COURT FILE NO.: 802/15 DATE: 2017 05 31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Lowell Somerville

Counsel: Peter Campbell, for the Crown Kim Schofield, for the Applicant/ Accused

HEARD: January 30, 31, February 1, 2, 3, March 29, 2017

REASONS FOR JUDGMENT Woollcombe J.

A. Introduction

[1] The accused, Lowell Somerville, is charged with serious drug offences. He applies under ss. 7 and 24(1) of the Charter for a stay of proceedings on the basis of an abuse of process. The matter before me proceeded by way of a voir dire in relation to allegations of multiple Charter violations. Counsel agreed that the evidence of the police officers would be applicable on an eventual trial proper. A number of Peel Regional Police officers were called by the Crown on the voir dire. The applicant on the voir dire, Mr. Somerville, also testified. For the purposes of his application, he acknowledged having trafficked in heroin and having had possession of various drugs found in his vehicle and apartment.

[2] Mr. Somerville has now narrowed the focus of his argument to a single issue – whether the charges should be stayed for an abuse of process. By way of summary, it is his position that after his arrest, when members of the Peel Regional Police executed a search warrant at his storage unit located at All City Storage facility, they stole his property. He says that the items stolen include a statue of fictional character Tony Montana (from the movie Scarface), cash and various items of jewelry. He says that it is clear from the storage facility’s videotape that one of the officers, Officer Rerrie, carried the concealed statue out of the facility and placed it into his car. He says that the police were able to conceal the other stolen items so that they are not visible on the videotape.

[3] Mr. Somerville submits that the police officers who testified about the execution of the search warrant at the storage facility lied. He says that Officer Rerrie lied when he claimed to have removed an abandoned free heater from the hallway of the storage facility. He says Officer Rerrie lied when he denied having taken the statue. Mr. Somerville says that the other three officers lied initially when they denied knowledge that a large object was removed from the facility, and lied further when they were shown the videotape and claimed to have no memory of what Officer Rerrie carried out.

[4] The stay application relates both to conduct of the officers at the storage locker, where they are alleged to have stolen Mr. Somerville’s possessions and to the allegedly false and deceptive evidence of the officers on the voir dire. It is Mr. Somerville’s position that continuing with a trial, in these circumstances, would so undermine the integrity of the administration of justice that a stay of proceedings should be granted.

B. Background Facts

Evidence in relation to the charges faced by the accused

[5] On June 23, 2014, Peel Regional Police officers conducted ongoing surveillance of Mr. Somerville. He was a person of interest to them in relation to drug trafficking. Officers observed Mr. Somerville travel from Peel to Toronto, where they observed what they believed was a hand-to-hand drug transaction. The person to whom the drugs were believed to have been sold, Mr. Sooknanan, was arrested immediately following the hand-to-hand transaction and found to have about a gram of cocaine in his possession. On the voir dire, Mr. Somerville acknowledged that he sold a small quantity of drugs to Mr. Sooknanan.

[6] As a result of the discovery of the cocaine, the police stopped Mr. Somerville in his car a few kilometers away and arrested him for trafficking. His car was searched and police located inside a sunglasses case one gram of heroin and one gram of methamphetamine.

[7] The police then obtained a search warrant to search Mr. Somerville’s basement apartment at 732 Drifton Crescent. Police entered that apartment at 3:13 a.m., on June 24, 2014, to execute the search warrant. During the search, police located two clear baggies, one with 18 pink pills and one with 16 white pills. These were Methylenedioxypyrovalerone (MDPV), a schedule I substance. In addition, they located 24.2 grams of heroin.

[8] During the execution of the search warrant, the police also located documents indicating that Mr. Somerville leased storage unit A085 at All City Storage facility, located at 145 Eastern Avenue in Toronto. As a result of this discovery, the police sought and obtained a search warrant to search the accused’s storage unit at All City Storage.

[9] The charges faced by the accused all relate to evidence that was obtained before the police attended at the storage facility to execute the search warrant there. The accused faces charges of: a. Trafficking in heroin contrary to s. 5(1) of the Controlled Drugs and Substances Act (“CDSA”); b. Possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the CDSA; c. Possession of heroin contrary to s. 4(1) of the CDSA; d. Possession of MDMA, contrary to s. 4(1) of the CDSA; and e. Possession of cocaine, contrary to s. 5(1) of the CDSA.

Evidence in relation to the storage unit

a) The Procedural Chronology

[10] Four officers attended at the storage facility to execute the warrant: Officers Savino, Muresan, Pinheiro and Rerrie. All four were called by the Crown as witnesses on the voir dire. During cross-examination of the final officer, Officer Rerrie, defence counsel played in court a videotape of the officers in the storage facility. This appears to have been the first time that the police were made aware of the existence of such a videotape, and the fact that it was in the possession of the defence.

[11] After being shown the videotape, Officer Rerrie answered questions about what was depicted. On consent, the Crown then recalled the other three officers for further cross-examination about the contents of the videotape.

[12] After the evidence of the four officers was completed, Mr. Somerville testified. In addition, on consent, affidavits were filed to explain how the video surveillance tape was created and how it came into the possession of the defence.

b) The Officers’ Initial Testimony

[13] Given the very serious allegations made against the police, I will review their evidence in detail. While a transcript of the proceedings had not been prepared, my review of this evidence is with the benefit of having been present at court, having received written submissions from both parties and having listened to the audiotape recording of the voir dire.

Officer Savino’s Evidence

[14] Officer Savino testified in-chief that he had participated in the search of unit A085 at 145 Eastern Avenue and said that there had been nothing of evidentiary value located or seized by police there.

[15] Under cross-examination, Officer Savino testified that he learned at 5:55 a.m. that a warrant had been granted for the storage unit. He, along with Officers Muresan, Pinheiro and Rerrie entered the storage facility and then entered the storage unit at 7:10 a.m.. He said that they had a key for the unit.

[16] Constable Savino testified that he did not have a good recollection of where the unit was and could not recall if the officers had taken an elevator. He said that all four of the officers went to the fairly small unit, that he estimated was eight feet by six feet, and that they searched through it. They did this by removing the items from the storage unit, putting them in the hall, and then going through the items. He confirmed that Exhibit 5 depicted the way that the unit appeared.

[17] Officer Savino said that he did not find any drugs or money and was not aware of any officer finding either. He did not see any jewelry and as far as he was aware, none of the other officers located any jewelry either. He said that he did not remove any items from the locker. He was asked if Officer Muresan had removed anything from the unit and responded that it was his understanding that nothing was seized at all from the unit. He could testify “for sure” that he did not seize anything from that unit. He was also sure that none of Officers Muresan, Pinheiro or Rerrie took anything from the storage unit.

[18] Officer Savino said that he did not take anything on the way out. The four officers left together. Asked whether Officer Muresan had left with anything he did not bring in, Officer Savino’s first response was that he did not know if Officer Muresan came in with anything. He then said that he was not paying attention to what the other officers were doing. When it was suggested to Officer Savino that Officer Muresan didn’t have something big with him, Officer Savino ultimately agreed that he had not seen Officer Muresan with anything.

[19] Asked about Officer Rerrie, Officer Savino said that he did not recall what Officer Rerrie took in. He said that he did not recall Officer Rerrie taking anything out of the locker or the complex that he did not come in with. Asked whether he recalled thinking that Officer Rerrie was leaving with something big that he had not come in with, Officer Savino said that he did not recall thinking that.

[20] In relation to Officer Pinheiro, Officer Savino did not recall him leaving with anything he did not come in with. He did not recall Officer Pinheiro taking or seizing anything.

