R. v. Gittens, 2019 ONSC 4093

COURT FILE NO.: CR-17-50000134-4000

DATE: 20190712

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

THEODORE GITTENS

Accused

Alice Bradstreet, for the Crown

Jeffrey Fisher, for the Accused

HEARD: January 7, 8, 15, 16, 21, 22, February 4, 5, 6, April 23, and July 12, 2019

B.A. ALLEN J.

REASONS FOR JUDGMENT

CHARGES

[1] The accused, Theodore Gittens, now age 31, is charged with firearm-related and drug offences. On his firearm offences he is charged with possession of a prohibited 9 mm Beretta handgun without possessing a licence to hold it and with possession of a prohibited over-capacity magazine without being licensed to hold it. There is no dispute that the firearm and magazine are prohibited and that Mr. Gittens was not licensed to possess them. Although a large quantity of money was seized Mr. Gittens is not charged with possession of proceeds of crime.

[2] Mr. Gittens is also charged with possession of cocaine and heroin for the purpose of trafficking. There is an issue as to the quantity of the drugs the determination of which will decide whether Mr. Gittens is found in simple possession or possession for the purpose of trafficking.

OVERVIEW OF TRIAL PROCEEDING

[3] A defence was called in this case. After the accused testified the defence called its second witness, an old friend of Mr. Gittens, Jimal Wardley. Quite unexpectedly, Mr. Gittens testified that the firearm was not his, but belonged to Mr. Wardley. Mr. Wardley took the stand and supported Mr. Gittens’ evidence that the firearm was his. At the end of a day of cross-examination the police arrested Mr. Wardley for possession of the firearm. Mr. Wardley had not completed his cross-examination. Mr. Wardley was transported to the police station, given his rights to counsel and interviewed by video recording. Mr. Wardley returned to the witness stand on the continuation of the trial several days later and completed his cross-examination.

[4] The defence brought an abuse of process application under sections 24(1), 7 and 11(d) of the Charter of Rights seeking a stay of proceedings on all charges on the basis that the police exceeded their authority by the manner in which they interviewed Mr. Wardley. The defence position is that the police abused their power when they attempted to interfere with and influence Mr. Wardley to change his testimony about purchasing the firearm and hiding it in the bedroom closet. This, the defence submits, amounts to witness tampering.

[5] I heard the abuse of process application at the close of the evidence. To give context to the abuse of process application, I first reviewed the trial evidence and then decided the application. For reasons that follow I denied the application.

BACKGROUND TO CHARGES

[6] At the time of trial Mr. Gittens was residing in Toronto with his surety, his brother Jaumaul Gittens and his family. Mr. Gittens has a biological daughter and two step-daughters. The three children lived with their mother in Mississauga at the time of trial. Mr. Gittens claims to have been living in Mississauga with the mother of his daughter and the children at the time of his arrest on April 17, 2016.

[7] Mr. Gittens was arrested at 50 Dixington Crescent, unit one which is located in a Toronto public housing townhouse complex. The firearm, magazine, drugs and proceeds were seized there. That address had been the Gittens’ family home for many years.

CROWN’S CASE

Surveillance and Search

The Surveillance

[8] Officers Raveendra and Fleming were tasked to attend undercover outside 50 Dixington, unit one in separate unmarked vehicles to investigate drug trafficking. Mr. Gittens is charged with drug possession not with trafficking. The Crown called this evidence to bolster the possession charges.

[9] Surveillance started during the day at 2:35 p.m. The police were sitting in their vehicles on opposite sides of the complex, Officer Raveendra on the east side and Officer Fleming on the west side. The surveillance took place during the day beginning at about 2:30 p.m. and lasted about an hour-and-half. There is no video recorded surveillance in evidence.

[10] I find for the following reasons that I am not satisfied it was Mr. Gittens the officers observed doing hand-to-hand drug transactions outside unit one.

[11] The officers saw Mr. Gittens’ driver’s licence ten minutes before they set out to make their observations. It contained a photograph and a general description of Mr. Gittens. It showed a black male, 28 years of age, 5′ 10″ tall, wearing a corn row hairstyle.

[12] Both officers saw a black male exit and enter 50 Dixington, unit one. Understandably, the officers made their observations at considerable distances from the target area, one officer at a distance of 100 – 150 metres and the other at 80 – 90 metres. Without vision assistance this distance did not give optimal vantage points from which to make observations.

[13] One officer, Officer Fleming, using binoculars, observed two hand-to-hand drug transactions by a black male at two different times with two different buyers. Officer Raveendra, without binoculars, observed the black male but no drug transactions.

[14] The extent of the officers’ descriptions of the male was that he was black, about 5′ 9′′ - 5′ 10″ tall. Officer Fleming observed the male for about 20 minutes and Officer Raveendra observed him for 15 – 20 seconds. Officer Raveendra saw him from the side and behind. The officers described the male’s clothes, observing that he wore a black do-rag on his head which concealed his hairstyle. The officers were unable to provide any unique distinguishing characteristics like facial hair, hairstyle, piercings, tattoos or glasses.

[15] Officer Fleming who had seen the male for the longer period with binoculars and who saw the drug transactions expressed uncertainty at the preliminary inquiry two years after the incident as to what the male on the driver’s licence looked like. It is not likely that his certainty could have increased at trial a further year.

[16] There was another black male, Nicholas Ridge, residing at 50 Dixington, unit one at the time of the drug investigation. The officers indicated that at the time of the surveillance, they did not know what Mr. Ridge looked like. They did not see him until the search of the residence. Given the scant description of the black male the officers observed, it is possible that it was Brandon Ridge or another male they observed.

[17] Given the notorious frailty of eyewitness evidence, the dearth of descriptive evidence and Officer Flemings’ uncertainty, I have little confidence that it was Mr. Gittens the officers observed trafficking drugs. The surveillance evidence is therefore not useful to the Crown to fortify its case on the drug possession charges.

The Search

[18] The results of the surveillance gave the officers the grounds to execute a search of the premises. The defence did not challenge the search warrant.

[19] The officers tasked to search the target address were directed to look for crack and powder cocaine, scales, proceeds and packaging such as baggies. The officers had Mr. Gittens’ driver’s licence for identification purposes.

[20] The residence has two storeys and a basement. The first floor has a living room, dining room, kitchen, washroom and a bedroom. On the second floor are three bedrooms, including the bedroom where Mr. Gittens was sleeping (“bedroom one”) and a washroom. Photos were taken by the scene of crime officer, Officer Wasselius, of the rooms and of all items seized. Entry and exit videos were taken by Officer Tanel. There is no dispute that the photos and video recordings entered as exhibits are fair and accurate depictions of what is captured.

[21] The search warrant was executed at 10:50 a.m. Two males were located on the premises. Mr. Ridge was located on the couch in the living room on the first floor. Mr. Gittens was located sleeping on a bed in bedroom one.

Bedroom One

[22] Officer O’Neil and Officer Joshi were tasked to search bedroom one where they found Mr. Gittens alone in bed asleep. Mr. Gittens was taken downstairs to the living room where Mr. Ridge had been arrested.

[23] Officer O’Neil found a safe in that bedroom. He searched Mr. Gittens’ clothing at the foot of the bed and in a jeans pocket found a key ring with a key that opened the safe.

[24] Officer O’Neil searched the top of the bed and found two cellphones, a silver iPhone and a ZTE flip phone. On the nightstand beside the head of the bed, the officer found a large plastic baggie containing smaller plastic packages of white powder. There were two other cellphones on the nightstand, a white Blackberry and a phone with a gold plastic case. Under a food container on the nightstand the officer located mail from the City of Toronto and the CIBC addressed to Mr. Gittens. Officer O’Neil flipped the bed mattress and found a white bullet-proof vest.

[25] From the dresser in bedroom one Officer O’Neil seized an expired Ontario driver’s licence and a birth certificate containing the name Tremaine Nathan Theodore Gittens, date of birth December 1, 1987. In one of the dresser drawers in bedroom one was located a number of pieces of mail. Some of the mail was addressed to Mr. Gittens. Officer O’Neil did not search all of the envelopes or take note of any names on them. He did not feel the need to do this because he already had seized identification and mail for Mr. Gittens.

[26] Officer Joshi seized from the sleeve of a winter jacket found in the closet a firearm wrapped in a white t-shirt. The firearm was an unloaded Beretta 9 mm handgun. He also seized an over-capacity magazine containing no bullets. In the front right pocket of a black bomber jacket hanging in the closet, Officer Joshi seized a plastic baggie containing two smaller baggies of what he believed was heroin.

[27] Also, on a round red table in the bedroom Officer Joshi found a larger plastic Ziploc baggie with an apple design on it containing several individual smaller baggies with gold skull designs on them. He also found a black and a silver scale.

[28] Officer O’Neil gave the key to the safe to Officer Joshi. Officer Joshi opened the safe and found two jars containing currency and coins. One jar had Mr. Gittens daughter’s name “Tamia” on it and the other had the names of Whitney Gittens’ daughters. Officer Joshi seized two bags of currency from the safe. In the first bag was $3,030.00 (CDN). The second bag contained two bundles, one containing $2,170.00 (CDN) and the other $5,845.00 (CDN). The total amount seized was $11,045.00.

[29] Officer Joshi also testified about photos and a drawing on a wall of bedroom one. He believed the sketched drawing was identical to Mr. Gittens and that Mr. Gittens was depicted in some of the family photos on the wall of that bedroom. There was also a college diploma on the wall containing Mr. Gittens’ brother Jaumaul Gittens’ name.

The Dining Room

[30] Officer Raveendra searched the dining room and living room. He seized items from on top of the hutch in the dining room. Two clear plastic baggies of white powder later determined to be the cutting agent phenacetin were seized. In a drawer of the hutch the officer found a large plastic bag with an apple design on it containing numerous small plastic baggies with gold-coloured skull designs on them.

Summary of Items Seized

[31] The substance seized by Officer O’Neil from the nightstand found in seven clear plastic baggies contained in a larger baggie was crack cocaine weighing 5 grams. Also, in that larger baggie were three smaller baggies of heroin weighing .55 grams. Also seized by Officer O’Neil were four cellphones, a driver’s licence, a birth certificate in Mr. Gittens’ name, items of mail addressed to Mr Gittens and a bulletproof vest.

[32] The substance seized by Officer Joshi from the jacket in the closet was contained in two larger plastic baggies. One of the larger baggies contained 13 clear individual plastic baggies of heroin with a total weight of 7.10 grams. The other larger baggie contained a bulk amount of 7.47 grams of heroin. From the safe in bedroom one Officer Joshi seized two bags containing currency totalling $11,045.00 (CDN).

