Court File and Parties
Court File No.: CR-17-005890 Date: 2021-06-08 Ontario Superior Court of Justice
Between:
Her Majesty the Queen
– and –
Mustaf Yusuf, Defendant
Counsel: A. Ghosh, for the Crown R. Chartier, for the Defendant
Heard: April 6, 8, May 26, 2021
Reasons for Judgment
1Mr. Yusuf is charged with possession of heroin for the purpose of trafficking and possession of cocaine for the purpose of trafficking. The charges stem from a traffic stop that occurred on June 23, 2017.
2On that date, Mr. Yusuf was driving northbound on Highway 427. As he exited the highway, he was stopped at a York Regional Police R.I.D.E. program spot check. The arresting officer, Cst. Dhillon, spoke with Mr. Yusuf and smelled the odour of marijuana. Mr. Yusuf exited his vehicle and approached Cst. Dhillon while flapping his jacket and stating words to the effect “search me.” Cst. Dhillon observed a long, hard paper-wrapped object on Mr. Yusuf and asked him what it was. Mr. Yusuf pulled out a toothbrush. As Mr. Yusuf did this, Cst. Dhillon observed a plastic bag with a green leafy substance in it. Mr. Yusuf was arrested for possession of marijuana and a small amount of marijuana was found on him. He was then further searched and placed in the rear seat of a police vehicle.
3Police then discovered that Mr. Yusuf was wanted by the Peel Region Police in relation to a warrant for failing to appear in court. Mr. Yusuf was transported to Peel Region and handed over to Peel Police for processing. He was also given an appearance notice for the charge of possession of marijuana.
4At the end of the shift, Cst. Dhillon searched the police vehicle that was used to transport Mr. Yusuf. He discovered almost two ounces of cocaine and approximately four grams of a mixture of heroin and fentanyl. The drugs were wrapped in plastic bags and found in the enclosed space where the feet of the rear seat passenger would rest. Mr. Yusuf was then re-arrested on the charges now before the court.
5Mr. Yusuf elected to proceed to trial before me without a jury. He brought a Charter application seeking exclusion of the drugs seized during the investigation. With the consent of the parties, the trial and Charter application were heard in a blended fashion. I was also provided with agreed facts relating to the evidence of one police officer and various other admissions. As is his right, Mr. Yusuf did not testify or call any defence evidence.
6There are three central issues in this trial, which I state in their order of presentation:
a. Has the Crown proven beyond a reasonable doubt that the drugs found in the police car were placed there by Mr. Yusuf?
b. If so, has the Crown further proven beyond a reasonable doubt that the drugs were possessed for the purpose of trafficking?
c. Did the police conduct during the initial roadside stop violate Mr. Yusuf’s Charter rights warranting exclusion of the evidence subsequently found in the police car?
Legal Principles
7I turn next to reviewing the legal principles that guide my assessment of the evidence in this case.
8First and foremost, Mr. Yusuf is presumed innocent of each count in the indictment. He has no obligation to prove anything or call evidence. The onus rests entirely on the Crown to prove each charge against him beyond a reasonable doubt.
9Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.
10Proof of likely or even probable guilt is not enough to sustain a criminal conviction. Conversely, proof to a level of absolute certainty is also not required as that standard is impossibly high. Ultimately, in order to convict Mr. Yusuf of an offence, I must be sure that he committed the offence. If I am not sure, I must acquit him of the offence.
11Where the evidence in a case is circumstantial, the Crown must prove that the accused’s guilt is the only reasonable inference available on the evidence, see R. v. Villaroman, 2016 SCC 33. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may be at times difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason.
12The analysis must be based on the totality of the evidence before the court, see R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25 at para. 81.
13If, after all the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser and included offence, as the case may be. An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negative every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from “proven facts”, see Villaroman, supra, at para. 35, R. v. Robert (2000), 143 C.C.C. (3d) 330 (Ont.C.A.) at para. 17 and R. v. Bui, 2014 ONCA 614 at paras. 24-30. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence.
