R. v. Tuan To Mach, 2016 ONSC 7456

Court File and Parties

Citation: R. v. Tuan To Mach, 2016 ONSC 7456 Court File No.: CR-15-90000470 Date: 2016-12-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Tuan To Mach, Applicant

Counsel: Chris DeSa, for the Respondent Ehsan Ghebrai, for the Applicant

Heard: November 21-23, 2016

Ruling on Charter Application

Dunnet J.: (Orally)

Overview

1The applicant is charged with possession of heroin for the purpose of trafficking, possession of heroin and possession of the proceeds of crime. He seeks an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms excluding from the evidence at his trial the heroin seized from him and the heroin and cellular telephones found inside his vehicle. He submits that the evidence was obtained in violation of his s. 8 Charter right to be secure against unreasonable search or seizure.

The Evidence

The Applicant

2The applicant is a 45 year old Canadian citizen who came to Canada from Vietnam with his family in 1979. As a youth, he was convicted of assault with a weapon, carrying a concealed weapon, attempting to obstruct justice and failing to comply with his recognizance. In 1992, he was convicted of attempted murder and completed high school in prison.

3After his release in 2001, the applicant worked as a real estate agent until 2005 when he was arrested with members of his family for conspiracy to import drugs and extradited to the United States. He returned to Canada six years later and became a drug dealer. He started selling drugs at the gram level and by June 2014, he was dealing in ounces.

4On June 14, 2014, the applicant was operating his motor vehicle with 150 grams of heroin hidden in the centre console. As he was southbound on Bathurst Street at Wilson Avenue in Toronto, his cigarette dropped under the seat and he stopped his vehicle on the side of the road to retrieve it.

5Then he pulled into a gas station at Bathurst and Wilson and filled his vehicle with gas. Two vehicles approached him from the front and rear of his vehicle and the driver of one vehicle, Police Officer Allan Bishop, tackled him to the ground and applied handcuffs. The officer reached into the applicant’s pocket and pulled out $1500 in cash.

6He told the applicant that the police had a warrant to search his residence for drugs. The applicant said that he was renting the residence and handed the officer his car keys. A police officer moved the applicant’s vehicle from the gas pumps to the parking lot and one of the officers used the money that had been seized to pay for the applicant’s gas.

7Police Officer Matthew Clarke searched the applicant’s vehicle and found the bag of heroin in the console and four cell phones. The applicant was subsequently arrested.

8In cross-examination, the applicant said that he bought his drugs from a certain supplier and had a range of customers. When he received a call from a customer, he would pick up the drugs and sell them in bulk and then he would pay his supplier. He denied that he kept a supply of heroin or that he cut or chopped it before selling it.

9He had picked up the heroin in his console two days before his arrest, but the customer did not want it. The applicant did not recall why.

10When he was asked about pricing, the applicant said that he bought the heroin for $60 a gram and sold it for $70 a gram. He denied that he was selling drugs by the gram and maintained that he only dealt in ounces. He denied that he gave his customers a tester or sample of the heroin.

Police Officer Allan Bishop

11On June 13, 2014, Police Officer Allan Bishop attended a police briefing about the applicant. The officer learned that he was a narcotics dealer living at 3525 Bathurst Street, Unit 2 who drove a white Mazda 3 motor vehicle with licence plate number BSJY 682 and a Honda motorcycle with licence plate number 5961V. Officer Bishop attended the residence to conduct surveillance and observed the motorcycle.

12On June 14, 2014, Officer Bishop attended the residence at 7:30 p.m. to continue surveillance on the applicant in anticipation of the police obtaining a search warrant for the residence.

13Officer Bishop received information that the applicant left his residence in his vehicle and at 9:22 p.m. he saw the vehicle stopped at 1030 Sheppard Avenue West. An unknown male entered the passenger side of the vehicle, which disappeared out of sight.

14Officer Bishop received information at 9:35 p.m. that the vehicle was at a coffee shop at the intersection of Sheppard and Bryant Street. At 9:43 p.m. it was westbound on Sheppard. At 9:46 p.m. the vehicle arrived at 943 Sheppard and both men entered that address.

15Officer Bishop received information at 10:02 p.m. that the applicant was in his vehicle travelling eastbound on Sheppard and he received information at 10:05 p.m. that a warrant had been granted to search the applicant’s residence for heroin, identification and drug paraphernalia.