[33] From the top of the dining room hutch Officer Raveendra seized two large plastic baggies of a white powdered substance, the cutting agent phenacetin, one weighing 117.86 grams and the other weighing 118.95 grams.

[34] Also seized by Officer Joshi was an unloaded Beretta 9 mm handgun, an unloaded over-capacity magazine and two weigh scales.

THE DEFENCE CASE

[35] A defence was called. Mr. Gittens testified. He called his childhood friend, Jimal Wardley and his sister Whitney Gittens.

Mr. Gittens’ Evidence In-Chief

Place of Residence

[36] Mr. Gittens lived at 50 Dixington, unit one from his early childhood. His evidence is that he moved from that address about nine years ago. His sister, Whitney Gittens, at the time of the arrest and currently, resides at the 50 Dixington, unit one with her two daughters. At the time of the arrest a friend of Mr. Gittens, Nicholas Ridge, also resided at the residence. Mr. Gittens testified that he occasionally visited the family residence and would occasionally stay the night.

[37] On Mr. Gittens’ reason for being at 50 Dixington the night of the arrest, he explained that his sister was away on a trip in April 2016 and had asked him to check on the house while she was away.

[38] Mr. Gittens testified that on the evening of April 17, 2016, he had gone out with Mr. Ridge to a night club in downtown Toronto. He said he got drunk and he and Mr. Ridge ended up back at 50 Dixington, unit one. That night Mr. Gittens slept in the bedroom he had slept in as a child and had once shared with his brother Jaumaul Gittens.

[39] Mr. Gittens is age 31 years now. He testified that he moved out of that home about nine years ago, in 2009 or 2010, when he was in his 20s. His brother Jaumaul Gittens subsequently moved out into his own home. Mr. Gittens testified he never moved back into that home. As noted earlier, Mr. Gittens’ evidence is that in April 2016 he was living in Mississauga with his daughter’s mother and the children in a townhouse at 1500 Bristow in Mississauga.

Evidence Suggesting Connection to 50 Dixington

[40] Mr. Gittens testified that since he moved out of the family home he has never updated the address on his bank account or his driver’s licence. He stated that his mail continued to go to 50 Dixington because he never put in a change of address with the post office. He indicated that the driver’s licence in evidence is expired and that he has another copy of his birth certificate in addition to the one in evidence.

[41] Regarding the photos on the wall of bedroom one, he indicated he is in one of the photos with his children and their mother. Regarding the sketch on the wall that Officer Joshi said was identical to Mr. Gittens, Mr. Gittens stated that it is not him but rather an American rapper. He stated the other photos on the wall were of other family members.

The Safe and Currency

[42] Regarding the safe, Mr. Gittens testified that he did not purchase the safe. He stated that his sister Whitney Gittens gave him a key to the safe. Mr. Gittens admitted he put some of the money into the safe, funds he said he was putting away for his daughter. Mr. Gittens’ evidence was that he gave money to Ms. Gittens to put into the safe for his daughter, money she received for birthdays and Christmases and from her baby shower. Mr. Gittens indicated that he, Whitney Gittens and his other sister, Keisha Gittens, each had put money into the safe. Mr. Gittens denied the funds were from drug trafficking. The majority of the money in the safe, he said, was put there by his sisters.

The Firearm

[43] Mr. Gittens denied that the black jacket from the closet where the firearm was found was his. He denied that the two baggies of heroin seized from the jacket were his. As noted earlier, he in fact testified that the firearm belonged to his childhood and current friend, Mr. Wardley.

[44] Mr. Gittens testified that Mr. Wardley lived in the same housing complex as the Gittens family. In 2010/2011, Mr. Wardley stayed with the Gittens family when he was kicked out his family home. According to Mr. Gittens, and Mr. Wardley as we see later, Mr. Wardley also stayed at the Gittens’ in late December 2015, early January 2016 for some two weeks. The evidence is that in December 2015 Mr. Wardley was living in Calgary having recently been released on parole from prison on robbery convictions. Mr. Gittens testified he was not aware on April 17, 2016 that there was a firearm or drugs in bedroom one.

Mr. Gittens’ Evidence on Cross-Examination

The Firearm

[45] Mr. Gittens testified it was his lawyer who told him that Mr. Wardley would be coming forward to testify that the firearm was his. But he said he did not recall when he was told this. Mr. Gittens explained how he found out who owned the firearm. He said that while he was in pre-trial custody Mr. Wardley told his sister, Whitney Gittens that it was his firearm and the sister relayed this information to Mr. Gittens. Mr. Gittens denied paying Mr. Wardley, influencing him or threatening him to say the firearm was his.

[46] Crown counsel questioned Mr. Gittens on how he felt about spending over three years in pre-trial custody not knowing it was his friend, Mr. Wardley, who actually put the firearm in the bedroom. Crown counsel questioned whether Mr. Gittens spoke to Mr. Wardley about bringing a firearm into the home potentially endangering the two small children who lived there. Mr. Gittens’ response was that he recognized that Mr. Wardley was trying to change his life and for that reason he did not want to bring up the past. He surprisingly, given his long stay in custody, said he had no animosity towards Mr. Wardley and they are still friends.

The Funds in the Safe

[47] Regarding the money in the safe Crown counsel asked Mr. Gittens why he would stash money for his daughter in a safe where he did not live. His response was that he put the money in a place, not near him, so he would not touch it. Crown counsel questioned Mr. Gittens about how he earned money around April 2017. Mr. Gittens testified that he was not working on any full-time or permanent basis at the time. He indicated he was receiving government benefits at about $1,000.00 per month. He was asked where his sister worked and he said she earned income from a flea market store she operated.

Connection to 50 Dixington

[48] Mr. Gittens was initially denied bail on April 18, 2018. Crown counsel asked him about his bail review hearing and he recalled that he had sworn an affidavit in support of his application for bail. He confirmed that his counsel had prepared the affidavit and that he had sworn and signed it.

[49] Crown counsel questioned him about having sworn that he was residing at 50 Dixington, unit one at the time he was arrested on April 17, 2016. Mr. Gittens’ response was that on the affidavit he provided the address that was on his driver’s licence. He said he thought that was the address he should provide. He thought of the affidavit as being a government document.

[50] Crown counsel referred to other evidence Mr. Gittens swore to, that he has a daughter who lives with her mother in Mississauga and that he was involved in his daughter’s life and would pick her up daily. This of course suggests that he did not live with his daughter if he had to pick her up. Mr. Gittens again insisted that he is not lying about where he was residing because what he did was just to swear to the address on his driver’s licence.

[51] Crown counsel further put to Mr. Gittens that his brother Jaumaul Gittens, his surety, testified at the initial bail hearing that Mr. Gittens lived at 50 Dixington, unit one. Mr. Gittens denied knowing his brother gave that testimony. When confronted with that evidence, he again denied living at 50 Dixington and occupying bedroom one where the firearm, drugs, safe, safe key, currency and bulletproof vest were located. He insisted that bedroom one did not belong to anyone at the time he was arrested. He repeated that the firearm belonged to Mr. Wardley and denied the drugs, bulletproof vest and money were his.

[52] Crown counsel questioned Mr. Gittens about the surveillance officers’ evidence that during the afternoon of April 15, 2016 they observed him exit and enter 50 Dixington, unit one speaking on a cellphone and in the act of conducting drug deals with two males outside the residence. Mr. Gittens denied it was him and said he was in Mississauga on April 15th. Mr. Gittens denied ever selling drugs.

THE LAW ON COMPELLED STATEMENTS AND SELF-INCRIMINATION

[53] The defence brought an application to challenge the admissibility of Mr. Gittens’ bail review affidavit. As required under criminal proceedings rules, the affidavit identifies Mr. Gittens’ residence at the time of his arrest. Mr. Gittens’ residence is of course an issue on the possession charges.

[54] During trial, the affidavit was admitted as an exhibit and used by Crown counsel when cross-examining Mr. Gittens. The defence sought exclusion of the affidavit and the related testimonial evidence under s. 24(1) asserting violations of sections 7, 11(c) and 13 of the Charter of Rights.

[55] I will briefly consider the law that governs the use of affidavits on applications and the law pertinent to the Charter claims.

[56] Rule 20 of the Criminal Proceedings Rules for the Superior Court of Justice deals with the procedural requirements on applications. Rule 20.05(1)(a) requires that a notice of application “shall” be accompanied by an affidavit of the applicant. Rule 20.05(2)(b) provides that the affidavit “shall” disclose the applicant’s place of abode in the three preceding years as well as the place where the applicant proposes to reside if released. The defence argues that because an accused is mandated by law to swear an affidavit and disclose their place of residence the affidavit constitutes a statutorily compelled statement.

[57] The law on compelled statements engages an accused’s s. 7 liberty interest in circumstances where the accused is statutorily compelled to testify or provide a statement. Section 13 provides that a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate them in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. Section 11(c) protects an accused from being compelled to be a witness in proceedings against themselves in respect of an offence at issue.

[58] Section 13 is read in conjunction with sections 7 and 11(c) of the Charter. While s. 11(c) protects persons charged with an offence from being compelled to testify against themselves s. 7 protects more broadly against self-incrimination during the investigative and pre-trial periods of the criminal process. Principles of fundamental justice include protection against self-incrimination, and where s. 13 does not apply, s. 7 provides residual protection against self-incrimination when a person’s life, liberty or security interests are at stake: [R. v. S. (R.J.), [1995] 1 SCR 451, at p. 512, (S.C.C.); R. v. White, [1999] 2 S.C.R. 417 at para. 40; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757 at para. 67].

[59] The Supreme Court of Canada in R. v. White enumerates factors to be considered in determining whether a statutorily required statement offends s. 7 of the Charter:

(a) the existence of coercion;

(b) an adversarial relationship between the accused and the state at the time the statement is made;

(c) the risk of unreliable confessions as a result of compulsion; and

(d) the increased risk of abuse of power by the state.

[R. v. White, at para. 51]

The Parties’ Positions and the Court’s Analysis

[60] The defence argues that all four White factors are satisfied.

[61] On the first factor, the defence asserts that the mandatory nature of Rule 20 requiring an accused to swear an affidavit containing their place of residence is coercive in its effect.

[62] On the second factor, the defence sees an adversarial relationship between Mr. Gittens and the state in the fact of his having been detained in custody after being charged with an offence. What the defence points to is that in order to be considered for release on bail Mr. Gittens was required to provide the affidavit to the court and to the Crown.

[63] On the third factor, the question of increased risk of an unreliable confession, the defence argues that the compulsion to swear an affidavit creates an increased risk that Mr. Gittens could be tempted to say anything that could increase the possibility of his release.