14In terms of the Charter application, in the ordinary course the onus falls to the defendant to establish a violation of his Charter rights on a balance of probabilities. However, where the allegation relates to a warrantless search, the onus of justifying the search falls to the Crown. Further, where a section 9 Charter claim overlaps a warrantless search, the onus on both issues most fairly rests with the Crown, see R. v. Gerson-Foster, 2019 ONCA 405 at para. 75.
Did Mr. Yusuf Possess the Drugs Found in the Police Car?
15Following his roadside interaction with Cst. Dhillon, Mr. Yusuf was placed under arrest for possession of marijuana. Cst. Dhillon conducted a “Level 1” pat down search which essentially involved checking the pockets and the waistband of his pants as well as running a hand up and down the Mr. Yusuf’s legs and arms. While Cst. Dhillon initially denied touching Mr. Yusuf’s buttocks during this search, he ultimately adopted his preliminary inquiry testimony wherein he stated that he ran the back of his hand over Mr. Yusuf’s buttocks. He added that he had not inappropriately searched Mr. Yusuf’s buttocks. No additional drugs were discovered during this initial pat down search.
16Mr. Yusuf was then placed in the rear seat of police vehicle #435, which was the vehicle closest to them. This was not the vehicle that Cst. Dhillon had been assigned for use that evening. It was being used by Cst. Park. Cst. Dhillon could not recall whether the door was unlocked or locked when he went to the car, though he did not have a key for the car.
17While police vehicle #435 was equipped with recording equipment, Cst. Dhillon did not activate the equipment when he placed Mr. Yusuf in the rear seat. He had also not activated his vest mic and dash camera when initially dealing with Mr. Yusuf at the roadside.
18Once Mr. Yusuf was placed in the vehicle, a Canadian Police Information Centre (CPIC) query revealed the fact that he had an outstanding warrant for failing to appear in court in relation to unrelated charges in Peel Region. The Peel Police were contacted, and a decision was made to transport Mr. Yusuf to Peel Region in response to the warrant. Cst. Dhillon noted that while seated in the car, Mr. Yusuf appeared “very shifty,” appeared to be moving his hands and was looking to the left and right. Based on these observations and information received suggesting a connection with firearms, Cst. Dhillon decided to conduct a further pat down search. He wanted to make sure he did not miss something during the first search. The second search was similar to the first. Once again, nothing was discovered.
19Cst. Dhillon denied intentionally not activating the in-car camera recording system which would have captured the search process.
20Following the second search, Mr. Yusuf was transferred to police vehicle #470. The events inside police vehicle #470 were captured on an in-car camera and the recording was filed as an exhibit.
21Once inside police vehicle #470, Mr. Yusuf complained that the handcuffs were on too tight and were hurting him. Cst. Dhillon did not loosen the cuffs, but he did adjust them so that they were not resting against Mr. Yusuf’s wrist bones.
22At a certain point, Cst. Dhillon and his escort, Cst. Evans, both exited the vehicle, leaving Mr. Yusuf alone inside. In the video, Mr. Yusuf can be seen moving around in the backseat. There is also an audible shuffling sound. Cst. Dhillon and Cst. Evans return to the vehicle and drive over to a Peel Police detachment where they surrender custody of Mr. Yusuf to Peel Police. Mr. Yusuf was given an appearance notice in relation to the marijuana that was seized from him.
23Cst. Dhillon did not search the rear seat area of the vehicle immediately after dropping Mr. Yusuf off at the Peel Police detachment, though he agreed it would have been a best practice to do so.
24Cst. Dhillon and Cst. Evans then drove back to their York Regional Police detachment, arriving at approximately 4:17 a.m. They made no further arrests that evening and no one else was placed in the back seat of the police vehicle #470. The car was parked in a secure police parking lot and locked. Cst. Dhillon maintained custody of the key for the vehicle. He entered the detachment and began processing the paperwork in relation to the seized marijuana. He did not search the rear seat area at this time.
25At approximately 6:41 a.m, as he was nearing the end of his shift, Cst. Dhillon went out to the police cruiser and moved it to the nearby fuelling station for a gas fill up. He then returned to the police parking lot and began shutting down the computer system on board the vehicle. At approximately 6:56 a.m., he did a “circle check” of the vehicle. A “circle check” is done at the beginning and end of a shift and it involves checking the vehicle for any operational or safety issues, equipment completeness and to determine whether any items have been left in the car.
