Superior Court of Justice - Ontario

COURT FILE NO.: CR905/15 DATE: 20160928

BETWEEN:

Her Majesty the Queen Brenda A. Lawson, for the Federal Crown

- and -

Jonathon George Leitch Shawn Douglas Lloyd Ball John Christie, for Jonathon George Leitch and Danielle N. Landry for Shawn Douglas Lloyd Ball

Accused

HEARD: September 26, 27 & 28, 2016

REASONS FOR JUDGMENT

Conlan J.

I. Introduction

[1] This is a serious drug case that includes a Charter Application brought by the accused, Jonathon Leitch.

[2] Commencing September 26, 2016, Mr. Leitch and Shawn Ball were tried by this Court, without a jury, in Owen Sound. The trial concluded today, September 28th.

[3] At the commencement of the trial, unopposed, counts 2 and 4 on the Indictment were amended at the request of the Crown. Further, it was agreed by all counsel that a blended hearing would be conducted wherein evidence would be called relevant to both the Charter Application and the trial proper. Finally, some concessions were made by the Defence in that the following are not issues in dispute: the nature of the substances seized by the police, their quantities, and the fact that, if possession is found, that possession was for the purpose of trafficking.

[4] Mr. Leitch submits that his Charter rights were violated by the police, specifically section 8 (the right to be free from unreasonable search or seizure), section 9 (the right not to be arbitrarily detained), and sections 10(a) and 10(b) – the rights, on arrest or detention, to be informed promptly of the reasons therefor and to retain and instruct counsel without delay and to be informed of that right.

[5] Pursuant to section 24(2) of the Charter, Mr. Leitch seeks the exclusion of all evidence (the narcotics) seized by the police.

[6] There is no Charter Application on behalf of Mr. Ball.

II. The Charges and Their Essential Elements

[7] The alleged offence date for all charges is February 20 or 21, 2014.

[8] Mr. Leitch is charged with simple possession of cocaine contrary to section 4(1) of the Controlled Drugs and Substances Act (“CDSA”) – count 1.

[9] Mr. Leitch is also charged with two counts of simple possession of methamphetamine (crystal meth) contrary to section 4(1) of the CDSA – counts 2 and 4.

[10] With a charge of simple possession of a controlled substance, the Crown must prove three essential elements beyond a reasonable doubt: (i) possession, (ii) that the substance was what it is alleged to have been, and (iii) knowledge that the substance was what it is alleged to have been.

[11] “Possession” requires both knowledge and some measure of control over the substance on the part of the accused person.

[12] Mr. Leitch and Mr. Ball are jointly charged with possession of cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA – count 3.

[13] With a charge of possession of a controlled substance for the purpose of trafficking, the Crown must prove four essential elements beyond a reasonable doubt: (i) possession, (ii) that the substance was what it is alleged to have been, (iii) knowledge that the substance was what it is alleged to have been, and (iv) that the substance was possessed for the purpose of trafficking in it.

III. The Burdens and Standards of Proof

[14] With regard to the Charter Application, the burden of proof rests with Mr. Leitch, both on whether there was a violation and whether evidence ought to be excluded. The standard of proof in both respects is on a balance of probabilities.

[15] Warrantless searches, however, are presumed to be unreasonable under section 8 of the Charter. The burden shifts to the Crown to rebut, on balance, that presumption.

[16] In terms of the charges themselves, each accused is presumed to be innocent and has no burden to prove anything. The Crown must prove, beyond a reasonable doubt, every essential element of each charge against each accused.

IV. Analysis

The Sources of Evidence

[17] The Court received evidence from five Saugeen Shores Police Service constables called by the Crown: Cook, Evans, Andrew, Mighton and Shaidle. The Defence called no evidence.

The Facts

(i) From the Stop of the Motor Vehicle to the Bookings at the Police Station

[18] On February 20, 2014, Mr. Ball was driving and Mr. Leitch was a passenger in a van being operated in the Town of Port Elgin.

[19] At 5:26 p.m., police stopped the van because it had unauthorized licence plates on it and because the van was linked to a recent theft of construction materials.

