COURT FILE NO.: CR-21-90000207-0000 DATE: 20230308 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – ANDREW ROCHA Applicant

V. Rivers and E. Mastrorillo, for the respondent K. Schofield and S. Kimberg, for the applicant

HEARD: September 13-16, November 18, 2022

REASONS FOR DECISION

SCHRECK J.:

[1] A number of police officers executed a search warrant at the apartment where Andrew Rocha lived with his girlfriend. They seized a number of items, including a significant quantity of cocaine and a large quantity of cash. Some of the cash was found in a shoebox and some was found in a coat inside a closet. As a result of the seizures, Mr. Rocha was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime.

[2] All of the seized items, including the cash and the drugs, were taken to the police station and processed. There were a number of irregularities in the processing of the cash. The money from the shoebox was mixed up with the money from the closet. The wrong property bag number was recorded on the property report. Property receipt numbers were not recorded on the property report as they should have been. Some of these irregularities were explained by the officer who processed the report. Some were not.

[3] The police who conducted the search claim that a total of $19390 was seized. Mr. Rocha claims that the amount taken from his apartment was actually over $6000 more than that. He alleges that the police stole the money and in doing so, violated s. 7 of the Canadian Charter of Rights and Freedoms. He submits that the appropriate remedy is a stay of proceedings.

[4] The Crown says that no money was stolen and submits that Mr. Rocha’s evidence is not credible. In the alternative, the Crown submits that a stay is not an appropriate remedy.

[5] For the reasons that follow, the application is granted and the proceedings are stayed.

I. EVIDENCE

A. The Search and Seizures

(i) The Search

[6] On February 6, 2019 members of the Toronto Police Service executed a search warrant at an apartment on Weston Road, the residence of the applicant and his girlfriend. Different officers searched different rooms within the apartment and seized a number of items. The seized items were photographed. Following is a description of the significant items that were seized and where they were located.

(ii) The Shoebox Money

[7] D.C. Jamal searched a room that appeared to be an office. A large number of shoe boxes containing various types of running shoes were stacked against the walls of the room.

[8] One of the shoe boxes contained five bundles of Canadian currency bound with elastic bands of various colours. During the hearing of the application, this was referred to as the “shoebox money.”

[9] D.C. Jamal removed the money from the shoe box and placed it on a table, where it was photographed. There were four smaller bundles and a fifth bundle that was significantly larger than the others. D.C. Jamal agreed that from looking at one of the photographs, the larger bundle seemed to be a number of smaller bundles bound by individual elastics placed together in a larger bundle. [1] D.C. Jamal never removed any of the elastic bands.

[10] D.C. Jamal set the money aside in a “safe space,” the details of which he was unable to recall. It was later placed in a property bag. D.C. Jamal did not seal the property bag because, in his view, there was “no point” because it would have to be placed in another bag later. Although each property bag had a distinct number, D.C. Jamal did not record it.

[11] D.C. Jamal took the property bag containing the money to the police station. He testified that he “would have” given the money to D.C. Dhaliwal, who was assigned the task of processing it. All of the seized items were placed on a table at the police station and photographed. The photograph shows five bundles of bills lined up next to two bundles of bills. [2] D.C. Jamal identified the five bundles of bills as the money he had seized.

(iii) The Closet Money

[12] D.C. Stojic searched a coat closet in the hallway, where he found a quantity of cash which was referred to during the hearing as the “closet money.”

[13] In the front left pocket of a jacket, D.C. Stojic found two bundles of cash wrapped in elastic bands. The smaller bundle contained papers bills in $20, $50 and $100 denominations. All of the bills of each denomination were kept together.

[14] The larger bundle contained polymer bills in $20 and $100 denominations with the bills of each denomination kept together. D.C. Stojic agreed that in the photographs, there did not appear to be in any $50 dollar bills in the polymer bundle. [3] However, he later testified that he had made a note about there being $50 bills in both bundles. In fact, his notes had said: “Small one has 20s, 50s, 100, other cash packed in a similar way with denominations.” In his testimony, he suggested that there may have been 50-dollar bills that were not apparent on the photographs.

[15] D.C. Stojic placed the bundles of money and the bags of cocaine he had located in the same property bag, which he did not seal. He then transported all of the items to the police station. At no time did he remove any money from either bundle.

[16] D.C. Stojic testified that it was common practice to put smaller amounts of seized money in an unsealed property bag for transportation to the police station. Larger amounts, which D.C. Stojic believed meant $10000 or more, were to be put into sealed bags and sent to the Asset Forfeiture Unit. D.C. Stojic did not believe that the money he seized was over $10000 because he usually used debit cards and had not “handled cash in years.” He accepted that he was wrong.