26While conducting the circle check, Cst. Dhillon opened the rear passenger door where Mr. Yusuf had been sitting and he immediately noticed a plastic Ziploc bag tucked into the footwell of the seating area.
27The Ziploc bag was seized and examined. It contained a plastic bag with approximately 48.1 grams of cocaine, a plastic bag with approximately 8.4 grams of cocaine and a plastic bag with approximately 3.7 grams of a mixture of heroin and fentanyl.
28The circle check conducted by Cst. Dhillon at the end of his shift was recorded and the recording was tendered into evidence. A similar circle check had been conducted by Cst. Dhillon at the start of his shift on June 22, 2017 at approximately 7:25 p.m. A recording of that circle check was also tendered into evidence. In that recording, Cst. Dhillon can be seen opening the rear door of the police vehicle where Mr. Yusuf later came to be seated, and he can be further seen briefly squatting or bending down while observing the interior of the vehicle. Cst. Dhillon testified that he observed nothing in the rear compartment of vehicle and, in particular, nothing in the rear footwell when he did this initial check.
29Cst. Dhillon testified that police vehicles are assigned by sector at the start of a shift. A key is handed to the officer driving the vehicle. The escort officer does not have a separate key. A master key is kept inside a cabinet in the Staff Sergeant’s office within the police division. Cst. Dhillon explained that his practice was to lock the vehicle when he was away from it. He explained that this was important as police vehicles often carry firearms and ammunition.
30Cst. Dhillon described the calls he attended at the beginning of his shift that evening prior to attending at the R.I.D.E. spot check. At no time was anyone else placed in the rear seat of the car that evening. Cst. Dhillon acknowledged that the car had likely been used by other officers prior to his shift. He did not know whether they would have completed a “circle check” or whether they would have used the car to transport one or more arrestees.
31In terms of the set up of the rear seating area, Cst. Dhillon explained that the rear seats are moulded in one piece. There are no separate seating cushions or gaps between the seats and seat backs. There is a barrier between the front and rear seats. As well, the footwell beneath the front seat, where the rear passenger’s feet would rest, is a small entirely enclosed space approximately 4 inches in depth. Following the preliminary inquiry, Cst. Dhillon took photos of the rear passenger area of the vehicle. The photos depict the footwell where the drugs were found.
32I start my analysis of this issue with credibility and reliability findings. Having listened carefully to Cst. Dhillon’s evidence, I find that he testified in a credible fashion and that there are no reliability concerns with the evidence he gave. In short, I accept his evidence. His testimony was internally and externally consistent. He was not significantly impeached on any central matter. I am not troubled by the variance in his evidence about the description of the manner of the pat down search and whether he touched Mr. Yusuf’s buttocks. I accept his explanation that while the back of his hand came into contact with Mr. Yusuf’s buttocks, he never inappropriately came into contact with his buttocks. As I will explain later in relation to the Charter issue raised, I am also not troubled by Cst. Dhillon’s evidence at the preliminary inquiry wherein he momentarily mentioned that he had Mr. Yusuf step out of the vehicle. I am satisfied he simply misspoke when said this. Lastly, I am not concerned that his note taking practices raise either credibility or reliability concerns.
33Cst. Dhillon was candid about the calibre of his investigation and the procedures he followed. He readily admitted instances where in hindsight he believed he should have done something differently, for example, by turning on the in-car recording equipment earlier in the series of events. I find that Cst. Dhillon was being honest with the court. At the time of the investigation, he was a very inexperienced officer who was learning on the job. In his evidence, he accepted that in some regards, he could have done a better job. This was not an instance where a witness, when confronted with problematic aspects of his evidence, compounded the problems by obfuscating or minimizing the nature or extent of the problems.
34Lastly, I find that Cst. Dhillon’s evidence regarding the two circle checks conducted on police vehicle #470 is supported by the video recording of those circle checks.