16At 10:08 p.m. Officer Bishop saw the applicant’s vehicle enter a gas station at Bathurst and Wilson. He and Officer Clarke positioned their vehicles at the gas pumps to block the applicant’s vehicle.

17Officer Bishop ran toward the applicant, took him to the ground and applied handcuffs. He told the applicant that he was being detained for drugs pending the execution of a search warrant at his residence. He knew that the applicant was arrestable based on the search warrant and he was aware that if nothing was found at the residence, the applicant would be released.

18The officer testified that as he was performing a pat down search to ensure that the applicant had no weapons, he said, “I have a small bag in my pocket.” Inside the right front pocket, Officer Bishop found a small plastic wrap with an elastic band around it and what appeared to be heroin inside. Inside the left front pocket, he found Canadian currency in bills.

19Officer Bishop arrested the applicant for possession of heroin and informed him of his right to counsel. The applicant said that he did not want to call a lawyer because “it’s only a small amount.”

20After he was advised by Officer Clarke that he had found a large amount of heroin inside the vehicle, Officer Bishop arrested the applicant for possession of heroin for the purpose of trafficking and possession of the proceeds of crime.

21At 10:25 p.m. he turned the applicant over to uniformed police officers and attended the applicant’s residence to assist with the execution of the search warrant.

22In cross-examination, Officer Bishop denied that he colluded with other officers in this investigation. He agreed that he attended the debriefing at the station before making his notes. He explained that the purpose of the debriefing was for each officer to advise the central note taker of any corrections to times, locations and descriptions based on the officer’s own observations.

23He said that it was impractical for him to make his notes before the debriefing because he was with the applicant waiting for uniformed police officers to arrive and afterwards, he was assisting in executing the search warrant.

24Officer Bishop believed that one of the officers paid for the applicant’s gas with the money he seized from the applicant. He did not count the money that he seized until he returned to the station. There were thirty 20’s, two 100’s, six 50’s, two 5’s and $3.45 in coins. He did not know if the change came from the gas payment because he did not have the receipt.

25At the station, Officer Bishop handed over the heroin he seized from the applicant’s pocket to Officer Clarke who was the designated drug exhibits officer. Officer Bishop denied that there was no heroin in the applicant’s pocket.

26He agreed that there was no mention of the applicant’s arrest in the central notes which state that the applicant arrived at the gas station at 10:08 p.m.; he was detained by the gas pumps at 10:09 p.m. and turned over to uniformed officers at 10:25 p.m.

27When Officer Bishop was shown the synopsis, he testified that he did not author the document. He agreed that there was no notation in the synopsis about the applicant’s utterance that he had a small bag in his pocket.

28The synopsis reads in part:

On Saturday, June 14, 2014, members of the Toronto Police Gun and Gang Task Force continued this investigation by conducting observations of the accused. The accused was located by the investigating officers leaving the address of 3525 Bathurst Street, City of Toronto. The accused boarded a Mazda motor vehicle bearing the Ontario licence plate BSJY 682. The accused was observed to be involved in two transactions by which the accused accessed the centre console of this motor vehicle prior to completing the transactions.

The accused was arrested at 10:09 p.m. on June 14, 2014 in the motor vehicle at an Esso gas station located at Bathurst Street and Wilson Avenue in the City of Toronto. He was placed under arrest for possession of heroin and searched incident to arrest. During this search the accused was found to be in possession of a small clear plastic bag sealed with an elastic band containing heroin which was located in his front right pant pocket. A search of the front console of the vehicle revealed a large quantity of heroin contained in a zip lock bag which was further concealed in a grey plastic shopping bag.

29Officer Bishop did not observe the two transactions referred to in the synopsis.

30He was shown the following paragraph in the search warrant:

The affiant would like to request a three day window to execute the warrant, should it be granted. It would be ideal for evidentiary reasons to have the target inside the address at the time of execution of the warrant.

31Officer Bishop testified that he was not the affiant and he was unaware of the request for a three day window.

32He denied the suggestion that by arresting the applicant, he undermined the search warrant for the residence and decided to fabricate a narrative as to why Officer Clarke had the authority to search the applicant’s vehicle.

Police Officer Matthew Clarke

33On June 14, 2014, at 9:15 p.m. Police Officer Matthew Clarke saw the applicant leave the residence, enter his vehicle and travel northbound on Bathurst.

