CITATION: R. v. McIntosh, 2016 ONSC 4681
COURT FILE NO.: CR-15-90000113-0000
DATE: 20160725
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
JACK MCINTOSH Applicant
J. Gevikoglu, for the Crown
J. Dos Santos, for the Applicant
HEARD: April 18-21 and 24, 2016 at Toronto
Michael G. Quigley J.
Reasons for Ruling
[1] The applicant, Jack McIntosh, was charged with two counts of possession of a schedule one substance for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act. He was arrested on October 16, 2013, for trafficking in oxycodone pills and for possession of proceeds of crime.
[2] The allegations arose out of two transactions conducted by an undercover police officer at the Ice Queen Bar on August 23 and August 26, 2013. A third transaction took place at the Ice Queen Bar on the date of arrest, October 16, 2013, and it resulted in the arrest of a third person, but it did not involve Mr. McIntosh. A short time after the third transaction, however, the applicant was arrested when he arrived at the Ice Queen Bar. While the police had hoped to be able to do a third transaction with Mr. McIntosh, it did not work out that way. Nevertheless, the police had already determined after August 26, 2013 that Mr. McIntosh would be arrested in any event when they next encountered him based on the first two transactions on August 23 and 26, 2013.
[3] In a pat-down search conducted incident to his arrest, Mr. McIntosh was found to be in possession of 64 pills that were located in a Ziploc bag in a small felt pouch in his shirt pocket. There were 29 oxycodone pills and 35 morphine pills.
[4] At the preliminary hearing, the accused was discharged on charges of trafficking and possession of proceeds, but the Crown has continued to prosecute the charges of possession of oxycodone and possession of morphine for the purposes of trafficking.
[5] The applicant challenged his October 16, 2013 arrest and the search incident to his arrest and claimed that those actions by police without a warrant violated his rights to be free from unreasonable search and seizure under ss. 8 and 9 of the Canadian Charter of Rights at Freedoms.
[6] There was only one issue to be determined on that application, and indeed on the trial, which was conducted as a blended voir dire and trial. As a warrantless arrest, the arrest of Mr. McIntosh was presumptively invalid and thus the burden was on the Crown to show that there were reasonable and probable grounds to arrest him – did the police have reasonable and probable grounds to arrest Mr. McIntosh on October 16, 2013?
[7] If the police had reasonable and probable grounds, then Mr. McIntosh would have no ground for complaint, but if police did not have reasonable and probable grounds to arrest him, then his Charter rights were violated. If the evidence is inadmissible, the charges against Mr. McIntosh would be without evidential foundation and he must be acquitted. However, even if the arrest violated his Charter rights, the evidence might nevertheless be found to be admissible on his trial after conducting the analysis and balancing mandated by R. v. Grant, relative to the application of subsection 24(2) of the Charter.
[8] If the evidence was found to be admissible either because the search was lawful or because the evidence is admissible under subsection 24(2) of the Charter, then it is admitted that the offence of possession will be made out. The remaining question would then be whether Mr. McIntosh possessed those pills for the purposes of trafficking or for personal use. As these reasons will show, the expert evidence of Detective Margetson of the Toronto Police Service is ultimately dispositive of that question in my view.
[9] In summary, in my view the officers in this case had reasonable and probable grounds to arrest the applicant, Jack McIntosh, based upon the information of the confidential informant, two completed drug transactions undertaken by the undercover officer, D.C. Correia, and having regard to the entirety of the circumstances, observations and surveillance relating to those transactions.
[10] The police plainly had a subjective belief that was objectively reasonable that Mr. McIntosh was a party to the trafficking offences which took place on August 23 and August 26, 2013, based on the whole of the evidence relating to each of those two separate transactions.
[11] The evidence is not perfect. It rarely is. There were points in time where D.C. Correia, the undercover officer, could not see actual hand-to-hand transactions take place from Mr. McIntosh to the intermediaries who delivered the drugs to D.C. Correia after meeting briefly some distance away with Mr. McIntosh.