35I turn next to my specific findings and conclusions. Having considered the whole of the evidence, I am satisfied beyond a reasonable doubt that the only reasonable inference is that Mr. Yusuf placed the drugs under the seat in the rear of police vehicle #470. I reach this conclusion for the following reasons:
a. I accept Cst. Dhillon’s evidence that during the circle check at the beginning of his shift he looked into the rear passenger compartment, squatted or bent down and briefly looked into the footwell area. This is also captured in the video tendered in evidence.
b. I accept that if the plastic bag had been under the seat in the footwell at that time, it would readily have been observed by Cst. Dhillon. Put another way, given the size and shaped of the bag and the relatively small size of the footwell, I am satisfied that he would not have missed it, even if the bag was “scrunched up” or pushed to a corner. As such, I reject the possibility that the bag of drugs had possibly been left behind by someone during an earlier shift.
c. I accept Cst. Dhillon’s evidence that Mr. Yusuf was the only person placed in the rear seat during the shift that evening.
d. I accept Cst. Dhillon’s evidence that when he was not with the vehicle, he would keep it locked. This makes perfect sense as the vehicle contained firearms, ammunition and other police equipment.
e. I have no concerns about the possibility of a second or master key being used by someone to gain access to the car in order to place the drugs inside the car. I reject the submission that the Crown should have called the Staff Sergeant on duty that night to negative the possibility that the master key had not remained in his custody at all times. The suggestion that someone managed to obtain the master key from the police station and then used the key to gain access to the car is entirely speculative.
f. I also reject the suggestion that while the car was parked somewhere during the shift, someone could have walked up to the car, found it unlocked and without any officer noticing placed the drugs under the seat. The suggestion is not only speculative, it is fanciful.
g. I accept Cst. Dhillon’s evidence that at the end of the shift, when he conducted the second circle check, he immediately found the plastic bag containing the drugs. Again, this is captured on video.
h. I reject the hypothetical posited to Cst. Dhillon wherein it was suggested that a prior occupant of the rear compartment of vehicle could have found or formed a cavity on the underside of the front seat and inserted the drugs into the cavity, only to have them fall out due to a bump or jostling when Mr. Yusuf was in the car or perhaps after Mr. Yusuf left the car. I note that Cst. Dhillon candidly stated that this hypothetical was possible. I further note that none of the photos of the rear compartment depict the underside of the front seat. That said, I conclude that the possibility of such a scenario playing out is at the very best a theoretical possibility. The Crown is not required to negative every conceivable possibility no matter how speculative or remote. The Crown is only required to negative reasonable possibilities. In my view, the possibility that this is what happened is not reasonable. It is speculative.
i. I am not concerned about Cst. Dhillon’s failure to find the drugs on Mr. Yusuf during the two separate pat down searches. The searches conducted were level one pat down searches which involved the officer checking Mr. Yusuf’s pockets and waistband, and running his hand up and down Mr. Yusuf’s legs and over his buttocks. They did not involve an intrusive examination of Mr. Yusuf’s buttocks or groin area. I find that the drugs later found in the back seat of the car could easily have been missed during the initial searches, especially if they were being held in Mr. Yusuf’s underwear or underwear area.
j. Lastly, while I agree that Mr. Yusuf’s movements inside the car coupled with the sounds of plastic “scrunching” support an inference that Mr. Yusuf was relieving himself of the bag of drugs at that time, this evidence is only marginally supportive of this inference and is open to other interpretations. Ultimately, I need not rely on this evidence in order to reach my conclusion.
Was Mr. Yusuf’s Possession for the Purpose of Trafficking?
36At the outset of trial, counsel admitted the nature of the substances seized as well as the continuity of those substances from the point of seizure onwards. Counsel also admitted the qualifications of Cst. Kevin Selwood, who gave expert testimony on the methodology of drug trafficking including the pricing, distribution and consumption of cocaine, heroin and fentanyl.
37Cst. Selwood prepared a written report which was filed on consent as his evidence in chief. He was also cross-examined.
38In his report, Cst. Selwood opines that the quantity of cocaine and heroin/fentanyl found in this case would be a quantity consistent with trafficking.