[21] Ultimately, Officer Savino was clear that he did not remove anything from the locker. He did not see anyone remove anything from that storage locker. He did not see any of Officers Muresan, Pinheiro or Rerrie leave with a large item.

[22] When he returned to continue giving evidence after the lunch break, Officer Savino testified that he had not seen Officer Muresan and had not spoken to him over the lunch break.

Officer Muresan’s Evidence

[23] Officer Muresan was the second officer to testify. He testified in-chief that he had attended at the storage facility with Officers Savino, Pinheiro and Rerrie. He said that there were bins and many shoeboxes in the unit and that the officers did not seize anything. They looked through the unit and put everything back.

[24] Under cross-examination, Officer Muresan confirmed that he was the exhibits officer for the search of Mr. Somerville’s home and at the storage locker. This required him to keep a log of items seized during the execution of the search warrant and to do a report or return to the justice. He said that there was no report done in relation to the storage unit.

[25] Officer Muresan testified that he arrived at the facility at 7:05 a.m. He said that the four officers met up there before entering the facility and entered together. He did not recall how they gained entry to the complex. He had a camera with him and usually had a duffel bag with him, though he was not sure. He confirmed that he had taken the photograph marked as Exhibit 5.

[26] He was asked what the other officers carried into the facility and could not recall what any of the other officers carried in. He was clear that nothing was seized from that storage locker. He was confident that he had not taken anything from the unit and that the other officers had not either. No jewelry was located or taken and no money was located at the unit or taken.

[27] When asked if the team left with what they came with, Officer’s Muresan’s response was, “as far as I remember”. He was very confident that nothing was taken from the storage locker. Counsel then asked, “nothing taken from the hallway?” The officer paused, and responded that he did not know. Asked whether the officers had taken something left in the hallway, he responded, “not that I can recall” and that he really did not know.

[28] When asked whether he had left the facility with what he came with, the officer agreed that he left with what he came with. Asked about Officer Savino, Officer Muresan said that he assumed he did and that he did not see him take anything.

[29] When asked about Officer Rerrie, Officer Muresan said he had no idea if Officer Rerrie left with what he came with. He was unequivocal that Officer Rerrie did not take anything from the storage unit. When counsel suggested that he had not seen Officer Rerrie carrying out any large object, Officer Muresan said that he really could not remember. When it was suggested to the officer that he did not see any of the other three carry out any large object, his response was that there was nothing taken from the storage locker.

[30] When it was suggested to Officer Muresan that he had observed Officer Savino, he denied having made observations of anyone, and said that he really could not remember. Officer Muresan testified that he did not know if Officer Savino left with anything. He was clear that nothing was taken from the locker and said that nothing was taken from the facility that he knew of.

[31] Asked about Officer Rerrie, Officer Muresan was also sure that Officer Rerrie did not take anything from the locker. Asked to confirm that Officer Rerrie did not take anything from the storage facility, Officer Muresan’s evidence was that he did not know. Officer Muresan was asked if would have noticed if Officer Rerrie had been carrying out a large object. He said that he assumed he would have, but that he could not remember. When it was suggested to him that if he had seen someone carrying out a large object, he would have asked, he said that he knew that nothing had been seized from the locker. Pressed as to whether it was his evidence that Officer Rerrie did not remove a large object from the facility, the officer said that he did not know. When it was suggested that he was the exhibits officer, he said that he could say with confidence that nothing was removed from the storage locker. When asked about the facility, the officer said that he could not remember if he saw Officer Rerrie carrying a large object from the storage facility.

[32] When it was suggested to Officer Muresan that as the exhibits officer, he would have noticed if another officer had a large object when they were in the elevator, Officer Muresan said that he did not recall being in an elevator. He said that he could not recall if Officer Rerrie had had a large object in the elevator. When they walked across the parking lot after executing the warrant, the officer was asked if Officer Savino had a large object and said he did not know.

[33] When asked why the officer made such a clear delineation in his evidence between the storage unit and the facility, Officer Muresan said that he could not remember. He was asked if he would have noted it if something had been taken from the facility. Initially, he hesitated to respond, but then he answered that he would have noted if something had been taken from the locker. He was clear that nothing was seized from the locker and nothing taken from the locker. He would not answer if anything was taken from the facility except to say that he could not see anything having been taken.

[34] Officer Muresan was asked whether he had talked to Officer Savino over the lunch break. He said that he did not speak to him before lunch as Officer Savino left court.

Officer Pinheiro’s Evidence

[35] Officer Pinheiro was not asked in-chief about the execution of the search warrant at the storage facility.

[36] Under cross-examination, Officer Pinheiro confirmed that he attended at the storage facility and awaited the search warrant. At 5:55 a.m., he learned that a warrant had been granted. He entered the facility by following someone in, with the three other officers. He could not recall whether the officers had used an elevator or not. He could not recall what the other officers had with them when they entered the facility, other than that someone had a duffel bag.

[37] Officer Pinheiro testified that the four officers remained together. The locker was opened by way of a key. He estimated that the unit was five feet by ten feet. He assisted in the search of the storage unit. He did not recall anyone finding jewelry. He did not recall a figurine being found. He did recall seeing a large collection of Blue Jay hats that he searched through. He seized nothing. He testified that nothing was seized from the locker. After searching the unit, the four officers left.

[38] When asked whether the officers left with what they came with, Officer Pinheiro said that was so. Counsel then put to the officer that this was because nothing was seized in the unit and nothing was seized from the facility. Officer Pinheiro responded that nothing was seized from the locker, and nothing was seized in the facility. Asked a second time to confirm this evidence, he was unequivocal that nothing was seized from the locker, and qualified that he did not recall anything having been seized from the facility. The officer did not recall any officer coming out of the facility with a large object.

c) Officer Rerrie’s Evidence about having taken the heater

[39] Officer Rerrie was the last officer to testify on the voir dire. He testified in-chief about having been one of the four officers involved in the execution of the search warrant at the storage facility. He testified that the police had a key to the unit and that they waited for Officer Muresan to arrive with the search warrant.

[40] Inside the locker, Officer Rerrie said that there were boxes of shoes, bins and baseball caps. There was also clothing, a computer and a television. He said that nothing was seized from the unit.

[41] Under cross-examination, Officer Rerrie said that the four officers entered the facility together at about 7:00 a.m. He thought the unit was on the second floor, but testified that he did not think they took an elevator. He said that Officer Muresan had a key to the unit and that the four of them searched it. He recalled seeing boxes of shoes and bins and some furniture and a television. Shown Exhibit 5, Officer Rerrie said that it accorded with his recollection of the locker.

[42] Officer Rerrie did not recall exactly where the television was when he entered the locker. He agreed that in Exhibit 5, it was in the front. Officer Rerrie did not take the photograph and thought it was taken before the warrant was executed. He agreed that there was a beige object in the photograph, but said he did not know if it was fabric, and did not know what it was. He agreed only that there was something beige.

[43] Officer Rerrie said that the four officers searched the locker, which he thought had taken at least an hour as there were many boxes to go through. Nothing was seized by him and that nothing was seized from that unit by the other officers. He agreed that they then left by the elevator or the stairs.

[44] When asked whether he had taken anything from the address, he said not from the storage unit, but that he had taken a stand-up heater from the hallway of the facility. He testified that it was on the first or second floor. It had a sign taped on top that said either “free” or “take free”. Later, he said that the sign said either “please take” or “free”. Asked why he had never said anything about taking the heater before, he said that he had been asked only if anything was seized from the locker. He testified that he had never said to the Crown that he had taken a heater. Counsel suggested directly to the officer that he had stolen something from the locker and that he was saying he took the heater because he knew that the defence had a tape. Officer Rerrie denied this.