[64] And on the fourth factor, on state abuse, the defence takes the position that the compulsion also increases the risk that the state may abuse its power. In support of that position the defence posits a rather nefarious inclination the Crown may have, the possibility of the Crown being incentivized to seek detention in order to compel a person to swear an affidavit disclosing their residence so that the affidavit might be used to cross-examine the accused at trial.

[65] The defence also points to s. 13 which prevents the Crown from tendering compelled, incriminating evidence of an accused person from another proceeding in a subsequent proceeding. Incriminating evidence for the purpose of that provision is evidence from a prior proceeding which the Crown could rely on to prove one or more of the essential elements of the offence charged: [R. v. Nedelcu 2012 SCC 59, at para. 9, (S.C.C.)].

[66] The bail review proceeding on the defence’s argument is an “other proceeding” in relation to the trial. The defence analogizes a bail review proceeding to the voir dire proceeding discussed by the Supreme Court of Canada in R. v. Durrach where it determined that a voir dire is an “other proceeding” in relation to the trial because it is not involved with the determination of guilt or innocence: [R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 66, (S.C.C.)].

[67] I am inclined to agree with the Crown counsel’s position on this application.

[68] The coercion factor is not present. Coercion as it is normally understood presents the subject of the coercion with no option. The subject is forced to do something against their will. The Crown points out the discretion the court has in relaxing the rules under certain circumstances. Attenuating any notion of coercion in Rule 20.05 Crown counsel points out that requirements under the rules are not hard and fast. Rule 2.01 gives the judge the discretion to dispense with non-compliance “with any rule where and to the extent necessary in the interests of justice to do so.” The defence, Crown counsel counters, could have applied to have the court dispense with Rule 20.05 requirements.

[69] Neither is the factor of adversarial relationship with the state factor present. The rules of the court govern procedure in criminal proceedings. It is the court that enforces the rules, not the state, and the court is not an agent of the state. Crown counsel submits, and I agree, that there was no psychological or emotional pressure by the state or otherwise on Mr. Gittens in relation to his bail review. He had the assistance of legal counsel to advise him about the information required for the bail review.

[70] Nor is the factor of the risk of an unreliable confession met. A confession by definition is the act of admitting that you have done something wrong or illegal. Providing an address in a bail review application cannot possibly be construed as a confession.

[71] Neither is the factor of increased risk of abuse of power by the state satisfied. I agree with Crown counsel’s view that the information required in the affidavit does not have an abusive element. The information about the address is information properly required for the administration of the bail system. Crown counsel took exception, as does this Court, to defence counsel’s suggestion that the Crown would be inclined to violate the Crown policy and the law by refusing a consent bail when consent would otherwise be appropriate, for the purpose of trapping an accused into disclosing information the Crown could later use against an accused.

[72] Crown counsel makes a further argument with which I agree. That is, that Mr. Gittens, like other accused persons, is not compelled to provide an affidavit for a bail hearing. This is because an application for bail is a constitutional entitlement not a statutory requirement. It follows then that an affidavit sworn for a bail hearing does not constitute a compelled statement. Distinct from that situation are the circumstances in cases like R. v. White and R. v. Jarvis. In those cases the parties seeking exclusion of evidence were statutorily bound to provide statements and information which were used against them in subsequent criminal proceedings.

[73] As referenced above, section 13 prevents compelled, incriminating evidence from other proceedings from being used against an accused in a subsequent proceeding. The applicant must establish that the statement is both compelled and incriminating. Based on my decision on the White factors, I find the affidavit is not a compelled statement. Crown counsel cites R. v. Mallory where the Crown was allowed to cross-examine the accused on his bail affidavit. The bail hearing was regarded as an “other proceeding” but was not considered to be compelled: [R. v. Mallory 2007 ONCA 46, 2007 ONCA, at 46, (Ont. C.A.) and R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (S.C.C.)]

[74] There is also no basis on which the affidavit could be considered incriminating. By definition incriminating means to make someone seem guilty especially of a crime. I find the information in the affidavit in no way makes Mr. Gittens appear guilty of a crime. The requirement to supply an affidavit containing residential information is a function of the normal bail review process.

[75] As noted above, section 11(c) protects an accused from being compelled to be a witness in proceedings against themselves in respect of the offence at issue. I do not find for reasons provided earlier that Mr. Gittens was compelled to be a witness against himself as a result of swearing the bail affidavit and testifying at trial.

For all the above reasons, I will not exclude the affidavit and related testimony as evidence at trial.

CONTINUATION OF DEFENCE EVIDENCE

Mr. Wardley’s Evidence In-Chief

Background

[76] Mr. Wardley, now age 33 years, has a very lengthy criminal record dating back to 2004. His convictions include in a 2007 a robbery with disguise with intent to use imitation firearm and in 2011 two robberies of banks with the use of an imitation firearm. His convictions also include non-compliance and evade police offences. On the 2011 convictions, Mr. Wardley was imprisoned in Calgary and released there on parole in June 2015 where he lived with his sister. His plan was to remain in Calgary and work as a welder.

[77] Mr. Wardley confirmed that he has been from early childhood and still is a friend of Mr. Gittens and that he stayed at the Gittens home for extended periods in the past. He stated that the last time he stayed at the Gittens’ before 2015 was in 2011 before he went to prison.

The Firearm and Bedroom One

[78] Mr. Wardley testified he found out Mr. Gittens had been arrested on firearm and drug charges in February or March 2016 when he called Whitney Gittens while he was in custody in Calgary for a parole breach.

[79] Mr. Wardley announced from the witness stand that he came to court to “own up to the firearm that was brought up in this case.” He specifically said he was owning up to the black Beretta semi-automatic with an extended clip. However, he denied owning the drugs that were seized at 50 Dixington, unit one. Mr. Wardley did not seek protection against self-incrimination under s. 5(2) of the Canada Evidence Act and s. 13 of the Charter.

[80] Mr. Wardley denied that anyone asked him to testify and rejected the suggestion that he was threatened or offered something for his testimony. Mr. Wardley pointed out that his criminal record shows that he pleaded guilty to every charge he received because he always owned up to the crimes he committed. His evidence was that owning up to the firearm was motivated by his past practice of admitting wrongdoing. Mr. Wardley declared, “I didn’t want someone to go down for something I did”, and, “I stored it and I should do the time.”

[81] Mr. Wardley confirmed Mr. Gittens’ evidence that he came to Toronto on a two to three week visit in December 2015 on a temporary pass while still on parole in Calgary. He testified he purchased the firearm just before Christmas for about $2,000.00 for protection from a person to whom he owed $10,000.00 on a gambling debt. He said the person he owed the money to threatened his life. He could not recall the name of the person he bought the firearm from, but added that even were he to provide the name he would be considered a “snitch” and that would put him into more trouble.

[82] Mr. Wardley testified he stored the firearm in bedroom one in a closet. He said he wrapped it in white clothing and placed it in a jacket which he said belonged to him. Mr. Wardley testified that he told no one that he had left the firearm there. He identified other clothing and shoes that he said were his that he stored in the closet. He stated that some of the DVDs, a watch, and one of the cellphones in the bedroom were his property. He denied knowing about or owning the bulletproof vest that was found under the mattress.

[83] Mr. Wardley said he was not concerned about the danger of storing a firearm in a home with children because no one ever disturbed his belongings before. When asked why he left the firearm at 50 Dixington, Mr. Wardley said he could not take it with him to Calgary because he was going by plane. Mr. Wardley said at the time he had plans to eventually return to live in Toronto.

Mr. Wardley’s Evidence on Cross-Examination

[84] The trial started on Monday, January 7, 2019. Mr. Wardley’s examination-in-chief began on Tuesday, January 15th and his cross-examination on Wednesday, January 16th.

[85] Crown counsel questioned Mr. Wardley about how it came to be that he became a witness in the trial. He explained that Whitney Gittens informed him of when the trial was starting. He stated that on the second day of trial he showed up and sat in the body of the court for about 15 minutes. When Crown counsel asked him who was calling him as a witness he said he expected “to be called up by the courts.” Mr. Wardley stated that Mr. Gittens’ counsel spoke to him briefly that day and requested he leave the courtroom in anticipation of him being called as a witness.

[86] On January 16th, Crown counsel asked Mr. Wardley if he had been subpoenaed. Mr. Wardley was evasive. He responded that he had been subpoenaed the previous week sometime but did not remember when. He said that he did not recall receiving the subpoena but said he did have a piece of paper at home. He said he did not know who subpoenaed him or what the person looked like.

[87] Crown counsel inquired about the existence of the subpoena and asked the Court to order the subpoena to be brought forward. I requested that defence counsel, Mr. Fisher, make the subpoena available to the Court and the following day Mr. Fisher presented a photographic image of the subpoena. Mr. Fisher advised that on Tuesday, January 8th at the courthouse it was him who served the subpoena on Mr. Wardley because no one else from his firm was present to serve him.

[88] Mr. Wardley testified about meeting Mr. Fisher at his office on Sunday, January 13th. There was no one else present. He testified that he told Mr. Fisher he was prepared to take responsibility for the firearm. He told Mr. Fisher he had left the firearm at the Gittens’ when he came to Toronto at Christmas 2015.

[89] On the stand on January 16th, Mr. Wardley testified he had not spoken to Mr. Fisher before January 16th. This contradicts his evidence that he spoke to Mr. Fisher on January 8th at the courthouse and met him at his office on January 13th for one to two hours.

[90] A matter of some contention was whether Mr. Fisher showed Mr. Wardley any photo exhibits during the meeting, especially of the firearm. On questioning by Crown counsel, Mr. Wardley said he was not shown any photos.

[91] This would clearly be unlikely since Mr. Fisher’s intention in meeting would naturally be to prepare Mr. Wardley for trial by showing the exhibits. Mr. Fisher taking a view different from Mr. Wardley would put him in the position of being a witness against Mr. Gittens. This matter ultimately became the subject matter of a Criminal Code, s. 655 admission by defence counsel. It is conceded that in discussing the case with Mr. Fisher he showed Mr. Wardley photos of bedroom one including pictures of the firearm and where it was found.

[92] Crown counsel questioned Mr. Wardley about what he knew about the firearm. In answer to her questions, Mr. Wardley gave only a vague description of the firearm. He said all he recalls is that it was a black Beretta and that it had an extended clip. But he said he did not know how many bullets it held. He just stored the firearm. Mr. Wardley testified he bought the firearm from the guy in Toronto but did not buy ammunition.

[93] Mr. Wardley testified he had not communicated with Mr. Gittens often since the case began. He said he has been a little distant from Mr. Gittens. He testified he never told Mr. Gittens in advance that he was going to court to take responsibility for the firearm.