39In relation to the cocaine, Cst. Selwood notes that the relatively large quantity found suggests that the possessor is engaged in street level trafficking, buys in bulk and has access to large amounts of cocaine. He notes that when cocaine is possessed for personal consumption, it is generally possessed in amounts less than 2 grams. Based on the quantity found, he opines that the re-sale value of the drugs is between $4,400 and $5,600 depending on the size of the individual sales. In cross-examination, he agreed that if purchased at the ounce level, the value of the cocaine seized would be approximately $3,200 to $3,600. He agreed that if someone had enough money, it might make sense to buy in bulk for personal use, though he noted that he had never seen someone purchase 56 grams of cocaine for personal use. Cst. Selwood was also questioned on the noted absence of drug use paraphernalia, and he agreed that cocaine could be ingested with a fingernail or through the use of a hard card like a driver’s licence.
40In terms of the heroin/fentanyl, Cst. Selwood notes that there is a distinction between the dosage size for fentanyl versus heroin. One gram of fentanyl will provide approximately 100 doses and one gram of heroin will provide approximately 10 doses. On this basis, he notes that the 3.7 grams of heroin/fentanyl seized in this case could theoretically provide 370 doses. That said, there is no mention in his evidence about the ratio of heroin and fentanyl in the drugs seized in this case. As well, Cst. Selwood notes that three cutting agents were found mixed in with the heroin/fentanyl, including caffeine which is a fairly typical cutting agent.
41Cst. Selwood opined that the sale value of the heroin/fentanyl is approximately $11,700 assuming the drug is sold at a dosage of 0.01 grams, which is the dosage level of fentanyl. That said, he agreed that if purchased in bulk, the value of the heroin/fentanyl in this case would be approximately $500.
42Cst. Selwood agreed that apart from the quantities of the drugs, there was an absence of related items suggesting trafficking. In particular, he noted there was an absence of debt lists, cash, multiple cell phones and scales for weighing drugs. He considered the absence of these items in coming to his opinion, but ultimately discounted them as Mr. Yusuf was in police custody at the time he allegedly placed the drugs under the seat. Cst. Selwood was not advised that Mr. Yusuf’s car interior and trunk was searched and nothing of evidentiary value was found. Nonetheless, he maintained that even if he had known this fact, he would not have changed his opinion given the quantities of the drugs involved.
43Against that factual backdrop, I turn to assessing the evidence. I remind myself that the onus to prove that the purpose of the possession was trafficking rests entirely with the Crown. The accused does not have to prove an absence of intention. As well, in the absence of direct evidence on the issue of purpose, an inference that the possession was for the purpose of trafficking must ultimately be the only reasonable inference on the evidence.
44I find that Cst. Selwood’s opinion essentially boils down to the quantities discovered. His evidence is that when a person possesses almost two ounces of cocaine and approximately four grams of heroin mixed with fentanyl, their purpose for possessing each drug is trafficking.
45I also note that Cst. Selwood makes no reference to the fact that marijuana was found in Mr. Yusuf’s jacket pocket. He also makes no direct comment on whether the combined presence of the cocaine and heroin/fentanyl also supports an inference of trafficking as it suggests that Mr. Yusuf was supplying different drugs to different drug users. While he did suggest that in his experience, “cocaine users use cocaine and heroin users use heroin”, he acknowledged that a “speed ball” was a mixture of cocaine and heroin. However, he noted that “speedballs” have waned in popularity since fentanyl was introduced into the supply chain.
46I am satisfied that the Crown has proven beyond a reasonable doubt that the cocaine was possessed for the purpose of trafficking. The quantity seized in the circumstances of its seizure, including the packaging and the location of the cocaine on Mr. Yusuf’s person, leaves this conclusion as the only reasonable inference.
