Court File No. 19-55
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
CASSLE HAMILTON
RULING
BEFORE THE HONOURABLE JUSTICE A. SKARICA
on January 14, 2021 at HAMILTON, Ontario
Appearances
T. Moran Counsel for the Crown
L. Johnson Counsel for Cassle Hamilton
Table of Contents
Witnesses
WITNESS : Examination In-Chief Cross- Examination Re- Examination
Exhibits
EXHIBIT NUMBER ENTERED ON PAGE
Transcript Ordered: .................... January 26, 2021 Transcript Completed: .................. January 28, 2021 Ordering Party Notified: ............... February 18, 2021
THURSDAY, JANUARY 14, 2021
RULING
SKARICA, J. (Orally):
Overview
The accused brings a pre-trial motion arguing that his arrest upon driving a motor vehicle on May 18th, 2018, subjected him to a series of violations under Section 8, 9, 10(a) of the Charter of Rights and Freedoms. The accused seeks to exclude evidence seized as an incident to arrest; in particular cocaine, Canadian $170, U.S. $40 and all cell phones that were seized under Section 24.2 of the Charter.
Issues
[1] Was there a breach of Section 8, 9 and 10(a) of the Charter?
[2] If there were any breaches, should evidence obtained thereby be excluded from admission at the trial?
Facts
Regarding now issue number one. Circumstances regarding the reasonable and probable grounds to arrest Cassle Hamilton. Counsel agreed that the police had reasonable and probable grounds to arrest the co-accused, Christopher Ikeda on May 18th, 2018. Mr. Ikeda was arrested after being observed sitting in the passenger seat of a red Hyundai Sonata. Ikeda was arrested while the Hyundai was parked in the parking lot of a bowling alley, that's the Splitsville Bowling Alley in Hamilton.
At the time of arrest, the police believed that Mr. Ikeda was involved in a cocaine transaction with a Danny Agostinho. Mr. Agostinho's black Mercedes was parked near to the red Hyundai that Ikeda and the accused were in and had been - the Hyundai had been observed to enter - sorry, Mr. Agostinho had been observed to enter the backseat of the Hyundai. The Hyundai and Mercedes vehicles were parked in a remote area of the parking lot.
The police were aware that Mr. Ikeda had been drug trafficking in the past. At the time of his arrest, Mr. Ikeda was on charges for trafficking cocaine. See the Crown materials, Tab 3, the preliminary hearing evidence of Officer M. Reed at page 13.
On May 16th, 2018, the police observed Mr. Ikeda, a known drug trafficker, to be engaged in activities that were in the opinion of the police, consistent with drug trafficking.
At 8:14 p.m. the police observed a car pull up to the accused's residence. The vehicle was a red Hyundai Sonata, licence plate BWFV 058. This was the same red Hyundai Sonata that was surveilled two days later on May 18th and in which the three suspects were arrested on May 18th.
Going back to - return to the May 16th, 2018 event, at 8:14 the police observed a male get out and go into Mr. Ikeda's residence. This male fits the description of the accused, Mr. Hamilton. Ten minutes later the unknown male left Ikeda's residence and got back into the red Hyundai and left. This was canvassed at the pre-trial motion, but was canvassed at the preliminary hearing at pages 4, 5 and 46 - the following evidence rather, was not canvassed at the pre-trial motion but was canvassed at the preliminary hearing at pages 45 through 46, (So it was in the preliminary hearing, but not testified before me) is as follows:
At 9:06 p.m., Mr. Ikeda left his residence and drove away in a Jeep. Ikeda drove to Glenhill Crescent and met with another male. The meeting lasted two minutes and both parties went on their way. In Officer Beck's opinion, given at the preliminary hearing, a short stay visit at a residence is indicative of drug trafficking. See Crown materials, Tab 2, the preliminary hearing evidence of R. Beck at pages 42 through 46.
His pre-trial motion testimony was consistent with his preliminary evidence up to the point of the red Sonata on May 16 leaving the residence of Ikeda, but the opinion regarding drug trafficking in the Gledhill Crescent event was not canvassed at the pre-trial motion but was in the preliminary hearing.
The police didn't want to do a dynamic entry of Ikeda's residence. They wanted to arrest him outside of his residence. On April 5, 2018, apparently, the police had done a drug search warrant at Ikeda's residence and ammunition was discovered. Accordingly, the police had concerns regarding the - Ikeda's residence on May 18th, due to previously - a previous search warrant event, the residence was barricaded and there was also a potential for firearm. See the pre-trial motion of Officer Rowan on January 11th of this year.
Officer Rowan testified that he was the affiant of a CDSA search warrant. The search warrant was granted by Justice Woloschuk at 11:56 a.m. on May 18th. The search warrant authorized the police to search for illicit drugs at the home of Chris Ikeda at - Christopher Ikeda at 5 Seven Oaks Drive, Hamilton. And in addition, there was another search warrant allowing the police to search a rented Jeep vehicle that Ikeda was seen driving in the May 16th, 2018 surveillance. See Officer Rowan's testimony in the pre-trial motion given on January 11th of this year.
From approximate 2:00 p.m. to 2:15 p.m., on May 18th, the officer - this is May 18th, 2018, - Officer Rowan briefed a team of officers, including PC Beck, Knickle, Kimber, Reed, Iveljic, regarding the search warrants and that the police were going to set up surveillance in order to arrest Ikeda for a Section 5(2) CDSA cocaine trafficking charge.
