COURT FILE NO.: CR-17-90000-437

DATE: 20180615

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ADRIAN L. SKEETE

V. Rivers

for the Crown

S. Goldstein and S. Dudoni

for the defendant

HEARD: April 3, 4 and 5, 2018

FAVREAU J.:

Introduction

[1] The defendant, Adrian Skeete, is charged with possession of crack cocaine for the purpose of trafficking, possession of the proceeds of crime, possession of a prohibited weapon and possession of a weapon for a purpose dangerous to the public.

[2] The charges arise from an incident on May 21, 2016, when Mr. Skeete was stopped by the police on the basis that his rear license plate was unlit. At the time he was stopped, the police saw a knife on Mr. Skeete's passenger seat, after which Mr. Skeete was arrested and both he and his car were searched. The police found and seized 12.12 grams of crack cocaine, $1300 in cash, a digital scale and the knife.

[3] Mr. Skeete seeks to exclude the evidence seized by the police during the search, as he claims the police violated his section 8, 9 and 10(b) rights under the Canadian Charter of Rights and Freedoms (the "Charter").

[4] If I am satisfied that the evidence is admissible, Mr. Skeete admits that he was in possession of crack cocaine, but he disputes that it was in his possession for the purpose of trafficking and he disputes that the knife seized by the police was a prohibited weapon and that he had it for a dangerous purpose.

Trial procedure and overview of evidence

[5] At the beginning of trial, the parties agreed that the voir dire and trial would proceed as a blended hearing.

[6] I first heard from Police Constable Rahanan and Police Constable Sidhu, who were called by the Crown and both provided evidence for the purposes of the voir dire and the trial.

[7] I then heard from Andrew Bridgeman-Holder, a friend of Mr. Skeete's who provided evidence for the purpose of the voir dire. Mr. Skeete subsequently testified in relation to the voir dire.

[8] Following completion of the evidence on the voir dire, the Crown called Detective Constable Michael Tughan, who was qualified as an expert for the purpose of providing an opinion about the indicia of crack cocaine trafficking and use.

[9] Mr. Skeete then testified again in response to the charges against him.

[10] I then heard closing submissions from counsel for the defence and counsel for the Crown on both the voir dire and the trial proper.

[11] Accordingly, in deciding the issues on the voir dire, the only evidence I have considered is the evidence of Officer Rahanan, Officer Sidhu, Mr. Bridgeman-Holder and the evidence of Mr. Skeete given for the purpose of the voir dire.

[12] In relation to the trial issues, I have considered the evidence of Officers Rahanan and Sidhu, the expert evidence of Officer Tughan and the evidence of Mr. Skeete given for the trial proper.

Voir dire on application to exclude evidence

Evidence of the Crown in relation to the circumstances of the detention and search

[13] Officers Rahanan and Sidhu were both involved in the events that led to Mr. Skeete's traffic stop and arrest. They both work for the Toronto Police Service out of 13th Division.

[14] On May 20, 2016, they started their shift at 11:00 pm. They were both wearing uniforms and went out in an unmarked scout car. Their responsibilities that night involved responding to radio calls and patrolling the neighbourhood, which included the Eglinton Avenue West area. Officer Rahanan was driving the car and Officer Sidhu was the passenger.

[15] On their patrol, at around 2:00 am on May 21, 2016, the officers were driving east along Eglinton Avenue West, when they saw Mr. Skeete standing on the sidewalk.

[16] Officer Rahanan was familiar with Mr. Skeete, and was aware that Mr. Skeete was subject to certain restrictions as a condition of being out on bail on his own recognizance. At the time Officer Rahanan saw Mr. Skeete, he believed that the conditions included a curfew precluding Mr. Skeete from being out between 6:00 pm and 8:00 am.

[17] The Officers conducted a computer search of a police database from their car and found that Mr. Skeete was no longer subject to a curfew, but that he was still subject to a weapons prohibition. At that time, having ascertained that Mr. Skeete was no longer subject to a curfew, Officers Rahanan and Sidhu did not stop to speak to Mr. Skeete nor did they do anything further in relation to Mr. Skeete.

[18] Later during their shift, around 5:10 am, Officers Rahanan and Sidhu were notified of a noise complaint at 1565 Eglinton Avenue West. They approached the area through a public laneway known as Reggae Lane, which gives onto the back of the building. When they arrived, there were already other police cars on the scene and people were leaving the party. The situation appeared to be under control and the officers decided they did not need to intervene.