47In terms of the heroin/fentanyl, while the packaging and location of the drugs on Mr. Yusuf’s person are the same as with the cocaine, the quantity seized is very different, even accounting for the different dosages. There is no evidence regarding the amount of fentanyl present in the heroin. Conversely, there is evidence that a number of cutting agents were added to the mixture, though no evidence as to their concentration. As such, I cannot accept Cst. Selwood’s evidence that the amount discovered would provide 370 doses. I do, however, accept that the amount could provide approximately 37 doses if consumed at a rate of .1 grams per dose, and I note Cst. Selwood’s evidence that a heroin addict would typically use ¼ to 1 gram of heroin per day. I also accept that the amount found would be worth approximately $500 if purchased in bulk. Lastly, I consider the absence of drug paraphernalia suitable for consuming heroin/fentanyl which supports an inference that the drug was to be trafficked. When I consider the evidence globally, I am satisfied that the heroin/fentanyl mixture was probably possessed for the purpose of trafficking. That said, given the quantity found and the evidence relating to the nature of the mixture, I cannot exclude the reasonable possibility that it was for personal use. As such, I am not sure that the possession of the heroin/fentanyl mixture was for the purpose of trafficking.
Were Mr. Yusuf’s Charter Rights Violated During the Initial Roadside Interaction?
48I turn next to the last issue and that is whether Mr. Yusuf’s interaction with Cst. Dhillon at the roadside occasioned any violation of Mr. Yusuf’s Charter rights.
49In terms of the context, I note the following evidence. Cst. Dhillon testified that on the evening of June 23, 2017, he and a number of other officers set up a R.I.D.E. spot check on the final northbound exit of Highway 427. At approximately 1:16 a.m., Cst. Dhillon observed Mr. Yusuf driving a Lexus sedan accompanied by a female passenger.
50The vehicle entered the spot check line up and Cst. Dhillon approached the driver’s side window to engage in conversation. When doing so, Cst. Dhillon smelled the odour of burnt marijuana. He advised Mr. Yusuf that he was checking for sobriety and asked him whether he had consumed marijuana that evening. Mr. Yusuf replied affirmatively indicating that he had smoked “some weed” two to three hours prior. Mr. Yusuf then identified himself with an Ontario driver’s licence.
51Cst. Dhillon decided to further investigate Mr. Yusuf’s sobriety and he directed him to pull over to the side of the road out of the R.I.D.E. check line up. While Cst. Dhillon had a vest mic and dash camera, he did not turn them on at this time. He explained that in the ordinary course police would not record R.I.D.E. spot checks until an event happens and someone is being placed in the police vehicle.
52Once Mr. Yusuf pulled off to the side of the road, Cst. Dhillon again approached the driver’s side window. His purpose for doing so was to continue to assess Mr. Yusuf’s state of sobriety.
53According to Cst. Dhillon, Mr. Yusuf’s demeanour changed at this time and he became agitated. Mr. Yusuf stated “I know how this goes” and invited Cst. Dhillon to search him and search the car. Cst. Dhillon advised Mr. Yusuf that he only wanted to talk to him and did not want to search him or the car. Cst. Dhillon explained that at this time, he did not have any grounds to arrest.
54Mr. Yusuf then suddenly opened his car door, causing Cst. Dhillon to have to step back. Mr. Yusuf exited the car and began flapping the unzipped halves of his hoodie sweater while stating “search me, search me.”
55Cst. Dhillon denied ever asking him to step out of the car. In cross-examination, he was taken to a portion of his preliminary inquiry testimony where after initially stating that Mr. Yusuf got of the vehicle on his own, he then used the phrase “when we had him step out of the car.” Cst. Dhillon explained that he misspoke when he gave that answer at the preliminary inquiry, and he further maintained that at no time did he ask Mr. Yusuf to step out of the vehicle.
56As Mr. Yusuf was flapping his hoodie sweater, Cst. Dhillon observed a long, hard paper wrapped object in the inside pocket of the sweater. While he did not have a lot of job experience, Cst. Dhillon was concerned that this was no longer a routine traffic stop. In view of Mr. Yusuf’s erratic behaviour and his observations of the object inside Mr. Yusuf’s sweater, Cst. Dhillon concluded that there were officer safety issues. He was also concerned that Mr. Yusuf might decide to run out into traffic or otherwise harm himself.