Exact details of the briefings were never provided in the evidence of Officer Rowan and/or Officer Kimber.
Officer Kimber's recollection of the briefing appeared to be vague as did much of his other evidence.
In cross-examination, the officer couldn't remember if the grounds were outlined at the briefing regarding Ikeda's arrest. Officer Kimber did testify in-chief at the pre-trial motion that the police goal on May 18th was to safely execute the search warrant and arrest Ikeda on the basis that Ikeda was "a known drug trafficker”, “observations on a previous date of the accused - That's Ikeda engaged in drug transactions." And that was presumably due to observations from May 16th, but this was not outlined in Officer Rowan's - Officer Kimber's evidence or in any other officer's evidence. "There were grounds in the search warrant regarding Ikeda being involved in drug trafficking". Those grounds were not outlined.
Accordingly, at about 2:30 p.m., police surveillance was set up at Ikeda's residence at 5 Seven Oaks Drive in Hamilton. See the pre-trial motion testimony of Officers Rowan and Kimber given over the last few days.
At about 5:24 p.m., Ikeda left his residence and got into the passenger seat of a red Hyundai that was parked in his driveway. The red Hyundai was operated by an unknown male. Officers observed the red Hyundai drive into a complex at 800 Paramount Drive. At about 5:31 p.m., a female came out of the complex and approached the front passenger - Ikeda, and received - and the female received an unknown object. Officer Rowan is an experienced drug officer who testified that this interaction was less than a minute and is consistent with a drug transaction.
The red Hyundai Sonata then drove to Splitsville Bowling Alley in Hamilton and parked in a remote part of the parking lot along a fence line. This location was, as I've indicated, remote and out of view of the public. The red Hyundai parked beside a black Mercedes. The driver of the black Mercedes got into the rear passenger seat of the Hyundai. Officer Rowan testified that he believed a second drug transaction was taking place. Officer Rowan testified that he formed reasonable and probable grounds to arrest all three occupants and instructed the officers to arrest all three occupants of the red Hyundai vehicle. The takedown took place at 5:30 p.m. to 5:39 p.m. Officer Rowan observed that Ikeda was removed from the front passenger side. Officer Rowan observed three items indicative of drug trafficking in the Hyundai:
- Individual packets of suspected cocaine on the centre console.
- Four cell phones in the car floor. Drug traffickers have multiple cell phones according to the police. [3] A bundle of pre-packaged cocaine in the driver's side door.
Officer Rowan did not participate in the arrest of the accused. The arrest and removal of all three occupants were simultaneous. See - the pre-trial motion testimony of Officer Rowan.
Officer Kimber arrested the accused, Cassle Hamilton. Officer Kimber testified at the pre-trial motion that he approached the driver's side of the red Hyundai. Officer Kimber at the pre-trial motion could not recall if the accused was already out of the car. In-chief, Officer Kimber testified that he was aware of two prior incidents of drug trafficking. The driver of the red Hyundai was with Ikeda when Ikeda was actively trafficking drugs, and Officer Kimber felt there were grounds to arrest the driver for trafficking. Officer Kimber was told by the team they had reasonable and probable grounds to arrest Mr. Hamilton. The team had observed two drug transactions that day. Officer Kimber saw baggies of the suspected cocaine in the driver's side door panel. Officer Kimber testified at the pre-trial motion that he saw the drugs in the driver's door at the arrest time of approximately 5:39 p.m. Officer Kimber testified in-chief that he told Mr. Hamilton that he was under arrest for Section 5(2) CDSA trafficking in cocaine, but only after I asked him about it. At 5:40 p.m., the accused was searched, and $170 of Canadian currency was seized. The accused was read his rights to counsel and was cautioned and the accused stated he understood. At the pre-trial motion, Officer Kimber could not recall if he saw cocaine before or at the time of the arrest.
At the preliminary hearing, in examination- in-chief at page 18, Officer Kimber was asked to specifically indicate what happened, "in arresting Mr. Hamilton". Officer Kimber testified at page 19 of the preliminary hearing as follows.
Answer: Yeah, I just removed him from his vehicle like I said. I placed him in handcuffs to the rear. That's my general practice. I searched him and then I read him his rights to counsel and caution.
Question: Yes.
And this is evidence in-chief.
Question: Yes. And when you ask the questions relating to rights to counsel and caution, did you have - did you note any replies from, from Mr. Hamilton? Sorry.
Answer: Yeah. I asked him if he understood and said, yeah. And I asked him if he wanted to speak with a lawyer and he said, yeah, Lisa Johnson. And then I read him a caution right away and he said, yeah, man.
Question: Okay. And what happened after you arrested Mr. Hamilton?
Answer: I waited for a uniform patrol. At six o'clock I transferred custody of Mr. Hamilton to PC Pattison.
There was no mention in examination in-chief at the preliminary hearing of Officer Kimber telling Mr. Hamilton the reasons and/or grounds for Mr. Hamilton's arrest. That was first mentioned in cross-examination at page 35 of the preliminary hearing, where Officer Kimber is asked these questions and gives the following answers: Question, this is at page 35, of the preliminary cross-examination:
Question: Okay. So when you arrested Mr. Hamilton again, you said you were arresting him on the strength of the search warrant for Mr. Ikeda. But what did you tell Mr. Hamilton he was under arrest for?