[45] When asked where exactly the heater had been, Officer Rerrie could not say except to say that the storage unit was out of sight from where the heater had been located. He was asked whether he had walked past the heater on the way to the storage unit, and said that he first saw it when he was leaving the unit. He stopped alone to look at it.

[46] Officer Rerrie was cross-examined as to details about the stand-up heater. He said that it had a note taped on the top of it. It was with a green or black garbage bag, but was not covered as the plastic bag was about half way up the heater. He did not remove the garbage bag but left it half way up. He looked at the heater for about 20 seconds. He then covered the heater with the garbage bag and carried it out in the garbage bag as it was dirty. The bag covered “just about the whole thing”. He could not recall if the base was showing or not.

[47] Officer Rerrie was asked where the other officers had been when he found the heater. He said that he thought they were up ahead of him. They would all have walked past the heater, but he could not say who had paid attention to it. When he decided to take it, he told them that he was taking it.

[48] As he approached the officers holding the heater, he did not think he said anything to them. No one asked him what he had. He assumed that they saw it. They all took the elevator down together. Officer Rerrie agreed that it would have been visible to all of the other officers, but was clear that there was no further discussion about the fact that he was taking it.

[49] The officer said that he then carried it through the parking lot and that the others would have seen it. Again, he testified that there was no discussion about it.

[50] Officer Rerrie said that he took the heater home. He testified that he threw it out because it did not work. He said that when he plugged it in, only the heat or air was working. He could not recall whether it was just cool air or just hot air coming out, but said that only one of the two worked. He said that he kept it just that day and then threw it out on the next garage day, two days later. He was living alone at the time so no one at his home saw it. He agreed that there was no one who could corroborate that he took the heater.

[51] It was suggested to the officer that he had taken a Tony Montana Scarface statue from the unit. He denied this. It was suggested to Officer Rerrie that the video depicted a sheet covering a Tony Montana statue that he stole from the storage locker. Officer Rerrie denied stealing anything from the storage locker.

[52] The video from the facility was played for Officer Rerrie and a thumb drive with the video was entered as Exhibit 11. There are four video clips. It was suggested to Officer Rerrie that what he was carrying in the video did not have the sort of dark covering he had described. He disagreed, suggesting that it seemed light in the video, but that was the colouring from the camera. The officer was adamant that it was not a beige sheet covering the object he was carrying and was, instead, a plastic garbage bag. Even after watching the video initially, the officer insisted that it was a black or green garbage bag covering the heater that he was carrying.

[53] After watching the video a second time, the officer agreed that the covering did not look black. He was not sure it if was quite beige. It was suggested to him that it looked more like a canvas covering than like it was plastic. The officer was sure that it was plastic.

[54] The officer did not agree with the suggestion that the video depicted him carrying an item that was irregularly shaped with what looked like a head and shoulders, and with a covering pulled tight. The officer said that the fan/heater was not shaped as counsel suggested.

[55] When asked to describe the heater, Officer Rerrie said it was black and grey, waist high (three to three and a half feet high) and about eighteen inches wide. He did not recall the brand of the heater. He was asked to draw what it looked like. His sketch was entered as Exhibit 14. He said it was not quite a cylinder, but was pretty much one shape, which he agreed was a triangular cylinder. Asked if the circumference was the same for the length of the heater, Officer Rerrie said that the bottom was a little smaller towards the base and narrowed slightly. He also said that it was a consistent shape throughout. He described the base as bigger than the top, and said that the base was round. The top of the heater was like a diamond or a triangle. It was not circular. At one point, Officer Rerrie at one point characterized the top as a dome, but said it was not like a head. He thought the heater weighed twenty pounds.

[56] Officer Rerrie was given an opportunity to see whether he could find a heater like the one he found at the facility by looking on the internet and locating an image of it over lunch. He said he guessed he could try. When he returned after the break, he said he had had the opportunity over lunch, but had not known when court would be resuming and so had stayed in the hallway. At the end of the day, Crown counsel confirmed that he had not heard anything back from Officer Rerrie about him having successfully found any image of a heater like the one he took from the facility.

[57] When the officer was asked to look at Exhibit 13, tab 4, a still image of him taken at 7:52:17 a.m. (from the videotape) at the storage facility, he disagreed that what he was carrying appeared to be irregularly shaped. It was put to him that it did not have a regular shape with a distinct base and was like a statue. He disagreed. Officer Rerrie said that he knows that it was a heater and not a statue.

[58] Officer Rerrie was reminded about his preliminary inquiry evidence. He said at the preliminary inquiry, he was asked about whether he took anything from the storage locker and said no. His explanation for not saying anything about the heater was that he was only asked if anything was taken from the locker.

[59] When asked why he was taking a heater in the summer, the officer responded that he thought it was a heater/air conditioner that blew hot air and cool air and that “those things are expensive”. He thought it was worth about $400.

[60] It was suggested to Officer Rerrie that the officers went to the storage locker and they searched it. They located cash and jewelry that was easily hidden in pockets or a duffel bag and the four of them took those items. In addition, it was suggested to him that the irony of a statue of the character of Tony Montana, a drug dealer in the movie Scarface, was not lost on the officers, and that they put the cover over it, took it, and were caught on the video. Officer Rerrie denied all of these suggestions. Counsel further suggested that the video surveillance system was being changed and so it appeared to the officers as though it was broken. Officer Rerrie denied this.

[61] Officer Rerrie denied that there had been a “heat check” by the police before they left the facility.

d) Affidavits relating to the videotaped evidence from All City Storage

[62] Defence counsel filed, with the consent of the Crown, affidavits outlining the circumstances under which the videos were seized. Crown counsel took no issue with the admissibility of the four video clips that were played repeatedly in court and from which the still images in Exhibit 13 were created.

[63] This evidence need not be summarized in any detail. Of relevance are the following facts:

In April 2014, all customers at All City Storage were sent a letter informing them that the security system was being updated. The updating began on May 12, 2014. As of July 5, 2014, Mr. Somerville’s locker had not yet been reached;
In the first week of July 2014, Mr. Somerville reported to All City Storage that his unit had been broken into. He was told that the upgrades had not yet been done for his unit and that his unit had not been accessed;
On July 3, 2014, Ms. Schofield wrote to the storage facility and advised that the facility had been unlawfully entered and that she required video from the facility for the period between June 23 and June 30, 2014.
On July 5, 2014, Ms. Schofield was advised by Martin Kelman of All City Storage that there is no way that anyone could have used the keys from their office to enter Mr. Somerville’s unit;
Mr. Somerville requested the security camera footage from the facility. This was provided to him and the thumb drive of the video footage was entered as Exhibit 11.

[64] The Crown was content that the affidavits be admissible for their truth without the need to call evidence from the affiants and without the need for cross-examination. There is no question that the videotape evidence accurately depicts the four officers on June 24, 2014.

e) The Recalled Officers

[65] It was agreed by counsel that after Officer Rerrie testified, Officers Savino, Muresan and Pinheiro would be recalled for further cross-examination. The basis for this was that they had all testified that they had no knowledge of a large item having been removed from the facility. Counsel were of the view that the officers should be given an opportunity to view the video depicting Officer Rerrie carrying an object to determine if the video refreshed their memories, and if they had any further explanation for what appeared in the video.

Officer Muresan

[66] Officer Muresan was recalled first. He was reminded that when he had testified previously, he had been sure that no officer took anything from the storage locker, but he had not recalled if anything had been taken from the facility.