[19] As they were leaving, around 5:20 am, they saw a car pulling out further ahead in the lane. The car was a black Nissan Maxima. Both officers testified that they did not recognize the car. They also testified that they observed that the car's back license plate was not lit, which is a violation of section 62(19) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which requires rear license plates to be illuminated as of 30 minutes before sundown until 30 minutes after sunrise.

[20] Officer Rahanan testified that one of the police's ongoing responsibilities is to enforce the Highway Traffic Act. They commonly enforce the requirement that back license plates are to be illuminated. He estimates that he has pulled over at least 100 cars on this basis. Usually, the driver is given a warning and allowed to go because people often do not realize that their license plate lights are not working.

[21] In this case, they followed the car out of the laneway, ultimately catching up to it on Eglinton Avenue West as the car was pulling into a parking spot on the street. The Officers testified that, up to that point, they were still not aware of who owned the car because they could not see the license plate which would have allowed them to run a check on the owner's identity. As they approached the parking car, they turned on their flashing light and conducted a computer search of the license plate which they could now see as it was illuminated by the headlights of their car and the flashing light. The search showed that Mr. Skeete was the car's registered owner. Both officers testified that this is when they first became aware that Mr. Skeete was the owner of the car.

[22] At that point, both officers got out of their car and approached Mr. Skeete's car. Officer Sidhu approached the driver's side and Officer Rahanan approached the passenger's side. They both testified that it was only when they approached the car that they knew that the driver was Mr. Skeete. At that point, Officer Sidhu told Mr. Skeete that he had been stopped because his back license plate light was not working. Meanwhile, Officer Rahanan, using a flashlight, looked into the passenger side of the car, where he saw a closed folding knife on the passenger seat. It was a 4 inch folding knife with thumb posts.

[23] The Officers’ evidence is that, a few seconds after seeing the knife, Officer Rahanan told Officer Sidhu that there was a knife in the car and that it “looks prohib”, meaning a prohibited weapon. Mr. Skeete then reached for the knife, at which point both officers told him to put the knife down. Mr. Skeete nevertheless picked up the knife, but handed it to Officer Sidhu. Officer Sidhu took the knife and placed it on the roof of Mr. Skeete's car.

[24] At that point, Officer Sidhu told Mr. Skeete to get out of the car. Officer Sidhu then moved Mr. Skeete away from the car, searched him, told him about the charges against him and then told him about his right to counsel. When searching Mr. Skeete, Officer Sidhu found $1300 in cash, most of which was in $20 bills.

[25] Meanwhile, after Mr. Skeete was taken away from his car, Officer Rahanan took the knife from the roof of the car and flicked it to see if the blade would open, which it did. Officer Rahanan then searched the armrest area of the car, where he found and seized 12.12 grams of crack cocaine in a knotted grocery bag, $30.00 in cash and a small functioning digital scale. He also saw another knife and exacto knife, which he did not seize as they were not restricted weapons. He also saw what he believed were five cell phones which he again did not seize.

[26] Besides the Officers' viva voce evidence, the Crown introduced a video taken from the scout car that begins as Mr. Skeete pulled out of his parking spot in the laneway and runs until Mr. Skeete was arrested.

Evidence of the defence in relation to the circumstances of the detention and search

[27] As indicated above, both Mr. Skeete and his friend, Andrew Bridgeman-Holder, testified on the voir dire. Mr. Bridgeman-Holder testified first.

[28] Mr. Bridgeman-Holder is 27 years old. He testified that he is good friends with Mr. Skeete and has known him since he was 9 or 10 years old.

[29] On May 25, 2016, Mr. Bridgeman-Holder attended Mr. Skeete's bail hearing at Old City Hall. After Mr. Skeete was released on bail, Mr. Bridgeman-Holder drove Mr. Skeete and Mr. Skeete's mother to the Toronto South Detention Centre to retrieve some of Mr. Skeete's personal items, after which they drove to the car lot where Mr. Skeete's car was being held.

[30] Mr. Bridgeman-Holder's evidence is that when they got to the car lot, Mr. Skeete went to retrieve his car, after which they drove back to Mr. Skeete's apartment where Mr. Skeete lived with his mother. Mr. Bridgeman-Holder indicated that, as they were leaving the lot, he was in his car with Mr. Skeete's mother behind Mr. Skeete's car and he remembers that they both noticed and talked about Mr. Skeete's back license plate light working. Originally, he indicated that the car was retrieved from the parking lot around 4:00 pm, but revised this to say that it was between 6:00 pm and 7:00 pm and that the sun was setting and it was getting dark.