[20] Three police officers were on scene – Cook, Evans and Shaidle.

[21] At 5:29 p.m., both accused were ordered out of the van, and the driver, Mr. Ball, was arrested for the unauthorized plates offence.

[22] A search of the van’s vehicle identification number revealed that it was registered to Mr. Leitch’s girlfriend, which seemed to match what Mr. Leitch had been saying to the police after the van had been stopped.

[23] Evans then searched the interior of the van for documentation related to its plates.

[24] At about 5:30 p.m., Shaidle told Mr. Leitch that he was being detained with regard to the unauthorized plates offence. A caution was read but no rights to counsel. By then, Mr. Leitch was no longer inside the van.

[25] At 5:32 p.m., Shaidle cautioned Mr. Leitch about the theft investigation. No rights to counsel were given. Mr. Leitch denied any involvement in any theft.

[26] At 5:36 p.m., the police observed an open can of beer in the area of where Mr. Leitch was sitting. After discovering that Mr. Leitch was on probation with a no-alcohol condition, at 5:38 p.m., he was arrested for breach of probation. At 5:40 p.m., he was read his rights and cautioned for that offence.

[27] Evans spoke on the telephone with a witness who confirmed that the van that had been stopped matched that in a video that related to a recent theft.

[28] Cook then questioned Mr. Leitch about the theft of construction materials. Mr. Leitch admitted to being in possession of stolen property.

[29] At 6:11 p.m., Mr. Ball was arrested and given his rights regarding the theft of the construction materials.

[30] Mr. Leitch was arrested for possession of stolen property. That arrest was made by Shaidle at 6:20 p.m.

[31] At the police station, at 6:31 p.m., Mr. Leitch was searched and found to be in possession of $180.00 in cash and 0.7 grams of meth. Mr. Ball was also searched, but nothing of an evidentiary value was found on his person.

(ii) Post-Arrival of the Accused at the Police Station

[32] Back at the scene of the stop of the van, Evans arranged for a tow truck.

[33] Pending its arrival, at 6:26 p.m., he conducted an inventory search of the van and found 41.8 grams of cocaine in a tool bag that was behind the driver’s seat. He also found $140.00 in cash and a sheet of plywood that he thought may have been relevant to the theft of the construction materials (the theft report had included an allegation that several sheets of plywood had been stolen).

[34] That search of the van by Evans was interrupted by him being advised by another officer of the meth that had been seized from Mr. Leitch’s person at the station.

[35] At 6:40 p.m., Shaidle read to Mr. Leitch his rights to counsel with respect to the breach of probation, possession of stolen property and possession of meth charges.

[36] At 6:50 or 7:00 p.m., Shaidle told Andrew, the drug enforcement officer, about the cocaine found inside the van. Andrew quickly relayed that information to another police officer, Thompson, in Wiarton.

[37] I pause here to note that what Shaidle said to Andrew at about 6:50 or 7:00 p.m. is the only material fact upon which the evidence at trial was inconsistent. Shaidle testified that he does not believe that he told Andrew about the cocaine because he did know about the cocaine discovered inside the van until later in the evening. Andrew testified that Shaidle told him about the 42 grams or so of cocaine seized from the van when they spoke on the telephone at 7:00 p.m.

[38] On this point, for two reasons, I prefer the evidence of Andrew. First, compared to Shaidle, Andrew was more certain in his testimony at Court and had better notes on what was said during that telephone conversation. Second, it makes more common sense that Shaidle told Andrew about the cocaine found inside the van. After all, Evans had seized the cocaine twenty minutes earlier and likely would have relayed that information forthwith to the officers at the station. Second, Andrew was the drug enforcement officer and would have naturally been contacted about a sizeable seizure of cocaine and the need to obtain a warrant to search for more narcotics. By 7:00 p.m., the primary focus of the police would have been on the cocaine seizure, not possession of stolen property.

[39] At 8:20 p.m., Shaidle conducted a brief audio-video interview with Mr. Leitch.

[40] After 10:00 p.m., Evans processed the van at the police station.