[94] Crown counsel showed Mr. Wardley photos of the firearm and the room and of clothing in the closet in bedroom one. Mr. Wardley said some of the items belonged to him and that he had left them in the bedroom when he flew back to Calgary. Contrary to his evidence in-chief, Mr. Wardley said he was not sure whether the jacket and T-shirt where the firearm was located belonged to him.

[95] Finally, Crown counsel questioned Mr. Wardley about why he waited until the trial had started to say the firearm was his; why he did not go to the police and report that the firearm was his before the trial. What Crown counsel was suggesting was that Mr. Gittens had found out in February/March 2016 from Whitney Gittens that Mr. Gittens had been arrested and he waited three years to say it was his firearm. Mr. Gittens said he delayed admitting the firearm was his because he was scared, nervous to come forward. He said he went back and forth about going to court to own up. He finally got the nerve on January 8th.

[96] Crown counsel put to Mr. Wardley on a number of occasions whether he would be prepared to make a statement and plead guilty to firearm charges and go to prison for those offences, to which Mr. Wardley responded in the positive each time.

[97] On a point of chronology, on January 16th Mr. Fisher requested an opportunity to bring an application to claim litigation privilege over communications he had with Mr. Wardley during his attendance at Mr. Fisher’s office on January 13th. An adjournment of the trial until February 4th was scheduled to allow opportunity for the parties to prepare and argue the application. As it turned out, the defence abandoned the application. Mr. Wardley completed his cross-examination on February 4th.

Mr. Wardley’s Arrest and Interview

The Arrest

[98] On Wednesday, January 16th, the trial took an unexpected turn after court adjourned for the day. The police arrested Mr. Wardley for possession of the firearm he claims he had secreted at 50 Dixington. When he was arrested his cross-examination had not been completed.

[99] On January 16th, Mr. Wardley was transported to the police station and read his rights to counsel and caution. He underwent a videotaped interview by D.C. Lee and D.C. Tanel that began at 7:39 p.m. and ended at 9:17 p.m. The police stated that based both on what Mr. Wardley confessed to Mr. Fisher and in testimony at trial they had reasonable and probable grounds to arrest him. They explained to Mr. Wardley that he was arrested but no formal charges were laid because that was required to be done in court before a judge.

[100] Copies of the transcript and the DVD of the interview were filed.

The Interview

[101] Before the start of the interview, the officers confirmed that Mr. Wardley had an opportunity to speak to counsel. Mr. Wardley indicated that he was satisfied with having spoken to a lawyer and that he did not need a lawyer for the interview.

[102] The police advised him of the firearm charges against him. At points in the interview the police told Mr. Wardley he could face an eight to nine or ten-year sentence if he were convicted given his criminal record. Mr. Wardley was also told that when he went to bail court the next morning he would likely be refused bail and he would end up in custody. One of the officers told him that in his experience when people facing bail have spoken to the police “because they wanted to” they had been released on bail.

[103] The police informed Mr. Wardley that he did not have to speak to them and that he could ask for a lawyer at any time. The officers explained that while Mr. Wardley need not talk to them that would not stop them from talking to him nor stop him from listening. That is the course the interview took. The police officers did almost all the talking.

[104] The officers posed continuous questions and made many statements mainly directed to attempting to find out whether Mr. Wardley was telling the truth about the firearm. The officers posed to Mr. Wardley that his testimony on the stand was not consistent and told him they do not believe his evidence that it is his firearm. They told him that he came forward to take responsibility for the firearm to help his childhood friend and had now put himself in jeopardy.

[105] The police posed two options to Mr. Wardley, either the firearm was actually his and he was genuinely trying to accept responsibility, or the firearm was not his and he had been duped into coming to court and making a false claim of liability. Mr. Wardley did not respond to that suggestion.

[106] In areas of the interview, the officer made discrediting comments about Mr. Gittens’ counsel, Mr. Fisher, questioning his professionalism alleging Mr. Wardley may have been tricked by the lawyer, that he was being used as the fall-guy and that the lawyer should not be trusted.

[107] Mr. Wardley asked when the interview was going to be over and the police told him they would be there for a while. Throughout the interview Mr. Wardley repeatedly told the police he had nothing to say. He did not want to answer their questions. Periodically, in response to pointed questions, Mr. Wardley indicated if he were to say anything he would have to speak to his lawyer. At points the officers asked Mr. Wardley if he would speak to them if they arranged for him to speak to a lawyer. Mr. Wardley did not respond to or act on those offers.

[108] After the interview, Mr. Wardley was released on bail under the Bail Program. Crown counsel has indicated that it is proceeding with the prosecution of Mr. Wardley on the firearm charges.

[109] In the end, Mr. Wardley did not say anything that contradicted his testimony that the firearm was his. Mr. Wardley returned to the witness stand on February 4th to complete his cross-examination. He did not change his evidence about the firearm being his.

Whitney Gittens’ Evidence

Examination-in-Chief

[110] Whitney Gittens confirmed that she is Mr. Gittens’ sister. She stated that she has resided at 50 Dixington, unit one since age three. She confirmed Mr. Gittens’ evidence that he had lived there from his early childhood. Her evidence was that he moved out sometime before 2011. In answer to questions about Mr. Gittens’ mail and identification being found at that address by the police, she stated that, after he moved his, mail kept coming to her home. She testified that all of her family members’ mail got delivered to her home even after they moved out. She stated that it was she who put Mr. Gittens’ mail in bedroom one.

[111] Whitney Gittens testified that bedroom one was once occupied by Mr. Gittens and his brother Jaumaul from the time they were children. She said Jaumaul moved out around 2013 so that on April 17, 2016 no one occupied that room. It was a spare room. She identified clothes in the closet as belonging to Mr. Gittens and Jaumaul Gittens. She identified one of the cellphones in the drawer of the nightstand as her old phone.

[112] Whitney Gittens testified that in April 2016, she, her two daughters, her mother and her younger brother Tyrese Gittens and Nicholas Ridge lived at the residence. She said Mr. Gittens stayed there occasionally but did not live there.

[113] Whitney Gittens confirmed Mr. Gittens’ and Mr. Wardley’s evidence that Mr. Wardley stayed at their home when he was a child as well as in 2011. Whitney Gittens also confirmed the evidence that Mr. Wardley stayed at the home for a couple of weeks in the winter before Mr. Gittens’ arrest. Her evidence was that Mr. Wardley slept in bedroom one during that latter stay. She confirmed Mr. Wardley’s evidence that he stored clothes and shoes in that bedroom.

[114] Whitney Gittens was questioned about the safe in bedroom one. She said she put the safe in that room and put money in it from time to time. She stated that two of the cups in the safe had her daughters’ names on them. Her evidence was that she, Mr. Gittens and Jaumaul Gittens had access to the safe. She admitted that Mr. Gittens may have found a key to the safe that she had misplaced.

[115] Whitney Gittens testified she was on vacation when Mr. Gittens was arrested and learned the details of the arrest when she returned. She testified she was unaware of a firearm, bulletproof vest, drugs and scales in the home. She said she never saw Mr. Gittens with a firearm or selling drugs.

Cross-Examination

[116] Crown counsel challenged Whitney Gittens on her evidence that Mr. Gittens did not live at 50 Dixington, unit one when he was arrested on April 17, 2016. Crown counsel read from the affidavit Mr. Gittens swore at his bail hearing. As noted earlier, Mr. Gittens swore that when he was arrested he resided at 50 Dixington, unit one. Crown counsel pointed to Mr. Gittens’ statement in his affidavit that his daughter lived with the mother in Mississauga and before his arrest he used to pick her up and drop her off at school in Mississauga. Whitney Gittens indicated she was not aware that Mr. Gittens had sworn such an affidavit. Crown counsel put to Whitney Gittens that she is not telling the truth about where Mr. Gittens lived at the time of the arrest because she loves him and does not want him to go to jail. She denied this.

[117] Crown counsel also put to Whitney Gittens that Jaumaul Gittens and his wife also swore affidavits attesting to Mr. Gittens living at 50 Dixington at the time of his arrest. Jaumaul Gittens requested in his affidavit that because the mother worked that Mr. Gittens be permitted to pick up his daughter in Mississauga and drop her off at school as he did before his arrest. Whitney Gittens also indicated she was not aware her brother and sister-in-law had sworn affidavits for the bail hearing.

[118] Crown counsel put to Whitney Gittens that her brother came to trial and swore under oath that when he was arrested he did not live at 50 Dixington with her and her two daughters. She remained steadfast that Mr. Gittens did not live with her. But she also made the rather equivocal statement that, “he lived with his baby’s mom as well”. She contended that what Mr. Gittens, Jaumaul and his wife swore in their affidavits is simply not true.

[119] Whitney Gittens confirmed Mr. Gittens’ evidence that the reason he was at the home when he was arrested was because she had asked him to check on the apartment while she was away on vacation. She was away when Mr. Gittens was arrested.

[120] Crown counsel continued questioning Whitney Gittens about who lived at her home in April 2016. Contrary to her testimony in-chief, she admitted that her mother and her younger brother Tyrese were not living at 50 Dixington. They were living with Tyrese’s father at another address. Defence counsel put to Whitney Gittens that she was attempting to place more people as living at the home to make it appear more likely that Mr. Gittens did not live there to help prevent her brother from going to jail. Whitney Gittens flatly denied that suggestion.

[121] Crown counsel questioned Whitney Gittens about her income around April 2016. She stated her average income was about $35,000.00 per year, her take-home being about $2,000.00 per month. She received a child tax credit of $1,000.00 per month as well. Her rent was about $1,000.00 per month. The suggestion defence counsel was advancing was that with two children and living expenses there would not be much extra money each month with which suggestion Whitney Gittens agreed.

[122] Crown counsel raised the matter of the over $11,000.00 located in the safe and suggested that money was from Mr. Gittens’ drug dealing. Crown counsel further suggested that her brother lived with her and she benefited from the money. Again, Whitney Gittens denied those suggestions. She denied the money was from drugs and insisted that it was placed in the safe by her and Mr. Gittens to save for their children’s education which they had been saving since the children’s births.

[123] Crown counsel posed a number of questions to Ms. Gittens about details of Mr. Wardley’s stay at her home during Christmas of 2015 when he was supposed to have left the firearm. She could not recall some details. About the opportunity for Mr. Wardley to leave the firearm in bedroom one before the arrest, Crown counsel put to Whitney Gittens that he did not really stay at her home during Christmas 2015 or she would recall more about that visit. Crown counsel suggested someone put her up to saying that Mr. Wardley had stayed there. She denied that was true.