[31] After leaving the lot, Mr. Bridgeman-Holder followed Mr. Skeete's car, and both cars went into the parking garage of Mr. Skeete's apartment building. Mr. Bridgeman-Holder testified that he again observed the functioning back license plate light, although he did not take a photo of the light at that time.

[32] Mr. Skeete's evidence on the voir dire is that, prior to his arrest, while he was standing on Eglinton Avenue West, sometime between 9:00 pm and 1:00 am at the latest, he saw a police car pass by and he noticed a police officer looking back at him. His evidence is that, at the time, he was getting into his car.

[33] He further testified that, following his arrest, he was released on bail on May 25, 2016. His hearing took place at Old City Hall, after which his mother and Mr. Bridgeman-Holder were waiting for him. They then went in Mr. Bridgeman-Holder's car to the Toronto South Detention Centre to get his personal belongings, after which they went to the lot to retrieve his car.

[34] His evidence is that, when they got to the lot, he got out of Mr. Bridgeman-Holder's car and went into the yard to retrieve his car. He then drove out of the yard, took his mother out of his friend's car into his own car, and then turned his lights on. He said that he then went to look at the license plate and saw that it was lit. Next, he got into his car, and said to his mother that the license plate was lit. He then drove to his apartment building, with Mr. Bridgeman-Holder following behind. When they got to the underground parking lot, they all observed the license plate light again and saw that it was on.

[35] They then all went upstairs to his mother's apartment. He and Mr. Bridgeman-Holder helped his mother clean the apartment, which had been disrupted when the police searched it. At that time, Mr. Skeete's phone was not charged. It took him a while to charge his phone because he had a hard time finding his charger. It took an hour to charge his phone, after which he went down to the garage to take a photo of the lit license plate. The stamp on the photo which was marked as an exhibit says that it was taken at 10:42.

Positions of the parties

[36] The defence's position is that there was no basis for stopping Mr. Skeete's car and that his section 9 Charter rights were thereby violated. The defence disputes that Mr. Skeete's rear license plate light was out at the time he was stopped, arguing that the police were targeting Mr. Skeete for a purpose unrelated to a Highway Traffic Act violation. The defence claims this started earlier that evening, and that the license plate light was used as a pretext to stop Mr. Skeete. The defence argues that the search of Mr. Skeete's car was thereby unlawful contrary to section 8 of the Charter and that his section 10(b) Charter rights were also violated as he was not told about his right to counsel at the time his car was stopped.

[37] The Crown's position is that the detention and search were lawful. The Crown argues that the traffic stop was a lawful detention because the police were authorized to stop Mr. Skeete due to the unlit back license plate light. Given that the knife was in plain sight once the car was stopped and that the police were aware of the conditions on which Mr. Skeete was out on his own recognizance, they had reasonable and probable grounds to arrest him. The searches of Mr. Skeete and his car were incidental to the arrest. The Crown also disputes that Mr. Skeete's section 10(b) Charter rights were violated.

Whether the detention and arrest were lawful

[38] Section 9 of the Charter provides that "Everyone has the right not to be arbitrarily detained or imprisoned".

[39] In order to establish that Mr. Skeete's detention was arbitrary, the defence has the burden of proving the breach on a balance of probabilities.

[40] The Crown relies on section 216(1) of the Highway Traffic Act as the legal basis for Mr. Skeete's traffic stop. Section 216(1) of the Highway Traffic Act permits police officers to stop vehicles "in the lawful execution" of their duties and responsibilities.

[41] In R. v. Gonzales, 2017 ONCA 543, at paras. 51 to 55, the Court of Appeal reviewed the general principles applicable to determining whether the police stop of a vehicle is lawful:

51 The purpose of the guarantee against arbitrary detention in s. 9 of the Charter is to protect individual liberty from unjustified state interference: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 20. Absent a law to the contrary, individuals are free to do as they please. On the other hand, the police, more broadly the state, may act only to the extent that the law empowers them or it to do: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15.

52 A law, whether originating in a statutory enactment, the common law or some combination of sources, may authorize and prescribe the limits on a detention. Provided the detention is at once authorized by law and does not exceed any limitations the law imposes upon it, the detention is lawful and thus not arbitrary within s. 9 of the Charter: Mann, at para. 20.

53 In approaching a complaint of arbitrary detention, a court should consider first whether some lawful authority sanctions the detention, then, if permitted, whether the detention falls within or beyond any applicable limits on that authority.

55 Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham, at para. 21; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

[42] In Gonzales, at paras. 58 and 59, the Court went on to confirm that dual purpose stops are lawful as long as the additional purpose is not improper:

59 Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 254-55.

60 Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor: Simpson, at pp. 492-493.

