CITATION: R. v. Lewis, 2017 ONSC 6465
COURT FILE NO.: Crim J (F) 815/15
DATE: 2017 10 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Dykstra, for the Crown
- and -
HOPETON LEWIS
M. Segal, for the Accused
HEARD: December 13, 14,15, 16, 2016, January 4, 5, April 3, 4, 5, May30, 31`, June 1, July 6, 25, August 14,16, 2017
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTORDUCTION
[1] Mr. Lewis, the accused, stands charged that he, on or about the 28th day of April, 2014, did have in his possession cocaine, a schedule 1 controlled substance, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.
[2] On April 28, 2014 the Peel Regional Police Services executed a search warrant against the accused’s residence at 17 Lavallee Crescent, Brampton, Ontario (17 Lavallee). The accused was arrested and the search of the house and the accused’s vehicle resulted in the police discovering a significant amount of cocaine.
[3] The issue before the court is whether or not the accused had possession of cocaine. Did the accused have knowledge of and control over the cocaine?
[4] It is conceded by counsel for the accused that if her client is found to be in possession, it would be for the purposes of trafficking given the amount seized and its value (see Exhibit 7).
[5] The accused has before the court an application to quash the search warrant on the grounds that the police did not have the reasonable and probable grounds necessary to support the issuance of the warrant. It is submitted therefore that the accused’s section 8 Charter Rights have been violated (unreasonable search and seizure) and the cocaine found pursuant to the warrant ought to be excluded as evidence.
[6] The accused also submits that the search of his vehicle was done without a warrant and represents a further breach of his section 8 Charter Rights.
[7] The matter proceeded before me without a jury, as a blended voir dire/trial.
EVIDENCE
[8] In 2014, the police received information that the accused was dealing cocaine out of his home at 17 Lavallee. As a result of that information, the accused became the subject of a police investigation and police surveillance.
[9] Surveillance commenced on April 9, 2014 when a “drive-by” of 17 Lavallee was conducted. A 2005 GMC pickup truck, silver in colour, was observed parked in front of the residence. The vehicle was registered to Xtreme Landscaping.
[10] A further drive-by was conducted on April 13, 2014, and a black Ford vehicle was observed at 17 Lavallee, bearing Ontario license plate marker, BRPY828. The vehicle was registered to Enterprise Rent-a- Car in Toronto and was rented to the accused.
[11] The next surveillance was conducted on April 16, 2014, commencing at 7:47 am. It was observed on that occasion that there were two security surveillance cameras on the front of the residence at 17 Lavallee.
[12] An unknown black male, later identified as David Gentles, was observed exiting the house and getting into the silver pickup which he then parked on the road. The accused was observed sitting in the driver’s seat of the black Ford, also in the driveway. Gentles got into the front passenger seat of the black Ford and the car exited the driveway.
[13] Police surveillance continued on the black Ford which travelled to the 8th Line where Gentles was dropped off. The accused then drove to a plaza where he was observed entering a bank. Thereafter the accused drove his vehicle home to 17 Lavallee arriving at 9:37 am.
[14] At 10:58 am the accused left his home and drove southbound on Mississauga Road, eastbound on Highway 401, and then southbound on Highway 427. The car exited the highway at Queensway Blvd. and entered the parking lot at the Trillium Healthcare Centre.
[15] The accused remained in his car, in the parking lot for a short period of time and then exited the lot and proceeded westbound on the QEW highway at a high rate of speed.
[16] The officers who observed all of this believed the driving maneuvers of the accused represented, “counter-surveillance tactics” conducted by the accused to determine if he was being followed.
[17] On April 17, 2014, the accused was observed operating the black Ford and it was noted that the accused conducted numerous heat checks, that is, further counter-surveillance tactics. On one occasion the accused proceeded into the intersection of Creditview Road to make a left turn. While in the middle of the intersection the accused, at the last minute, turned right.
[18] The accused drove into a subdivision for no apparent reason and thereafter, waited on a green light for 30 seconds and then made an abrupt right turn.
[19] In the Information to Obtain a Warrant (ITO) three further counter surveillance maneuvers were noted.
[20] On April 28, 2014, the accused and Gentles were observed in the black Ford and were observed driving to various retail stores. At 10:53 am the accused drove to 2235 Robin Street, Mississauga, where he backed the vehicle into the driveway and entered the back yard. He was then seen returning to the car with a white bag in hand, which he placed in the trunk.
[21] Police officers continued to follow the accused’s vehicle which was observed, at one point, to accelerate at a high rate of speed and then pull a U-turn. The officers believed that this driving and behaviour was due to the accused picking up some drugs from his stash house on Robin Street.
[22] The accused was also observed stopped at a red light in the through lane. When the light changed the accused was observed waiting a minute and then making a right turn, consistent with counter-surveillance efforts.
[23] Ultimately, on April 28, 2014, at 12:35 pm, the accused and Gentles returned to 17 Lavallee in the black Ford. Police Constable McDowell, had the premises under surveillance and observed the following.
[24] The accused parked the car in the driveway and exited the driver’s door and proceeded towards the trunk. Gentles grabbed a clear plastic bin from the backseat and walked to the trunk area of the Ford. The accused was observed grabbing a white bag with the multiple bags of white powder and placing approximately six smaller bags into the clear bin.