34His next observation was made when the applicant’s vehicle was southbound on Bathurst and came to a stop on the side of the road. He saw the applicant get out of the driver’s seat and reach into the vehicle toward the middle or far side. The officer was one hundred feet away and he was unable to see what the applicant was doing with his hands. After three minutes, the applicant returned to the driver’s seat.

35The vehicle made a U-turn and entered a gas station at Wilson and Bathurst. As the applicant was standing outside his vehicle, Officer Clarke approached him on foot and took him to the ground. At that point, he was aware that a warrant had been granted to search the residence for drugs and his intention was to detain the applicant.

36As Officer Bishop was performing the pat down search, Officer Clarke overheard the applicant say that he had a small bag in his front pocket. He saw Officer Bishop pull a small “dime bag” tied off with an elastic band out of the applicant’s front pocket and heard him arrest the applicant for possession of heroin.

37Officer Clarke testified that in his experience, it is common for traffickers to conceal drugs under the panel of the centre console in their vehicle and based on the information that he had about the applicant and his observations at the side of the road, he was of the belief that a search of the applicant’s vehicle would yield evidence relating to possession or trafficking in a controlled substance. He searched the vehicle and found four cell telephones and a bag of heroin concealed in the console.

38Officer Clarke went to the residence to assist in executing the search warrant and located a water bottle containing the drug GHB. At the station, he was designated the exhibits officer and processed the drugs for testing by Health Canada. He placed them into the following numbered envelopes:

• #CO155838 – small plastic bag with elastic band containing 0.54 grams of heroin
• #CO155945 - 0.77 grams of heroin sample from bulk
• #CO155946 – 88.34 grams of GHB
• #C1229268 – 144.39 grams of heroin

39In cross-examination, Officer Clarke agreed that he attended the debriefing before writing his notes. He explained that the purpose of the debriefing was for the central note taker to review the observations and for the officers involved to make any corrections to the central notes from their own observations.

40At the preliminary inquiry, Officer Clarke was asked, “So you’re saying you need it [the briefing] for times, it’s basically what you’re telling me?” and his response was, “Yeah, exactly.”

41He agreed that he did not record times for when the applicant stopped his vehicle and leaned into his vehicle, when he drove into the gas station, when the officers approached the applicant and put him on the ground, when he stood by during the pat down search, when the applicant said that he had a small bag, when Officer Bishop found the bag and cautioned the applicant, when the applicant was arrested, when the vehicle was searched and when the heroin and cell phones were located.

42Officer Clarke acknowledged that before hearing the applicant’s utterance that he had a small bag in his pocket, he believed that there could be evidence of contraband in the vehicle. He also agreed that but for the arrest for possession of heroin, he would have had no authority to search the vehicle incident to arrest.

43It was suggested to the officer that although the Health Canada envelopes containing the heroin sample from the bulk and the GHB were sequentially numbered, the envelope containing the heroin that Officer Bishop seized was not. The officer testified that generally the empty envelopes from Health Canada are not stacked neatly and he would have been more surprised if they were in sequential order.

44Officer Clarke admitted that he was the officer-in-charge who prepared the case for the Crown. He did not prepare or read the synopsis. He agreed that the synopsis did not contain the applicant’s utterance about a bag in his pocket. He denied that there was no heroin in the applicant’s front right pocket.

45The officer did not see the applicant engaged in or completing two drugs transactions on June 14, 2014.

46He was unaware of the request in the search warrant for a three day window. He agreed that the police were watching the applicant as the warrant was being prepared.

47He denied that he was told that the arrest of the applicant undermined the search warrant and that he decided to create a false narrative justifying the search of the vehicle.

Positions of the Parties

The Applicant’s Position

48The applicant submits that he was truthful about his criminal history and involvement with drugs. He submits that he was selling heroin at the ounce level and took precautions to hide the drugs in his vehicle under the console. He maintains that he was not a street dealer and that is why the police did not find scales or packaging.

49It is the applicant’s position that he was tackled at the gas pumps and money was removed from his pocket. He was told that he was detained and the police were going to search his residence for drugs. If nothing was found, he would be released. It was only after heroin was found in his vehicle that he was arrested.