[43] In this case, Mr. Skeete's lawyers argue that the stop was unlawful because there was no basis for the police's belief that Mr. Skeete's back license plate light was not functioning. They argue that the broken light was used as a pretext to stop Mr. Skeete, who they had been targeting earlier that night.

[44] Given that dual purpose stops are permitted, the key issue is whether the defence has proven on a balance of probabilities that Mr. Skeete's back license plate light was working at the time of the stop.

[45] Officers Rahanan and Sidhu both testified that they did not know that Mr. Skeete owned the car when they saw a black car pull out of a parking spot approximately 90 feet ahead from where they were parked in Reggae Lane. It was at this point that they noticed that the rear license plate was unlit. Their evidence is corroborated by the video which I had an opportunity to review. Looking at the video, it is evident that what turned out to be Mr. Skeete's car pulled out from a parking spot some distance ahead of the police car, and that the back license plate cannot be seen and does not appear to be lit. Once the police car caught up and both cars were stopped with the police car just behind Mr. Skeete's car, it is again possible to see that Mr. Skeete's rear license plate is not lit. At this point, the police car's headlights and flashing light are illuminating Mr. Skeete's rear license plate but no light appears to be coming from the license plate itself. This is in contrast to passing cars that are seen in the video with clearly lit license plates. The contrast between Mr. Skeete's car and passing cars assists in seeing that Mr. Skeete's back license plate is not lit.

[46] In support of his position that the light was functioning, Mr. Skeete relies on his own recollection and Mr. Bridgeman-Holder's recollection of what they saw immediately after retrieving the car from the lot and the photo taken by Mr. Skeete later that evening. I do not find this evidence credible because of significant inconsistencies in their evidence. I also note that Mr. Skeete heard Mr. Bridgeman-Holder's evidence before he testified. While Mr. Skeete was, of course, entitled to be in the courtroom during Mr. Bridgeman-Holder's evidence, the fact that Mr. Skeete testified after hearing his friend's evidence did give him an opportunity to tailor his evidence.

[47] First, Mr. Bridgeman-Holder testified that Mr. Skeete's mother was in his car on the way out of the lot, and that they both commented that Mr. Skeete's back license plate light was working. In contrast, Mr. Skeete said that his mother was in the car with him on the way out of the lot, and they talked about how his back light was working. In both cases, they appear to refer to conversations with Mr. Skeete's mother to bolster their evidence that they observed the light as working when they left the lot. However, as a matter of common sense, she could not be in both cars at the same time.

[48] Second, the car was retrieved on May 25, 2016. The release document from the towing company shows that the car was released at 7:12 pm. The sun set at 8:46 pm that day. Mr. Bridgeman-Holder initially testified that the car was retrieved around 4:00 pm. He then changed his evidence and said that it was later, sometime between 6 and 7 pm, and he said that it was getting dark at that time. Mr. Skeete's evidence is also that the sun was setting around the time the car was retrieved. Given the time of the sunset that day, their evidence that is was getting dark is not credible, which in turn casts doubt on their evidence that they could see the lit license plate at the time the car was retrieved from the lot.

[49] Third, there is a significant delay between the time when Mr. Skeete arrived at his apartment building and the time when the photo of the license plate was taken. Mr. Skeete explains this delay by saying that his phone was not charged, it took him a long time to find a charger because the apartment was in disarray after the police search, and once he found his charger it took an hour to charge the phone. In his evidence, Mr. Bridgeman-Holder confirmed that he was with Mr. Skeete in the garage when they arrived and looked at the lit license plate together, and that his phone was functioning. Given that both Mr. Skeete and Mr. Bridgeman-Holder testified that they focused on the license plate at the lot and again in the garage, it is surprising that they did not take steps to take a photo at the earliest opportunity. The passage of time between when they claim they were aware the light was working and when the photo was taken discredits their evidence.

[50] Accordingly, based on the totality of the evidence before me, I accept the Crown's evidence that Mr. Skeete's back license plate light was not working when the car was stopped on May 21, 2016. Given that the stop was made for a lawful purpose under the Highway Traffic Act, the next issue is whether the arrest that followed the stop was lawful.

[51] The Crown's position is that the arrest was lawful because, soon after stopping Mr. Skeete's car, the police became aware that Mr. Skeete had what appeared to be a prohibited weapon which justified the arrest. Mr. Skeete argues that the police did not have reasonable and probable grounds at the time Mr. Skeete was taken into custody because they had not yet determined that the knife was a prohibited weapon.