[67] It was suggested to him that if a fellow officer was standing beside him with a three and a half foot item, he would remember. He responded that he really did not remember anything after the locker was secure. He said that at that point their day was done and that he was exhausted.

[68] Officer Muresan was then shown the video of the officers in the storage facility. Before showing the video, it was suggested to the officer that he knows that a figurine of Tony Montana from the movie Scarface was taken. He said that the suggestion did not refresh his memory. He recalled nothing being taken from the locker. He said he did not know about the hallway.

[69] After seeing the video clip of the officers coming down the elevator at 7:50:37 a.m., Officer Muresan testified that he had no idea what it was that Officer Rerrie was carrying in the elevator. He agreed that Officer Rerrie had a large item in his hands. He did not hear Officer Rerrie say anything about the fact that he was going to take something. Officer Muresan testified that he did not remember any of what is depicted on the video. He understood that there was a large item, but did not recall questioning Officer Rerrie about it and had no idea what it was. He did not recall if he noted it or not. Officer Muresan agreed that he was beside Officer Rerrie. He agreed that he was the exhibits officer and testified that he knew that nothing was taken from the locker. The locker was secured and they left. After that, he could not say which way they went, or whether they took an elevator and said that there was definitely nothing taken from the locker.

[70] Shown an image of the Tony Montana statue, as depicted in Exhibit 12, Officer Muresan said he had never seen the statue before. He was not sure how big it was.

[71] After the fourth video clip was played, depicting Officer Rerrie in the parking lot with the object, Officer Muresan was asked if it looked like Officer Rerrie was carrying the statue. It was suggested that Officer Muresan was walking directly behind Officer Rerrie, who was carrying something that looked like the statue. Officer Muresan could not say that it was. He was adamant that once they finished with the locker, the investigation was finished and he had no concern about any property. He did not know what it could be that Officer Rerrie was carrying.

[72] Officer Muresan took the photograph of the locker at the beginning of the execution of the search warrant. He denied counsel’s suggestion that it was post execution and testified that he was sure that it was first off. Asked how he was sure, he said that prior to execution, he always took a photograph. Asked whether he also takes exit photographs, he agreed that it was his practice to take photographs before a search and if there is anything damaged, he takes a picture after. In this case, he said that he did not do so after.

[73] Counsel suggested that the television had been in the back initially. The officer testified that the photograph was pre-execution, where the television appears to be in the front of the unit.

[74] Officer Muresan denied that the police located any jewelry boxes in the unit. He testified that he had no memory of seeing any jewelry in the unit, including any engagement ring, watch or King of Spades pendant. He also denied that the police located $25,000 in $100 bills, and said that the police located no cash in the locker. He emphasized that no one on his team stole jewelry or money or a Tony Montana statue.

[75] When he was asked again if he had spoken to Officer Savino after Savino testified earlier in the week on January 31st, Officer Muresan said that it was not during lunch, but that before that, Officer Savino came into the room in which he was waiting. He said that they had no discussion over lunch. Asked whether there was any discussion with Officer Savino before lunch in the hallway, Officer Muresan testified that there might have been discussion about who was up first or second. He could not recall if he had talked to Officer Savino at all in the hallway before lunch.

[76] Officer Muresan was asked if Officer Savino told him that he was going back to the station and said that he did. Reminded of his earlier evidence in which he had said that they did not speak at all, Officer Muresan said he was not changing his evidence, that they did not have a discussion, and that it was a harmless comment. When the earlier cross-examination was played back to the officer, it is clear that the officer had said before that he did not speak to Officer Savino at all at the lunch break. Asked whether there was an inconsistency, Officer Muresan said that Officer Savino told him he was going back to the office and that in his opinion, they had not had any discussion because Officer Muresan did not say anything back to him.

[77] When it was suggested to Officer Muresan that he knows that the defence had someone in the hallway and that is why he changed his evidence, he denied this. Officer Muresan said that he was not trying to explain a change in his evidence and that he was not trying to hide anything. Officer Savino told him he was going to the office and they had no discussion. They both went back to the office. It was suggested that in the office, they discussed what was happening in the trial because he knew that something “was up”. Officer Muresan said that there were no allegations at that time. He denied that he knew that something had been taken or stolen. He denied that he and Officer Savino went to discuss next steps.

Officer Pinheiro

[78] When he was recalled, Office Pinheiro repeated his earlier evidence that nothing had been taken by the police from the storage unit and nothing was seized from the facility. He was asked to confirm that all of the police left with what they came from. He said that was all that he recalled. Asked what he meant, he said that he knew they took nothing from the locker, and that he did not recall anything been removed from the facility. Asked what had changed, he said that nothing was seized from the facility. He did not remember if anything was taken from the facility. He agreed that they all left with what they came with, from his recollection.

[79] It was suggested to the officer that he did not take anything from the locker of facility. He agreed. He also agreed that he did not see a fellow officer take anything from the locker or the facility and that that other officers left with what they came with.

[80] Officer Pinheiro agreed that he had earlier said that no one came out of the facility with a large object. It was suggested to him that “we now know that is not the case” because there was video footage. Before he was shown the video, he was asked if he wanted to say anything. He responded that he would see the video, make comments on what he sees, and that he did not want to change his evidence and would answer the questions truthfully.

[81] After seeing the video, Officer Pinheiro agreed that at 7:50 a.m., Officer Rerrie had a large item in his hand. He testified that he had no idea what it was and no clue where it came from. He agreed that it is clear that Officer Rerrie was leaving with a big item and that Officer Pinheiro was beside him. He did not ask where it came from, or what it was, and testified “it is not my position to be asking him any questions”. Officer Pinheiro testified that it was the first time he had seen this. It was put to him that he was there and he said he had never seen that item and did not know what it was.

[82] Officer Pinheiro did not recall what he was doing after taking the elevator down when he appeared to be looking side to side. He did not recall if he was looking to see if anyone was there.

[83] After watching the final video clip of Officer Rerrie in the parking lot with the object under his arm, Officer Pinheiro agreed that he had been walking behind Officer Rerrie, who was carrying an item. He agreed that it was visible. Asked if he had seen it at the time, he said he did not recall seeing it at that time. It was put to him that at the time he would have noticed that Officer Rerrie had this item. He testified that now, he does not recall it at all.

[84] It was suggested to Officer Pinheiro that the item was a Tony Montano statue that came from the storage locker. The officer denied that they all knew what was going on. He disagreed on the basis that he knew that nothing was taken from the locker. Officer Pinheiro agreed that he had seen the movie Scarface twenty years ago and that the character Scarface is a notorious criminal. In the photograph of the statue marked as Exhibit 12, Tony Montana is carrying a machine gun. It was suggested that the Scarface statue with a machine gun was taken. The officer said that he had never seen that item before.

[85] Officer Pinheiro also denied that the officers had taken a diamond engagement ring, a watch, a gold pendant and rings in the locker. He also denied that the police saw any money in the locker.

Officer Savino

[86] When he was recalled, Officer Savino confirmed his evidence that he did not see any officer leave with a large item and that no large items were taken from the locker or the facility. He confirmed that he did not take any large items and that he did not see any other officer do so. He confirmed that he did not see an officer with a large item in the elevator, or on the parking lot, or put it into a vehicle.

[87] The video was then played for Officer Savino. He agreed that when the officers came down the elevator, Officer Rerrie had a large object under his arm. He agreed that he opened the door for Officer Rerrie to leave the elevator. Officer Savino testified that he did not know what was in Officer Rerrie’s arm. He testified that he had not seen the video before and that seeing it did not help him determine what was under the officer’s arm.