[12] Although it is true that the final hand-to-hand transactions did not involve the undercover officer, D.C. Correia, and Mr. McIntosh directly, but rather only indirectly through intermediaries who were visible by the undercover officer at all times, there is no reasonable inference that can be drawn from the entirety of the interactions of the participants and their actions and movement between each other than that the accused was supplying the drugs that D.C. Correia purchased.
[13] In my view it makes a nonsense of the evidence and the RPG standard, and is entirely contrary to the drawing of common sense inferences to suggest that the observations testified to by D.C. Correia and other officers who surveilled the Ice Queen and these participants did not give rise to a credibly based probability that supported the existence of reasonable and probable grounds. Those reasonable and probable grounds were that the person who was in possession of the pills that were purchased by D.C. Correia on August 13 and 26, and who supplied them to the two separate intermediaries who directly delivered the contraband to D.C. Correia, was indeed this accused, Jack McIntosh.
[14] As such I found that Mr. McIntosh was lawfully arrested, and lawfully searched incident to that arrest. As such, I found that his section 8 and 9 Charter rights were not violated.
[15] Even if I may have been wrong in that conclusion, I would have admitted the evidence at his trial under subsection 24(2) of the Charter applying the analysis mandated by R. v. Grant. I would have done so first, on the basis that the breach was low level in character. D.C. Correia is an extremely experienced officer and had served as an undercover officer in innumerable drug transactions. Indeed, unbeknownst to Mr. McIntosh, who did not recognize him, D.C. Correia had had previous drug investigative dealings with the accused some several years earlier. He had received a compelling, credible tip that he himself corroborated relative to a person he personally recognized. Those features of the narrative favour an officer acting in what he reasonably believes to be a lawful manner in conducting an undercover police investigation and hand-to-hand transactions with drug suppliers. This is not conduct that should call for disassociation by our courts. It was a low level breach, if it was one, but I again note my view that it was not a breach at all.
[16] Certainly, if it was a breach, then a pat-down search is intrusive to the privacy interests of the accused, but the search that yielded the contraband was only a minimally-intrusive pat-down search.
[17] Finally, the interests of the public in prosecuting drug trafficking and charges of possession of oxycodone and morphine for the purposes of trafficking are very high, given the national virtually epidemic level of use of drugs like oxycodone as testified to by the Crown’s expert, Detective Sergeant Margetson, whose evidence I accepted in its entirety. This factor would have favoured the admission of the evidence under section 24(2) of the Charter.
[18] Balancing the three factors of analysis in Grant, even if I had concluded that the police did not have reasonable and probable grounds to arrest the accused, I would have admitted the evidence against him. Consequently, to summarize, Mr. McIntosh’s application to exclude the oxycodone and morphine seized incident to Mr. McIntosh’s arrest was dismissed and that evidence was admitted into evidence at his trial.
[19] On the charges themselves, however, I found the very fair evidence of Detective Sergeant Margetson to be persuasive. The problem with the claim here that Mr. McIntosh possessed those pills for the purposes of trafficking is just that – he must have had them in his possession for that purpose. However, Mr. McIntosh is an admitted oxycodone and morphine addict. He is a person who has suffered with drug addiction his entire life. The quantities of pills found in his possession was admitted fairly by Sgt. Margetson to be a materially smaller quantity than many physicians regularly prescribe for their drug dependent patients intending it be for their own personal use.
[20] In the face of that evidence, it cannot reasonably be concluded beyond a reasonable doubt that the only reason that Mr. McIntosh possessed those drugs was for the purposes of trafficking. It is equally plausible, given the quantities possessed, that the purpose of the possession was for personal use, even if Mr. McIntosh decided to make a little money on the side to supplement his otherwise meager income sources by selling a few pills from his own supply.
[21] On this basis, I have acquitted the accused of possession of the oxycodone and morphine pills for the purposes of trafficking, but convicted him of simple possession.
Michael G. Quigley J.
Released: July 25, 2016
CITATION: R. v. McIntosh, 2016 ONSC 4681
COURT FILE NO.: CR-15-90000113-0000
DATE: 20160725
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JACK MCINTOSH
Applicant
REASONS FOR ruling
Michael G. Quigley J.
Released: July 25, 2016