DEFENCE ABUSE OF PROCESS APPLICATION

The Law and the Parties’ Positions

The Law

[124] The defence seeks a stay of proceedings on the firearm and drug charges. The defence asserts that the arrest and questioning of Mr. Wardley constituted a violation of his rights under section 7 and 11(d) of the Charter of Rights giving rise to entitlement to a stay of proceedings under s. 24(1) of the Charter.

[125] Section 7 of the Charter provides that every one has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[126] Protections under the Charter are engaged whenever state conduct rises to the level of a violation of a person’s rights. The aggrieved party may bring the state conduct under scrutiny by applying for a stay of proceedings under s. 24(1) or at common law or for exclusion proceedings under s. 24(2) of the Charter.

[127] Section 24(1) provides that a person whose Charter rights have been violated may apply to “a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. The protection addresses the concern that if a person is put on trial in the face of rights violations an “abuse of process” and the violation of the “principles of fundamental justice” in breach of s. 7 of the Charter would result.

[128] Where the right to a fair trial is not implicated resort may be had to a residual category of abuse of process that encompasses the particular circumstances. The residual category is applicable to situations where the state conduct is such that it risks impugning the integrity of the judicial process: [R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 63, (S.C.C.) and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 48 and 49, (S.C.C.)].

[129] The defence takes the position the nature of the questioning of Mr. Wardley reflected a coordinated attempt to tamper with a key defence witness by trying to influence him to recant his testimony. Since the police did not succeed in getting Mr. Wardley to recant, thereby not prejudicing Mr. Gittens, the defence relies on the residual category under s. 7 and at common law. It is the defence’s view that the police conduct was of the sort that risks impugning the integrity of the judicial system and was sufficiently egregious as to present one of the “clearest of cases” of abuse of process deserving of a stay of proceedings under s. 24(1).

[130] A stay of proceedings is the most drastic of remedy available to a court. Regan is often quoted for the following observation:

Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in-Court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’.

[R. v. Regan, at para. 53]

[131] There is a weighty burden for the defence to satisfy. A three-pronged test must be met to succeed. Irrespective of whether prejudice is caused by abuse because of an unfair trial or because of risk to the integrity of the justice system the three criteria must be satisfied:

a) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;

b) no other remedy is reasonably capable of removing that prejudice;

c) where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

[R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 54]

[132] At the first stage then the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; that is, whether unfairness to the accused will be ongoing.

[133] At the second stage the question is whether any other remedy short of a stay is capable of redressing the prejudice. The Supreme Court of Canada in R. v. Babos explains what is to be considered at the second stage:

Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 39, (S.C.C.)]

[134] The balancing at the third stage need only be undertaken where uncertainty remains as to whether a stay is appropriate after consideration of the first two stages. When the residual category is invoked and prejudice to the integrity of the justice system is asserted, the court must balance whether staying the proceedings or having a trial, despite the impugned conduct, is most appropriate in the circumstances.

The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.

[R. v. Babos, at paras. 40 and 41]

The Law on Police Powers

[135] When considering the propriety of police conduct regard must be had to the statutory and common law duties and powers of the police. Police duties and powers are set down by statute and fleshed out at common law.

[136] Section 42(1) of the Police Services Act, R.S.O. 1990, c. P.15 provides the duties of police officers. Those duties include preserving the peace, preventing crimes and other offences; apprehending criminals and other offenders and others who may lawfully be taken into custody; and laying charges and participating in prosecutions.

[137] The powers of a police officer to arrest are set out in s. 495(1) of the Criminal Code which gives the police the power to arrest without a warrant a person who has committed an indictable offence or who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence.

[138] The powers and duties of police officers at common law are addressed in the English case R. v. Waterfield which sets out the common law ancillary powers of police officers. This has been adopted as part of our common law by the Supreme Court of Canada in a number of cases: [for example: [R. v. Dedman (1985), 20 C.C.C. (3d) 97 (S.C.C.); R. v. Godoy (1998), 131 C.C.C. (3d) 129 (S.C.C.), at 135 - 136; and R. v. Mann, [2004] S.C.R. 59 , at pp. 329 – 321, (S.C.C.)]. Waterfield held:

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether: (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

[R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), at 661]

[139] The power of investigation is an ancillary power necessary to the exercise of the general duties of preserving the peace, preventing crimes and apprehending criminals. Interviewing witnesses, suspects and complainants is one of many police investigative tools. The Supreme Court of Canada in R. v. Sinclair addressed this power:

The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime. While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say, in our respectful view, would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone.

[R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 63 (S.C.C.)]

[140] The Supreme Court of Canada in R. v. Caslake echoes Waterfield in its observations about the ancillary powers in holding that two criteria must be met when the prosecution is relying on a police ancillary power. It is for the defence on a stay application to demonstrate the criteria have not been met:

Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, a two-pronged case-specific inquiry must be made. First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty.

[R. v. Caslake (1998), 121 C.C.C. (3d) 97, at 107 - 108, (S.C.C.)]

The Defence Position

[141] The defence advances a number of areas of concern to support its abuse of process claim. The defence has drawn together five problematic themes that arose during the police interview with Mr. Wardley that in the defence’s view offend the integrity of the judicial system.

[142] The defence’s central contention is that the police played a “carrot and stick” game with Mr. Wardley to influence him to change his testimony from saying the gun was his to saying the gun was not his. The “stick”, according to the defence, is the threat of a lengthy prison sentence if he is convicted. The “carrot” is not being denied bail if he changes his testimony and admits the firearm was not his. The defence referred to areas of the interview from which in its view the following themes can be gleaned:

• that the police stressed many times during the interview that Mr. Wardley was facing a lengthy prison term if he did not recant his testimony;

• that the police stressed and said explicitly that they disbelieved Mr. Wardley that it was his gun and told him how unusual a situation they were confronting;

• that the police repeatedly told Mr. Wardley that they believed he had been misled by defence counsel into coming to court and testifying as he did;

• that the police stated that were Mr. Wardley to say it is not his gun, they would believe him and he would be released that evening without charges; and

• that the reason for the arrest was to change Mr. Wardley’s trial evidence.

[143] The defence posits that the police conduct during the interview amounted to the police offering a defence witness a reward for recanting evidence unfavourable to the Crown. The defence sees what the police did as threatening Mr. Wardley with adverse consequences if he did not comply with what the defence argues amounts to witness tampering.

[144] That conduct, according to the defence, constitutes one of the “clearest of cases” not to be permitted “in a free and democratic society”. Following from this is, if the conduct were left not censured by the court and the case allowed to proceed, in the defence’s view, the impression would be left that the court condones that type of police conduct.

[145] In support of its position the defence cites a case, R. v. Wilkins, of this court where the officer-in-charge had a conversation with a witness before the witness was about to enter the courtroom. The officer told the witness that he had to tell the truth and say what he had said in a prior statement or else he would be arrested.

[146] The court found the conversation was an intentional attempt to influence the witness’s testimony shortly before he was to testify. This, the court found, was an abuse of process and an infringement of s. 7 of the Charter. The court held: “It is totally unacceptable in a free and democratic society that an individual police officer should attempt to influence the testimony of a witness shortly before he is to enter the courtroom, or at any time”. As a remedy, the court ordered that the Crown could not compel the witness to continue with his testimony. The court found it unnecessary to order a stay of proceedings because the guilt or innocence of the accused was not before the court on the application: [R. v. Wilkins, [2003] O.J. No. 3741, at paras. 14 and 18, (Ont. S.C.J.)].

[147] The Wilkins case is distinguishable in important ways from the case before this court. Mr. Wardley had already been in the witness box and admitted under oath to owning the firearm. He testified to that before the police spoke to him. This is not to suggest the end justifies the means in Mr. Wardley’s case, but it is a distinguishing fact that Mr. Wardley continued in his testimony after the interview and did not recant his evidence that the firearm was his.

[148] The defence also cited a hypothetical posed in Babos. The hypothetical involved an allegation of jury tampering, whether jury tampering rises to a circumstance where a retrial should be ordered or, on balancing the wrongdoing, whether the integrity of the justice system would be better served by a stay of proceedings or a full trial on the merits. The Supreme Court of Canada held jury tampering strikes at the heart of the criminal justice system and that the residual category may well necessitate a stay to redress the risk to the integrity of the justice system: [R. v. Babos, at paras. 46 – 47]. The defence argues the same principle applies in a case of witness tampering.

[149] The circumstance in Babos is obviously distinguishable from the case at hand. Tampering with a witness, while it may present its own impropriety and deserves its own censure, is fundamentally distinct from tampering with the trier of fact, the fulcrum of the system that decides the guilt or innocence of the accused. The jury function lies at the heart of the judicial system. It is interference in that realm which Babos reminds us cuts to the very core of the judicial system’s integrity.

[150] In sum, the defence position is that the police abused their power by the manner in which they conducted the interview along the lines of the five themes. The defence’s view is that this amounted to nothing more than a ruse to allow the Crown to gain unfair advantage over the defence at trial.

The Crown Position

[151] Crown counsel alluded to the necessity of considering the powers and duties assigned to the police when assessing police conduct.

[152] Crown counsel takes the position that the police were authorized within their arrest and investigatory functions to arrest Mr. Wardley and interview him. On this view, Mr. Wardley’s evidence in court that he owned the firearm gave the police reasonable and probable grounds to arrest him. Mr. Wardley remained steadfast at trial under repeated questions by Crown counsel that it was his firearm. There is a question whether the police had to arrest and question Mr. Wardley when they did in circumstances where he was under cross-examination.

[153] Crown counsel asserts some urgency to the arrest of Mr. Wardley. It is Crown counsel’s view that with Mr. Wardley’s lengthy criminal record including two robbery with firearm offences, obstruct police, failing to comply and flight from police, it would amount to neglect of duty not to arrest him immediately. Crown counsel pointed to a time lapse factor - that Mr. Wardley confessed to the firearm offence from the stand on January 16th and would not be returning to the stand until February 4th.

[154] Crown counsel argues given the delay before the completion of his testimony that not arresting him immediately would be for the police to fail in their obligation to protect public safety. What this would mean, in the Crown’s estimation, is that a man with an extensive and serious criminal record involving firearms, who had just admitted he had a few years earlier bought a firearm for protection, would be allowed to be in the community unsupervised. This assumes that Mr. Wardley could be trusted to return to the witness stand to complete his testimony.