[88] It was suggested to Officer Savino that he would have noticed at the time that Officer Rerrie had something. He said that he did not recall seeing Officer Rerrie carrying anything. He testified that had he noticed something, he might have said something, but that he had no recollection of Officer Rerrie carrying that.

[89] It was suggested to the officer that he would remember this. He said that he did not. He had no recollection of this. It was the end of the shift. They were done their shift. He said he was not focused on who had what.

[90] It was suggested to Officer Savino that they took the Tony Montana statue. He said that he knew who Scarface was. The officer denied having seen a Tony Montana statue in the storage locker. He was shown the image of the statue and it was suggested to him that Officer Rerrie took it. Officer Savino denied it, but said that he did not know what was in his hand. He did not recall hearing Officer Rerrie saying he was going to take anything. After watching the fourth video clip, Officer Savino said that his memory was not jogged as to what it was that Officer Rerrie was carrying.

[91] Officer Savino said he had no independent recollection of holding the door open. He did not even recall taking the elevator. None of the videos helped him recall anything. It was suggested that if something was taken, it would stick out in his memory at least after seeing the video. Officer Savino said that the videos did not help. He said that it was not something that was important and that to him it was insignificant that a fellow officer was taking something from the location where they executed a warrant. He said he was not there to supervise the other officers.

[92] Officer Savino denied having seen valuables in the locker including a Tony Montana statue and jewelry (including an engagement ring, a watch, a pendant and diamond earrings). He also did not recall seeing $25,000 cash in a shoebox in the locker.

[93] Under further cross-examination about earlier in the week on January 31, and the lunch break, he was asked about having gone into the hallway. He was asked if he said anything to Officer Muresan. He said he had not. He denied that Officer Muresan said to him, “you’re still not done”. He said that he knew he had had contact with Officer Muresan when he was under cross-examination and said it was in relation to the scheduling. He was asked if he told Officer Muresan that he was going back to the office. He said that he did recall this.

[94] Officer Savino was reminded that on January 31, he had denied having spoken to Officer Muresan and now he was saying that he did not recall. Officer Savino clarified that he recalled speaking to Officer Muresan during one of the breaks when he left the courtroom. He said that Officer Muresan was in the waiting room and that he saw him there. He did not speak to him in relation to this case. It was suggested to Officer Savino that the police stole valuables, that Officer Rerrie was caught and that he and Officer Muresan were concerned about how the case was going so both went to the office and talked about it. Officer Savino denied this. He denied that they had any exchanges about going to the office. He did not recall advising Officer Muresan he was going back to the office.

f) The Evidence about a conversation between Officers Savino and Muresan

[95] The defence called law student Daniel Enright on the voir dire. He testified that on the second day of the voir dire, January 31st, he had been asked to sit in the hall and make notes. He was told to watch closely an individual who exited the courtroom (Officer Savino). When he did so, he observed that there was then mumbling between two men in the hallway. He did not hear everything that they said. He did hear one of them, who he referred to as “man bun”, clearly referring to Officer Muresan. That individual asked the witness, who had left the court room (Officer Savino), “you’re still not done” and the reply was “no” and that he had to go back to the office. Mr. Enright then rode the elevator down with the witness.

The Evidence of Lowell Somerville

[96] Mr. Somerville testified that he was thirty-five years old and that he has a criminal record. His record was entered as Exhibit 19. It includes five convictions for drug offences, as well as a conviction for failing to comply with a recognizance and possession of property obtained by crime.

[97] Under cross-examination, Mr. Somerville agreed that he had been in the business of selling drugs, including heroin. He also agreed that he was a poker player.

[98] It was Mr. Somerville’s evidence that in June 2014, he was living in the basement apartment of his parents’ home after moving out from a condominium he had been living in downtown. He had moved home to help with his father, who had cancer and kidney failure, and had put his things into a storage locker at All City Storage.

[99] Mr. Somerville said that the items in his locker included valuables, clothing, electronics and jewelry.

[100] After being arrested on June 23, 2014 and then released from custody on June 25, 2014, Mr. Somerville testified that he attended his storage locker. He noticed that things had been re-arranged and that the covering that he had over the statue was at the front of the unit on the ground. He looked through the unit and noted that there were things missing.

[101] Mr. Somerville testified that he had stored his Scarface statue in the locker. He had put two covers over it because it was valuable. He saw one of the tan covers on the floor when he went to the unit, as is depicted in Exhibit 5. He explained that the statue was of fictional character Tony Montana. The statue is modeled on Montana’s character, at the end of the movie Scarface, at the point at which he utters the phrase, “say hello to my little friend”, in reference to the gun he is carrying. His statue is depicted in Exhibit 12, which is a photograph that he took of the statue after he bought it at a store on Queen Street in Toronto. He described the statue as about 3 ½ feet tall on a thick, circular base that he also described as oval. It was made of carved wood and was hand painted. He described it as unique and “one of a kind”.

[102] In addition to the statue, Mr. Somerville testified that he was missing the following from the locker:

a gold chain with a king of spades pendant (depicted in Exhibit 22, tab 7, page 4) that was worth over $10,000. He said that he wore it playing poker for good luck;
poker winnings in a shoebox amounting to a minimum of $25,000 in $100 bills;
diamond earrings that were in a red velvet jewelry box in which he purchased them (depicted being worn by him in Exhibit 22, tab 7, page 2);
a women’s diamond ring that was in a box. He testified that he had bought the engagement ring for a woman named Tyra, with whom things had not worked out. He produced a photograph of the ring and receipt for it, setting out that it had a replacement value of $31,800 in January 29, 2010 (as depicted in Exhibit 22, tab 5);
gold rings that were his. He described them as two twin rings with diamonds; one that was white gold and one was yellow gold. The best image he had was him wearing one of them as depicted in Exhibit 22, tab 7, page 5). In addition to the engagement ring, he said that there were six or seven rings missing;
a 24 karat gold chain like the one he was wearing in Exhibit 22, tab 7, page 5;
a Breitling watch that he said was valued at about $30,000. He produced a receipt for the watch that showed that he had repairs done on it in September 2013 and that it was returned to him on October 3, 2013. The receipts from La Suisse were copied in Exhibit 22, tab 6.

[103] Asked why he did not put his money in the bank, he testified that was paranoid about being defrauded. He was asked why he had not stored his jewelry in a safety deposit box and said that he did not use banks. It was suggested to Mr Somerville that it did not make sense for him to have stored all of these valuables in a storage unit. He said that the facility was secure and that he had no reason not to put them there. He believed it was a secure location. Pressed, he said that he felt it was a safe place to leave his valuables, which he acknowledged were worth at least $75,000.

[104] Mr. Somerville said that after he realized that the items were missing, he spoke to counsel and that a letter was sent to the facility on July 3, 2014.

[105] Mr. Somerville testified that he was subsequently provided with the videotape from the facility.

[106] Mr. Somerville testified that he had heard Officer Rerrie say that he had seen the heater in the hall. He testified that the facility was always kept clear and that he had been told never to leave stuff in the hall. He testified that he had never seen items in the hall with notes indicating that they were free.

[107] After watching the video of the officers in the storage facility, Mr. Somerville was asked about the item that Officer Rerrie was holding. He said that the sheet cover looked like the tan one he had over the statue and that he thought from the shape that it was his statue and that Officer Rerrie was holding the statue by the waist. He thought that he could see the shape of the gun in one of the video clips. When he watched the final clip of video, he thought from the base, including the thickness of the base, that it appeared to be his statue.

[108] Mr. Somerville was cross-examined about his evidence of the shape of the base. It was suggested to him that he had initially said that the base was circular, and later said that it was oval. He testified that it was not a perfect circle and that there was a thick base.