[25] The accused then entered the garage with the white bag with white powder and Gentles placed the clear bin, also containing white powder, in the back seat.
[26] In the ITO it was noted that Officer McDowell believed that each smaller bag was approximately one ounce of powdered cocaine.
[27] At 12:50 pm the police observed a black man, who they believed to be the accused (it was, in fact, Mr. Gentles), exit the house and enter the black Ford and drive away. The driver was observed pulling a U-turn which the police believed was another heat check. He drove to an address on Mississauga Road and entered the premises. He (Gentles) exited five minutes later and returned to his vehicle. The police were of the opinion that these observations of who they believed to be the accused, was consistent with a drug transaction.
[28] At 1:12 pm Gentles returned to 17 Lavallee and entered the house. Thereafter a Lexus motor vehicle arrived and the driver entered the premises leaving a short time later. The police set out in the ITO that they believed that this was consistent with a drug transaction.
[29] On the basis of these observations the police were of the opinion that the offence of possession for the purpose of trafficking was being committed at 17 Lavallee and that the accused was dealing cocaine out of his residence.
[30] The police applied for and were granted a warrant to search the premises at 17 Lavallee.
[31] The search of the house revealed cocaine hidden in a “dip bar”, which is a piece of exercise equipment, which equipment was located in the accused’s bedroom (the master bedroom).
[32] Cocaine was also discovered in the black Ford, hidden in the roof above the interior light fixture which had to be removed to locate the cocaine.
[33] David Gentles is the accused’s brother who had recently moved to Canada from Jamaica. He was, at the relevant times, residing at 17 Lavallee, as a guest of the accused.
[34] Both the accused and Gentles were arrested when the search warrant was exercised and both were charged with possession of cocaine for the purpose of trafficking.
[35] Shortly before the preliminary hearing, in January, 2015, the charges were withdrawn against Mr. Gentles on the condition that he sign an affidavit prepared by the Crown (Exhibit 19).
[36] The Crown did not call Gentles as a witness, which forced defence counsel to call him as a defence witness.
[37] The Crown’s witnesses were all members of the Peel Police assigned to the gun and gangs unit. They were involved in the investigation and surveillance and participated in the execution of the search warrant and the arrest of the accused and Mr. Gentles. Their collective observations are set out above.
[38] Exhibit 2 is a copy of the security video as recorded by the accused’s security system. The camera which made the recording was positioned in such a way that much of the front of the house, including the garage, were under observation. The video recorded the accused and Mr. Gentles returning home in the black Ford at approximately 9:44 pm, on April 28, 2014. They were arrested and handcuffed. The video then recorded the search of the black Ford by at least three officers.
[39] Officer McDowell on April 28th was the officer in charge and was questioned on his personal observations on that day in comparison to the security video (Exhibit 2).
[40] The security cameras also recorded the black Ford arriving at 17 Lavallee earlier on the 28th, at 12:35 pm. For the most part, the actions of the accused and Gentles, as observed on the security recording, were consistent with Officer McDowell’s testimony. He testified that he was in position to personally observe the transfer of the white powder by Gentles and the accused while they stood at the trunk of the black Ford. The officer was positioned about 150 feet away and was using binoculars. The officer was of the belief that he, from his vantage point, could see more than could be observed on the video.
[41] The officer agreed that his observations were significant and conceded that without them the police did not have the grounds to apply for a search warrant.
[42] He could not say that the white powder he observed was cocaine but testified that it looked like cocaine.
[43] The officer further agreed that, at best, heat checks observed when the accused’s black Ford was the subject of mobile surveillance, suggest that the accused knew he was being followed.
[44] Officer McDowell agreed that the police run notes for April 28th did not include his observations made on and after 12:35 pm. It would seem that he forgot to call out his observations over the police radio so that they could be noted by the officer completing the run notes. This failure to callout was a breach of police protocol, as confirmed by Officer Utigard who was tasked with completing the notes.
[45] In regards to his observation of 17 Lavallee, Officer McDowell testified that he left his observation post at around 1:10 pm after observing who he thought was the accused leaving the residence driving the black Ford. He met up with fellow officers at 1:15 pm to whom he related what he had observed. During his cross-examination, the officer conceded that his identification of the accused leaving in the black Ford at 1:10 pm was, in error and agreed that, in fact, it was Mr. Gentles who left alone, driving the vehicle.
[46] As to his April 28th observations, he believed that cocaine was divided and some put in the back seat, “to be moved”. The rest of the product was taken to the garage.
[47] When the warrant was exercised, Officer McDowell searched the master bedroom, occupied by the accused. He described the room and the house generally to have very little furniture, without a lot of clutter.
[48] He discovered cocaine hidden in the tube of one of the pieces of exercise equipment (later identified as a dip bar). (Exhibit 5, Tabs 33-35, Exhibit 10). There were larger and smaller bags of cocaine discovered, the larger bags being sent for fingerprint analysis.
[49] Officer McDowell also found in the master bedroom, a calendar which he believed was a debt list (Exhibit 5, Tab 41).
