CITATION: R. v. Dhillon, 2016 ONSC 6688
COURT FILE NO.: Crim J(F) 170/14
DATE: 2016 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Leising, for the Crown
- and -
NARAUKAR DHILLON
M.W. Caroline and R. Sandhu, for the Accused
Accused
HEARD: August 17, 2016
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
[1] The accused is charged with one count of trafficking in a controlled substance, heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act. It is alleged that on June 3, 2013, in a Home Depot parking lot in Bolton, the accused delivered to another male individual, a Tim Horton’s coffee cup, containing 101 grams of heroin.
EVIDENCE
[2] In June, 2013, Peel Police Constable Wallbank was a member of the Peel Police Street Crime Gang Unit as were the other police witnesses.
[3] On June 3, 2013, this officer was part of the team whose task it was to conduct surveillance on the accused. Officer Wallbank was the central note taker and was required to take notes of the others officers’ observations, which were broadcast over the police radio. He was also designated as the exhibits officer. His evidence is, of course, hearsay but provides context to the incident that day.
[4] At 10:15 am Officer Nelson broadcast that the accused had left his home, wearing a black Adidas tracksuit. The accused got into the passenger side of a white Chrysler 300 operated by an East Indian male wearing a green sweater.
[5] The car travelled to 91 Healy Road, Bolton, which was the location of the accused’s place of business.
[6] The accused was observed getting out of the car along with the driver and both entered the business premises. The two men were seen leaving the premises at 11:41 am and the accused was said to have on a grey shirt and black Adidas pants.
[7] It would appear that Officer Nelson’s observations ended at this point.
[8] The car in which the accused was a passenger travelled to the Home Depot and arrived at 11:44 am. Any observations in the Home Depot parking lot were those of Officer Mceachern, the officer in charge.
[9] The accused was seen exiting the car and was observed talking and texting on his cell phone. The accused went and stood in front of the garden area located at the front of the Home Depot.
[10] Officer Wallbank’s notes then record that at 11:47 am another male was observed approaching the accused and was described as being an East Indian, wearing a blue shirt and having a Mohawk-like haircut.
[11] Officer Wallbank then recorded the observations of Officer Mceachern who, at 11:48 am, observed a hand to hand exchange between the accused and this other, blue shirted man. After the exchange the accused walked back to the white Chrysler 300.
[12] The man with the blue shirt was observed walking to and getting in a black SUV which left the lot, south bound on Highway 50. This car was stopped by the police at 11:53 am and the two parties in the car were arrested. Officer Wallbank’s notes record that the passenger was a Mr. Kang and the driver, a Mr. Singh.
[13] Mr. Kang was searched and in his wallet was found a small quantity of heroin. Constable Perreault broadcast that he searched the car and found a Tim Horton’s coffee cup in the centre console cup holder. In the cup was a brown paper towel and under the towel Constable Perrault found two zip-lock bags of heroin. The paper cup and the towel were entered as Exhibit 1.
[14] There is no issue that the bags located in the cup contained 101 grams of heroin.
[15] On cross-examination, Officer Wallbank did not recall hearing Officer Mceachern broadcast anything about a Tim Horton’s cup. Officer Wallbank testified that he tried his best to write everything down but sometimes it’s difficult to note down everything because of the speed in which information is received.
[16] To the best of Officer Wallbank’s knowledge, no fingerprints were taken nor were any photographs taken.
[17] Peel Police Officer Craig Nelson testified that he was involved as part of the surveillance team and was tasked to watch 91 Henley Road. At 11:44 am he observed the accused enter a white Chrysler 300 with a second man and the car was observed travelling south on Healey, in the direction of the Home Depot.
[18] The officer observed the accused return in the same vehicle.
[19] The officer testified that he did not follow the Chrysler but remained at the Healey Road address. He could not say if the accused was carrying anything when he got in the car to drive south.
[20] Peel Police Officer Jean-Luc Perreault was also part of the surveillance team on June 3, 2013. At 11:10 am he was in the vicinity of 91 Healey Road, where he remained for a period of time. At 11:47 am he heard Officer Mceachern “call out” a hand to hand drug transaction. He travelled to the location where the black Lincoln SUV had been stopped. Upon his arrival, the two occupants of the SUV were in police custody.
[21] Officer Perreault searched the interior of the car and immediately observed a Tim Horton’s coffee cup in the cup holder. He popped the lid and found inside a brown paper napkin. He thought that odd and moved the napkin and observed two plastic zip-lock bags containing what is admitted to be heroin.
[22] Officer Perreault continued the search but found nothing else of interest in the car and testified that he found no other coffee cups in the car. The coffee cup and everything in it was turned over to Officer Wallbank.
[23] On cross-examination Officer Perreault testified that he heard over the police radio a reference or mention of a coffee cup and because of that he was looking for a coffee cup. He testified that he found the baggies within a couple of minutes of arriving at 11:55 am.
[24] The officer agreed that the napkin entered as part of Exhibit 1 looked white but he recalled it was brown. He said that it was probably an error on his part. The officer agreed that neither the cup nor its contents were finger printed.
[25] The last witness was Peel Police Constable Brady Mceachern who was in charge of the surveillance team. Officer Mceachern testified that in and around 11:47 am he observed the accused in the Home Depot parking lot in Bolton and broadcast what he observed.
[26] The officer arrived at the lot and parked his car. He observed the Chrysler parked in front of the garden center on the south side of Home Depot. The accused was observed exiting the car and was described as wearing a grey long sleeve shirt and black sweat pants. The accused stood in front of the garden centre and talked and texted with one hand, on his cell phone. The accused had, in his other hand, a coffee cup.