[41] At around that same time, several police officers attended at a residence in Wiarton believed to be that of Mr. Leitch. They spoke to the occupant, Wanda States (Mr. Leitch’s girlfriend). Two police officers entered the residence and conducted a “clearing search” to ensure that nobody else was there and to secure the home pending the issuance of a search warrant. That search was completed at 10:30 p.m.

[42] At 12:08 and 12:11 a.m. on February 21st, respectively, Shaidle arrested Mr. Ball and Mr. Leitch for possession of cocaine for the purpose of trafficking regarding the narcotics found inside the van.

[43] At 12:37 a.m. on the 21st, a lawyer was called for Mr. Leitch. There was no answer. Duty counsel was called at 12:40 a.m.

[44] At 3:00 a.m. on the 21st, a search warrant application for the Wiarton residence was submitted but denied by the reviewing justice. Actually, two applications were denied as the police applied for search warrants both under the CDSA and under the Criminal Code.

[45] On February 22nd, Mighton applied, again, for search warrants under both pieces of legislation. The warrants were issued this time, at 4:15 p.m.

[46] They were executed at 5:17 p.m. The police discovered 0.6 grams of cocaine residue in a baggie on the floor near the door between the interior of the house and the garage, a document in the garage that looked like it could be a debt list, a digital scale with unknown residue on it and two baggies in the garage, 4.6 grams of meth and a baggie from an unknown location, and documents with the name Wanda States and others with the name of Mr. Leitch on them.

[47] Months later, on July 15, 2014, the police applied for and obtained a search warrant for cellular telephones seized from Mr. Leitch and Mr. Ball upon their arrest. Nothing of an evidentiary value was discovered on those devices. Mr. Ball’s telephone simply could not be accessed. Mr. Leitch’s telephone was accessed and searched but found to contain no evidence relevant to drug trafficking.

The Merits of the Charges

[48] At the Crown’s express invitation in closing submissions, as against Mr. Leitch, a verdict of not guilty is entered on count 2 – the simple possession of the 4.6 grams of meth found by officer Rau at the Wiarton residence during the execution of the search warrants.

[49] Regardless of the Charter Application, I have concluded that verdicts of not guilty must be entered on counts 1 and 3.

[50] To repeat, count 1 is a charge of simple possession of 0.6 grams of cocaine residue in a baggie seized by the police from the Wiarton residence, on the floor near the door between the interior of the house and the garage, during the execution of the search warrants.

[51] The Crown has failed to prove beyond a reasonable doubt that Mr. Leitch was in possession of that cocaine. There is no evidence that Mr. Leitch was at the house that day or even shortly before that day. There is evidence that another person was at the house that day, Ms. States. From the location of the baggie when it was seized, it appears that it was likely dropped there when someone was entering or exiting the nearby door. I have no idea if that someone was Mr. Leitch.

[52] I simply have insufficient evidence to conclude that Mr. Leitch either knew about the baggie with the cocaine residue or had some measure of control over it.

[53] On count 3, possession of the relatively large amount of cocaine seized from within the van, the Crown has failed to prove beyond a reasonable doubt that either accused person was in possession of that substance.

[54] Neither accused owned the van at the time. There is no evidence as to how long either accused was inside the van that day. There is no evidence as to how frequently either accused used that van. There is no evidence as to how frequently, or if at all, either accused used the tool bag that contained the cocaine.

[55] It is suspicious that the accused appear to have been working manual labour that day and were found in the two front seats of a van that contained, behind the driver’s seat, a tool bag with cocaine. One could infer that the cocaine must have been theirs jointly or belonged to one of them. But that is not the only reasonable inference that could be drawn from the proven facts. One could also reasonably infer that the cocaine belonged to another worker who used that tool bag and that van. Or one could reasonably infer that the cocaine belonged to the van’s registered owner, Ms. States.

[56] There is simply insufficient evidence to conclude that either accused knew about or had any control over the tool bag or its contents.

[57] That leaves only count 4 – the charge of simple possession against Mr. Leitch for the 0.7 grams of meth found on his person when he was searched at the police station. To render a verdict on that count, resort must be had to the Charter Application.