[155] Crown counsel not surprisingly takes exception to the defence’s allegations that the police employed a ruse to advantage the Crown at trial. This, Crown counsel points out, is a very serious allegation that implicates the Crown as complicit in an unethical plan to use the police to gain unfair advantage for itself. Crown counsel posits to the contrary that a recantation would not in fact be favourable to the Crown’s case because an alternate Crown theory is that Mr. Wardley left the firearm in the bedroom for Mr. Gittens to facilitate his drug trade which would make them both jointly liable for the firearm. A recantation would defeat that theory.

[156] Crown counsel refers to the police ancillary powers and the latitude they are afforded to question witnesses to test the veracity of evidence they have obtained: [[R. v. Oikle, 2000 SCC 38, 2000 S.C.C. 38 (S.C.C.)]. The police in the Crown’s view were within their authority to devise interview strategies to test the truth of Mr. Wardley’s admissions in court. The Crown’s primary position is that there was nothing at all improper about the arrest and questioning of Mr. Wardley.

[157] In summary, the Crown bases its position on the following submissions:

• The police had reasonable and probable grounds to arrest Mr. Wardley given his admission and his stated willingness to go to jail for the firearm offence;

• Mr. Wardley’s criminal record required Mr. Wardley not be unsupervised in the community;

• The Crown had no notice that a witness would come forward for the defence and confess to owning the firearm and the Crown was entitled to look into the witness;

• there was nothing put to Mr. Wardley during the police interview about his potential jeopardy that was not put to him directly or impliedly in court;

• The Crown had put to Mr. Wardley in cross-examination the potential lengthy seven-year or more sentence he might face and Mr. Wardley testified he was willing to plead guilty and go to jail for the firearm offence. So there was no threat in the police informing him about a lengthy sentence;

• In the interview, the police did not pressure Mr. Wardley to recant his evidence but rather posed two options: either the firearm was actually his and he was genuinely trying to accept responsibility, or the firearm was not his and he had been duped into coming to court and making a false claim of liability;

• Before laying charges, the police had a duty and obligation to investigate whether the firearm was Mr. Wardley’s or whether he had committed perjury in court;

• The police were aware the videotape would be disclosable in Mr. Gittens’ trial and this bodes against the police devising a scheme to tamper with evidence.

[158] The Crown’s alternate position is if the arrest or questioning were improper the impugned conduct would not be such that it would harm the integrity of the justice system. In this regard, Crown counsel points specifically to the fact that Mr. Wardley came voluntarily to Court to own up to responsibility for the firearm. It is the Crown’s view that the integrity of the justice system would actually have been called into question had Mr. Wardley not been arrested.

[159] In the further alternative, Crown counsel submits that if the Court finds the arrest and questioning improper, there is a remedy less onerous than a stay of proceedings. Crown counsel suggests, if the Court should find a stay is called for, that the issue of a remedy should be left to await a verdict in the trial proper. If conviction is ordered a reduction in sentence is a possible remedy.

CONCLUSION

The Police Conduct

[160] There is no question that the powers of arrest and investigation are crucial aspects of a police officer’s duties of preserving the peace, preventing crimes and apprehending criminals.

[161] There is no question the police had reasonable and probable grounds to arrest. Mr. Wardley said under oath that the firearm was his. When the police receive evidence of the commission of a criminal offence they are obligated to investigate the crime and arrest if necessary. Police interviewing complainants, suspects and other witnesses is fundamental to any criminal investigation since interviews have as their purpose to elicit information from interviewees to advance the prosecution of cases.

[162] I find therefore that the first Caslake criterion has been satisfied in that the police were acting in the exercise of a lawful duty defined by statute and common law when they engaged in the conduct in issue.

[163] The critical question raised by the second criterion then is whether such conduct, although within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

[164] The defence submits it is not a legitimate use of police powers to attempt to improperly coerce a defence witness, in the midst of his testimony, to recant testimony unfavorable to the Crown.

[165] While arresting and interviewing witnesses and suspects are justifiable uses of police power, there is a question as to whether in the circumstances it was necessary to arrest Mr. Wardley before his testimony was complete. Crown counsel pointed to the particulars of Mr. Wardley’s criminal record to justify an element of urgency to the arrest.

[166] I agree that with the delay between Mr. Wardley’s confession from the stand and his return date to finish his testimony the police would have been derelict in their obligation were they to have freed Mr. Wardley into the community without arresting and questioning him given his criminal record and confession to a serious crime. I take Crown counsel’s submission that were the police not to have arrested Mr. Wardley and questioned him and he did commit a violent offence after he left the stand on January 16th, the police would rightfully draw the indignation of the public.

[167] But did the police engage in witness tampering by their conduct during the interview?

[168] The concern is whether the manner in which the police conducted the interview and the content of the questions they asked amounted to witness tampering. Or were the police lawfully undertaking their duty to investigate as proposed by the Supreme Court in Sinclair which I repeat from the excerpt above:

The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime.

[169] I must consider whether the police’s exercise of its powers was a justifiable use of their power to arrest and interview Mr. Wardley. A determination on this question requires a look at the totality of the circumstances surrounding the police action.

[170] The full context includes acknowledging that this is not the regular circumstance faced by the police in investigating a witness. It is more commonplace that a suspect denies committing the crime. In this case the witness has admitted to a crime and the police questions are directed to finding out whether the admission is genuine, whether the firearm was truly Mr. Wardley’s. The police like the Crown and the Court only learned of this defence after the defence had called its case.

[171] The context also involves considering that before the interview Mr. Wardley had testified that he was willing to put himself in jeopardy by admitting to the crime. He said he was prepared to plead guilty and go to jail for a lengthy period. The police in that sense could not threaten him with jeopardy that he was already prepared to face.

[172] The context also includes the fact that Mr. Wardley obtained independent legal advice from his lawyer before the interview which he told the police he was satisfied with. Mr. Wardley was told he did not have to speak to them although they would continue to talk to him. He largely refused to talk and the police kept questioning him. He ultimately did not say anything prejudicial to Mr. Gittens’ defence. This situation echoes the Supreme Court of Canada’s words in Sinclair, also repeated from an excerpt cited above:

While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say, in our respectful view, would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone.

[173] Also noteworthy is that Mr. Wardley while not changing his testimony after the interview he did not adopt his trial testimony during the police interview. He did feel compelled to repeat what he said on the witness stand. Also part of the context is that the officers asked Mr. Wardley during the interview if he wanted to speak to his lawyer and he did not take the police up on the offer.

[174] The interview lasted one hour and 20 minutes during which period the police asked continuous questions and posed numerous suggestions querying whether the firearm was really Mr. Wardley’s and asking if he understood the sentence and bail consequences of his evidence. The police did tell Mr. Wardley they had dealt with people in custody who voluntarily spoke to the police whom they had been released on bail. But this did not seem to influence Mr. Wardley because he repeated numerous times to the police that, from the perspective of his experiences in his long criminal career, when he has been charged he has never been released. He seemed prepared to deal with that eventuality.

[175] While witness tampering as a legal concept is not specified under Canadian criminal law, conduct that reflects the type of conduct alleged by the defence is captured under the obstruction of justice provisions of the Criminal Code. Section 139 (2)(a) provides that “every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence”.

[176] Witness tampering though at times referred to in Canadian criminal cases has rarely been defined. The only legal definition I could find for the concept is cited in an old New Brunswick summary conviction case which dealt with an infraction under the Temperance Act, 1864 where witness tampering is defined as:

Everyone who, on any prosecution under any of the said Acts … tampers with a witness either before or after he is summoned, or appears as such witness on any trial or proceeding under any such Act, or by the offer of money, or by threats, or in any other way, either directly or indirectly, induces or attempts to induce any such witness to absent himself, or to swear falsely …

[[White, Ex parte, 1890 CarswellNB 33, (1890) 30 N.B.R. 12](https://www.canlii.org/en/nb/nbqb/doc/1890/1890canlii191/1890canlii191.html); cited in R. v. Armstrong, 1916 CarswellOnt 200, at para. 6, (Ont. H.C.J.)]

[177] Witness tampering is a crime defined extensively in American statutory law at both federal and state levels, in federal law at 18 U.S.C. § 1512. In general terms, the crime is defined as “tampering with a witness, victim, or an informant.” This can range from attempting to kill a person to keep them from being part of the case, to passing a message through a third party that the person may face consequences if they were to cooperate with prosecutors. The punishment in the United States for such an offence is up to 20 years if physical force was used, attempted, or threatened. Tampering need not have actually been successful in order for it to be criminal.

[178] Among the few decisions where witness tampering has been mentioned in Canadian cases, I found a case not quite on point involving an allegation of “witness tainting”. In that case this court excluded the evidence of an informer before the informer testified on the basis that an agreement for the payment of money between the informer and the police constituted an abuse of process and a violation of the accused’s rights under s. 7 of the Charter because, in the court’s view, the evidence would be unreliable. The Court of Appeal overturned the trial decision not for the finding of witness tainting but rather on the basis that the reliability of the evidence was for the jury to decide: [R. v. Buric, 1996 CarswellOnt 1592 (Ont. C.A.)].

[179] On the basic issue of influencing a witness, R. v. Buric is clearly distinguishable since there is no evidence of Mr. Wardley being influenced by the payment of money or any other benefit. Mr. Wardley testified he was not asked, threatened or paid to testify.

[180] When I take the full context of the arrest and interview of Mr. Wardley into account I cannot conclude that witness tampering or obstruction of justice occurred. I find at the core of the police action was the furtherance of their lawful duty to investigate a crime by making inquiries from a relevant source of information, Mr. Wardley, who had admitted to, and whom the police had charged with, possessing a firearm.

[181] I do not see a nefarious plot or any plot by the police, and impliedly the Crown, to influence Mr. Wardley to give false testimony. As I see it, the police were trying to investigate what was true by testing Mr. Wardley’s evidence. They were dealing with an admission to a serious crime. I did not find the police were trying to hide what they did during the interview. They videotaped the interview aware of their disclosure obligations. A look at the video recording does not disclose any use by the police of threatening tones or coercive tactics or any moves into the type of tactics that earned the Supreme Court of Canada’s caution in R. v. Oikle.

[182] The police questioned Mr. Wardley about whether what he said was true and posed to him not one but two options: either the firearm was actually his and he was genuinely trying to accept responsibility; or the firearm was not his and he had been duped into coming to court and making a false claim of liability. Mr. Wardley stood fast not denying his confession and said nothing of consequence. He did not prejudice Mr. Gittens’ case.

[183] Witness tampering under the rubric of obstruction of justice is a serious allegation with harsh penal consequences, a maximum ten years’ imprisonment in Canada. Serious consideration should be given to the factual foundation of such an allegation before such a claim is made particularly when directed against the police whose duty it is to uphold and enforce the law.