[17] When shown the photograph of all of the seized items laid out on the table, he identified the two bundles of bills on the very right as the ones he seized from the closet. [4]

(iv) Cocaine in the Paint Cans

[18] D.C. Dhaliwal found a number of paint cans in a closet containing a hot water tank. He shook each one to determine whether it contained liquid, and found that all but one of them did. When the can was opened, it was found to contain a large Ziploc bag in which there was uncooked rice and 10 smaller bags containing a white substance later found to be cocaine.

[19] D.C. Dhaliwal did not make any notes until after he returned to the police station. As a result, he was unable to say what time he found the paint can, although he did ask Det. Barnes to photograph it soon after finding it and the photograph was taken at 6:49 p.m. In contrast to the procedure followed by D.C. Stojic with the cocaine found in the coffee container, D.C. Dhaliwal did not remove any of the bags from the can and did not count them. He testified that he believed it was better to leave the can as it was. He later took the paint can back to the station in an unsealed property bag. He testified that it was not his practice to seal property bags used for transporting seized items.

(v) Cocaine in the Coffee Cans

[20] D.C. Stojic searched the kitchen cupboards, where he found a number of soup cans and potato chip canisters which on closer examination turned out to have false bottoms, although nothing was in them.

[21] Above the sink, D.C. Stojic found a large coffee can which also had a false bottom in which there were eight Ziploc bags containing what appeared to be cocaine. D.C. Stojic believed that each bag contained an ounce, which was later confirmed. After finding the cocaine, he removed the individual bags so that they could be photographed by Det. Barnes.

B. Processing of the Money

(i) D.C. Dhaliwal is Assigned the Task of Processing the Cash

[22] D.C. Dhaliwal, a police officer with 14 years of experience, was tasked with processing the money that had been seized. He had been advised during a debriefing after the search that it had been seized by D.C. Jamal and D.C. Stojic. At the time, D.C. Dhaliwal had processed seized money on six to eight prior occasions. He was not aware that the Toronto Police Service had an Asset Forfeiture Unit that was responsible for processing seizures over $10000. He also testified that the cash seized in this case did not appear to him to be over $10000. It was in fact over $19000.

[23] D.C. Dhaliwal was unable to recall where or from whom he received the money in this case. He recalled receiving seven bundles of money at around 8:10 p.m., which he processed in the Youth Bureau on a desk on which there was a desktop computer. This was after the money had been photographed on the table with the other seized items. He agreed that he was aware that the five bundles of cash had been found in a shoebox, although he was not present when it was seized and did not see it in the shoebox. At the preliminary inquiry, he testified that when he was given the money, it was “labeled” to have come from the shoe box. At trial, he explained that by “labeled”, he meant “verbally labeled.”

(ii) The Proper Procedure

[24] When asked what processing seized money entailed, D.C. Dhaliwal said: “Essentially, you would keep the money separate from each other, count the money, separate it by denomination, and fill out a TPS 406, which is a cash report.” The report was completed by entering data onto a form using a computer. The data included a property bag number as well as the amount of the money that had been counted. A property receipt known as a Form TPS 405 would have had to be completed by hand, which would result in the creation of carbon copies. D.C. Dhaliwal would keep one copy and submit two with the property and the report into the property locker management system.

[25] Once property was placed into a locker, it would remain there until a property unit courier came to pick it up. D.C. Dhaliwal testified that once he placed property into a locker and closed the door, it would lock and he would be unable to access it again.

(iii) Mixing Up the Money

[26] D.C. Dhaliwal initially testified that he first dealt with the two large bundles of money that had been seized by D.C. Stojic (the closet money) and kept the other five bundles apart. He described the process as follows:

Q. Okay. And you processed that money, so you – what do you do, you do one stack at a time?

A. I would essentially take off the rubber bands that are on there, and sort them out by the denominations.

Q. Okay. So at this point you will combine the money?

A. For the two – yes, for the one group that I received from Constable Stojic.

[27] After court broke for the lunch recess, D.C. Dhaliwal testified that he could not recall which bundle of money he processed first. He also gave the following evidence:

Q. Okay. And can you say whether when you processed the money, you counted it separately, or whether you merged it all together? Each different stack.

A. I can’t say.

[28] In cross-examination, D.C. Dhaliwal testified that he tried as best he could to keep the money separate but that he did not believe that it was important to do so because it all belonged to the same individual. At the preliminary inquiry, he had testified that he had kept the shoebox money separate from the closet money.

[29] D.C. Dhaliwal agreed that the bill on top of one of the bundles he received from D.C. Stojic was made of paper and that the property bag which he labelled as containing money from the shoebox did not contain any paper money. He explained “It’s possible that I did mix it up when I was counting, between the two groups.” He agreed that the first time he realized that the closet money and the shoebox money had been mixed up was during his evidence at trial. He was unable to say how the money got mixed up. Later in cross-examination, he acknowledged that he may have processed all of the money at once, contrary to his earlier testimony.