Answer: Well, no, we had seen two drug deals previously. That was also part of the grounds. And I told him he was under arrest for CDSA 5(2) cocaine.
Question: Okay.
Answer: Trafficking.
Previously, at page 34 of the preliminary hearing, Officer Kimber testifies as follows and this, again, is in cross-examination.
Question: Okay. And was that to the best of your recollection the first words that you said to him?
Answer: I can't recall our interaction.
Question: Okay.
Answer: Yeah, I can't recall our conversation.
Question: And at what point did the search of Mr. Hamilton's person take place?
Answer: At 1740. So immediately or a minute after he was placed in handcuffs.
Question: Okay. Was the right to caution, rights to counsel and caution before or after?
Answer: It was after the search.
Question: Okay. And what were the grounds you provided him for his being arrested?
Answer: Well, there was a valid CDSA search warrant for 5(2) cocaine for Christopher Ikeda. Christopher Ikeda was in the vehicle. From what I recall, one or two drug transactions had occurred during the surveillance.
Question: Did you witness that?
Answer: No.
Question: Okay. How did you learn of that?
Answer: Through radio transmissions. Question: Okay. And so you searched Mr. Hamilton?
Answer: Mm-hmm.
Question: Provided his rights to counsel and caution and then what did you do?
Answer: I transferred custody to him at six o'clock to a uniform patrol officer to transport him.
Accordingly, at the preliminary hearing the grounds for arrest, as testified to by Officer Kimber, consisted of either two drug deals or perhaps just one drug deal. At the pre-trial motion, Officer Kimber could not recall who ordered the arrest or whether he told the accused what the grounds of arrest were. At the pre-trial motion, the officer said his grounds were two prior direct transactions and, and an ongoing third drug transaction. This evidence is different from the preliminary hearing evidence that there were just one or two drug deals.
Officer Kimber at the pre-trial motion agreed that two to three, two to three drug deals is not in his notes. When reviewing Officer Beck's notes - Officer Kimber interprets the first drug transaction as having occurred at the accused's home. And this is the accused Ikeda's home, earlier on May 18. Officer Beck testified the red Hyundai Sonata at 4:54 p.m. dropped Mr. Ikeda off at 5 Seven Oaks Drive. At 5:16 p.m., the Hyundai returned. At 5:20 p.m. Ikeda came out of the residence and went to the front passenger seat of the Hyundai and then at 5:21 p.m. got out of the Hyundai and Ikeda went to the back of the Jeep. And at 5:22 p.m. Ikeda went back to the seat of the Hyundai and then the Hyundai left. In my opinion, it is not reasonable to conclude that what occurred from 4:54 p.m. to 5:22 p.m. at 5 Seven Oaks drive was part of a drug deal or drug transaction. No other officer testified that there were three drug deals on May 18th. Further, the two to three drug transactions testified to at the pre-trial motion is inconsistent with the one to two drug transactions testified to by Officer Kimber and other officers at the preliminary hearing.
Regarding exactly what was told to the accused regarding the first words said to Mr. Hamilton, Officer Kimber at the preliminary hearing at page 34 testified, "I can't recall our interaction... I can't recall our conversation." At page 33 of the preliminary transcript, Officer Kimber testified he couldn't recall what he said to Mr. Hamilton when he first made contact with him. In cross-examination at the pre-trial motion, Officer Kimber could not recall when exactly he told the accused what his charges were. Officer Kimber could not recall the interaction with the accused. He just recalls the accused being very compliant. Officer Kimber indicated he would have told the accused he was under arrest, but similar to the preliminary hearing, could not recall what he said to Hamilton with any precision.
Other Concerns and Inconsistencies in Officer Kimber’s Evidence
Officer Kimber's pre-trial motion evidence was peppered with numerous answers of "I don't recall" on important details of what occurred during the surveillance and the subsequent takedown. The defence submitted that the answers "I don't recall" occurred 57 to 58 times, a count, which I don't dispute.
Officer Kimber testified that at 5:22 p.m. he saw a vehicle with the target Ikeda in it. There was an unknown male passenger. Officer Kimber described the vehicle as a red Pontiac. Officer Kimber assumed Ikeda was the driver. This testimony is contradicted by all the other police evidence. It is clear that the target, Ikeda, according to all the other evidence, the target Ikeda, was in the passenger seat of a red Hyundai. And the driver of that vehicle was an unknown male which ended up being this accused before me, Mr. Hamilton. Officer Kimber's explanation for these very serious errors was that his "independent recollection was not good". An understatement if there ever was one.
Officer Kimber could not recall if at 5:38 p.m. he drove past the Stone Church parking lot, or if he drove straight in. Officer Kimber couldn't recall whether he saw the accused, Hamilton, in the vehicle, or whether Ikeda was the passenger or driver. At the preliminary hearing at page 18, Officer Kimber testified that Mr. Hamilton was driving the vehicle.