[50] Officer McDowell testified that four cell phones were found in the possession of the accused, and two cell phones were found in the possession of Mr. Gentles.
[51] Detective Masnaghi, on cross-examination, agreed that all the packages found, whether in the Ford or the house should have been finger printed. Detective Masnaghi was also of the opinion the vehicle search was proper as incidental to arrest.
[52] Officer Turner was designated as the exhibits officer for the purposes of executing the search warrant which commenced at 9:50 pm. He entered the residence at 17 Lavallee and photographed every room prior to the rooms being searched. He was advised at 10:22 pm that two bags of drugs were found in the roof of the car (the black Ford) (Exhibit 5, Tab 28).
[53] The larger of the two bags contained 18 smaller “dime” bags.
[54] Officer Turner was called to the master bedroom to photograph what had been located on shelves in the closet. Found in a DVD box were bundles of currency each marked as a thousand dollars, totalling $9,000. Also found were two keys.
[55] Located and photographed in other areas of the house were what could be described as drug paraphernalia such as scales and baggies.
[56] Officer Turner photographed the nine bags of cocaine located in the tubing of the dip bar, totalling 68 grams.
[57] A leaf blower was discovered in the garage containing a bag of a white powdery substance which ultimately did not test positive for cocaine.
[58] Also discovered was a shop vacuum in which were found three zip lock baggies of white powder which did not test positive for cocaine.
[59] Officer Turner conceded that no evidence of any value was found on the cell phones seized by the police.
[60] Turning now to the defence evidence, as noted, the Crown chose not to call David Gentles as a witness. Defence counsel believed his testimony was important to the case and was required to call him as a defence witness. Counsel for the accused is relying on the defence of an, “alternate suspect”, being David Gentles.
[61] David Gentles arrived in Canada, from Jamaica, in March, 2014. Upon his arrival he went to live with the accused who also hired him to work in his landscaping business, operated under the name of Xtreme Landscaping. He testified that he was doing alright (financially) in Jamaica but came to Canada without any money.
[62] Mr. Gentles applied for Ontario Works (welfare) shortly after his arrival in Canada and has remained on it at least up until the date of the trial. He received about $700 per month. He could not recall working in 2015 or 2016. He testified that he last looked for work in 2016 and that he had no reason for not looking for work. He testified his girlfriend, with whom he lives, helps him out financially.
[63] Mr. Gentles testified that he liked jewelry and cars and that his girlfriend and her family purchase jewelry for him. He testified that one of the reasons he came to Canada was to get a nice car, like a BMW.
[64] In November, 2016, he purchased a 2000, 320i BMW for $1,500, testifying that his girlfriend took out a loan for the car.
[65] Mr. Gentles was released on bail and was to live at 17 Lavallee and not to have contact with the accused. His bail was later amended to allow him to associate with the accused for the purposes of work. However, Mr. Gentles testified that he could not recall where he lived after he was released on bail.
[66] Gentles could not recall if he signed his recognizance or whether he breached any of its terms.
[67] He could not recall if he then worked for the accused after his bail release.
[68] Gentles testified that he did not pay rent to the accused. He was provided with a cell phone by the accused. When the phone was seized by the police the accused obtained a new phone for Gentles and paid the monthly cost.
[69] Mr. Gentles testified that when he worked for the accused, landscaping and cutting grass, he was paid in cash.
[70] In his affidavit prepared by the Crown (Exhibit 19) Gentles deposed that the accused occupied the master bedroom and that he (Gentles) had no claim to any of the contents of the master bedroom.
[71] He denied any knowledge of cocaine found in the black Ford and the house. He denied any knowledge of the cash found in the house apart from the $505 found on his person. He deposed that this money was given to him by his father in part and the rest was earned through his work in landscaping.
[72] Mr. Gentles denied that he was ever involved in selling drugs.
[73] In contrast to Exhibit 19, Exhibit 21 is Mr. Gentles’ handwritten statement, dated May 1, 2014.
[74] In regards to the circumstances surrounding the making of the statement, Gentles testified that the accused’s girlfriend, Danielle Henry, encourage him to make the statement. He went on to say that she wrote out the statement which he then copied in his own handwriting.
[75] Mr. Gentles testified that he was not threatened but stated that Ms. Henry told him he should write out and sign the statement. He testified that he does not recall where he was or if anyone was with him when he wrote it out and signed it. He conceded he could have been alone at the time.
[76] In the statement Mr. Gentles took full responsibility for all charges in relation to the police searches of 17 Lavallee and the black Ford.
[77] Mr. Gentles testified that the accused never communicated with him about completing the statement.
[78] He also testified that he signed the affidavit to have the charges against him stayed, knowing that it might result in the accused being convicted and that his affidavit (Exhibit 19) was in direct conflict with his handwritten statement.
[79] When asked as between the statement and the affidavit which one was a lie, he answered, “I don’t know”.
[80] Exhibit 22, is a document prepared by the accused, entitled the “Rules of Conduct in the Serengetti’s”. Mr. Gentles’ signature is on the document along with that of the accused. The document sets out the rules Gentles was to follow when living at 17 Lavallee.