57Cst. Dhillon asked Mr. Yusuf what the object in his pocket was and Mr. Yusuf replied “a toothbrush.” Mr. Yusuf then pulled a toothbrush out of his pocket and when doing so, also partially pulled out a plastic bag that appeared to contain a green leafy substance.
58Based on his observations, Cst. Dhillon formed the belief that Mr. Yusuf was in possession of marijuana and he placed him under arrest. A search incident to arrest revealed a bag containing approximately 7 grams of marijuana in his hoodie sweater.
59In a skilful cross-examination, Cst. Dhillon was challenged on various aspects of his investigation. He agreed that his notes were lacking in several areas. In particular, he agreed that he did not note in great detail the initial discussion with Mr. Yusuf. He explained that his practice was to just get drivers engaged in small talk so he could observe their state of sobriety. He agreed that he did not note Mr. Yusuf stating “search me” while still inside his car. He further agreed that the fact that he had to step back when Mr. Yusuf opened the door was not noted. He explained that at the time he made his notes, he did not believe that these matters had evidentiary value and therefore omitted them. That said, he did not waver in his recollection of these events.
60When asked about his failure to note the flapping of the hoodie sweater, Cst. Dhillon explained that it was an oversight and that he should have noted it. He was asked why he did not seize the toothbrush and he explained that he felt recording its presence in his notes was sufficient.
61In terms of the use of the recording equipment, Cst. Dhillon accepted that in hindsight he should have activated the mic and dash camera earlier. He denied that he did not activate the recording equipment because he knew he was going to search Mr. Yusuf. He explained that this was a dynamic and unexpected situation that rapidly developed once he began speaking with Mr. Yusuf and he simply did not activate the equipment. He agreed that once Mr. Yusuf was placed into police vehicle #435, the in-car recording equipment should have been turned on, but he forgot to do so. He did, however, activate the recording equipment once Mr. Yusuf was placed into police vehicle #470.
62I turn next to my analysis of the Charter issues. In brief summary, the defence argues that while Mr. Yusuf was initially stopped for a sobriety related investigation, that investigation quickly became a drug investigation. The defence argues that Mr. Yusuf was directed to exit his vehicle for the purpose of being searched, and that the discovery of the marijuana was as a result of an arbitrary detention and unreasonable search.
63The Crown’s position is that the inexperienced, though cautious, arresting officer, proceeded in careful and incremental steps when he was faced with a driver whose erratic conduct gave rise to safety concerns. The Crown argues that those concerns amply justify the officer’s question about the object in Mr. Yusuf’s sweater pocket. Lastly, the Crown argues that the officer credibly explained his observation of the bag containing marijuana and as such there was a legitimate basis for an arrest and a search incident to arrest.
64I note at the outset of my analysis that the standard of proof for a Charter violation is a balance of probabilities. In this case, the Crown agrees that it carries the burden of proving that Mr. Yusuf’s Charter rights were not violated given the warrantless search.
65As indicated earlier in my reasons, I find Cst. Dhillon to be both a credible and reliable witness. I also note that for the purpose of the Charter analysis, I do not need to accept his evidence beyond a reasonable doubt. I need only be satisfied based on his evidence that Mr. Yusuf’s Charter rights were probably not violated.
66Defence counsel dedicated a significant portion of his cross-examination to testing the officer’s recollections based on his police notes. While I agree that in some instances, a failure to take detailed notes can give rise to both credibility and reliability concerns, I am satisfied that this is not one of those cases. The context is important. At the time of this investigation, Cst. Dhillon was a very inexperienced officer. He was faced with a dynamic and fast-moving investigation that culminated with the discovery of a significant amount of drugs. He made some mistakes and his notes could have been more detailed. That said, I accept his evidence explaining the reasons why some items were noted and others were not. I accept that through inexperience he did not appreciate the evidentiary value of certain features of his interactions with Mr. Yusuf. I also accept that in hindsight, he would have taken better notes and done certain things differently. This is not a case where the lack of detail in the notes gives rise to credibility concerns such as might be the case where an officer claims to recall a crucial yet unnoted detail years after the fact. This is also not a case where the lack of detail in the notes gives rise to reliability concerns. Again, I am satisfied that when he recounted the incident to the court, Cst. Dhillon was credible and his version of events reliable.