[30] D.C. Dhaliwal suggested that the confusion may have been the result of mistaking the shoebox money for the closet money. During his evidence, the paper money in Exhibit 10B was separated and photographed as was the polymer money. [5] D.C. Dhaliwal testified that it appeared to him that the two bundles were consistent with photographs of the two bundles of money seized from the closet. [6]

[31] The Crown concedes that the shoebox money and the closet money were mixed up and not kept separate.

(iv) The Property Report

[32] D.C. Dhaliwal identified the property report he created for the seized money. [7] He testified that most of the information at the top of the report, such at the applicant’s name, date of birth and address, was automatically populated by the system. The report had a column headed “Property Receipt No.” which had nothing written below it. D.C. Dhaliwal testified that this was an “oversight” on his part.

[33] The property report referred to two property bag numbers: B1813052 and C1627100. For property bag B1813052, the report lists the following denominations:

121 X $20 = $2420 105 X $100 = $10500 18 X $50 = $900

The total of these is not indicated, although it adds up to $13820.

[34] For property bag C1627100, the report lists:

141 X $20 = $2820 25 X $50 = $1250 15 X $100 = $1500

This totals $5570. At the bottom of the report, the “Grand Total” for both bags is indicated as being $19390.

(v) The Property Receipts

[35] D.C. Dhaliwal also completed two property receipts. The first, which had tag number P6581050, referred to property bag B1813052 and indicated a total of $13820 but did not indicate the denominations. [8] The bag number and the amount correspond to what was indicated on the report.

[36] The second receipt, which had tag number P6581051, referred to property bag B1914380 and indicated a total of $5570. [9] There is no reference to B1914380 in the property report, but the total amount corresponds to the amount indicated on the report for C1627100. When asked why the bag number on the property receipt did not correspond with that on the property report, D.C. Dhaliwal indicated that it was a “clerical error on my part.”

(vi) The Property Bags

[37] In fact, no bag with the number C1627100 was ever used. At the preliminary inquiry, D.C. Dhaliwal testified that the number C1627100 may have been the result of him using an old property report from another investigation as a template. At trial, he acknowledged that this could not have happened because the system would have generated a blank report and he would not have used a template. He later checked to see if C1627100 corresponded to another investigation but learned that it had in fact never been used.

[38] In notes he made at the time he processed the money, D.C. Dhaliwal indicated that the $5570 seized by D.C. Jamal was associated with tag number P6581051 and the $13820 seized by D.C. Stojic was associated with tab number P6581050. These correspond with the tag numbers on the property receipts.

[39] D.C. Dhaliwal identified the bag with number B1813052 as having his writing on it. On the bag, he had written “$13,700 = jacket.” Below that were words that had been crossed out which read “$11,400 = jacket.” The bag also had “$120 = person” written on it, indicating that some of the money was found in the jacket and some on the applicant’s person. D.C. Dhaliwal explained that the figure of $11400 had come from an earlier version of the property report, but that he then recounted the money and found the total to be $13700. D.C. Dhaliwal agreed that the amount on the property report was $13820 and that the amount written on the bag was an error. He testified that at some point, he was given $120 which he was told was found on the applicant’s person. He did not recall when or by whom he was given this money.

[40] The money in bag B1813052 became Exhibit 5A at trial. [10]

[41] D.C. Dhaliwal identified his own writing on a bag marked B1914380 (which corresponds to one of the receipts but not the property report). On the bag was written “shoebox money” and “$5570.” This bag contained paper money, including $20, $50 and $100 bills. It also contained polymer bills in the same denominations.

[42] The money in bag B1914380 became Exhibit 10B at trial. [11]

(vii) The Courier Pickup List

[43] D.C. Dhaliwal was shown a “courier pickup list” which indicated that it was printed on February 8, 2019. It identified three submitting officers, including himself. Beside his name was printed P6581053, which had been struck out by hand with P6581051 written by hand above it. The number P6581050 was also printed on the form. D.C. Dhaliwal testified that this meant that he had incorrectly entered P6581053 into the computer, which he explained was a “typo”. [12]

C. Processing the Drugs

[44] D.C. Stojic was tasked with processing the seized drugs. He testified that he weighed the drugs, took a sample from each quantity to be sent for analysis, and completed property receipts. The process took hours to complete.

D. The Applicant’s Testimony

(i) Background

[45] The applicant was 35 years old at the time of his testimony. At the time of the search, he was living in the apartment that was searched together with his girlfriend and employed as a truck driver for a waste disposal company. He was still employed by the same company at the time of his testimony, although he was now on the payroll whereas in 2019 he as paid in cash “under the table.” The applicant acknowledged that he did not pay tax on these earnings.