[81] One of the rules was that he was to pay back to the accused, within four months any monies spent on his behalf. Mr. Gentles testified he never paid back the monies.
[82] One of the rules was, “No drugs allowed in my house”. Gentles testified that the accused was strict about enforcing the rules of his house.
[83] Mr. Gentles confirmed that in April 2014 he only had his G1 driver’s licence and was not allowed to drive alone in the car.
[84] Contrary to what can be seen on the security video, he testified that he never drove alone.
[85] Mr. Gentles was then asked questions as to what occurred in the driveway at 17 Lavallee on April 28, 2014, at approximately 12:44 pm when he and the accused returned to the house.
[86] Mr. Gentles was not sure what was in the container he placed on the roof of the black Ford but testified that there were no drugs in it. He initially could not recall where he and the accused went that day or what was in the car.
[87] Later while he could not recall going to the Dollarama store, he did recall going to a sports store to by soccer shorts and to the Brick store to check the prices of some items.
[88] Mr. Gentles could not recall going to an address on Robins Street that day but testified he knew an 80 year old man, named Joe, who lived on Robins. While Mr. Gentles could not recall what was occurring at the trunk of the car on the 28th, he testified that he was not transferring cocaine between containers and bags. He testified that he had no memory of what was in the white bag taken from the trunk. In fact, he had no memory of removing anything from the trunk. Mr. Gentles testified that he has never seen cocaine. He testified that he had no recollection of what took place that day.
[89] Mr. Gentles was cross-examined on a number of pictures and comments he posted on Facebook. Exhibit 23 is a Facebook page belonging to Gentles, posted on September 30, 2014. The picture is a “selfie” and shows Gentles wearing a silver bracelet with diamonds. He testified it was a gift from his brother. He is also wearing a watch and two rings.
[90] A number of Mr. Gentles’ Facebook postings were entered as Exhibit 25. At Tab C is a picture, posted March 14, 2014, of stacks of money placed on the sill of a bathtub. Gentles agreed that he posted the picture but could not recall why. He testified the money was not his and he did not take the picture. He said that he got the picture from the accused’s Instagram account.
[91] Mr. Gentles agreed that in the posting he did not say the money belonged to someone else.
[92] At Tab F is a Facebook posting, dated April 15, 2014. The caption reads, “With Romeo Brown”. In the picture Mr. Gentles is posing to show off his ring and bracelet.
[93] At Tab I of Exhibit 25 is a picture of Mr. Gentles, posted June 3, 2014, showing him drinking from a bottle of alcohol with the caption, “That’s how we do it work hard play hard”. He testified that the picture was taken at the accused’s home but later said it was taken at a friend’s apartment.
[94] Tab J is a picture of watches and jewelry posted June 3, 2014. Mr. Gentles stated that the picture was taken in April. The picture is of five watches, a chain with a cross, a ring and a bracelet. Mr. Gentles testified that he brought the chain from Jamaica but everything else was obtained here. He testified that some of the watches and jewelry came from the accused who said he could wear them but he could not recall which ones. The posting was captioned as, “My collection”.
[95] At Tab L are two pictures of Mr. Gentles working out, lifting weights, in the master bedroom. It was posted June 14, 2014, but he could not recall when the photos were taken. He would not agree however, that the black rods on the floor looked like the dip bar where the drugs were found (Exhibit 5, Tab 33).
[96] Tab N is a picture of Mr. Gentles posted on August 27, 2014, and captioned, “Fully loaded”. It is a “selfie” showing him wearing two rings, a watch and a diamond bracelet. Gentles testified that the bracelet was the one given to him by the accused and that he could not be sure if the picture was taken in a bathroom at 7 Lavallee.
[97] At Tab 0 is a picture of Mr. Gentles standing in the driver’s door of a BMW vehicle. It was posted on September 17, 2014, with the caption, “Mad mad mad move”.
[98] Exhibit 40 is a posting, on March 25, 2014, of a picture of Mr. Gentles lying on a bench lifting weights, in the master bedroom at 17 Lavallee. The caption reads, “good Friday work out”. Mr. Gentles agreed that he was allowed to use the weight lifting equipment in the accused’s room, the master bedroom.
[99] A second picture is posted and is that of Mr. Gentles with the caption, “Two hundred thousand in two days”.
[100] Other Facebook postings of Mr. Gentles were made exhibits reflecting a portrayal of a partying lifestyle and the availability of money to maintain such a lifestyle.
[101] Mr. Gentles testified that, at some point, he stopped working for the accused because he thought landscaping was too hard.
[102] Gentles denied any knowledge of how the cocaine got into the house or the car. He testified that he never saw the accused with drugs or in possession of drugs.
[103] The accused, Hopeton Lewis, testified on his own behalf. He is self-employed under the business name of, Xtreme Landscaping. He has employees when help is needed, depending on the job and hired his brother, David Gentles, when he arrived in Canada.
[104] The accused testified that Yel Canada is a second business for him and included under it is a clothing business, a charity, and an investment group. The accused testified that he also does renovations under that name.
[105] The accused rents the home at 17 Lavallee. He rented the black Ford (Focus) from Enterprise car rentals and had had it for up to two years. He paid $450 per month.