[52] In Gonzales, at para. 56, the Court of Appeal confirmed that the police can conduct a visual inspection of the interior of a car for safety reasons during a lawful traffic stop "to ensure their own safety during the detention" but that they are not authorized to conduct "more intrusive examinations of the interior of the vehicle … not relevant to highway safety concerns". In R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.J. No. 100, at para. 14, the Supreme Court confirmed that the use of a flashlight for a safety check is appropriate:

There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can I place any particular significance upon the fact stressed by the appellant that the police only made use of a flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as a necessary incident to the check stop routine.

[53] In this case, using a flashlight directed at the passenger seat of Mr. Skeete's car, Officer Rahanan saw a knife. After looking at the knife for a few seconds, he said "there's a prohib", after which Mr. Skeete reached for the knife and gave it to Officer Sidhu. At that point, Officer Sidhu placed the knife on the car for safety reasons, took Mr. Skeete out of the car, moved him out of the car, searched him and placed him under arrest. It was while Officer Sidhu was searching Mr. Skeete that Officer Rahanan flicked the knife open. This sequence of events was captured on video and presented as evidence at trial.

[54] Mr. Skeete's counsel argues that the police did not have reasonable and probable grounds to arrest Mr. Skeete until Officer Rahanan flicked the knife and that, given that his arrest took place moments earlier, it was unlawful. In my view, there is no merit to this argument. The totality of circumstances, not just the flicking of the knife, gave the police reasonable and probable grounds: R. v. Amare, 2014 ONSC 4119 (Sup. Ct.), at para. 43. At the point Mr. Skeete was arrested, the police knew that the conditions of his release on his own recognizance required that he not have any weapons, Officer Rahanan had conducted a visual inspection of the knife and was satisfied that it appeared to be a prohibited weapon, and Mr. Skeete had reached for the knife disregarding instructions not to touch the knife. A few minutes later, Officer Rahanan flicked the knife open, which served to confirm that reasonable and probable grounds existed, but, in my view, was not necessary in the circumstances.

[55] Accordingly, based on my review of the evidence, I am satisfied that both the initial detention and the arrest of Mr. Skeete were lawful.

Whether the search was lawful

[56] Section 8 of the Charter provides that "everyone has the right to be secure against unreasonable search or seizure".

[57] It is the Crown that has the burden of proving that the search was not unreasonable.

[58] Warrantless searches are presumed to be unreasonable unless they can be justified pursuant to the test set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, a search will be deemed reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable.

[59] Following Mr. Skeete's arrest, he and the interior of his car were searched. This is when the money, 12.12 grams of crack cocaine and digital scale were found.

[60] The Crown's position is that this search was lawful because it was incidental to Mr. Skeete's arrest.

[61] In R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 19, the Supreme Court described the scope of a permissible search incidental to an arrest:

As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one.

[62] In this case, having found what they believed was a prohibited weapon, it was reasonable for the officers to search Mr. Skeete and his car for further weapons. In argument Mr. Skeete's counsel conceded that, if I found that his arrest was lawful, then the search conducted was incidental to the arrest.

[63] Accordingly, given my finding that the arrest was lawful, I find that the search was lawful and Mr. Skeete's section 8 Charter rights were not violated.

Whether Mr. Skeete's section 10(b) Charter rights were violated

[64] Section 10(b) of the Charter provides that “everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right”.

[65] Without delay means that the police must advise an individual of their right to retain and instruct counsel immediately upon arrest or detention, subject to legitimate concerns for officer or public safety: R. v. Suberu, 2009 SCC 33 paras. 41-42; R. v. McGuffie, 2016, ONCA 365 at para. 42.

[66] Mr. Skeete's counsel argues that he was not told of his rights until after he was removed from the car, and both he and his car were searched. He argues that he was detained at the time the officers approached his car, and that Mr. Skeete should have been informed of his rights at that time.

[67] The Crown argues that, given the circumstances of the case, a safety search was required before Mr. Skeete could be given his rights. The Crown relies on the decision in R. v. MacDonald, 2014 SCC 3, at 41, to argue that, in this case, a safety search was appropriate, and that once the safety search was conducted, Mr. Skeete was immediately given his rights.

[68] Given that it appeared that Mr. Skeete had a prohibited weapon and the circumstances under which it was found, I agree with the Crown that it was reasonable to search Mr. Skeete and his vehicle before he was told of his rights. Given that Mr. Skeete had a knife, it was reasonable for the police to act quickly and ensure that he had no further weapons. Once the search was conducted, Officer Sidhu immediately told Mr. Skeete of his rights.

[69] Accordingly, I find that Mr. Skeete's section 10(b) Charter rights were not violated.