[46] The applicant supplemented his income by selling running shoes, which he purchased when they were first released and resold later after they increased in value. Some of the shoes were worth $1500 or even $2000. The applicant was unable to say how many shoes he owned in February 2019.

(ii) The Cocaine

[47] The applicant acknowledged that he sold cocaine. He testified that there were eight one-ounce bags of cocaine in the coffee container. He knew this because he had placed five of them into the container on February 6, 2019. He had also placed 12 one-ounce bags in the paint can on the same day, two more than the 10 bags D.C. Dhaliwal testified to finding.

(iii) The Shoebox Money

[48] The applicant testified that the money found in the shoe box was money he had made selling cocaine. It consisted of four smaller bundles of $1000 and a larger bundle of $5000 that was made up of five smaller bundles of $1000. The total was $9000. He explained that whenever he had $1000, he would secure it with an elastic and put it in the box. When he had five such bundles, he would put them together. Once he had four bundles of $5000, he would purchase a half-kilo of cocaine to sell. The photograph taken during the search was an accurate representation of how the money had been stored. [13]

[49] According to the applicant, the individual smaller bundles of bills in the shoes box consisted of the following denominations:

(1) 10 X $100 (2) 25 X $20, 10 X $50 (3) 25 X $20, 6 X $50, 2 X $100 (4) 50 X $20

The applicant testified to being “100 percent sure” about these amounts and denominations. He had lasted counted the money three or four days prior to the search.

[50] The applicant was also sure that the larger bundle contained $5000, but was unsure about the denominations.

(iv) The Closet Money

[51] According to the applicant, none of the money in the closet was from the sale of drugs. He kept the paper money for use in two gambling machines which he owned. He had purchased the machines from a friend who owned a bar and they did not work with polymer bills. He would use the gambling machines when he had friends over to play poker. Whenever he came across paper money, he would put it in the bundle to be used in the machines.

[52] The applicant testified that the bundle of paper bills totalled $1800. He knew that $1200 of this was made up of $20 bills because that was the amount he used when his friends played on the gambling machines. He was unsure about the other denominations. The paper bills that had been seized totalled $1570, $920 of which was in $20 bills.

[53] The second bundle in the closet was money the applicant had been paid by the waste disposal company. According to him, it contained $15000 in polymer bills consisting of:

50 X $20 140 X $100

The applicant testified that he kept this money “for a rainy day.” He had last counted the money in the closet about three weeks prior to the search.

(v) The Bundle Recreations

(a) The Recreation Using Money Provided by Counsel

[54] During his testimony, the applicant attempted to recreate the bundles of cash seen in the photographs taken during the search using cash provided by counsel. He used the denominations he testified to remembering with respect to the four smaller bundles of the closet money. Although he testified that he could not recall the denominations in the $5000 bundle found in the shoebox, based on his memory and the photographs, he attempted to recreate it using bundles comprised of the following:

(1) 10 X $100 (2) 15 X $20, 14 X $50 (3) 50 X $20 (4) 20 X $50 (5) 20 X $50

The applicant also recreated the $15000 bundle of polymer bills in the denominations he had testified to.

[55] The applicant’s recreation made use of $24000. Together with the paper money, which the applicant testified amounted to $1800, the total would have been $25800. [14] The total amount in the two property bags was $19390. According to the applicant, $6410 was missing.

(b) The Recreation Using the Seized Money

[56] In cross-examination, Crown counsel asked the applicant to recreate the shoebox money using the polymer money in Exhibit 5A. He recreated the four smaller bundles in the denominations he had testified to earlier. He then attempted to recreate the $5000 bundle based on what he had testified he believed the denominations to be ( 115 X $20, 34 X $50, 10 X $100 ). While there were enough $100 bills remaining in Exhibit 5A, there were only 21 $20 bills and two $50 bills.

[57] The applicant agreed that there were 94 $20 bills available from Exhibit 10B to make up the shortfall of $20 bills in Exhibit 5A. However, there were only 16 $50 bills in Exhibit 10B, so there would still be 18 $50 bills missing based on the applicant’s breakdown of the denominations. Crown counsel suggested that this shortfall could be made up by adding nine $100 bills from Exhibit 10B.