[106] In regards to Exhibit 22, the rules of the house, the accused said that he made the rules to protect himself and others. He had Gentles signed the rules within a month of his arrival (March, 2014). In regards to the rule against drugs, the accused stated that he did not want any drugs in the house.
[107] He testified that he kept two keys to safety deposit boxes hidden in a DVD cover which he kept downstairs.
[108] In regards to Exhibit 5, Tab 33, the accused identified this bar as part of what he called a dip bar.
[109] The accused testified that he had no knowledge of the cocaine which was found in the dip bar and in the black Ford.
[110] In regards to Exhibit 10, the accused identified it as his calendar and denied that it was a debt list. He testified that he used colours when making entries on the calendar. Red is for his work out days, purple represents the due dates of bills and green is for banking days. Blue is for appointments to meet people or go shopping.
[111] The accused was taken through some of the entries in the calendar. On April 19th it is written that he must make a payment at the mall $33,300. The accused explained that it was for a rental unit at the mall for his investment group under a company he owns under the name of, Yel Canada.
[112] In regards to the various discoveries in the DVDs (Exhibit 5, Tab 37) the accused testified that these DVDs were kept downstairs and not as depicted in the pictures. They were not kept on a shelf in the closet. The shelf was used for books. As noted previously, he knew the keys were hidden in a DVD but had no knowledge in regards to the other items allegedly located in the DVD covers, including the bundles of cash.
[113] Gentles had his own key to 17 Lavallee. The keys for the vehicles hung on a hook near the front door.
[114] The accused testified that he was unaware that Gentles applied for welfare stating that Gentles earned usually $300 – 400 per week.
[115] The accused had no knowledge of the packaging items located in the kitchen.
[116] In regards to his surveillance recording of what happened in the driveway on April 28, 2014, at approximately 12:30 pm, the accused testified that they were not moving cocaine. Earlier that day the accused and his brother went out to buy his brother some soccer shorts. He had a soccer tryout that night. They made other stops as well.
[117] In regards to his stop on Robins Street, the accused testified that Joe lived there and was 77 years old. Every Sunday the accused would take him shopping for groceries. The accused would also cut his grass and move things in the house when asked. He also took Joe for eye examinations and to the garden centre.
[118] In regards to being observed going to the Brick furniture store, the accused stated that Joe needed a new stove and the accused took pictures of stoves to show to Joe.
[119] The accused denied Joe’s house was a stash house.
[120] In regards to the “heat checks”, the accused testified that he knew he was being followed. On one occasion when on the QEW the accused drove at a high rate of speed to see what those following him would do. He testified he did U-turns or other such maneuvers, to see if anyone following did the same. When asked why he was trying to elude the police who were following him, the accused testified that at first he did not know it was the police and that he would try to lose anyone who was following him.
[121] The accused testified that in regards to the April 28th surveillance video, he was leaning into the back seat where purchases from the Dollar Store had been placed. The purchases included snacks for the car and the house. He thinks that some of the things fell out of the bags and he was putting them back.
[122] The accused testified that the two containers or buckets observed were to hold juice and snacks which he likes to keep in the car for road trips.
[123] The accused removed from the back seat a small container along with some business cards and a calculator. The items were taken to the trunk and snacks were put into a bin.
[124] The accused again denied he was handling cocaine. He testified that he knew he was being watched by the police and if he was dealing in cocaine why would he do it in plain sight. If he had anything to hide he would have pulled the car into the garage and closed the door.
[125] The accused testified that, while Mr. Gentles had to respect the space, he was allowed to go anywhere in the house. At times he was alone in the house.
[126] The accused testified that at some point Mr. Gentles left 17 Lavallee, without any notice, taking his stuff with him along with some of the accused’s possessions such as $9,000 and jewelry. The accused testified that he believed the $9,000 was a deposit for a renno job, dropped off at the house, after his arrest.
[127] The accused testified that he never saw Gentles with cocaine or any other drugs. He has no idea how the drugs got into his house or were hidden in the car.
[128] In regards to Exhibit 21, the statement the accused’s girlfriend asked Mr. Gentles to sign, the accused testified that he did not tell her to do that and had no prior knowledge of the preparation of the statement and its execution.
SECTION 8 ARGUMENT
[129] Counsel for the applicant submits that her client’s section 8 Charter rights were violated as a result of the search of his home pursuant to a warrant that ought not to have been issued.
[130] She further argues a section 8 breach in relation to the search of her client’s vehicle, without a warrant. She submits the search of the vehicle was not incidental to her client’s arrest.
[131] It is submitted that as a result of these Charter breaches the evidence obtained from the searches, to wit, the discovery of the cocaine ought to be excluded. Without such evidence the Crown has no case.
[132] The accused submits that the ITO upon which the warrant is founded contained mistakes, errors, misleading information and serious commissions.
[133] It is further submitted that the police ought not to have searched the accused’s vehicle, the black Ford as they lacked grounds to do so. The search of the vehicle occurred after the accused and Gentles were removed from the vehicle and arrested. The police were aware of the vehicle and its alleged use for transporting drugs at the time they applied for a warrant and could have included in the ITO a request that the warrant be extended to include the vehicle.