[4] Officer Kimber could not recall if guns were drawn, a surprising lack of recollection. He was "guessing" at the pre-trial motion that guns may be drawn. Officer Iveljic testified he drew his gun upon approaching the pinned Hyundai vehicle on the driver side, just prior to the arrest of the accused. Officer Iveljic testified he was near the arrest of the accused and had his gun drawn. The drawing of guns is an important detail which Officer Kimber could not recall, but had to guess at.
[5] As indicated, Officer Kimber, at the pre-trial motion could not recall if his gun was drawn. Officer Kimber could not recall if other officers drew their guns. Officer Kimber, at the pre-trial motion, guessed that guns may be drawn. However, at page 32 of the preliminary hearing, Officer Kimber was asked if he had his weapon drawn, and he testified definitively, "No."
[6] Regarding the exact chronology of events surrounding the arrest of Mr. Hamilton, Officer Kimber either can't recall or gives conflicting versions of events. Officer Kimber, in cross examination at the pre-trial motion, testified that he saw the cocaine in the driver's side door immediately. However, he also testified he didn't know if he saw cocaine before or after he handcuffed the accused. Officer Kimber could not recall if the accused was still inside the vehicle, or if he was removed. Officer Kimber, at the pre-trial motion, could not recall if he took the keys out of the vehicle, or if another officer did it. Officer Kimber declared at the pre-trial motion, "at some point, Hamilton was out of the car". At the preliminary hearing at pages 34 through 35, Officer Kimber gave evidence inconsistent with his pre-trial motion evidence. At page 34, Officer Kimber was asked: Question: "And did you assist in any way in the search of the vehicle?" At page 35 of the preliminary hearing, Officer Kimber provided this response: Answer, "Not that I recall, I saw some what I believe was cocaine when I assisted with removing or when I was closer to the vehicle with Mr. Hamilton, but I don't recall searching the vehicle." Question: "At what point did you see the cocaine?" Answer: "When I grabbed Mr. Hamilton. He was, he was coming out on the driver's side door when I was there." At the pre-trial motion, however, Officer Kimber could not recall if the driver opened the side driver's door, or if Officer Kimber opened the door or if someone else opened the door. Officer Kimber could not recall if he or someone else took the accused out of the car.
[7] Officer Kimber, at the pre-trial motion, could not recall when the accused was on the ground. Officer Kimber could not recall if him or another officer brought the accused to the ground. Officer Kimber could not recall if he moved Hamilton from the vehicle. At pages 32 to 33 of the preliminary hearing, Officer Kimber testified as follows
Question: Okay, did you approach the driver's side door?
Answer: Yeah.
Question: Did Mr. Hamilton roll the window down?
Answer: The door was already opened by another officer.
Question: Do you know who opened the door?
Answer: No.
Question: Okay. What was Mr. Hamilton doing?
Answer: He was very compliant. He exited the vehicle, and I removed him a distance away from the vehicle and handcuffed him to the rear.
Question: Okay, so he got out of the vehicle on his own accord?
Answer: I can't recall. He might have, he might have been pulled out of the vehicle and placed on the ground.
Question: Was he on the ground when you, when you found him, when you approached him?
Answer: I think he might have been, from what I recall, actually.
When the last of these questions and answers was put to Officer Kimber at the pre-trial motion, Officer Kimber again resorts to his standard answer: “I can't recall”. Officer Kimber explained that, "It's been three years."
[8] Officer Kimber, at the pre-trial motion, could not reveal any details of the search and could not, "speak to the search". Officer Kimber could not recall if the search was underway before Hamilton was transferred to uniformed officers. That's his evidence at the pre-trial motion. However, at page 36 of the preliminary hearing, Officer Kimber testified as follows.
Question: Okay, and did you observe the search at the Hyundai Sonata?
Answer: There were officers searching the car when I had Mr. Hamilton. So I believe there was the search occurring inside the vehicle but my priority at the time was Mr. Hamilton and I had custody of him, so...."
When confronted with this preliminary hearing testimony, Officer Kimber indicated he couldn't recall, (the usual answer), but he also indicated it was very possible.
[9] Officer Kimber could not recall if all three passengers were secured by officers. Officer Kimber could not recall if any civilians were around. Officer Kimber explained his memory was more clear at the preliminary hearing. Officer indicated at the pre-trial motion "As we were talking about it today, the more I remember". Unfortunately, Officer Kimber's memory at the preliminary hearing was not exactly exemplary either. One further example to illustrate this point. At page 33 of the preliminary hearing, Officer Kimber testified as follows. Now this is in cross-examination:
Question: Now, to your recollection, did someone advise them males in the car, "We're the police"?
Answer: Absolutely.
Question: Okay, was it you?
Answer: I can't recall exactly what I said. The best of my recollection is that he knew we were the police.
Question: And so when you - Mr. Hamilton, you think he was on the ground when you first made contact with him, what did you do or say?
Answer: I can't recall exactly what I said to him. I do remember that he was very compliant.
Question: And you said you cuffed him?
Answer: Yes.
Question: Was he lying on the ground when you cuffed him?
Answer: I can't recall if he was on the ground when he was cuffed, or if we got him up and placed him in handcuffs.