[58] Once the recreation of the closet money was complete, what remained in Exhibit 10B was 13 $100 bills and one $20 bill. The photograph of the polymer money seized from the closet shows that there were a number of $20 bills. [15] The Crown suggested that the applicant was wrong about the denominations in the $5000 bundle in the closet and that it had contained fewer $20 bills and more $100 bills than he had said. The applicant responded that the photograph of the $5000 shows that “there’s more 20s in the stack than 50s and hundreds.” [16]

II. ANALYSIS

A. Overview

[59] The applicant alleges that during the execution of the search warrant at his home, one or more police officers stole a significant amount of the money that they had seized, as well as some of the cocaine hidden in the paint cans. The applicant submits that this constitutes an abuse of process and a violation of s. 7 of the Canadian Charter of Rights and Freedoms. He seeks as a remedy for the violation a stay of the proceedings against him.

[60] The Crown takes the position that the applicant has not established that any of the money or drugs was missing. Even if it has been established that the money was missing, the identity of the thief is unknown and the applicant has not shown that it was a police officer involved in the investigation. Because of this, this is not one of the clearest of cases warranting a stay of proceedings. The Crown submits that if a violation of s. 7 has been established, the lesser remedy of an exclusion of the drugs from the paint can and the seized cash is an appropriate remedy. As there is no allegation that the drugs found in other locations was stolen, this evidence should not be excluded.

[61] The positions of the parties give rise to the following factual and legal issues:

(1) Has the applicant established that money or drugs were missing? (2) If so, has the applicant established that the missing money and/or drugs was stolen by the police? (3) If so, does this constitute a violation of s. 7 of the Charter? (4) If there was a violation, what is the appropriate remedy?

B. The Standard of Proof

[62] The parties agree that as this is a Charter application, the applicant bears the onus of establishing the factual basis for the application on a balance of probabilities: R. v. Boston, 2013 ONCA 498, 288 C.R.R. (2d) 167, at para. 23.

[63] While the ultimate burden is on the applicant, it must be borne in mind that once the warrant was executed, the police had complete control over what was seized and are in a unique position to give evidence respecting what was done with the seized items. As a result, if the applicant is able to establish that some of the money was missing, in my view this is a situation where “the true burden is in practice bound to drift towards the Crown, since many factors in the equation are within the peculiar knowledge of the Crown”: J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992) [17], cited in R. v. Bartle, [1992] 3 S.C.R. 173, at p. 210. See also R. v. Besharah, 2010 SKCA 2, 343 Sask. R. (2d) 56, at paras. 26-34; R. v. R.J.S., [1995] 1 S.C.R. 451, at pp. 565-566; R. v. Burlingham, [1995] 2 S.C.R. 206, at pp. 234-235.

C. Was Money Missing?

(i) Assessment of Credibility

(a) The Applicant

[64] The parties agree that the photographs taken of the money at the time it was seized accurately depict the amount of money that was there. It follows from this that if any of the money is missing, it must have gone missing at some point after the police seized it.

[65] Determining whether any money was missing requires an assessment of the credibility of both the applicant and D.C. Dhaliwal. The applicant testified that some of the money was missing. D.C. Dhaliwal testified that although some of the money got mixed up during the processing, all of it has been accounted for.

[66] The applicant gave detailed evidence about how much there was, where it was kept, and what denominations it consisted of. The Crown submits that are numerous reasons why his evidence should be rejected. I do not accept some of those submissions. For example, the Crown suggested that the applicant was being untruthful about owning the gambling machines because no such machines were seen in the photographs taken by the police during the execution of the warrant. However, the police obviously could not photograph every item in the apartment, and the machines would not have had any apparent evidentiary value. While there were some inconsistencies in the applicant’s evidence, none were in my view of any significance.

[67] While the Crown submits that the applicant was evasive during his testimony, that was not my impression. While he did express confusion at some points during his testimony, in my view this was understandable. Much of the evidence in this case was confusing.

[68] I agree with the Crown that the applicant’s admission to engaging in criminal and other discreditable activity is a cause for concern. He has engaged in drug trafficking and tax evasion. He has, on his own admission, lied to his girlfriend about the source of his income. Because of this, I have approached his evidence with considerable caution, particularly where it was not confirmed by other evidence.

[69] I accept the applicant’s evidence with respect to the amount of money in the shoebox. His account of keeping $1000 bundles until he had $5000 seems to be a reasonable way to keep track of the amount of money in the shoebox. It is also consistent with the photographic evidence, which shows four smaller bundles bound by elastic bands and one larger bundle that appears to be made of smaller bound bundles.

[70] I also accept the applicant’s evidence with respect to the denominations in the four smaller bundles. The photograph of the money while it was still in the shoebox clearly shows that one of the smaller bundles was made up entirely of $100 bills and another made up entirely of $20 bills. [18] The other two bundles clearly had a mix of bills of different colours, and one of those clearly has more $20 bills in it than the others. All of this confirms the applicant’s evidence.

[71] The applicant does not claim to know the denominations in the larger bundle.