Conclusion on the voir dire

[70] Given that I have found that Mr. Skeete's Charter rights were not violated, I do not have to consider whether the evidence should be excluded pursuant to section 24(2) of the Charter.

Trial decision

[71] By the time the trial was completed, the Crown sought convictions on four charges against Mr. Skeete:

a. Possession of cocaine for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

b. Possession of the proceeds of crime contrary to section 354(1) of the Criminal Code;

c. Possession of a prohibited weapon contrary to section 92(2) of the Criminal Code; and

d. Possession of a dangerous weapon contrary to section 88(1) of the Criminal Code.

Evidence of the Crown

[72] In support of the charges against Mr. Skeete, the Crown relies on the evidence of Officers Rahanan and Sidhu referred to above. The Crown also relies on the expert evidence of Officer Tughan.

[73] Officer Tughan has been a member of the Toronto Police Service Drug Squad since 2011, and a police officer since 2003. As a member of the Drug Squad, he has worked as an undercover officer, as the officer in charge in many cases and as a team leader. He has lead many investigations involving the trafficking of crack cocaine, and has taken many training courses in the area of drug enforcement. He has previously been qualified as an expert on a number of occasions specifically with respect to crack cocaine.

[74] The defence did not object to his qualification as an expert, and, based on his expertise, I qualified him as an expert for the purpose of providing an opinion on the consumption of crack cocaine, methods of use of crack cocaine, and the indicia of trafficking in crack cocaine (including drug paraphernalia and packaging).

[75] Officer Tughan's evidence covered the topics of the street value of crack cocaine and the indicia of possession of crack cocaine for personal consumption as compared to for the purposes of trafficking.

[76] Officer Tughan testified that crack cocaine is usually sold in increments of one piece to 40 pieces, a piece being between 0.08 to 0.12 grams and the typical amount for one use. Crack cocaine is typically consumed in a glass pipe, which is heated and the drug is consumed by inhaling the smoke. The glass pipe is the most commonly used implement, but ginseng bottles and cans are also used.

[77] Officer Tughan testified that users typically buy one hit at a time. He also testified that it is very difficult to say what a typical consumption pattern would be. Different circumstances will impact how much an individual will purchase. However, heavy users may also only buy one hit at a time because addiction often makes it difficult to have the money to buy large quantities at a time.

[78] Officer Tughan expressed the opinion that 12.12 grams, which is the amount recovered from Mr. Skeete's car, would be a significant amount to be purchased by one person for personal use. It is not typical and is more consistent with amounts that would be purchased for trafficking.

[79] Officer Tughan also provided some evidence on packaging. One hit is often not packaged, and could be broken off and handed over to the purchaser. Larger amounts such as a gram or more are typically packaged, but this could be in anything such as a knotted piece of plastic from a bag.

[80] A user would typically have pipes, multiple lighters, steel wool and a stick or rod (to push the rock in the pipe). Heavy users typically have sunken facial features and are gaunt, thin and unkempt with poor oral hygiene. This is not true of all addicts; it depends at what point the person is in the addiction cycle. Officer Tughan testified that he has never had any experience with recreational crack users.

[81] He testified that the indicia of a person possessing crack cocaine for the purpose of trafficking include scales and multiple cellular phones.

[82] He indicated that the street value of 12.12 grams of crack cocaine if sold as one unit is between $600 and $800, if sold as a forty piece is $1350 and if sold as individual pieces is $3030.

[83] His opinion was that possession of 12.12 grams of crack cocaine, a digital scale and $1300 in $20 bills is consistent with possession for the purpose of trafficking.

Evidence of the defence

[84] As indicated above, Mr. Skeete testified in his own defence.

[85] Mr. Skeete testified that, at the time he was arrested, he worked as a furniture installer. He was paid every other week, and his pay was $15 to $18 per hour. His evidence was that the money he had on May 21, 2016, came from his work. He had been paid by cheque the day before, and he cashed his cheque at the bank but kept all the cash.

[86] He testified that the crack cocaine was his for his own consumption and he did not intend to sell it. He testified that he mixes crack cocaine with marijuana. He takes cigars, removes the tobacco, adds in marijuana and places pieces of crack cocaine in the cigar. He referred to these as "zook spliffs". He stated that he intended to use all of the crack cocaine himself over the course of the long weekend; 12.12 grams would make 10 to 15 zook spliffs and last for two or three days over the long weekend. He claims that at the time of his arrest, he did not yet have the marijuana but he was about to pick it up.

[87] His evidence was that he used the digital scale when buying crack cocaine to ensure that he was not cheated.