Given the approximate 10 concerns outlined, and I believe I could do find more if I wished, I find that Officer Kimber is not a reliable or credible witness. I am not satisfied from his conflicting and unreliable evidence and his lack of memory that he provided the accused the reason for his arrest without delay. Regarding reasonable and probable grounds, Officer Kimber arrested the accused based on one transaction, or two transactions, or an additional fictional third transaction which appeared at the pre-trial motion for the first time. Which version you believe - one or two or three - depends on which of the varying reasons one is prepared to accept. The impact of this conflicting testimony will be discussed shortly.
Officer Iveljic
Officer Iveljic was another one of the officers at the arrest scene. He approached the driver's side of the red Hyundai. He believes he first saw the accused in the driver's seat. Regarding the accused's arrest, Officer Iveljic had no specific observations and nothing specific about what was said by anybody. Shockingly, this officer did not even know who arrested the accused, even though he was there and assisting in the arrest, according to him.
Regarding the arrest of the accused itself, his evidence added nothing material. Defence counsel cross-examined this witness extensively, I'm not sure why. But as could be anticipated from the vagueness of the examination in-chief, very little was accomplished. The only item of importance revealed in cross-examination, in my opinion, was the fact that our Officer Iveljic had his weapon drawn during the takedown. Like Officer Kimber, this officer relied extensively on the phrase "I don't recall". Defence counsel counted that answer 40 times; a count which I don't dispute.
This officer's evidence can basically be boiled down to one sentence: He was there but really couldn't say anything about anything involving the circumstances of the accused's arrest.
Officer Knickle
Officer Knickle attended the briefing on May 18th, 2018, from 2:00 to 2:15 p.m. Similar to the accounts of the other officers, Officer Knickle indicated they were to execute two search warrants at 5 Seven Oaks Drive regarding a residence and a Jeep, CBZ 911. The search warrants were for CDSA trafficking cocaine - for trafficking in cocaine and the target was Christopher Ikeda.
A concern was expressed regarding the possibility of firearms, according to Officer Knickle. At 5:39 p.m., Officer Knickle arrived at the Splitsville parking lot at 1525 Stone Church Road. Officer Knickle observed that Ikeda, Hamilton and Augostinho had been detained. At 5:41 p.m. Officer Knickle observed, plainly visible, on the open driver's side door, a plastic bag that contained numerous pre-packaged drugs for sale, indicative of drug trafficking. He believed the drugs to be cocaine, as the white material can clearly be seen through the transparent plastic coatings.
Officer Knickle then, at about 5:41 p.m., advised the officers on the scene that the detained occupants could be arrested for possession of cocaine for the purposes of trafficking. Officer Knickle, from 5:41 to 5:52, seized drugs from the driver's door and centre console. Forty dollars US was seized from the centre console. Six cell phones were also seized from the vehicle, including a Samsung cell phone with a cracked screen in the driver's door and three cell phones beside the console next to the passenger seat. Further, there was a cell phone on the first console near the gear shifter.
Photos of car contents in Exhibit 1, were taken from approximately 5:46 p.m. to 5:51 p.m. Officer Knickle indicated it was possible that other officers touched and, and/or moved items during the search.
Cassle Hamilton - Accused
The accused testified that on May 18th, Chris Ikeda and him were going to go to a bowling alley and smoke pot. Mr. Hamilton drove the red Hyundai Sonata and Ikeda was in the passenger seat. The red Hyundai Sonata had been rented by his girlfriend. Mr. Hamilton, according to him, testified that he only drove it that day; that is May 18th, 2018.
Mr. Hamilton drove to a complex. This is on May 18th and they stopped there. Mr. Hamilton was going to loan a friend $30. The friend, a female, came out and went to the passenger side. Mr. Hamilton leaned over and gave the female $30. They then drove to the Splitsville Bowling Alley parking lot and parked by a Mercedes. His friend Danny got out of the Mercedes and went into the backseat. They were going to smoke weed before going to the bowling alley.
Mr. Hamilton testified his vehicle got rammed from the rear. He saw plainclothes officers with guns drawn. He was told to "get out of the car and not to move". He didn't open the door. The officers pulled the door open. He was pulled out. Hamilton was cuffed and told to sit down near the Sonata front bumper. The officer who cuffed him told him to sit tight and said nothing more. Another officer about a minute later asked if he was okay. The cuffing officer went to the Sonata and rummaged items in the car. The officer returned and said Hamilton was being arrested. There were drugs in the car. Hamilton said all right, he knew there was weed in the car. A squad car arrived 10 minutes later and told the accused he was being charged with possession for the purpose and was read his rights to counsel and right to silence. During that 10 minute period or so, an officer stood him up and asked for personal information and checked his pockets. Neither of the two undercover officers told him why he was being detained.
I find that Hamilton is not a credible or reliable witness for these reasons:
Hamilton testified he did not see the bag of cocaine in the car driver's door. The bag of cocaine is relatively large and the cocaine, wrapped in a large transparent bag, in transparent packages, is clearly and obviously visible upon looking at the open driver's door. Further, the accused's Samsung cell was located also in the same driver's door relatively close to the large transparent bag of cocaine filled with transparent cocaine baggies.