[27] At 11:49 am Officer Mceachern observed the accused walk northbound between parked cars were he met an East Indian male wearing a light blue shirt and with spiky black hair.
[28] The accused was observed by the officer handing the coffee cup to the other man and receiving an item in return which he described as, like a sheet of paper. The officer could not be more specific as to the cup saying it was paper and a Tim Horton’s type cup.
[29] After the exchange the officer returned to the Chrysler and the other man was observed getting into a black Lincoln Aviator SUV and leaving the parking lot. Four to five minutes later the Aviator was stopped and arrests were made. The heroin was discovered in the cup.
[30] Officer Mceachern testified that the man in the blue shirt was identified as Charinjit Singh. The other man, the driver of the Aviator, was identified as Karanvir Kang.
[31] On cross-examination the officer testified that he saw the accused exit the car in the Home Deport parking lot holding a coffee cup. There is no notation in his notes that he saw the coffee cup in the accused’s hand when he got out of the car. When asked why, the officer testified that, at the time, he thought nothing of the coffee cup. He thought it was just coffee. He said he only learned of its relevance in hindsight.
[32] The officer has a notation in his notes about the coffee cup in relation to the hand to hand exchange. He also testified that as far as he is aware there was no other paper cup found in the Aviator. He agreed that no finger printing was done and that he, as the officer in charge, would have been the person to request finger printing.
[33] The officer in cross-examination testified that he believed that he mentioned the coffee cup when he broadcast the hand to hand but that he cannot specifically recall if he called out, “a coffee cup”.
[34] The Crown’s case consisted of the testimony of these four officers. No defence evidence was called.
SUBMISSIONS
[35] The Crown submits it has proven beyond a reasonable doubt that it has proven that the accused passed a Tim Horton’s coffee cup to Mr. Singh and that it was the same cup found in the Aviator containing the heroin.
[36] It is submitted that only four to seven minutes lapsed between the exchange and the vehicle stop and that no other cup was found in the Aviator.
[37] The Crown submits that the coffee cup reference must have been broadcast by Officer Mceachern because it was the first thing Officer Perreault was looking for. It is submitted there is no break in the chain of evidence and that while, as in most cases, there could be better evidence, the evidence before the court proves guilt beyond a reasonable doubt.
[38] Counsel for the accused submits that if there was only one cup and there could only be one cup the case would be much different. He submits that there is the possibility of another cup, Officer Perreault was not certain. There was nothing distinctive of the cup seized from the Aviator.
[39] It is submitted that Officer Mceachern cannot say that the cup he saw exchanged was the one found in the Aviator. In the notes kept for the team by Officer Wallbank there is nothing noted about a coffee cup and Officer Wallbank could not recall anything broadcast about a coffee cup.
[40] It is submitted that the absence of finger print evidence is significant as is the lack of evidence from Kang or Singh.
[41] Defence counsel submits there is a reasonable doubt and his client ought to be found not guilty.
ANALYSIS
[42] To traffic means to sell, administer, give, transfer, transport, send or deliver something to someone. It does not matter whether money or anything else of value actually changes hands, as long as an accused possessed a controlled substance and provided it, or offered to provide it to someone else.
[43] If someone delivers to another a coffee cup containing heroin, then that someone is trafficking in a controlled substance.
[44] I accept the evidence of the officers. There were no major inconsistencies in their evidence. Their evidence as to their observations was not seriously challenged.
[45] While certain details may have been omitted from their notes, the omissions are not in conflict with any of the other testimony. For example, Officer Wallbank did not record any reference to a coffee cup. Both Officers Perrault and Mceachern testified that a reference to a coffee cup was broadcast and Officer Mceachern made a note of the coffee cup as part of the exchange. The fact that Officer Wallbank did not record such a reference or does not recall one three years later is not necessarily inconsistent with the testimony of the other officers. Officer Wallbank may not have heard it or was too busy to note such a detail. He admitted that he may not have noted all the details heard over the police radio broadcasts.
[46] The evidence of Officers Perrault and Mceachern is reliable and credible.
[47] I accept the evidence of Officer Mceachern that he observed the accused hand off to Mr. Singh a coffee cup. Mr. Singh then returned to the Lincoln Aviator which then left the parking lot. The Aviator was immediately followed by the police and was then stopped within four to seven minutes of the exchange. I find that the Aviator was under continuous police surveillance from the time it left the Home Deport parking lot until it was stopped and searched.
[48] I accept the evidence of Officer Perreault that he was specifically looking for a coffee cup because he heard a police radio broadcast in which a reference to a coffee cup was made. Only one coffee cup, a Tim Horton’s coffee cup, was found in the car and it contained the heroin.
[49] There is no direct evidence that the accused handed off to Mr. Singh the two bags of heroin. The evidence is circumstantial. As such, it provides facts from which I am asked to draw an inference. An inference is a deduction reasonably and logically drawn from evidence accepted as fact.
[50] On the evidence before me, which I have accepted as fact, the only logical and reasonable inference to draw is that the cup in the accused’s hand contained heroin when it was delivered by the accused to Mr. Singh.
[51] On the facts before me, I know of no alternate and reasonable inference to explain why the accused was driven to a Home Depot parking lot to deliver to another person, travelling in a separate vehicle, a coffee cup.
[52] Accordingly, I am satisfied, beyond a reasonable doubt that the accused was trafficking in heroin and is found guilty of the offence charged.
Bielby J.
Released: October 28, 2016
CITATION: R. v. Dhillon, 2016 ONSC 6688
COURT FILE NO.: Crim J(F) 170/14
DATE: 2016 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
NARAUKAR DHILLON
REASONS FOR JUDGMENT
Bielby J.
Released: October 28, 2016