[88] The knife was his as well, and he used it to open boxes and packages for his work. He claimed that he received the knife two or three years before the arrest as a gift from a friend. He said that he was not aware the knife could be opened with centrifugal force and that he opened the knife with his thumb and never flicked it open.

[89] He said that what the police claim were phones found in his car were in fact ipods. He had three to four ipods and used them for different music.

General applicable legal principles

[90] Mr. Skeete is presumed innocent, and, before I can find him guilty, I must be satisfied that the Crown has proven the charges against him beyond a reasonable doubt

[91] I must assess all of the evidence before determining whether I have a reasonable doubt of Mr. Skeete's guilt.

[92] Given that Mr. Skeete testified in his own defence, I must assess his evidence in accordance with the principles set out in the Supreme Court of Canada's decision in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Skeete's evidence, I must acquit him. If I do not believe Mr. Skeete's evidence, but I am left with reasonable doubt, I must acquit him. Even if I am not left in doubt by Mr. Skeete's evidence, I must still be convinced beyond a reasonable doubt on the basis of all of the evidence before I can find that Mr. Skeete is guilty. If I am unable to decide who to believe, I must acquit Mr. Skeete.

[93] In assessing the witnesses' evidence, I did not give the police officers' evidence any more weight than Mr. Skeete's evidence simply because they are police officers. I considered the plausibility of each witness's evidence, the inconsistencies within the witness's evidence, and the way in which each witness's evidence fits with the other evidence given.

Count # 1 -- Charge of possession for the purpose of trafficking

[94] In order to find Mr. Skeete guilty of possession for the purpose of trafficking under section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19, I must be satisfied that Mr. Skeete was in possession of a substance, that the substance was crack cocaine, that Mr. Skeete knew the substance was crack cocaine and that Mr. Skeete had the crack cocaine for the purpose of trafficking it.

[95] Mr. Skeete concedes that he was in possession of 12.12 grams of crack cocaine. However, he says that the crack cocaine was in his possession for personal consumption and not for the purpose of trafficking.

[96] If I believe Mr. Skeete's evidence that he had the crack cocaine for his personal consumption, I must acquit him on this charge.

[97] Having carefully considered Mr. Skeete's evidence, I do not believe him and I find his evidence is self-serving and implausible.

[98] First, Mr. Skeete claimed that he had bought the crack cocaine for the purpose of smoking it during the long weekend and that he intended to use all 12.12 grams on his own. He claimed that he had already consumed 1 gram. As indicated above, Mr. Skeete explained that his preferred method for consuming crack cocaine is to smoke it inside an emptied cigar with marijuana. No cigars or marijuana were found when Mr. Skeete was arrested. By the time he was arrested, it was after 5:00 am on Saturday morning and, by his own account, he had spent the night and early morning since at least 9:00 pm out on Eglinton Avenue West and inside a hangout referred to as the "Barbershop" on Eglinton Avenue West, with one short trip to a convenience store. Yet, by this time, he had not purchased any marijuana or cigars. He claimed that when he was stopped by the police, he was parking his car for the purpose of meeting with his dealer to buy marijuana. He planned to purchase the cigars later. I find this evidence implausible. My view is bolstered by Officer Tughan's evidence that, while it might be possible that he has heard of people smoking powdered cocaine with marijuana, he had never heard of crack cocaine being smoked with marijuana.

[99] Second, Mr. Skeete did not have a plausible explanation for why he had $1300 in cash and $600 to $800 worth of crack cocaine. He claimed that the money was from cashing his paycheck. However, given that he also had the crack cocaine, he evidently did not use his paycheck to buy the drugs. When this was pointed out to him in cross-examination, he claimed to have bought the crack for approximately $560 with cash he had received from a different job working in a garage, where he got paid in cash. Again, I find this evidence self-serving and implausible. It was only in cross-examination, when it became clear that his evidence about having $1300 in cash and $600 to $800 in drugs was problematic that Mr. Skeete offered up the evidence about a second job for which he got paid in cash. He was also very vague about the nature and location of the job.

[100] Accordingly, I do not believe Mr. Skeete’s explanation that he had 12.12 grams of crack cocaine for his personal consumption. I do not believe his evidence and it does not leave me with a reasonable doubt.

[101] On the basis of the evidence I do accept as reliable and credible, I am satisfied beyond a reasonable doubt that Mr. Skeete was in possession of the crack cocaine for the purpose of trafficking. As reviewed above, Officer Tughan's expert evidence was that possession of 12.12 grams of crack cocaine, a portable digital scale and $1300 in $20 bills is consistent with trafficking, and that it would be unusual for someone to possess that amount of crack cocaine for personal consumption. There was no countervailing expert evidence.