C. Legal Principles

[109] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[110] Section 24 of the Charter provides:

Enforcement of guaranteed rights and freedoms

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[111] An order for a stay of proceedings under s. 24(1) of the Charter is, of course, the most drastic remedy that can be made by a criminal court because it permanently stops proceedings against an accused. As Justice Moldaver noted in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 30, a stay means that “the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits”. For these reasons, the Supreme Court of Canada has been clear that the threshold for obtaining a stay of proceedings is high and reserved for “the clearest of cases” (R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 68, R. v. Regan 2002 SCC 12, [2002] S.C.J. 14 at para. 53).

[112] The circumstances in which a stay is warranted will be rare. However, there are two categories of cases in which the Supreme Court of Canada has recognized that a stay is warranted. The main category occurs when state conduct compromises the fairness of an accused’s trial. The second, or “residual” category, occurs when state conduct risks undermining the integrity of the judicial process.

[113] In Babos, Moldaver J. explained that there are three requirements to be met before a stay is warranted in either category. He stated, at para. 32:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements: (1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54); (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[114] In the main category, the question at the first stage of the test is whether the accused’s right to a fair trial has been prejudiced and whether there will be ongoing prejudice to the accused through the conduct of the trial.

[115] When the residual category is invoked, the question at the first stage is whether the state has engaged in conduct that is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system” (Babos, at para. 35).

[116] At the second stage, the question is the same for both categories: whether a remedy short of a stay is capable of redressing the prejudice. In the main category, the prejudice is to the accused’s right to a fair trial. Procedural remedies are more likely to be able to redress the ongoing prejudice of a trial. In the residual category, where the prejudice is to the integrity of the administration of justice, any remedy must redress that harm.

[117] The balancing at the third stage is only necessary if there is uncertainty about whether a stay should be granted after the first two stages are considered (Babos, at para. 40, Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at para. 29). For the main category, there will often be remedies short of a stay to redress concerns.

[118] With the residual category, however, there is a heightened importance in balancing as the court must determine whether the integrity of the administration of justice is better protected by a stay or by a trial, despite the impugned conduct. There must be consideration of the nature and seriousness of the impugned conduct, whether it is isolated or systemic, the circumstances of the accused, the charges, and society’s interest in having the charges adjudicated on their merits. The more that conduct shocks the conscience of the community or offends its sense of fair play, the less likely it is that society’s interest in a trial on the merits will prevail in the balancing process.

D. Positions of the Parties

[119] The defence position is that the officers intentionally stole items from Mr. Somerville’s locker and that this has been proven by the video depicting Officer Rerrie leaving the facility with the Tony Montana statue under his arm. It is the defence position that all of the officers were aware of the theft and that the four of them lied about what they had done. In these circumstances, the defence position is that the only appropriate remedy is a stay of proceedings.

[120] The Crown’s position is that the applicant, Mr. Somerville, is an unsavoury character with a criminal record. It is implausible that he would have had all of the valuable items he claims in the storage locker. If he did, the Crown questions why he would have been living in his parents’ basement. The Crown says that if I reject Mr. Somerville’s evidence about having the valuable items, I should find him not credible. It is submitted that his evidence that Officer Rerrie stole a Tony Montana statue from his storage locker should be rejected, as should the evidence that cash and jewelry were stolen by the officers. As I understand the Crown’s position, it is that if there was police misconduct, it should be addressed through a complaint to the Officer of the Independent Police Review Director, a civil action for conversion or a complaint to the Toronto Police Service about an alleged theft. Alternatively, the Crown says that if the applicant were convicted, the alleged police misconduct could be considered on sentence.

E. Factual Findings

Factual Findings about the Tony Montana Statue

[121] I make the following factual findings surrounding the execution of the search warrant at Mr. Somerville’s locker.

[122] First, while Mr. Somerville has a criminal record and apparently makes a living selling illegal narcotics and gambling, I accept his evidence that he owned a valuable Tony Montana statue. I accept that Exhibit 12 is an accurate depiction of what the statue looked like when he purchased it. I see nothing surprising about the fact that his photograph does not include the base of the statue and accept his description of the base. I accept that the statue was stored in his storage unit, under two beige cloth coverings. I accept his evidence that it was located at the back of the unit at the time that the search warrant of the storage unit was executed.

[123] I do not accept Officer Rerrie’s evidence that he took a free heater from the hall of the facility after the execution of the search warrant.

[124] There are a number of compelling circumstances that, cumulatively, lead me to have very serious doubts about the veracity of Officer Rerrie’s evidence:

There is nothing in Officer Rerrie’s notes about having taken the heater. If this was the innocent matter he portrays it as, there is no explanation for why he would not have recorded it in his notes.
It is strange indeed how this evidence came to light through Officer Rerrie’s testimony. He testified at the preliminary inquiry. He denied having taken anything from the storage locker. His explanation for not mentioning having taken the heater from the facility at that time is that he was not asked if he had taken anything from the facility. I find this to be a clever response which, while perhaps technically accurate, is unpersuasive and does not accord with common sense. If Officer Rerrie had nothing to hide about having innocently taken a heater, as he now says, it seems to me very likely that he would have volunteered his evidence about it at the preliminary inquiry;
Similarly, Officer Rerrie’s evidence on the voir dire seemed to be carefully crafted to be “technically accurate”. Crown counsel asked him what if anything was seized from the storage facility. The officer responded that “nothing was seized from this unit”. While that seemed benign to me at the time, with the benefit of hindsight, it seems to have been carefully worded to avoid talking about the heater or whatever else he took;
I find it unlikely that there would have been a heater in the hallway. Mr. Somerville testified that he understood that the facility was to be kept clean and that he had never seen objects left in the hall to be taken. None of the officers mentioned seeing the heater or anything else in the hall;
I find that the object that Officer Rerrie carried out was covered by something other than the black or dark green garbage bag he testified about. He was unequivocal that the heater was in a dark garbage bag. The fact that he was not, in fact, carrying a dark garbage bag on the video raises a significant inconsistency between his version of events and the facts as I find them to be.
In my view, the object Officer Rerrie carried was covered by a beige covering. I accept that the covering appears similar to the covering that Mr. Somerville said he had over the statue in the storage unit. It was his evidence that there were two beige cloth coverings in the unit. Exhibit 5 confirms his evidence that there was what appears to be one beige covering on the floor. The covering on the floor and over the object carried by Officer Rerrie appear to be very similar in colour and texture. This evidence strongly suggests that the covering on the object Officer Rerrie carried came from the storage locker. This, of course, further undermines Officer Rerrie’s evidence that the object was covered by a dark garbage bag and suggests that the covering was one of the ones Mr. Somerville used to cover the statue;
I find it highly unusual for a police officer in Officer Rerrie’s position, who had been up working on this case all night, would have taken the time to inspect an item in the hallway at a facility where the police had just executed a search warrant. The other officers all claimed to have been tired and said that after they finished in the unit, they just wanted to leave. It seems very peculiar that Officer Rerrie, in this situation, would have inspected the heater at all. This is particularly so when it was June – a time of year when a heater was really not a necessity. At one point, Officer Rerrie seemed to suggest that it was a heater/cooler, perhaps to bolster his evidence as to why he took it. The idea that he took any such object is highly unlikely in these circumstances;
Officer Rerrie testified that after inspecting the heater, he decided to take it and that he told the other officers that he was going to take it. While it makes sense that he would have advised the officers that he was taking a large object like this from the building in which they had executed the search warrant, it is striking to me that not one of the other three officers had any recollection of Officer Rerrie having told them that he was going to take an object. On Officer Rerrie’s evidence, the others all would have known what he was doing. Yet, on their evidence, none of them had any recollection of him taking a large object from the facility – either before or after seeing the videotape;
There is no evidence whatsoever confirming Officer Rerrie’s evidence that he took a heater. He testified that he threw it out within a couple of days;
I find Officer Rerrie’s description of the heater is not consistent with the shape of the object that he carried out of the facility as depicted in the images and the videotape clips. More specifically, the object that he carried out does not appear to me to have had the uniform shape that he described. In addition, it appears to have a much narrower top part than he appears to have described.
I find, as well, that the shape of the object that was carried out of the facility by Officer Rerrie appears very similar to the shape of the statue of Tony Montana depicted in Exhibit 12. There is what appears to be a head at the top. The object widens as though for shoulders. The object has what appears to be a thick base, consistent with the sketch of the base of the statue drawn by Mr. Somerville and entered as Exhibit 21.

