was also in uniform. Drexler had heard via radio that Peach was stopping a vehicle and she went to assist of her own initiative. When Drexler pulled up Peach was already out of her vehicle. Drexler walked up to the passenger side of the SUV and stood between the front and rear doors to the vehicle. The front windows were down on both sides.

8Peach and Drexler each noted that there were three males and a dog in the vehicle. The accused was in the front passenger seat. The second passenger was in the rear with the dog.

9Cst. Peach testified that when the driver’s window was opened she could smell alcohol. At first she noticed the odour coming from the vehicle and then she noticed the smell of alcohol on the driver’s breath. Cst. Peach made a demand for a roadside breath test to be administered by an Approved Screening Device (ASD). She had the driver exit the vehicle and accompany her to her police car. Drexler was aware of the ASD demand. Cst. Peach testified that it took her approximately three minutes to administer the test, which the driver passed. Cst. Peach left the driver in the back of her police car and returned to the subject vehicle. She advised Drexler that the driver passed the test. By then Drexler was searching the accused’s backpack.

10Drexler testified that after briefly moving to the rear of the SUV to ensure that the driver was cooperating with Cst. Peach, she went back to the front passenger window and spoke to the accused. Drexler testified that she could smell alcohol from within the SUV. While she agreed in cross-examination that the smell might have been coming from one of the passengers, the thrust of her evidence was that, in her view, it was coming from the vehicle and not a person. She said it was like there was spilled alcohol or open alcohol in the vehicle.

11Drexler said she believed she asked whether the men had been drinking in the vehicle or if they had alcohol in the vehicle. She believed she got a response. However, she had no notes of her questions or answers. She said it was not possible to write everything down in her notebook.

12Drexler testified that she was concerned about alcohol not drugs. While there were no signs of impairment by alcohol exhibited by the passengers and she saw no alcohol containers in or around the SUV, she thought there may be open alcohol in the vehicle based on the smell of alcohol from within the vehicle and the fact that she knew Cst. Peach had made a demand that the driver provide a breath sample for an ASD test.

13Drexler advised the accused and the rear seat passenger to exit the vehicle and told them it was so she could search the vehicle for alcohol. The men got out of the car. Drexler said that as the accused got out he took a blue backpack with him. The backpack had been sitting on the floor of the vehicle between the accused’s feet.

14As Drexler wanted to search the backpack for alcohol she reached for it. The accused pulled on the backpack and said it was his. There was a brief struggle over the backpack which lasted 30 seconds at most. The accused then let go of the backpack.

15Officer Drexler said she assumed the accused released the backpack because a third officer, Cst. Michael Lunn, had just arrived and was walking towards the SUV.

16When the struggle was over the backpack ended up on the front passenger seat. Drexler said the bag was light. She squeezed it and patted it to see if there might be an alcohol container inside. At that point she felt something hard in a front zippered pocket of the backpack. She quickly opened the pocket and immediately saw an electronic scale which had white powdered residue on it. She believed it was cocaine. She also flipped the scale open and saw more white residue. This took only a few seconds.

17At that point Drexler told Cst. Lunn, who was standing close to the accused, that the accused was arrestable for possession of a controlled substance.

18Cst. Lunn testified that when Drexler told him the accused was arrestable he handcuffed the accused and told him he was under arrest for possession of a controlled substance contrary to the Controlled Drugs and Substances Act. Based on a consideration of all of Lunn’s evidence I find this arrest occurred at 1:53 p.m.

19At that point Drexler continued to search the backpack and Lunn searched the accused. Cst. Peach testified that she had come back to the subject vehicle after administering the ASD test. At that time Drexler was looking into the backpack and found the scale within a couple of seconds.

20When Cst. Lunn searched the accused he found some crack cocaine inside a cigarette package in the pocket of the accused’s cargo shorts. He also found $1,845 in Canadian currency. He advised Drexler about what he had found. Lunn testified he then placed the accused in the rear of his police car just before 1:55 p.m. and returned to the subject vehicle. At that point Drexler told him the accused was also arrestable for possession for the purpose of trafficking. She did not say for what drug. Drexler had found a cigarette package in one of the main compartments of the backpack. Inside the cigarette package were two plastic bags containing suspected cocaine.

21Lunn immediately returned to his cruiser and at 1:56 p.m. rearrested the accused for possession of a controlled substance for the purpose of trafficking. He read the accused his rights to counsel and a caution from his duty book. The accused said he understood and that he wanted to speak to his lawyer.

(Complete text continues exactly as in the judgment.)

87I find the accused not guilty of possession of cocaine for the purpose of trafficking but guilty of the lesser included offence of simple possession.