The accused testified, to his knowledge, his girlfriend who rented the Sonata two days before did not loan the car to anyone else. Further, the accused testified that he drove the red Hyundai Sonata only on one day, that is May 18th, 2018. In Officer Beck's preliminary hearing evidence at pages 42, 44 through 45, Beck testified that on May 16th, two days prior, 2018, at 8:14 p.m., the same red Hyundai Sonata, license plate BWFV 058, pulled into the rear of Ikeda's residence at 5 Seven Oaks Drive and parked there. A male matching the accused's description, (that's the accused, Mr. Hamilton), a male matching Mr. Hamilton's description got out of the Sonata and went into Ikeda’s residence. Ten minutes later the male exited the residence and drove away in the Sonata. I have no hesitation in concluding that, based on all the evidence before me, that it was the accused, Hamilton, who visited Ikeda on May 16th, 2018. And it was Hamilton who drove the red Hyundai Sonata both on May 16th, as well as on May 18th, 2018.
Mr. Hamilton testified that the weed he had was in the centre console of the car. The photos in Exhibit 1 show cocaine in the console but there is no weed. The accused's explanation is that somehow somebody moved the weed in the console. Officer Knickle was recalled to be questioned if he observed the weed from the console, as this matter was not broached by defence counsel earlier in cross-examination. Officer Knickle testified that no marijuana was found by him on the centre console of the vehicle.
The Law
Section 9 Charter - Reasonable and Probable Grounds for Arrest
The leading case, regarding the requirements for a legal arrest, is R. v. Storrey, 1990, SCJ No. 12. Justice Cory indicated at paragraphs 16 and 17 quote, paragraph 16:
There is an additional safeguard against arbitrary arrest is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person standing in the shoes of the police officer would have believed that reasonable and probable grounds existed to make the arrest.
Paragraph 17:
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds in which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
Justice Watt in R. v. Gonzales, 2017 ONCA 543, 2017, 136 OR (3d) 225, Ontario Court of Appeal indicates at paragraphs 94 and 95:
Paragraph 94 includes in quotes from the Criminal Code:
A peace officer may arrest without a warrant;
- A person who has committed an indictable offence or who, on reasonable grounds, the officer believes has committed or about to commit an indictable offence or a person whom the officer finds committing a criminal offence.
See Criminal Code, S.495(1)(a) and (b).
Paragraph 95:
The Criminal Code requires an arresting officer subjectively have reasonable grounds in which to base an arrest. But more is required. In addition, the grounds must be justifiable from an objective point of view. To say the same thing in another way, a reasonable person in the position of the officer must be able to conclude there were indeed reasonable grounds for the arrest. On the other hand, nothing more than reasonable grounds need be shown, not a prima facie case, not proof beyond a reasonable doubt.
Section 10(a) Considerations
Section 10(a) of the Charter provides that every person arrested has the right to be informed promptly of the reasons thereof. The purpose of Section 10(a) was explained by the Ontario Court of Appeal in R. v. Nguyen at paragraphs 20 and 21.
Paragraph 20:
It is clear, therefore, that while the main purpose of Section 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by Section 10(b). Specifically, the purpose of Section 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by Section 10(b) in a meaningful way. The purpose of Section 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it. As to the difference in language between 10(a) and 10(b), I return to this court's holding in Kelly at page 424. First it may be noted that Section 10(a) uses the word "promptly" and 10(b) does not. While semantically there may appear to be little different between "promptly" and "without delay" I think there is a subtle difference between them. The former is a positive term and, I think, does mean "immediately" while the latter does not quite have this connotation. The injunction of the latter is expressed in negative terms - not to delay, or postpone, which does not necessarily convey the notion of immediacy. Further, if the same temporal requirement was intended to be equally applicable to each clause then it is reasonable to think that the same word or words would have been used in each.
Paragraph 21:
Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of Section 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of Section 10 of the Charter.
Search of the Car, Incident to Arrest
In R. v. Caslake, [1998] 1 SCR 51, at paragraphs 13, 19, 23, 25, the Supreme Court of Canada indicated as follows:
Paragraph 13:
In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the search. In Cloutier, supra, my colleague L'Heureux-Dubé, discussed this power in detail. She held that it is an exception to the ordinary requirements for a reasonable search (articulated in Hunter, supra) in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. However, since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v. Stillman, no search, no matter how reasonable, may be upheld under this common law power of search incident to arrest where the arrest which gave rise to it was arbitrary or otherwise unlawful.
I rely, also on paragraphs 19 and 25. The only other one I will read is paragraph 23:
As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other [relevant] circumstances.
In Gonzales, Watt J. summarizes the law as follows at paragraphs 98 and 99. And I'll just read part of 98.
It is beyond controversy that a search incident to arrest has its genesis in a lawful arrest. No further showing of reasonable grounds for the search itself is required. However, the search must be truly incidental to the arrest. There must be some reasonable basis for the search, for example, to ensure the safety of the public and police; to protect evidence from destruction; or to discover evidence.
Issue Number One
Application of Law to the Facts
As indicated, I do not believe the accused's, Hamilton's evidence. I will reject his evidence and propose to analyse this motion based on the Crown's evidence, dealing first with reasonable and probable grounds for arrest.
Reasonable and Probable Grounds for Arrest
The accused was arrested by Officer Kimber, who is neither a credible or reliable witness. The background prior to the May 18th surveillance includes as follows:
A visit by Mr. Hamilton for 10 minutes at a known drug traffickers residence, Ikeda's residence, on May 16th, 2018.
Details which had to be put in the ITO, submitted to Justice Woloschuk in support of the two search warrants, with Ikeda as the target. Those details were not provided to the court or to, it would appear, to the police at that briefing meeting on May 18th.