[125] In reaching my conclusion that Officer Rerrie did not take a heater and took the statue, I have also considered the evidence of the other officers involved in the execution of the search warrant at the storage unit.

[126] Each of the other officer was unequivocal that nothing was taken from the storage locker and that they had no knowledge of the Tony Montana statue. Having reviewed the evidence of the officers both initially, and their evidence after being shown the video of them in the storage facility, I have serious concerns about their testimony as well. I say this for the following reasons:

When each of the officers testified initially, each seemed very concerned with drawing a critical distinction between whether anything was seized from the storage unit and whether anything was taken from the facility. I have set their evidence out in detail already. At the time I heard it, it was clear to me that they were trying to emphasize that nothing was seized from the unit. But, when it came to answering whether anything had been seized from the facility, each officer was far less sure. This seemed odd and inexplicable to me at the time. There was absolutely no reason for them to draw this sort of arbitrary distinction unless they were trying to hide something. They certainly had no explanation for why they were so sure about the storage unit, but less sure about the facility. Having reflected on the evidence as a whole, I find that the only explanation for this unusual and otherwise inexplicable distinction between the storage unit and the facility was because the officers knew that Officer Rerrie had taken something that he should not have and that they wanted their evidence to be vague so as to neither reveal what Officer Rerrie had done nor perjure themselves;
When they were recalled and shown the videotape, each of the officers denied having any recollection of Officer Rerrie having carried a large item out of the facility. I do not accept this evidence. I do not think it is possible that these officers, who were in very close proximity to Officer Rerrie, have no memory at all of him leaving the facility with this sort of object. In particular, I would think that at a minimum, Officer Muresan, the exhibits officer responsible for documenting anything seized, would have remembered seeing Officer Rerrie with something like this. The other officers would remember this sort of unique situation as well;
Each of the officers also testified, after seeing the videotape, that he had no idea what Officer Rerrie was carrying. Each officer agreed that he would have seen that Officer Rerrie was carrying a large object. None testified to having made any inquiry about the object. I do not accept that the officers are credible on this point. I find it inconceivable that these officers, who had to have seen Officer Rerrie leaving the second floor on the elevator with the large object, and then leaving the storage facility carrying it concealed under a covering, would have said nothing at all to him about it. I just cannot accept this evidence. They had executed a search warrant. They all say that nothing had been seized from the storage locker. How can it possibly be that no one would not have asked Officer Rerrie what he had under the beige covering? I find that if they did not inquire about the object in the elevator or parking lot, it can only be because they already knew precisely what Officer Rerrie had;
I found that when the officers were recalled and shown the videotape, each of them had a very peculiar and inexplicable memory of the events of the evening. Each was able to say with certainty that nothing was seized from the storage unit. Yet, each had a huge memory gap about what Officer Rerrie was carrying. Each professed to have no memory of even having seen Officer Rerrie with the object. In my view, it is not the case that the officers have no memory. Rather, they have decided that they would prefer to testify that they do not recall what happened, rather than to implicate Officer Rerrie in taking the statue or acknowledge their awareness of what he was doing at the time.
At the time these officers testified, particularly when they were recalled, their manner of answering questions seemed evasive to me. There were often long pauses. They appeared to be struggling with how to respond to probing cross-examination. The distinct impression I had from watching them, and from the manner in which they answered questions, as confirmed by having listened to the audiotape of their evidence, was that they were not being truthful and forthcoming in their evidence;

[127] I do not know what precisely happened when the officers executed the search warrant of the storage unit. It seems most likely that one of them found the statue and that a number of them recognized the statue as Tony Montana, a renowned drug dealer in a movie that they were familiar with. Everyone present at the trial seemed familiar with the movie and with the character, and I was invited by all counsel to accept that Tony Montana is the lead character in the movie Scarface. The irony of finding a statue of a drug dealer in a storage unit of a person they had just arrested for drug dealing is obvious. For whatever reason, I find that one or more of the officers decided that they would take the statue.

[128] I conclude from the evidence that all four officers were aware that Officer Rerrie had the Tony Montana statue belonging to Mr. Somerville under the beige covering when they left the second floor. Each officer knew that this was something that they had no right to take. Perhaps because they never suspected a drug dealer would complain, or would be believed if he did, they committed what they knew was a theft of property. Perhaps they believed the video cameras in the facility, which were being changed, were not working. They all went along with this.

[129] I find, further, that each of the officers decided that he was not going to be truthful in court. When Officers Savino, Muresan and Pinheiro first testified, each tried to walk a narrow path through cross-examination that would enable him to avoid telling a deliberate falsehood. It would be difficult to find that these officers lied had this been the only evidence that there was.

[130] Officer Rerrie then testified. He had carried the Tony Montana statue from the facility. Rather than acknowledge having done this, he chose to fabricate evidence about having taken a heater to try to justify what he may, by that point, have suspected was caught on video. There were troubling aspects of his evidence: he was wrong about there having been a dark green or black garbage bag, the beige covering looks like the one from the storage unit, the other officers had no memory of being told that he was taking something. Perhaps most importantly, the video depicts him carrying an object that looks like the photograph of Mr. Somerville’s Tony Montana statue. It does not look like the heater Officer Rerrie described.

[131] When they were recalled, the other three officers also chose to lie to the court. They had to have known what Officer Rerrie was carrying. They knew that the Tony Montana statue was stolen. They chose not to tell the truth. They lied when they told the court that they had no memory of what happened and that the video did not refresh their memories. I cannot accept their convenient memory losses.

Factual Findings about the other items Mr. Somerville alleges were stolen

[132] Mr. Somerville testified about a significant number of other items that he says were stolen from the storage unit including cash and jewelry. He said that he noticed this right away. He had receipts or photographs that suggest that he did, at some point, own the items that he described as having been stolen.

[133] I found Mr. Somerville to be largely credible. There were no significant inconsistencies in his evidence.

[134] The officers denied having taken these other items.

[135] I cannot conclude, on a balance of probabilities, that the officers stole these items.

[136] First, unlike the evidence in relation to the statue, where it is clear from the video that Officer Rerrie removed something that appeared to be the statue, there is no such confirmation in relation to the other items. I am hesitant to accept the uncorroborated evidence of Mr. Somerville about the jewelry and cash in the face of the denials of the four officers. Second, while it makes sense to me that Mr. Somerville would have stored the statue in the unit, I am less persuaded by his evidence that he would have stored the other, much more valuable items, in that locker. They were smaller and more portable. Had he had them in his possession, it seems to me less likely that he would have kept them in the storage unit than the statue.