[72] I accept the applicant’s evidence that there was $15000 in polymer bills in the closet. According to him, there were 190 bills (50 X $20 and 140 X $100), and the bundle depicted in the photograph appears to be consistent with that number based on my examination of the cash exhibit. [19] It appears from the photograph that about three quarters of the bills are brown and one quarter is green, which is consistent with the denominations identified by the applicant.

[73] I do not accept the applicant’s evidence that there was $1800 in paper money. The applicant testified that there was initially $1200 in $20 bills but only $920 in the money that was seized, which would mean that $280 worth of $20 bills are missing. However, if there was initially a total of $1800 and now a total of $1570, only $230 would be missing. If the applicant is correct about the number of $20 bills there were, he could not be correct about the total amount. I do not, however, find that the applicant was intentionally trying to mislead the court. Given the limited purpose for which this money was to be used, it is not surprising that he would not keep careful track of the total amount.

(b) D.C. Dhaliwal

[74] There are several reasons why I do not find D.C. Dhaliwal to be a credible witness. He initially testified that he had kept the shoebox money and the closet money separate. He gave similar evidence at the preliminary inquiry. He then maintained that he had kept it separate, but may have simply put the closet money in the property bag for the shoebox money and vice versa. He eventually acknowledged that the money from the two sources had been mixed up and not kept separate as he had claimed. He gave no explanation for why he had clearly claimed to have kept them separate when this was not accurate. Instead of simply acknowledging the error, he said, “I don’t believe there was an importance to keep it separate” because “they all belong to one individual.”

[75] In any case where possession is an issue, where the item in question is found is of importance. The fact that an item is found in a room used exclusively by the accused tends to support an inference of possession while the fact that an item is found in a common area does not. D.C. Dhaliwal, a police officer with 14 years of experience, would have known this. His evidence that it was not important to keep the money separate was not only inconsistent with his earlier testimony, it was a clear attempt at downplaying the importance of the significant inconsistency in his testimony.

[76] D.C. Dhaliwal gave shifting explanations for why property bag B1813052 had been incorrectly noted as bag C1627100 on the property report. At the preliminary inquiry, D.C. Dhaliwal testified that he may have used an old property report from another investigation. In cross-examination, however, he acknowledged that the form was computer-generated and would have been blank when he started, at which point he explained that his earlier explanation was “just a possibility.” At another point in his testimony, he stated that bag C1627100 was a bag that he had intended to use but never did.

[77] While putting the wrong bag number on the report may have been an understandable mistake, D.C. Dhaliwal’s attempts to provide inaccurate and inconsistent explanations for the mistake are troubling.

[78] Both D.C. Dhaliwal and D.C. Stojic testified that the proper procedure with respect to cash seizures exceeding $10000 was to turn them over to the Asset Forfeiture Unit. Despite having 14 years of experience and having processed cash on several occasions in the past, D.C. Dhaliwal claimed to have been unaware of this. While D.C. Stojic was aware of the procedure, he claimed that he did not realize that the cash was over $10000 on account of his custom of using his bank card to make purchases. The photographs make it obvious that the cash was significantly more than $10000.

[79] The sheer number of clerical errors made by D.C. Dhaliwal are a cause for concern about his credibility. He recorded the wrong property bag number on the property report, he logged the wrong property receipt number into the property locker, he failed to enter the property receipt numbers into the property report, and he changed the amount recorded on one of the bags from $11400 to $13700.

[80] Most importantly, D.C. Dhaliwal was unable to explain how the money came to be mixed up. There were only two cash seizures in this case. The cash was seized by different officers and kept separate up to the point when it was laid out on the table at the police station together with the other seized items. D.C. Dhaliwal initially testified that he kept the money separate, although he later acknowledged that he did not and downplayed the importance of doing so. It is difficult to understand why he would not have simply processed the money from one source and then, when he was done, process the money from the other source. For some reason, he did not do this, but then claimed that he did. When it became obvious that he did not, he was unable to provide any explanation.

(ii) Conclusions Respecting the Money

[81] Based on the foregoing, I accept that $24000 in polymer bills was seized and only $17820 ($19390 less the $1570 in paper money) made its way into the property bags.

[82] While I am unable to make specific findings about the amount of paper money, I accept that some of it is also missing. This is evident from a visual comparison between the paper money in Exhibit 5A and the photograph of the paper money that was seized. [20] The bundle in the photograph is clearly larger.

[83] While not conclusive, the applicant’s attempt to recreate the bundles of money in the shoebox also support the inference that some of the money is missing. As noted, I accept the applicant’s evidence with respect to the denominations in the smaller bundles. The applicant attempted to recreate the denominations in the larger bundles (115 X $20, 34 X $50, 10 X $100). While it is doubtful that this was completely accurate, it seemed to be reasonable and consistent with the photographs.