[134] It is submitted that the observations of Officer McDowell, “screamed out” the need for a warrant to search the black Ford.
[135] Further, upon the arrest of the two men, the vehicle could have been secured and a warrant obtained to search it.
[136] It is submitted that the search of the vehicle was outside the scope of a search incidental to arrest. There were no officer safety concerns and any evidence contained in the vehicle would not be lost if the time was taken to obtain a warrant. It is submitted that the courts ought not to allow the police to do what they will and then justify it after the fact.
[137] The Crown submits that the ITO contained sufficient and reliable information upon which a warrant could be issued. The Crown also submits that the search of the vehicle was incidental to arrest and therefore valid.
[138] It is submitted by the Crown that all of the evidence obtained as a result of the search of the vehicle and the residence is admissible and ought not to be excluded.
[139] As the search of the house was pursuant to a warrant, the onus of proof is on the accused to establish the section 8 breach, on a balance of probabilities. In regards to the warrantless search of the vehicle the onus is on the Crown to prove, on a balance of probabilities that the search was in violation of his Charter rights.
ANALYSIS AND THE LAW
The Search Warrant
[140] In order to determine whether or not the information to obtain the search warrant was sufficient, the court must assess whether there was reliable evidence that might reasonably be believed, on the basis of which the authorization could be issued (R. v. Araujo [2000] S.C.R. 992 p. 54).
[141] I must consider the totality of the circumstances and in particular, when the basis of the investigation results from information provided by a confidential informant (CI), the three factors outlined by the Supreme Court of Canada in R. v. Debot [1989] S.C.R. 1140 at p.25:
Is the information concerning the commission of a criminal offence compelling?
Is the source of the information credible?
Was the information corroborated by the police investigation?
[142] The term “compelling” refers to considerations that relate to the reliability of the CI’s tip such as the degree of detail provided and the CI’s means of knowledge that is, whether the CI made first-hand observations or merely relied on second-hand hearsay, rumour or gossip.
[143] The term “credibility” would appear to capture considerations such as the CI’s motivation, criminal antecedents, and any past history of providing reliable information to the police.
[144] The term “corroboration” refers to supporting information uncovered by the police investigation (Greaves-Bissesarsingh) [2014] O.J. No. 3892, para. 35).
[145] A deficiency in one aspect of what has become to be known the “three C’s” can be remedied by the strengths in the other two (R. v. Okeke 1989 CanLII 13 (SCC), [1989] S.C.J. 118; R. v. Crevier 2015 ONSC 619, 2015 ONSC 619, para. 107).
[146] I find that the information provided by the CI was weak in regards to the credibility factor. The motive for providing the information can be considered to be in the CI’s self-interest. The CI has a criminal record, including crimes of deceit. The CI’s history of providing reliable information is lacking.
[147] However, the information provided by the CI was compelling. It details the type of drug being trafficked and provided a nick name for the accused as well as his address, 17 Lavallee. The source of the CI’s information was provided as well as details of the trafficking.
[148] In regards to corroboration, the information provided was to a great degree or at least to the extent possible, corroborated by the police. Through surveillance and various data bases, the police were able to confirm that the accused resided at 17 Lavallee. When conducting mobile surveillance the police observed the accused conducted driving maneuvers described as “heat checks” and drove at high rates of speed suggesting he was trying to lose any vehicle which was following him.
[149] The accused was observed repeatedly talking on his cell phone while driving.
[150] Further and most important, the accused and Mr. Gentles were observed, by Officer McDowell, on April 28, 2014, moving some bags of some substance from the trunk of the black Ford to the back seat and vice versa.
[151] I recognize there is a weakness in the evidence of Officer McDowell, since he did not call out his observations made on April 28, 2014, a result of which the observations were not included in the run notes.
[152] It was conceded by the officer that without his observations there were no grounds to obtain a warrant. However, I accept the evidence of Officer McDowell as to what he saw.
[153] The security video confirmed much of what Officer McDowell observed however it seized after the warrant was issued, during the execution of the warrant. Accordingly it cannot be a consideration in determining the validity of the warrant.
[154] It may be relevant if I determine that there were not reasonable and probable grounds to obtain the warrant and the accused’s Charter Rights had been breached. As part of my section 24(2) analysis, the surveillance video may be relevant in determining if the drugs seized in the execution of the warrant were to be excluded.
[155] Taking all of this into account and considering the totality of my considerations of the three C’s, the information contained in the ITO was evidence reliable enough to be reasonably believed, on the basis of which the warrant could be issued.
[156] The warrant issued to search 17 Lavallee did not violate the accused’s section 8 Charter rights and the evidence found pursuant to the search of the house is admissible.
Warrantless Search of the Vehicle
[157] Counsel for the accused argues that there is a lack of justification in regards to the vehicle search.
[158] The Crown submits that the law supports the argument that the search of the vehicle was incidental to arrest. Such a search is not limited to items in plain view.
[159] While conceding the best practise would be to get a warrant for the search of the vehicle, the Crown argues that the police were still within their authority to search the black Ford.