67In relation to Cst. Dhillon’s failure to video record the initial interactions with Mr. Yusuf, I agree with defence counsel that failure to create an objective record can often raise concerns about what actually happened. However, in this case, I accept Cst. Dhillon’s evidence about the recording practices that were used for R.I.D.E. spot checks and I also accept his explanation for the failure to turn on the equipment once Mr. Yusuf exited his vehicle. Lastly, I note that this is not an instance where there is a competing narrative of events supported by other evidence.
68In terms of the interaction with Mr. Yusuf, I see nothing inappropriate with the officer’s conduct during the initial interaction with Mr. Yusuf. The officer was engaged in a legitimate drug-impaired investigation based on the smell of marijuana and the admission of recent consumption. I am not troubled by the fact that the officer who later searched the vehicle did not smell an odour of marijuana.
69I am also not troubled by the officer’s decision to have Mr. Yusuf pull out of the R.I.D.E. spot check line up and move over to the side of the road. I find that this was a reasonable demand consistent with a drug impaired investigation. Moreover, I do not see this demand as signalling a change in the nature of the investigation. I find that the investigation continued to relate primarily to drug impairment. In any event, even if the officer also turned his mind to investigating the possession of drugs, a dual purpose would not have been improper given the unfolding of events, see R. v. Nolet, 2010 SCC 24.
70I accept Cst. Dhillon’s evidence that he never ordered Mr. Yusuf out of the car. I find that Mr. Yusuf did so of his own accord. I accept that Cst. Dhillon misspoke at the preliminary inquiry when he stated “we had him step out of the vehicle” or words to that effect, and I note that at the preliminary inquiry this comment was preceded by the officer explaining that Mr. Yusuf stepped out of the car on his own.
71I find that Mr. Yusuf’s conduct once he stepped from the vehicle was erratic. He was unnecessarily confrontational with Cst. Dhillon, essentially challenging him to search his car and his person. I accept that Cst. Dhillon observed Mr. Yusuf flapping his hoodie sweater while doing this, and I further accept that while doing so Cst. Dhillon was able to see a long hard object wrapped in paper.
72When all of these circumstances are viewed together, I find that Cst. Dhillon had a legitimate safety concern for himself, his colleagues and Mr. Yusuf during this rapidly unfolding series of events. The question about the object in his jacket amounts, in these circumstances, to a very modest and reasonably grounded safety search, see R. v. Mann, 2004 SCC 52 and R. v. MacDonald, 2014 SCC 3.
73Once Mr. Yusuf responds to the question by removing the toothbrush from his pocket, I accept that Cst. Dhillon was able to observe a bag containing what appeared to be marijuana. That observation, in concert with the earlier noted smell and admission of consumption of marijuana coupled with the erratic behaviour, clearly supported grounds for arresting Mr. Yusuf for the offence of possession of marijuana. As such, I find that the police did not arbitrarily detain or unlawfully arrest Mr. Yusuf.
74Lastly, based on these findings, I am satisfied that the search incident to arrest was reasonable in the circumstances. The Charter application is dismissed.
Conclusion
75In conclusion, in terms of the application to exclude evidence, I am not satisfied that Mr. Yusuf’s Charter rights were violated during his interaction with Cst. Dhillon. I see no basis for excluding the evidence found.
76In terms of the substantive charges, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Yusuf was in possession of the drugs found inside the cruiser by Cst. Dhillon at the end of his shift. In other words, I am satisfied beyond a reasonable doubt that those drugs were placed there by Mr. Yusuf while he was being transported to the Peel Police detachment.
77I am further satisfied beyond a reasonable doubt that Mr. Yusuf possessed the cocaine for the purpose of trafficking. I have a reasonable doubt about whether the heroin/fentanyl mixture was possessed for the purpose of trafficking.
78As a result, I find Mr. Yusuf guilty of possession of cocaine for the purpose of trafficking.
79I find him not guilty of possession of heroin for the purpose of trafficking but guilty of the included offence of possession of heroin.
Justice J. Di Luca
Released: June 8, 2021