[84] As outlined earlier, there were not enough $20 bills and $50 bills in Exhibit 5A to recreate the shoebox money. While there were enough $20 bills in Exhibit 10B to make up the shortfall, this left only one $20 bill and there were clearly far more than that in the polymer money from the closet. There were not enough $50 bills in Exhibit 10B, although they could be replaced with $100 bills. While Crown counsel suggested to the applicant that there were more $100 bills in the $5000 bundle and fewer $20 bills, the applicant correctly pointed out that it was clear from the photographs that there were far more $20 bills in the bundle than bills in other denominations.

[85] Based on the foregoing, I am satisfied on a balance of probabilities that approximately $6000 of the seized cash is missing.

D. Were Drugs Missing?

[86] The applicant’s evidence with respect to the drugs was less specific and detailed than his evidence with respect to the cash. There was no evidence of any anomalies or irregularities in how the drugs were processed. In fact, D.C. Stojic was not asked about his processing of the drugs in cross-examination. The applicant has not established that any drugs are missing.

E. Did the Police Take the Money?

[87] The fact that cash is missing does not necessarily mean that it was stolen, although given its inherent value, this is a reasonable inference. In this case, there is no other explanation for the missing cash. The amount involved is far too large for it to have been simply misplaced.

[88] While the Crown suggested that the money may have been taken by the applicant’s girlfriend or an unidentified visitor to the apartment, there is no evidence supporting these suggestions. The money was photographed by Det. Barnes almost immediately after it was seized. The officers who seized the money testified that they kept it in a safe place prior to bringing it to the police station. It is inconceivable that while they were conducting the search, the police would have allowed the applicant’s girlfriend or some other person to wander around the apartment and have an opportunity to take the money.

[89] Based on this record, I am not prepared to make a specific finding with respect to the identity of the person who took the money. This is not a trial of any police officer, and none of the officers had standing to mount a defence: R. v. Williams, (unreported, November 7, 2022, Ont. C.J.), at para. 58. However, the money clearly went missing while it was in the control of the police. Absent some other explanation, the only reasonable inference is that it was taken by a police officer. While the Crown has suggested that it could have been an officer unrelated to the investigation, there is no evidence of any such officer being present or having access to the cash.

[90] Based on the foregoing, I am satisfied on a balance of probabilities that the money was taken by one or more police officers involved in the investigation.

F. Was There a Breach of Section 7 of the Charter?

[91] It is well established that misconduct by agents of the state that offends community notions of fairness and decency can constitute a violation of s. 7 of the Charter, even where the fairness of the trial is not affected: R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 63, 73; R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), at paras. 14-19.

[92] The search warrant provisions of the Criminal Code and other statutes give the police the extraordinary power to enter a person’s home and take his or her belongings in circumstances where the police have complete control over what is taken and what becomes of it. There can be no question that where that power is abused in order to commit theft, the integrity of the justice system is severely undermined. In such cases, the “breach of the trust that is given to the police is enormous”: R. v. Somerville, 2017 ONSC 3311, 383 C.R.R. (2d) 92, at para. 145. There has been a breach of s. 7 of the Charter in this case.

G. The Appropriate Remedy

(i) Overview -- The Test For Granting a Stay of Proceedings

[93] The applicant seeks a stay of proceedings. The test for granting a stay is well established and was explained in R. v. Babos, at paras. 30-32:

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions -the “clearest of cases” - when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). …

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) 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, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

[94] Theft by the police committed during the execution of a search warrant has been held to warrant a stay of proceedings: Somerville, at paras. 148-168; Williams, at paras. 60-66.

(ii) The “Clearest of Cases”

[95] The Crown submits that a stay is not appropriate because the evidentiary basis supporting it is “unclear.” The Crown attempts to distinguish other cases where a stay was granted by pointing out that there was reliable evidence establishing the conduct giving rise to the stay. In R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, there were hospital records confirming assaults by the police and in Somerville, the theft by the police was captured on CCTV. In this case, the Crown submits, “there is only the Applicant’s unreliable account supporting the allegations.”

[96] The Crown’s submission appears to be based on a misunderstanding of the “clearest of cases” standard referred to in Babos and other cases. The “clearest of cases” refers to the legal test for granting the remedy of a stay of proceedings, not the evidentiary standard of proof to be applied when determining whether the facts giving rise to the breach have been established: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 82; R. v. Punko, 2011 BCCA 55, 266 C.C.C. (3d) 316, at paras. 46-47, aff’d without reference to this point 2012 SCC 39, [2012] 2 S.C.R. 396.