[160] The leading authority on searches incidental to arrest (SITAs) the leading authority is R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51 in which the three main purposes of a SITA were articulated (para. 15). They are:
Ensuring the safety of the police and the public;
The protection of evidence from the destruction at the hands of the arrestee or others, and
The discovery of evidence which can be used at the arrestee’s trial.
[161] The search must be “truly incidental to the arrest meaning the police must be attempting to achieve some valid purpose connected to the arrest (Caslake, para. 19).
[162] The standard to be satisfied is a reasonable basis, not reasonable and probable grounds. Further, “if the justification of the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested (Caslake, para. 22).
[163] R. v. Gonzales, 2017 ONCA 543, at paragraph 23, the court reaffirms the principle that a search incidental to arrest includes an automobile that the arrested person is in possession of, subject to the factors specified in Caslake.
[164] In summary, a search of a vehicle incidental to arrest is lawful where the search satisfies one of the three purposes in Caslake, where the search is limited to that purpose and the officer illustrates a reasonable basis for their actions.
[165] In my opinion the search of the black Ford vehicle, rented by the accused was incidental to arrest. The search lead to the discovery of evidence admissible at this trial.
[166] The accused was arrested immediately after pulling the vehicle into the driveway. The police had a warrant to search the accused’s home. The police were of the opinion that the accused was trafficking in drugs based on the surveillance, including his operation of the vehicle.
[167] In that context the search was reasonable and there was a reasonable prospect in the minds’ of the police officers of securing evidence.
[168] The search of the vehicle did not violate the accused’s Charter rights and the evidence located in the vehicle is admissible.
POSSESSION FOR THE PURPOSES
Defence
[169] Counsel for the accused submits that her client ought to be acquitted of the charge. She submits that the surveillance undertaken by the police was short, amounting to only three days of observations. Opinions were proffered by the police which she submits were in error. For example what the police identified as a stash house for the accused’s drugs was the home of an elderly gentlemen who the accused assisted.
[170] Counsel challenges the observations of Officer McDowell. She submits how could he see what the accused and Mr. Gentles were doing standing in front of the opened truck of the black Ford when their back were to the officer.
[171] Further, the police erred on one occasion, after 1:00 pm, April 28th, in regards to who left the house and drove away in the black Ford.
[172] It is submitted that no pictures were taken in regards to the interior of the Ford vehicle prior to it being searched. Nor was an inventory completed. In regards to the search all we have is the memories of the officers.
[173] To be in the possession for the purposes of trafficking, the accused must be shown to have knowledge of the drugs and control over them. Section 4(3) of the Criminal Code of Canada defines possession.
[174] Counsel for the accused conceded that the accused had some level of control by the very fact that he resided at 17 Lavallee and did rent and drive the black Ford. However, the same can be said for Mr. Gentles. He resided in the home and drove the vehicle.
[175] Counsel for the accused relies on an alternate suspect defence and submits that there is reason to believe that David Gentles was in possession of the drugs.
[176] Mr. Gentles had access to all parts of the house, including the master bedroom used by the accused, wherein cocaine was located hidden in the tube of a dip bar used for workout purposes.
[177] Mr. Gentles used the workout equipment and two of the pictures made exhibits shows him in the master bedroom using the equipment. Further, the dip bar was not very heavy and could be moved from room to room.
[178] Gentles had, on occasion use of the black Ford without the necessity of the accused being in the car. One such occasion was recorded on April 28, 2014, the day of the arrest and the day cocaine was later discovered in the car. On that day Gentles was observed conducting a heat check when driving the black Ford.
[179] Counsel for the accused submits that the evidence as to guilt is circumstantial and that to convict the accused the court must accept that the only reasonable inference that can be drawn is that the drugs were in the possession of the accused. She submits that such an inference is not the only reasonable inference that can be drawn.
[180] The Crown did not put before the court any fingerprint or forensic evidence in their case against her client which would have suggested possession.
[181] It is submitted that the calendar which the police suggest is a debt list is anything but such a list. The reference to $33,000 was in relation to a mortgage investment and did not refer to debt related to drugs.
[182] Certain drug paraphernalia was discovered in the kitchen such as little baggies and a scale. Counsel submits that it could have belonged to Gentles.
[183] Counsel for the accused asks me to accept her client’s evidence that he had no knowledge of the fact that cocaine was in his home.
[184] Alternatively, counsel for the accused submits that that defence evidence, that is, the testimony of Mr. Gentles and the accused, raises a reasonable doubt.
[185] It is further submitted that on the Crown evidence in its totality, there exists a reasonable doubt as to the guilt of the accused.
The Crown
[186] The Crown submits that when comparing the lifestyles of the accused and Mr. Gentles, the conclusion to be reached is that the drugs were in the possession of the accused. Gentles was impecunious and reliant on the accused. He did not have a lavish lifestyle. The amount of cocaine seized was approximately eight kilos and Mr. Gentles did not have the financial resources to acquire it.
[187] It is submitted by the Crown that while Gentles may have had knowledge of the cocaine he did not control it. Gentles may have been complicit but he was not the one buying, storing and selling the cocaine.
[188] The Crown submits that on the totality of the evidence that the accused was in possession of the cocaine. He asks the court to consider the calendar and its reference to large sums of money. He submits that accused’s explanations were weak and vague and not believable.