The Charter Application

Section 9 - Detention

[58] I find that the police violated Mr. Leitch’s right to be free from arbitrary detention.

[59] There was no basis in law to demand that Mr. Leitch exit the van. Once that demand was made, it is clear that Mr. Leitch was detained.

[60] On the latter point, Evans himself, who ordered that both occupants exit the van, did not suggest otherwise in his testimony. Mr. Leitch was not free to leave the scene. In fact, we know that because he was almost immediately escorted to a police vehicle and placed inside.

[61] On the former point, subsection 12(1)(d) of the Ontario Highway Traffic Act is a provincial offence. It captures the use or permission to use a plate on a motor vehicle that is not authorized for that vehicle. At the time of Evans’ demand that Mr. Leitch exit the van, there was nothing to suggest that Mr. Leitch had used or permitted the use of the unauthorized plates. He was not driving the van. He did not own the van. Neither the van nor the plates were registered to him.

[62] In those circumstances, it was arbitrary to demand that Mr. Leitch get out of the vehicle and get inside a police car.

Sections 10(a) and (b) – Reasons for Detention & Right to Counsel

[63] By the time that Shaidle escorted Mr. Leitch from the van to the police car and placed him inside, it is clear that the police were investigating not just unauthorized plates but, more important, theft of construction materials.

[64] That is precisely why Shaidle cautioned Mr. Leitch about the theft at 5:32 p.m. A caution, however, was not enough. Mr. Leitch was clearly detained on the theft, and thus, he ought to have been provided his right to counsel. He was not. He was provided his right to counsel on the property matter at 6:40 p.m., more than one hour later.

[65] Mr. Leitch was not informed of his right to counsel on the theft matter “without delay”, and thus, his section 10(b) Charter interest was violated by the police.

[66] There is no need to deal with section 10(a).

Section 8 – Search and Seizure

[67] There is no need to deal with this issue. The Charter violations found thus far are sufficient to dispose of count 4.

Section 24(2) – Exclusion of Evidence

[68] But for the arbitrary detention of Mr. Leitch, the open beer can would never have been observed by the police, and Mr. Leitch would never have been arrested for breach of probation.

[69] But for his arrest for breach of probation, Mr. Leitch would not have been at the police station being searched. The very small amount of meth would not have been found on his person.

[70] Although it is true that Mr. Leitch was also arrested for possession of stolen property before he was searched at the station, putting aside whether that arrest was with reasonable and probable grounds, it would be unfair to use that arrest to save the seizure of the meth in light of the fact that Mr. Leitch was never advised of his right to counsel before he was searched.

[71] In short, I find that the 0.7 grams of meth is evidence that the police obtained in a manner that infringed or denied Mr. Leitch’s section 9 and 10(b) Charter rights.

[72] The Charter violations are not at or even near the extreme end of seriousness. But they are not trivial either. They fall, collectively, near the middle of the spectrum.

[73] As for the impact on the Charter-protected interests of the accused, the impact was not severe but significant. He was forced to exit the van, exposing incriminating evidence of alcohol consumption, and sit inside a police car. Then he was kept in the dark about his right to contact a lawyer on the property matter for a considerable period of time.

[74] Regarding society’s interest in the adjudication of the merits of count 4, it is a relatively minor drug offence involving a very small quantity for personal use. On the other hand, the meth is real evidence and crucial to the prosecution’s case.

[75] The first two factors favour exclusion of the evidence, though not heavily. The third factor favours admission although not nearly to the extent than if the charge was more serious.

[76] On balance, I have determined that admission of the evidence would bring the administration of justice into disrepute. The meth found on Mr. Leitch’s person is therefore excluded from the evidence at trial.

[77] Having made that decision, a finding of not guilty must be entered on count 4.

V. Conclusion

[78] For all of the above reasons, Mr. Leitch is acquitted on counts 1, 2, 3 and 4. Mr. Ball is acquitted on count 3.

Conlan J.

Released: September 28, 2016