[137] That said, I make no credibility finding against Mr. Somerville in relation to the other items. I am just not able to make the finding he seeks that the officers stole those items.

Factual Findings about the alleged conversations between Officer Savino and Muresan on January 31, 2017

[138] There was a clear order made by me that the police witnesses were to have no communication with each other during the voir dire. Mr. Somerville argues that the evidence reveals that Officers Savino and Muresan did, in fact communicate during Officer Savino’s evidence and that they mis-led the court. It was suggested in cross-examination that they were concerned about how things were going in court and so discussed matters at the police station.

[139] The evidence does not support a conclusion that the officers had any real discussion about the evidence during the voir dire, particularly at the police station. While I accept that there are some inconsistencies between the evidence of the officers as to their contact, I do not rely on this in my analysis.

F. Analysis

[140] The applicant says that his case falls under both prongs of the abuse of process doctrine. He asserts that his right to a fair trial was compromised by the conduct of the police, and that the officers’ conduct falls within the residual category that undermines the integrity of the judicial process. The Crown submits that this case involves the residual category of abuse of process.

[141] In my view, this is a case that falls under the residual category of abuse of process and my analysis follows that set out for such cases.

Is the state conduct so offensive to societal norms of fair play and decency that proceeding to trial would be harmful to the integrity of the justice system?

[142] The first question to consider, therefore, is whether there has been state conduct in this case that risks undermining the integrity of the administration of justice. Is the state misconduct so offensive that proceeding to trial would harm the integrity of the justice system?

[143] Search warrants are executed in this country on a daily basis. In executing search warrants, police are empowered to enter into otherwise private places to search for evidence. Police officers are entrusted to execute search warrants in accordance with the terms upon which they are granted. They are required to carefully document what they seize during the execution of any warrant.

[144] I expect that it is very common for officers to come across items of value in the course of executing search warrants. Unless the police have the authority to seize such items, they must be left behind.

[145] In my view, there can be no question that the conduct of the police in this case prejudiced the integrity of the justice system. I have found that Officer Rerrie stole Mr. Somerville’s Tony Montana statue from his storage unit. This breach of the trust that is given to the police is enormous. I found that Officer Rerrie lied about what he did. I found, further, that Officers Savino, Muresan and Pinheiro knew what Officer Rerrie did at the time, and came to court and lied about their knowledge by claiming to have no memory of Officer Rerrie having taken anything. The officers all lied with the intention of deceiving the court about what they had done.

[146] It is hard to imagine conduct on the part of police that more seriously undermines the integrity of the justice system than officers who steal during the execution of a search warrant and then, with the intent to mislead the court, lie about their own conduct. I cannot say what their motivation was. I cannot say why none of these officers had the courage to admit the truth about what had happened. I do say that their conduct at the storage unit and in court is not only profoundly disappointing, but shocking. It is shocking to the court and, I have no doubt, is shocking to the community. The community expects much, much better from their police.

[147] In my opinion, police officers who breach the community’s trust by taking advantage of an opportunity to steal while executing a search warrant, and then perpetuate their wrong-doing by lying about in court truly undermine, by their conduct, the integrity of the justice system.

Is a remedy short of a stay capable of redressing the prejudice?

[148] At the second stage, the court must consider whether there is a remedy short of a stay that is capable of redressing the prejudice to the justice system caused by the conduct of the four officers. The goal is not to provide redress to Mr. Somerville. It is to determine whether there is an alternative remedy that will adequately dissociate the justice system from the impugned police conduct going forward (Babos, at para. 39).

[149] The Crown has proposed a number of alternative remedies.

[150] It is the Crown position that the exclusion of evidence would not be an appropriate remedy because the evidence was all obtained prior to any police misconduct.

[151] Although not argued by the Crown, I have considered the Court of Appeal’s recent decision in R. v. Pino, 2016 ONCA 389. In that case, the Court considered whether evidence obtained prior to a s. 10(b) breach could be excluded under s. 24(2) of the Charter. Writing for the Court, Laskin J.A. summarized at para. 72 the considerations that should guide the court’s approach to whether evidence was “obtained in a manner” as required by s. 24(2) of the Charter:

The approach should be generous, consistent with the purpose of s. 24(2)
The court should consider the entire "chain of events" between the accused and the police
The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
But the connection cannot be either too tenuous or too remote.

The Balancing

[158] Having found the state misconduct as serious as I have, and having concluded that there is no alternative remedy to a stay, I need not go to the third stage, in which a balancing is undertaken. However, in the event that there is any question with respect to the first two stages, I will proceed to conduct the balancing as well.

[159] This is the stage at which the question must be asked as to whether the integrity of the justice system is better served by staying the proceedings or by proceeding with the trial, despite the police misconduct. It is at this stage that I must consider the very serious charges faced by Mr. Somerville.

[160] I recognize that the drug charges against Mr. Somerville are very serious. Canadian courts have repeatedly commented on the pernicious effects of drugs across society. Heroin is among the worst of these drugs. Mr. Somerville had in his home heroin that was worth over $6,000 when sold at the low end of $240 per gram. Crown counsel advises that were Mr. Somerville to be convicted, the Crown would be seeking a sentence in the three to five year range. I accept that a sentence in a penitentiary range would be likely in the event of a conviction. Such a sentence reflects the seriousness of the offences, as well as the pressing need for denunciation, general and specific deterrence.

[161] I also recognize that a stay of proceedings would forever prevent a trial in a case in which it seems highly likely that Mr. Somerville would otherwise be found guilty. There are compelling reasons to permit this matter to go to trial and powerful justifications as to why it is in the public interest for a trial on the merits.

[162] But, justice cannot be only about adjudicating Mr. Somerville’s alleged criminal acts on their merits. It must also be about how the justice system does so, and about the integrity of the process. The integrity of the process is greatly affected by the integrity of the state actors involved in that process.

[163] In my view, the balance in this case favours a stay of proceedings. The court must distance itself from this kind of egregious police conduct.

[164] This was a theft of valuable property during the execution of a search warrant. The police had every reason to believe that they could steal with impunity and then, if challenged, could suggest, as they did, that the stolen item was never found in the storage unit. I am sure they never imagined that they would later be confronted with the videotape. And, without the videotape, the court would certainly have been much less likely to make the findings that were made in this case. By itself, the police mis-conduct at the storage facility is completely unjustifiable and intolerable.

[165] But for me, what is worse, is that four officers attempted in their testimony, to deliberately mis-lead the court. Officer Rerrie fabricated a story that, for all of the reasons I have set out, came across as palpably false. The other officers were noticeably cagey and coy in their evidence before they were aware of the existence of the videotape. When they realized that there was a videotape, each officer chose to claim memory loss. I found those claims to be unbelievable and conclude that the officers testified in an effort to perpetuate a deception on the court and to try not to implicate themselves in what they knew was wrong.

[166] No one – not these officers, not the Peel Regional Police, not Mr. Somerville, and certainly not the public, can be left with an impression that the court tacitly approves the course of conduct taken by these four officers. This conduct, both during the investigation and at the trial before me, is profoundly and demonstrably inconsistent with what a fair justice system requires. It is only by permanently stopping these proceedings through a stay that the court can effectively distance the justice system from this gross and continuing misconduct: R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131 at paras. 103-107.

[167] I have no hesitation in concluding that this is one of the “clearest of cases” for the granting of a stay. Going forward with a trial in light of the police conduct would, in my view, be “offensive” (Tobiass at para. 91).

[168] I grant a stay of proceedings under ss. 7 and 24(1) of the Charter.

Woollcombe J.

Released: May 31, 2017

R. v. Somerville, 2017 ONSC 3311

Case Summary