[184] I cannot move on without stating that I find it unfortunate and not to be condoned that the police officers disparaged Mr. Fisher during the interview in a serious way alleging deceit and dishonesty on his part. This does not accord with proper police practice. However, as improper as that was I do not believe that conduct is a factor sufficient to tip the balance in favour of a stay of proceedings.

The Residual Category and Integrity of the Justice System

[185] As Babos held, the residual category addresses whether the prejudice complained of is prejudice to the integrity of the justice system and it is directed to remedies that might address the harm. As I established above, I do not find the police conduct in arresting and questioning Mr. Wardley constituted a risk to the integrity of the justice system. There was no conduct by the police that I find will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome. I do not find this is one of the “clearest of cases” where the rare remedy of a stay of proceedings is appropriate.

[186] Even if I found some impropriety in the police conduct I note that the issue of their actions is solely in relation to the firearm charges. The issues involving Mr. Wardley’s firearm confession have no meaningful impact on the other charges on the indictment. There is no evidence that connects Mr. Wardley to the drugs as he was in prison in Calgary when the drugs were seized from Mr. Gittens’ home. Therefore, the conduct of the trial would not have been manifested, perpetuated or aggravated through the entire proceeding or its outcome.

Conclusion

[187] This is a case where a full trial on the merits is the proper way forward. All evidence was in after Mr. Wardley and Whitney Gittens completed their testimonies. Only closing arguments on the merits remained. As I am required to do with the other witnesses in this trial, I have to determine whether I ultimately accept the credibility of Mr. Wardley’s evidence.

DECISION ON THE TRIAL ON THE MERITS

The Law of Possession

[188] Mr. Gittens is charged with possession of cocaine and heroin for the purpose of trafficking, and possession of the firearm and magazine.

[189] The two essential elements of possession are: (a) control of the thing; and (b) knowledge of the thing. A person can have actual possession or constructive possession of the thing or possession can be had by more than one person with the other’s consent. Both elements of the offence must be proven beyond a reasonable doubt.

[190] Regarding the firearm charges the Crown has alternative theories. One Crown theory is that Mr. Gittens had sole possession of the firearm and magazine. Its other theory is that Mr. Wardley bought the firearm and left it in bedroom one for Mr. Gittens to use in his drug trade.

[191] There is no allegation that Mr. Wardley had any connection to the drugs located in the residence.

[192] Actual possession or custody of a thing means to have physical custody or control of the thing. Constructive possession refers to situations where a person does not have hands-on custody of the thing but has knowledge of the thing and an ability to control it even if they do not have physical contact with it. Constructive possession is a matter to be decided on the facts of each case: [R. v. Grey (1996), 28 O.R. (3d) 417 (Ont. C.A.) and; R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, at pp. 290-291, (Alta. C. A.)].

[193] Neither Mr. Gittens nor Mr. Wardley had actual custody of the firearm when it was seized on the search. Mr. Gittens was present at the address when the firearm was seized. Mr. Wardley was not. Constructive possession is therefore the issue before the court.

[194] Proof beyond a reasonable doubt can be established by direct evidence or may be inferred from circumstantial evidence. The court is entitled to draw appropriate inferences from the evidence that the unlawful item is found in a place under the control of an accused in circumstances where there is also evidence from which a proper inference may be drawn that the accused was aware of the presence of the contraband: [R. v. Pham, [2005] O.J. No. 5127, at para. 18, (Ont. C. A.); R. v. Sparling, [1988] O.J. No.1877 (Ont. C.A.); and R. v. Chambers, 1985, C.C.C. (3d) 440 at 448 (Ont. C.A.)].

[195] Earlier authorities held the view that the Crown must satisfy the court beyond a reasonable doubt that guilt is the only reasonable inference that may be drawn from the totality of proven facts. The Supreme Court of Canada in a more recent case, R. v. Villaroman, changed the requirement:

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts.”

Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[R. v. Villaroman, [2016] 1 S.C.R. 33, at para. 35, (S.C.C.)]

Possession of Drugs

[196] The substances seized by the police from bedroom one are: seven clear plastic baggies of crack cocaine weighing 5 grams; three smaller baggies of heroin weighing .55 grams; 13 clear, individual plastic baggies of heroin with a total weight of 7.10 grams; another baggie containing a bulk amount of 7.47 grams of heroin. From the top of the dining room hutch two large plastic baggies of the cutting agent phenacetin, one weighing 117.86 grams and the other weighing 118.95 grams were seized.

[197] For the following reasons, I find the circumstantial evidence establishes that Mr. Gittens was in constructive possession of the drugs.

[198] First, Mr. Gittens was found sleeping in bedroom one next to a nightstand that contained small individual packets of drugs, a CIBC credit card and mail from the City of Toronto both in his name.

[199] Then there is the affidavit Mr. Gittens swore at his initial bail hearing. This was critical to my view that Mr. Gittens resided at 50 Dixington, unit one when he was arrested. I accept the sworn affidavit evidence over Mr. Gittens’ trial testimony for the reason that the affidavit evidence is corroborated by other evidence that Mr. Gittens lived at 50 Dixington when he was arrested.

[200] I do not believe Mr. Gittens’ evidence or that of his sister that he was living in Mississauga with his daughter and the child’s mother at the time of his arrest. For that reason, I do not accept Mr. Gittens’ evidence that he was just staying at the Gittens’ home for the night to check on the house.

[201] When confronted with his affidavit, Mr. Gittens seemed unaware of its existence. He must have forgotten he swore an affidavit for his bail hearing. He was also unaware that his brother who was his surety and his brother’s wife had sworn that he lived at 50 Dixington when he was arrested.

[202] The bail hearing was held within days after the arrest. The face of the affidavit shows that Mr. Gittens was living at 50 Dixington. The fact that he swore to picking up and dropping off his daughter for school clearly suggests he was not living with his daughter. I do not find that Whitney Gittens’ evidence was of much assistance to Mr. Gittens. She was also unaware that Mr. Gittens and her other brother and sister-in-law had sworn affidavits saying Mr. Gittens lived at 50 Dixington.

[203] Crown counsel repeatedly confronted Whitney Gittens with the suggestion that she loved her brother and did not want to see him go to prison. At one point in her evidence under strenuous cross-examination, Whitney Gittens seemed to equivocate somewhat when she testified Mr. Gittens stayed at both places. I do not accept Whitney Gittens’ evidence that Mr. Gittens did not live with her and her children. It is understandable that she might not want her brother to serve a lengthy prison sentence. But it is a serious problem that she came to testify and gave evidence intending to mislead the Court.

[204] In the result, I accept Mr. Gittens’ sworn affidavit evidence over his and his sister’s evidence at trial as reflecting the truth of where he was residing when he was arrested.

[205] Evidence that Mr. Gittens lived at 50 Dixington when he was arrested is not proof that he possessed the drugs located there. I find there is sufficient evidence from bedroom one that points to Mr. Gittens having knowledge and control of the drugs.

[206] The evidence is that from childhood Mr. Gittens shared bedroom one with his brother Jaumaul. Mr. Gittens and Whitney Gittens testified that Mr. Gittens continued to stay in that bedroom until he moved out. That was Mr. Gittens’ bedroom. The question is whether he had moved out and did not live there at the time he was arrested in April 2016.

[207] There were various things found in bedroom one that tend to link Mr. Gittens to the bedroom and the residence. Mr. Gittens’ birth certificate and an expired driver’s licence were found in a dresser drawer in that bedroom. Various pieces of mail addressed to Mr. Gittens were also found in a dresser drawer in bedroom one. As noted, on the nightstand next to where he was sleeping mail was located from the City of Toronto and from CIBC addressed to Mr. Gittens.

[208] In a pocket of Mr. Gittens’ jeans located at the foot of the bed in bedroom one the police located a key to the safe in the bedroom that contained the $11,000.00 that Crown counsel contends was derived from Mr. Gittens’ drug trade, although he was not charged with a proceeds offence. Mr. Gittens did not deny the money was his and his sisters’.

[209] In addition to denying he lived at 50 Dixington and occupying bedroom one when he was arrested, Mr. Gittens denied the drugs belonged to him. He testified supported by his sister that the $11,000.00 in the safe were not proceeds of a drug trade but was rather money they had saved for their children’s education. Whitney Gittens said they had been saving the money since the children’s births. In answer to a question by Crown counsel as to why Mr. Gittens would keep money for his daughter at a place he did not live, he responded, to keep it away from him so he would not spend it.

[210] Only on a question of credibility since Mr. Gittens is not charged with proceeds of crime, I find Mr. Gittens’ and his sister’s evidence begs the question as to why they did not deposit such a large quantity of money into a bank. Mr. Gittens had a CIBC credit card and must have had familiarity with banks.

[211] Also looking at credulity, there is the further question of Mr. Gittens’ and Whitney Gittens’ financial means to have that amount of money. Mr. Gittens testified he was receiving government assistance benefits of about $1,000.00 monthly at the time of his arrest. Whitney Gittens conceded that she earned a modest salary at the time and with two children and after paying living expenses she had very little extra money each month.

[212] Looking at the evidence connected to bedroom one in its totality, I believe Mr. Gittens lived at 50 Dixington and occupied bedroom one at the relevant time. I find the totality of evidence demonstrates that the Crown has proven Mr. Gittens had constructive possession of the drugs. He would reasonably have had knowledge and control of the drugs in the bedroom he occupied.

[213] Whitney Gittens denied possession of the drugs and I believe her. Besides herself and her children, only Mr. Ridge resided at 50 Dixington. The evidence is that he slept in another bedroom where the police in fact found drugs for which he was charged. There is no evidence connecting him to bedroom one or its contents.

For the Purpose of Trafficking

[214] The Crown must prove beyond a reasonable doubt the heroin and cocaine was possessed by Mr. Gittens was for the purpose of trafficking. Crown counsel called an expert witness, Det. John Margetson, to testify as to methods of distribution, including the sale, packaging, pricing, and quantities consistent with personal and commercial use of heroin and cocaine. He was also called to provide evidence about street drug culture, slang and terminology. The defence led no expert evidence.

[215] Det. Margetson’s expertise was not challenged by the defence. The challenge was to the officer’s opinion that the quantity of drugs found were for the purpose of trafficking.

[216] Det. Margetson looked at the quantities of each drug seized in the context of the circumstances of everything seized under the warrant. The officer considered the quantities of crack cocaine and the manner in which it was packaged. He arrived at the conclusion that while the amount seized could be consistent with personal use, the context of the other items seized made it possible to draw the inference that the amount of crack cocaine found could be more consistent with commercial use. I find the officer’s opinion is supported by the evidence.