Ikeda had, according to the police, previous drug trafficking activities, details of which were not articulated at the pre-trial motion, or it appears at the May 18th meeting.
Ikeda was on a release for trafficking of drugs.
There exists, obviously, details of the actual alleged trafficking and whatever drugs that were involved in that outstanding charge.
However, from the evidence before me, none of this background was provided to Officer Kimber in the 15 minute briefing. If they were, he certainly could not recall it.
As testified to by Officer Kimber at pages 34 through 35 of the preliminary hearing, he testified his grounds for arrest were a CDSA 5(2) cocaine charges, where there was a valid CDSA search warrant for Section 5(2) cocaine for Christopher Ikeda and one or two drug transactions seen by the surveillance team on May 18th. That's what he testified to at the preliminary hearing. His search warrant for Section 5(2) cocaine for Ikeda provides no grounds to arrest Hamilton.
If it was one drug transaction as testified to by Officer Kimber at page 34 of the preliminary hearing, and that one was the incident where an unknown something was given to a female who approached the Sonata from a housing complex, that standing alone without more could not provide reasonable grounds for an arrest for trafficking in cocaine. See R. v. Brown, 2012 ONCA 225, [2012] OJ No. 1569, Court of Appeal, also reported at 2012 ONCA 225, at paragraphs 10, 12, 17, 22, 26 through 28.
If it were two drug transactions, as suggested by Officer Kimber at page 34 and 35 of the preliminary hearing transcript, that would presumably add in Mr. Augostinho’s entry at the Splitsville parking lot into the Sonata as drug transaction number two. Numerous officers attended the Sonata while it was in the parking lot, and Mr. Augostinho was in the Sonata car, but there was no evidence from any officers at the arrest scene of an ongoing drug transaction. Again, this event could not provide reasonable grounds to arrest for trafficking in cocaine.
At the pre-trial motion, Officer Kimber decided to add in a third drug transaction in contradiction to his preliminary hearing testimony and all the other officers’ testimony. Officer Kimber doesn't have two to three drug transactions in his notes but upon looking at Officer Beck's notes, the alleged third drug transaction, according to Officer Kimber at the pre-trial motion, occurred earlier in the day, when Ikeda was dropped off at his home by the Sonata, and then approximately a half hour later was picked up again by the Sonata. As I've indicated previously, there is no way, that event, on its own without much, much more could reasonably be interpreted as trafficking in cocaine. No other officer testified to that interpretation either. I conclude, therefore, that officer Kimber did not have reasonable and probable grounds, on a subjective basis or an objective basis, to arrest the accused. There might have been a basis for an investigative detention and then an arrest once the cocaine was discovered. See R. v. Suberu, 2009 SCC 33, 2009 SCJ No. 33 at paragraphs 42 through 45. However, investigative detention is to be brief in duration and must be relatively non-intrusive. See R. v. Mann, 2004 SCC 52, 2004, 3 SCR 59 at paragraphs 40 through 50.
What happened here was not a brief - it was not of brief duration and it was not non-intrusive. The police immediately arrested the accused in a highly intrusive manner. Accordingly, Officer Kimber violated Mr. Hamilton's Section 9 Charter rights. See R. v. Storrey at paragraphs 16 and 17.
Section 10(a) Charter - Advising Promptly of Reasons for Detention or Arrest
Given my findings regarding the credibility and reliability of Officer Kimber's evidence, I'm not satisfied that the accused was advised promptly of the reasons for his arrest. As reviewed previously, Officer Kimber's evidence boils down to a simple conclusion. Officer Kimbra is not a credible or reliable witness, and it is impossible to conclude exactly when or what was said to Hamilton by Officer Kimber. Officer Iveljic was there at the arrest. His evidence adds nothing material that could save the inconsistent and unreliable evidence from Officer Kimber.
In Gonzales, Justice Watt indicated at paragraph 122, in part, "At a minimum, Section 10(a) requires that individuals who are arrested or detained for investigative purposes be advised in clear and simple language of the reasons for detention." Given the unreliability and lack of credibility of Officer Kimber's evidence, as outlined, I find on a balance of probabilities that this minimum 10(a) requirement has not been established on the evidence before me.
Simply, I conclude that Officer Kimber cannot recall, with any precision, what he said to the accused upon the accused's arrest. Accordingly, I have no alternative but to conclude that Mr. Hamilton's 10(a) rights were also breached as well. See R. v. Nguyen at paragraphs 26 and 27.
Section 8 - Search and Seizure
It is trite law that a warrantless search is prima facie unreasonable, and the Crown has the burden of showing the search, on a balance of probabilities, was reasonable. See R. v. Caslake at paragraphs 10 and 11. The Crown has failed to meet its burden. As indicated by Justice Watt in Gonzales at paragraph 98, a search incident to arrest, as appeared here, has its genesis in a lawful arrest. As indicated, Officer Kimber did not have reasonable and probable grounds to arrest the accused at the time of the arrest. Accordingly, in these circumstances, there is no lawful arrest. And it follows that there cannot be a lawful search where the arrest is unlawful in breach of the Charter. See also Caslake at paragraph 13. Accordingly, Mr. Hamilton's Section 8 rights have also been breached.