[189] The Crown submits that the only reasonable inference to be drawn is that the cocaine was in the possession of the accused. While other inferences may exist they are not reasonable.
ANALYSIS
[190] The evidence of a potential involvement of a third party in the commission of an offence is admissible if such evidence is relevant and probative. The third person must be sufficiently connected with the crime charge to give the proffered evidence some probative value. The sufficient connection is essential (R. v. Grandinetti [2005] S.C.R. 27, para. 46-48; R. v. Pierre [2007] O.J. No. 833, para. 9).
[191] I have no doubt that Mr. Gentles is sufficiently connected to this matter so that the proffered evidence has some probative value. At the risk of restating the obvious, he had resided in 17 Lavallee for at least two months and I accept that he had access to the entire residence.
[192] Cleary he had a connection to the black Ford. He was observed as a passenger in the car as well as a driver.
[193] On April 28, 2014, he was observed, in Officer McDowell’s, opinion moving cocaine from the trunk of the car to the back seat of the car and the garage.
[194] Mr. Gentles is an individual who did not like to work. He testified he found the landscaping work too hard. He was an individual who quickly went on Ontario Works (welfare) and was still a recipient of same at the time of the trial. To maintain his lifestyle, as noted in his Facebook posts, he would need an income in excess of $700 per month.
[195] He continues to be unemployed and has not looked for employment for a couple of years.
[196] Mr. Gentles provided little explanation of where his money came from. He testified that his girlfriend covers the costs of their apartment and his expenses beyond $700 per month. She must have a very well-paying job.
[197] The fact that the Crown agreed to stay the charges against Mr. Gentles is, at the least, curious. The stay was conditional on Gentles executing an affidavit, sworn January 16, 2015. Therein he denied knowledge and control over the cocaine found in the car and the residence. He denied knowledge and control of anything seized in the search, including the large amount of cash.
[198] What he does not say in the affidavit is that the cocaine was in the possession of the accused.
[199] In direct contrast to his affidavit, in a handwritten statement he takes responsibility for the pending charges in relation to the search of 17 Lavallee. There was no evidence of any threats or inducements made in an effort to have him execute the statement, only a request.
[200] When asked which one of the statement and the affidavit was a lie, he responded that he did not know.
[201] Certainly Mr. Gentles had the opportunity to hide the drugs in the dip bar and the roof of the vehicle. He also had a financial motive.
[202] He was observed conducting a heat check and participating in what the police believed was a drug deal, on Mississauga Road, on April 28, 2014, after 1:10 pm, in the absence of the accused.
[203] After hearing the testimony of Mr. Gentles I concluded that he lacks all credibility. When asked questions he would, more often than not, pause for a number of seconds and answer, “I can’t recall”, even on the most simple of questions. In regards to his affidavit (Exhibit 19) referenced above, I can only conclude he would have signed anything to have the charges stayed.
[204] In regards to the accused, while he is more credible than Mr. Gentles, I do not believe his evidence. Some of it seemed made up to address and explain the Crown’s evidence and what was observed shortly after noon on April 28, 2014.
[205] I did not believe his explanation in regards to the use of bins to carry drinks and snacks in his vehicle. There was no evidence of snacks and juice boxes. His explanation in regards to the cash located in the house did not ring true.
[206] However, the evidence lead by the defence does leave me with a reasonable doubt. I cannot say with certainty that the only reasonable inference that can be drawn is that the cocaine discovered was in the possession of the accused. It can also be reasonably inferred, based on the same evidence upon which the Crown relies for a conviction of the accused that the drugs were in the possession of Mr. Gentles.
[207] The Crown submitted that while it is likely Gentles knew of the drugs he had no control over the drugs. However, in regards to the issue of control the evidence lead it equally applicable to the accused and Mr. Gentles. Either one of them could have had control of the cocaine.
[208] Further, the police rely heavily on the observations made by Officer McDowell on April 28, 2014, at approximately 12:30 pm. By this point the police had evidence of the accused conducting “heat checks” when driving. The accused testified that he knew he was being followed by the police and admitted that he made certain driving maneuvers to confirm he was being followed and to lose whoever was following him.
[209] It is reasonable to conclude therefore that the accused would know his home is under police surveillance. Why would he handle cocaine, in plain sight, in the driveway of his home, in the middle of the day? As the accused testified he could have pulled his car into the garage and closed the door thereby terminating surveillance. Why would he record such an event on his own security system?
[210] I am unable to conclude, beyond a reasonable doubt, that the accused had possession of the cocaine. Such a finding is not the only reasonable inference to be drawn. It can also be reasonably inferred that the cocaine was in the possession, that is, knowledge and control of David Gentles.
RULING
[211] As a result of my reasonable doubt, the accused, Hopeton Lewis, is found to be not guilty of the charge of possession of cocaine for the purposes of trafficking in it.
Bielby J.
Released: October 30, 2017
CITATION: R. v. Lewis, 2017 ONSC 6465
COURT FILE NO.: Crim J (F) 815/15
DATE: 2017 10 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HOPETON LEWIS
REASONS FOR JUDGMENT
Bielby J.
Released: October 30, 2017