[217] The seven grams of heroin packaged as it was and the dime-size packaging of other heroin, Det. Margetson found, were consistent with street-level drug sales. I accept the officer’s opinion about this.

[218] Det. Margetson also concluded if there is no good explanation for the presence of $11,000.00 in a home in a context where drugs were located and other drug-related items were seized, that an inference can be drawn that the funds were the proceeds of drug trafficking. I accept the officer’s conclusion on this.

[219] The presence of a ¼ kilogram of the cutting agent phenacitin was also found by Det. Margetson to point away from personal-use cocaine in that the substance is used to produce crack cocaine to increase the amount of product and hence the street value and profit. I accept the officer’s expert opinion in this area. I find it lends support to the conclusion that the crack cocaine seized was for the purpose of trafficking.

[220] Scales and multiple cellphones Det. Margetson found are also often indicative of a commercial drug operation. Some of the cellphones were inactive. Inactive cellphones can be indicative of knowledge that a telephone number has been compromised by law enforcement or may just indicate a failure by the owner to discard the cellphones when no longer being used. I accept Det. Margetson’s opinion about the cellphones in the context of the other evidence.

[221] Det. Margetson opined as well that it can be inferred from the firearm and bulletproof vest in combination with the other items seized that those items could be used to protect a commercial drug operation. I find the totality of the evidence supports that opinion.

[222] I did not find the defence posed a significant challenge to Det. Margetson’s evidence. I am satisfied from his evidence that the Crown has proven beyond a reasonable doubt that Mr. Gittens possessed the cocaine and heroin for the purpose of trafficking.

The Firearm and Magazine

Analysis

[223] I have found that Mr. Gittens resided at 50 Dixington and occupied bedroom one as his bedroom at the time. I find based on the same facts that connected Mr. Gittens to the drugs that Mr. Gittens had constructive possession of the firearm and magazine that were found in the closet in that bedroom. I need not repeat those findings.

[224] For reasons that will become clear I do not accept the Crown’s theory that Mr. Wardley and Mr. Gittens are jointly liable on the Crown’s view that Mr. Wardley placed the firearm in the closet for Mr. Gittens’ use in his drug enterprise. I do not accept the defence theory that the firearm belonged to Mr. Wardley and Mr. Gittens did not know about it being stored in the bedroom.

[225] Mr. Gittens’ defence is that the firearm and magazine did not belong to him. They belonged to his friend Mr. Wardley. However, for the following reasons I do not accept the evidence that Mr. Wardley owned the firearm. I did not find Mr. Wardley was a credible witness.

[226] Mr. Wardley testified he came to Toronto from Calgary during the Christmas season of 2015/2016 on a parole pass. This is not a matter in dispute and it makes sense he would come to Toronto for Christmas since Mr. Wardley grew up in Toronto and his family and children live in Toronto. He testified he stayed at the Gittens’ for about two weeks during that visit. That is believable since Mr. Wardley used to stay at the Gittens’ home periodically throughout his childhood and adult life.

[227] But this is where I find Mr. Wardley’s credible evidence ends. Mr. Wardley testified that he purchased the firearm and magazine during his stay in Toronto. There are a number of reasons I do not believe he purchased the firearm and magazine and put them in the closet in bedroom one.

[228] Mr. Wardley’s evidence is that he bought the firearm for protection from someone in Toronto to whom he said he owed $10,000.00 for a gambling debt. He said he did not recall the name of the man and that even if he did he would not give the name for fear of being seen as “a snitch.” I find it difficult to believe Mr. Wardley about this since it would seem if he owed someone that large amount of money and that person had threatened his life the person’s name should hold some prominence in his memory even if he was not willing to reveal the name in court.

[229] Further, Mr. Wardley said he purchased the firearm and magazine with no ammunition and he just stored them in the closet because he could not take them on the plane back to Calgary. Even though Mr. Wardley says he feared for his life and bought the firearm to protect himself from someone in Toronto, while it is a good thing he did not, he did not obtain ammunition and carry the firearm around for protection when he was out and about in Toronto during his two-week stay. He left the firearm in the closet. By any reasonable measure this does not make sense and it points away from the firearm being purchased by him and for the reason he says he purchased it.

[230] Further, Mr. Wardley said he bought the firearm for the rather steep amount of $2,000.00. Mr. Wardley was a man of very limited means at the time and one would think he could provide more details about such an expensive purchase especially given its potentially life-protecting function. But Mr. Wardley was not able to provide many details. All he could say is that it was a black Beretta and that it had an extended clip. He did not know how many bullets it held.

[231] Mr. Wardley contradicted himself about the t-shirt and jacket where the firearm was secreted in the closet. In-chief he said he did not know whether those items of clothes were his. In cross-examination he said that the clothing was his. That inconsistency may not be critical by itself. But one would think Mr. Wardley would be careful to hide the firearm in his own clothes rather than someone else’s and that he would remember that he did that since he would be conscious that he did not want anyone to know the gun was there. Common sense says there would be a risk, if the firearm were wrapped in another person’s clothes that they might go to retrieve their clothes and find the firearm. Again, that evidence detracts from credibility that the firearm was his.

[232] Mr. Wardley testified he told no one about hiding the firearm in the closet. He said he had no concerns about hiding a firearm at a home where small children lived. He said he knew from past experience that no one ever touched his things. This lack of concern for the safety of the children runs counter to his evidence that he often showed interest in the wellbeing of Whitney Gittens’ children often inquiring as to how they were and visiting with them.

[233] I find the most problematic credibility concerns for Mr. Wardley are in his evidence about his delay in coming forward to claim the firearm and his evidence about how he came to attend the trial.

[234] Mr. Wardley found out in February/March 2016 from Whitney Gittens that Mr. Gittens had been arrested. He waited three years to come forward. He did not even come forward given that his good friend was in pre-trial custody for an extended person of time. In answer to Crown counsel’s questions about why he did not come forward and go to the police to say it was his gun, Mr. Wardley said he was too scared, too nervous to say it was his firearm. He said he only got the nerve to come forward on the second day of trial, January 8th, when he says he wanted to be “called up by the courts” so he could own up to responsibility for the firearm.

[235] Mr. Wardley’s evidence about how he came to attend the courthouse and about his meeting with Mr. Fisher poses its own problems.

[236] What else seems unlikely in Mr. Wardley’s evidence is that he said he never told Mr. Gittens that he was coming forward to admit it was his firearm. He said he did not talk to Mr. Gittens much around the time of the trial. He said they were distant. I find it does not make sense that he would not tell his good, long-time friend that he was going to take responsibility for the most serious charge he faces. I think it might reasonably be gathered from that evidence that Mr. Wardley did not want to give any impression that he and Mr. Gittens had been in contact in order to avoid the suspicion that they had talked and planned for him to come forward to get Mr. Gittens off the firearm charge.

[237] Mr. Wardley testified he had never met or spoken to defence counsel before he saw him in the courtroom on January 8th. When asked what brought him to the stand to testify, whether he was subpoenaed or not, Mr. Wardley’s evidence was strangely vague and evasive. He was on the stand on January 16th under cross-examination and stated that he was subpoenaed but did not recall when that was, who subpoenaed him, or what the person looked like who subpoenaed him.

[238] As it turns out, it was defence counsel, Mr. Fisher, who subpoenaed Mr. Wardley on January 8th, after Mr. Wardley appeared in the body of the court. Only eight days had passed since he had been subpoenaed and Mr. Wardley had no recall of basic details of that event. Mr. Fisher was sitting in front of him at the defence table during his testimony but Mr. Wardley could not identify him as the person who subpoenaed him. I found that area of Mr. Wardley’s evidence so lacking in basic trustworthiness as to be inconceivable. His motive for that fabrication is not entirely clear to me. But it need not be clear for a finding that Mr. Wardley is not credible.

[239] A further problem for Mr. Wardley is that he would not admit a basic truth about Mr. Fisher showing him photos of the firearm and magazine and bedroom one when he met Mr. Fisher at his office on January 13th. It again is not entirely clear to me why Mr. Wardley was untruthful about this. But again, this did not enhance his credibility. As noted earlier, that Mr. Fisher actually did show Mr. Wardley photos was the subject of a Criminal Code, s. 655 admission.

Conclusion

[240] A statement against penal interest is an exception to the hearsay rule and such a statement is reputed to enjoy an aura of credibility: [McWilliams’ Canadian Criminal Evidence, 5th ed., 7:200.20]. I think the principle behind that exception can be applied in a non-hearsay context to credibility determinations where a witness appears to have testified against their penal interest. Why would a witness make an admission that is likely to result in lengthy incarceration if the admission was not true? However, I do not find the principle works for Mr. Wardley. Credibility problems in critical areas of Mr. Wardley’s evidence were simply too extensive to reasonably accept his word that the firearm was his based on the jeopardy his admission could bring to him.

[241] I can draw no other conclusion from the evidence but that Mr. Wardley’s confession was just downright false. The Crown was able to successfully refute his evidence. For that reason, Mr. Wardley’s evidence does not raise a reasonable doubt about Mr. Gittens’ guilt of possession of the firearm and magazine. I believe the firearm belonged to Mr. Gittens.

[242] Clearly, this is not the conventional case of a false confession. It is a rather unique circumstance. Unexpectedly to most Mr. Wardley made the confession, not to the police, but first to Mr. Fisher and then under oath from the witness stand at trial. But the confession to Mr. Fisher was not known about until Mr. Wardley was cross-examined. When he was subsequently questioned by the police a reverse scenario was at play as the police focus was to test the veracity of Mr. Wardley’s confession and not to obtain a confession.

[243] Mr. Wardley stated that he was not asked, pressured, influenced, or paid anything to say the firearm was his. If one accepts the basic proposition that there is a reason for everything, whether known or unknown to others, there is a reason why Mr. Wardley has done what he has done. Perhaps, after receiving legal advice he was aware of his right to protection against self-incrimination on his compelled trial testimony but not aware of the use the Crown might make of his confession to Mr. Fisher. Whatever his reason, I do not believe the firearm and magazine belonged to Mr. Wardley.

[244] In the result, I find the Crown has proven beyond a reasonable doubt Mr. Gittens’ guilt of possession of the firearm and magazine. Nothing leaves me with a reasonable doubt about that.

VERDICT

[245] I find Theodore Gittens guilty on counts 1, 2, 3, 4 and 5 on the indictment and convictions will be entered accordingly.

B.A. ALLEN J.

Released: July 12, 2019

COURT FILE NO.: CR-17-50000134-4000

DATE: 20190712

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THEODORE GITTENS

Accused

REASONS FOR JUDGMENT

B.A. ALLEN J.

Released: July 12, 2019