[102] The only reasonable inference I can draw from the totality of the evidence is that Mr. Skeete was in possession of the drugs for the purpose of trafficking, and I therefore find him guilty of Count 1.

Count #2 -- Charge of possession of proceeds of crime

[103] In order to find Mr. Skeete guilty of possession of the proceeds of crime contrary to section 354(1) of the Criminal Code, I must be satisfied that Mr. Skeete was in the possession of proceeds of crime and that he knew he was in possession of the proceeds of crime.

[104] Officer Sidhu testified that he found $1300 mostly in $20 bills in Mr. Skeete's pocket when he was searched. Officer Tughan testified that crack cocaine drug transactions are typically cash transactions, and that single hits sell for $20 per piece.

[105] Mr. Skeete testified that he had $1300 in cash because he had cashed his pay cheque a couple of days earlier. As indicated above, there are a number of reasons why I find Mr. Skeete's explanation for having $1300 in cash implausible.

[106] However, I am nevertheless not satisfied beyond a reasonable doubt based on all of the other evidence that the moneys in Mr. Skeete's possession were the proceeds of crime, and I therefore find Mr. Skeete not guilty on Count 2.

Count #3 -- Charge of possession of prohibited weapon

[107] In order to find Mr. Skeete guilty of possession of a prohibited weapon contrary to section 92(2) of the Criminal Code, I must be satisfied beyond a reasonable doubt that Mr. Skeete possessed a prohibited weapon and that he knew he possessed a prohibited weapon.

[108] Prohibited weapons include "a knife that opens automatically by gravity or centrifugal force".

[109] In this case, there is no dispute that Mr. Skeete was in possession of the knife and that the knife can be opened by centrifugal force. However, the defence takes the position that the Crown has not demonstrated that Mr. Skeete had the necessary mens rea.

[110] I do not believe Mr. Skeete's evidence that he was not aware that the knife could not be opened with centrifugal force.

[111] As indicated above, Mr. Skeete testified that he used the knife for his work as a furniture assembler. However, on the morning of May 21, 2016, the knife was found on his car's passenger seat while he was driving. At the time, as indicated above, he had not just come from work but rather had spent the night hanging out on or around Eglinton Avenue West. In addition, he was driving around with $1300 in cash and 12.12 grams of crack cocaine. Under the circumstances, his evidence that he used the knife for work is not credible.

[112] In addition, the evidence about how he came to be in possession of the knife was very vague. He testified that the knife had been a gift from a friend named Mark two or three years earlier. His evidence was that he saw Mark with the knife, told him he liked the knife, and Mark gave him the knife. No money was exchanged and Mr. Skeete claimed that he was not aware it could be opened with centrifugal force.

[113] Even assuming he had received the knife three years earlier from a friend, I don't find it credible that he was not aware that the knife could be opened with centrifugal force.

[114] When he testified, Officer Rahanan demonstrated how the knife could be opened. The video from the May 21, 2016 shows Officer Rahanan easily flicking the knife open.

[115] Accordingly, I do not believe Mr. Skeete's evidence that he was not aware the knife could be opened with centrifugal force. I do not believe his evidence and it does not leave me with a reasonable doubt.

[116] I am satisfied that the only reasonable inference I can draw from the totality of the evidence is that Mr. Skeete knew that he was in possession of a prohibited weapon, and accordingly I find him guilty of Count 3.

Count #4 – Charge of possession of a dangerous weapon for a dangerous purpose

[117] In order to find Mr. Skeete guilty of possession of a dangerous weapon for a purpose dangerous to the public contrary to section 88(1) of the Criminal Code, I must be satisfied beyond a reasonable doubt that Mr. Skeete possessed a weapon, that he knew that what he possessed was a weapon, and that he had the weapon for a purpose dangerous to the public.

[118] Based on my findings on Count 3 above, I am satisfied that Mr. Skeete possessed a weapon and that he knew he possessed a weapon. However, the Crown did not make any arguments that Mr. Skeete possessed the knife for a purpose dangerous to the public and I am not satisfied that there is sufficient evidence on which I could make such a finding beyond a reasonable doubt.

[119] Accordingly, I find Mr. Skeete not guilty of Count 4.

Conclusion

[120] For the reasons above, I find Mr. Skeete guilty of Counts 1 and 3, and not guilty of Counts 2 and 4.

FAVREAU J.

RELEASED: June 15, 2018

COURT FILE NO.: CR-17-90000-437

DATE: 20180615

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ADRIAN L. SKEETE

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: June 15, 2018