50The position of the applicant is that he did not have heroin in his pocket and the police fabricated a narrative to justify searching his vehicle. He relies on the following evidence and lack of evidence:

• There was no photograph taken of the plastic wrap found in his pocket.
• Officer Bishop failed to announce over the air that he had arrested the applicant for possession of heroin.
• The arrest did not form part of the central notes.
• The plastic wrap, elastic and heroin were in a Health Canada envelope that was not numbered sequentially with the envelopes containing the bulk heroin sample and the GHB.
• The synopsis did not contain the applicant’s admission that he had a small bag.
• The synopsis mentioned two transactions, which Officer Bishop and Officer Clarke did not observe, and the respondent failed to adduce evidence to explain who drafted the synopsis.

51It is asserted that but for the alleged utterance, the police had no authority to search the applicant. Further, Officers Bishop and Clarke colluded to create a narrative to justify arresting the applicant and searching the vehicle.

52The applicant submits that while Officer Clarke testified that the debriefing was about ensuring that the times were correct, he did not record times in his notes for the applicant’s detention, search and arrest. Further, there is a lack of evidence about the quantity of money seized or spent on gas.

53The applicant submits that Officer Bishop handed the heroin to Officer Clarke at the station, adding to the chain of continuity for no reason.

54It is submitted that the information in the synopsis about the two transactions where the applicant accessed the console is false and there is no explanation as to who advanced the falsehood.

55The applicant maintains that there were no exigent circumstances existing to search the vehicle. The police could have impounded the vehicle and sought a warrant.

56The applicant’s position is that the search of the vehicle was unlawful. Even if there was some residual authority to search, the manner in which Officer Clarke conducted the search was unreasonable.

57The applicant asserts that the detention and arrest in contravention of the warrant issued for the search of his residence and the fabrication of a narrative designed to cover up the violations constitute a pattern of complete disregard for the applicant’s Charter rights and the impact of the breaches mandates exclusion of the evidence.

The Respondent’s Position

58It is the respondent’s position that the applicant’s evidence was contrived and untruthful. He claimed to be an ounce trafficker, but explained his pricing in grams, which is inconsistent with someone who sold in ounces. On his version of events, the applicant was allowed to keep $30,000 worth of another person’s heroin in the console of his vehicle for several days without paying for it.

59The respondent contends that the applicant was selling heroin at the gram level and he had a tester in his pocket.

60It is the respondent’s submission that the evidence of the police officers should be preferred as it was consistent with the investigation evidence as a whole and they had no reason to fabricate their story.

61The respondent submits that when the police detained the applicant, they had the authority to arrest him based on the warrant to search his residence. When he made the utterance, Officer Bishop seized the bag, arrested the applicant for possession of heroin and read him his rights.

62The respondent submits that, having heard the utterance and having seen the bag leading to the arrest by Officer Bishop, Officer Clarke had lawful authority to search the vehicle incident to the arrest.

63The respondent’s position is that the police acted in good faith and any mistakes that were made were not egregious. Given society’s heightened interest in prosecution, the evidence should be admitted.

Analysis

Section 8

64The position of the applicant is that he did not have a small bag of heroin in his pocket and that he was not arrested for possession of heroin before the heroin was found in his vehicle. The applicant submits that the police colluded and fabricated a narrative to justify their search of the vehicle when they knew that the search warrant that they had obtained was for the applicant’s residence.

65The applicant’s version of events is neither convincing not credible. First, he was adamant that he had no small customers and did not sell drugs at the gram level. Yet, he explained his pricing in grams, which is not consistent with someone who sells in ounces.

66Second, despite his familiarity with the criminal justice system and the drug trade, he claimed not to know what a “tester” is. It was an admitted fact on the application that testers or samples are commonly used to provide potential purchasers with a sample of what they will be purchasing.

67Third, he testified that at the time of these events, he had been keeping $30,000 worth of his supplier’s heroin, or 150 grams, in his vehicle for several days. Incredibly, he could not recall why his customer did not want to buy the heroin.

68Fourth, the applicant’s testimony on his pricing is unrealistic and inconsistent with the admitted expert opinion on the current trend of street pricing in relation to heroin. The applicant testified that he paid $60 a gram for the heroin and sold it for $70 and would have made a profit of $1500 on 150 grams. However, the expert opinion was that the street price of heroin is $180 to $250 per gram and $3400 to $4500 per ounce.