Issue Number Two
Section 24(2) Considerations
Section 24(2) requires that the evidence sought to be excluded be obtained in a manner that infringes the Charter of Right. In R. v. Pino, 2016 ONCA 389, the Court of Appeal indicates that the accused must show on a balance of probabilities, that the evidence sought to be excluded was obtained in a manner that infringed a Charter right. At paragraph 72, the court indicates, "Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in Section 24(2).
- The approach should be generous, consistent with the purpose of 24(2).
- The court should consider the entire "chain of events" between the accused and the police.
- The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
- The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
- But the connection cannot be either too tenuous or too remote.
Conclusion regarding the "obtained in a manner" Requirement
The evidence at the pre-trial motion overwhelming and clearly establishes on a balance of probabilities that the evidence seized by the police in the vehicle search and the search of the accused was obtained in a manner that infringed his Charter rights under Sections 8, 9 and 10(a) of the Charter. See R. v. Pino at paragraph 36, 72 through 74.
The Test for Exclusion with the Grant Analysis
A Section 24(2) inquiry examines the impact of admitting constitutionally tainted evidence on society's confidence in the justice system. Three lines of inquiry were outlined in R. v. Grant, 2009 SCC 32, 2009 2 SCR 353 at paragraph 71 as follows.
The court is to consider the seriousness of the Charter infringing state conduct.
The court has to consider the impact of the breach on the Charter protected rights of the accused.
And the court is to consider society's interest in the adjudication of a case on its merits.
See also R. v. Gonzales, at paragraph 155 and most recently, R. v. Thompson, 2020 ONCA 264, paragraph 74. As indicated in R. v. Thompson, which citation I've just given, the Court of Appeal in the case at paragraph 74 and 75 indicates as follows:
Paragraph 74:
Section 24(2) is triggered where evidence is "obtained in a manner" that violates an accused's Charter right. A Section 24(2) inquiry examines the impact of admitting evidence obtained in a breach of the Charter on public confidence in the justice system over the long term, based on: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused's Charter-protected rights; (iii) society's rights in the adjudication of the case on the merits. The court's task is to balance the assessments under these three inquiries "to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute".
Paragraph 75:
In Le, the Supreme Court recently clarified the interaction of the three inquiries under 24(2). The majority noted that while the first two inquiries typically "both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion". The evidence can be excluded even if the first two inquiries do not both support exclusion, such as in a case of a serious Charter breach coupled with a weak impact on a Charter -protected interest. The third inquiry, while not a rubber stamp deeming all evidence reliable, typically points to admission. When, however, the first two inquiries taken together make a strong case for exclusion, the third inquiry "will seldom if ever tip the balance in favour of admissibility". See Le, at paragraph 142 and Paterson, at paragraph 56.
1. The Seriousness of the Charter-infringing Conduct
As indicated by defence counsel, the police evidence in its entirety was marked by numerous inconsistencies between the officers. These inconsistencies were summarized by defence counsel in their submissions, and there's no further need to review them all.
Suffice it to say, however, that the evidence of the two main witnesses involved in the arrest, Officer Kimber and Iveljic, were not reliable or helpful at all. Officers Kimber's evidence was simply not credible. Officer Iveljic was of no real assistance. The only good thing that can be said about Iveljic's evidence is that his 40 "I don't recalls" are significantly less than the 57 to 58 "I don't recalls" testified to by Officer Kimber.
Both these officers testified in a manner that fell dramatically short of the usual professional manner that one normally expects from experienced Hamilton Regional Police Service officers. I accordingly find that the Section 8, Section 9 and 10(a) breaches were egregious.
2. Impact of Charter Protected Rights of the Case
Given that the officers were in plain clothes, it was particularly serious that the accused's rights under Section 8, 9, 10(a) were breached. Further, there were numerous breaches of the accused's rights, which resulted in the accused being treated in a fashion which would be frightening to anyone, especially with the circumstances of pinning in his car by officers in plain clothes, and the takedown by officers who were not in uniform, but were armed with handguns at the ready.
3. Society's Interest in Adjudication of a case on its Merits
Excluding the fruits of the searches of the car and the accused's personal search probably results in a dismissal of these trafficking charges. However, the first two inquiries make a strong case for exclusion. And this third inquiry does not tip the balance in favour of admissibility. See the Court of Appeal’s comments in Thompson at paragraph 75.
Accordingly, my conclusion regarding issue two, balancing the three Grant factors, I conclude that the admission of the evidence obtained incident to the accused's unlawful arrest, would bring the administration of justice into disrepute. The order is as follows. The accused's application pursuant to Section 24(2) of the Charter is granted. Evidence seized incident to the unlawful arrest, including two bags of cocaine, Canadian $170, US $40 and all six cell phones are not admissible at the trial of the accused. That's my order.
...END OF EXCERPT
...PROCEEDING ADJOURNED
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of R. v. Cassle Hamilton in the Ontario Court of Justice held at 45 Main St. Hamilton, Ontario taken from Recording(s) No. 4799_700_20210114_152421__10_SKARICT which has been certified in Form 1.
January 28, 2021
(Date) (Signature of authorized person)
This certification does not apply to ( i.e. Rulings, Reasons for Judgment, Reasons for Sentence, Charge), which was/were judicially edited.