[97] As noted earlier, the standard of proof on a Charter application is a balance of probabilities. If the court is satisfied that it is more likely than not that the breach occurred, then the Charter violation has been established and the court must go on to consider the question of remedy. It does not matter if the breach was established by an accused’ testimony, independent documentation or CCTV. In this case, I have found that there was a breach for the reasons I have outlined.

(iii) Alternative Remedies

[98] The Crown submits that an alternative remedy would be to exclude from evidence the seized cash and the drugs in the paint can, but not any of the drugs found in other locations because there was no allegation that they were stolen.

[99] In my view, the remedy of partial exclusion would be inadequate in the circumstances and would require the court to draw an artificial line between the seizure of some of the drugs and the rest of the search. This is a “residual category” case where there is prejudice to the integrity of the justice system and the appropriate remedy must be directed to addressing that prejudice, as was explained in Babos, at para. 39:

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.

In a case where the prejudice to the justice system’s integrity arises out of an abuse of the search warrant powers given to the police, allowing the state to nonetheless rely on evidence obtained during the course of that abuse does little, if anything, to dissociate the justice system from the impugned conduct: R. v. Ahmed, 2011 ONSC 2551, 272 C.C.C. (3d) 549, at paras. 68-69.

[100] Excluding all of the evidence obtained during the search may serve to dissociate the justice system from the impugned conduct. However, given that the applicant is charged with possession of controlled substances for the purpose of trafficking and possession of the proceeds of crime, there is no meaningful distinction between staying the proceedings and excluding all of the evidence necessary for the Crown to prove its case. The effect is the same and the same analysis must be conducted, as was explained in Jageshur, at para. 69:

The respondent’s application to exclude evidence should have been brought under s. 24(1) of the Charter. In determining whether exclusion would be the appropriate remedy, the trial judge would have had to examine the substance of the remedy sought and not the label used by counsel. Although the remedy was framed in terms of the exclusion of evidence, it was in reality an application to terminate the prosecution. Had the respondent established a breach of s. 7, the trial judge would have been required to decide whether it was “appropriate and just” to foreclose the prosecution of the respondent. The case law limiting the availability of a stay of proceedings to the “clearest of cases” would have had direct application to that decision.

See also Paryniuk, at para. 65.

[101] The Crown has not suggested any other alternative remedy, nor can I think of one.

(iv) Balancing

[102] The third part of the test in Babos, which requires a balancing of the interests favouring a stay with those favouring a trial on the merits, is only required where there is still uncertainty over whether a stay is warranted. However, the Court in Babos, at paras. 41-43, suggested that the balancing will usually be required in cases where the residual category is in issue, and adopted the following from R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 60:

In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. [Emphasis added.]

[103] In this case, there is clearly a strong societal interest in a trial on the merits. The applicant is charged with possessing harmful drugs for the purpose of trafficking and doing so on a large scale. The evidence against him appears to be formidable, and if convicted he very likely would face a penitentiary sentence.

[104] Balanced against this is the need for the court to dissociate itself from egregious misconduct. As noted, police officers executing search warrants are given significant powers. I have no doubt that the vast majority of police officers exercise those powers responsibly and honourably. However, those that do not will almost always be able to do so with impunity, secure in the knowledge that their word is likely to be believed over that of an accused criminal. In my view, maintaining the integrity of the process is inconsistent with allowing the state to benefit from evidence obtained in such circumstances. As a result, the balance in this case favours a stay of proceedings.

III. DISPOSITION

[105] The application is granted. There will be an order made pursuant to s. 24(1) of the Charter staying the proceedings.

Justice P.A. Schreck

Released: March 8, 2023

Footnotes

[1] Exhibit 1, p. 72. [2] Exhibit 1, p. 95. [3] Exhibit 1, p. 80. [4] Exhibit 1, p. 95. [5] Exhibits 14, 15. [6] Exhibit 1, p. 80. [7] Exhibit 8. [8] Exhibit 9A. [9] Exhibit 9B. [10] The property bag had been opened and the contents resealed in a new bag during a professional standards investigation. The continuity of the cash during the course of this investigation is not in issue. [11] The bag was also opened and then resealed during the professional standards investigation. [12] The courier did not testify and the courier pickup list was made a lettered exhibit (Exhibit C). [13] Exhibit 1, p. 72. [14] The applicant did not use paper money in the recreation as none was available because it is no longer used. [15] Exhibit 1, p. 80. [16] Exhibit 1, p. 74. [17] In the most recent edition, the words “drift towards the Crown” have been replaced by “be allocated to the Crown”: S.N. Lederman, M.K. Fuerst and H.C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6 th ed. (Toronto: LexisNexis Canada, 2022), at §9.03, ¶9.55. [18] Exhibit 1, p. 72. [19] Exhibit 1, p. 80. [20] Exhibit 1, p. 81.