69The applicant relies on the fact that there is no photograph of the bag found in his pocket. There is no requirement for police to take photographs of each piece of evidence. The absence of a photograph of a key piece of evidence may raise suspicion if the police otherwise photograph all other pieces of evidence. Here, however, there is no photograph of the money, and the applicant has conceded that money was seized from his pocket. The argument is of no moment in this case.

70Officer Clark acknowledged that he did not record the timing of events at the gas station in his notes. Officers’ notes are not evidence, but are merely a testimonial aid. The absence of a notation does not mean that the event did not occur.

71There is no foundation for the applicant’s argument that handing the bag of heroin found in the applicant’s pocket to Officer Clarke added to the chain of continuity for no reason. Officer Clarke was the designated drug exhibits officer.

72The argument about non-sequential numbering of the Health Canada envelopes is also without foundation. Officer Clarke testified that this is a common occurrence.

73Officer Bishop and Officer Clarke knew nothing about the observations noted in the synopsis involving two transactions where the applicant accessed the console of the vehicle. I accept their evidence that they did not draft the synopsis. I find that those observations are not germane to the events that occurred at the gas station involving these officers. It is their recollection of what occurred at the gas station that is important.

74Notably, there is a reference in the synopsis to a “small clear plastic bag sealed with an elastic band containing heroin which was located in his front right pant pocket.”

75Officers Bishop and Clarke knew that a warrant had been issued for the search of the applicant’s residence for heroin and they chose to detain him after he entered the gas station. I accept the evidence of Officer Bishop that during the pat down search, the applicant told him that he had a small bag in his pocket.

76Officer Bishop described the bag as a small plastic wrap with an elastic band. Officer Clarke described it as a dime bag tied off with an elastic band. The heroin in the Health Canada envelope marked as an exhibit on the application contained a small plastic wrap, an elastic and 0.54 grams of heroin. I find that there was a small bag of heroin in the applicant’s pocket consistent with a tester.

77I accept the evidence of Officer Bishop that the utterance and subsequent seizure of heroin during the pat down search led to the applicant’s arrest for possession of heroin. In my view, the applicant declined a lawyer because, as he said, “it’s only a small amount,” which is consistent with his desire to confine the search to his person and to thwart a search of his vehicle.

78In R. v. Caslake, [1998 838 (SCC)], [1998] 1 S.C.R. 51, at para. 19, Chief Justice Lamer held that the three main purposes of a search incident to arrest are ensuring the safety of the police and the public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial.

79The evidence of Officer Clarke was that after the applicant’s arrest, based on the information he had that the applicant was a narcotics dealer, his experience that drug traffickers commonly hide contraband in the void under the console and the applicant’s behaviour in stopping his vehicle on the side of the road and leaning inside for three minutes towards the middle of the vehicle gave him the authority to search the vehicle incident to the arrest. He testified that he was looking for evidence related to possession or trafficking in a controlled substance.

80I accept the evidence of Officers Bishop and Clarke as truthful. Their evidence was tested and unshaken on cross-examination as to the elements of the offences. Although they had the authority to arrest the applicant on the basis of the search warrant for his residence, they detained him and it was only when he made the utterance about the bag in his pocket that events unfolded as they did. I do not accept that Officer Bishop and Officer Clarke fabricated a narrative to justify the search of the vehicle.

Section 24(2)

81In determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute under s. 24(2) of the Charter, R. v. Grant, [2009 SCC 32], [2009] 2 S.C.R. 353, sets out the following three avenues of inquiry at paras. 71 to 86: the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the applicant, and society’s interest in the adjudication of the case on its merits.

82I find that Officer Bishop and Officer Clarke were acting in good faith in detaining the applicant pending execution of the search warrant at his residence. When he made the utterance, Officer Bishop conducted a minimally intrusive search of his pockets that led to his arrest and Officer Clarke’s search of his vehicle incident to arrest for the purpose of discovery of evidence which could be used at the applicant’s trial. In my opinion, there was no serious breach of the applicant’s Charter rights. Moreover, the evidence is reliable and plays a central role in the prosecution of the offences. Society has a strong interest in adjudication of the case on its merits.

83Balancing the various considerations, I find that in all the circumstances, admission of the evidence would not bring the administration of justice into disrepute. The application is dismissed.

Dunnet J.