Court File and Parties

Court File No.: CR-22-911-3350-0000 Date: 2024-10-02 Ontario Superior Court of Justice

Between: His Majesty The King, Applicant And: Jordan Nesbitt, Respondent

Counsel: Vlatko Karadzic and Katherine Beaudoin, for the Crown Michael Lacy and Lawrence Gridin, for the Defendant

Heard: May 22, 23, 24, 27, 28, 29, 30, 31, June 3, 4, 5, 6, 7, 27, 2024

Justice: J. Speyer

A. Introduction

[1] Jordan Nesbitt, a York Regional Police officer, is charged with three offences arising from his search of a BMW motor vehicle on October 17 and 18, 2021. The Crown alleges that after the defendant found two baggies of cocaine in the passenger’s purse, he took some of that cocaine and placed it in the area of the driver’s seat to support the defendant’s contrived account, reflected in his notes, reports and conversations with other officers, that he searched the vehicle and the occupants because he saw the cocaine, and also some cannabis, when he first approached the vehicle and interacted with the occupants. If he did not see cannabis or cocaine before he directed the occupants to get out of the car, then he had no legal authority to conduct the searches. The Crown alleges that the defendant planted the cocaine and made up a story about when he first saw the cocaine and the cannabis.

[2] Jordan Nesbitt is charged with breach of trust contrary to s. 122 of the Criminal Code, RSC 1985, c C-46, by lying about the presence of cannabis in the car, fabricating evidence contrary to s. 137 of the Criminal Code by placing cocaine in the driver’s area of the car, and attempting to obstruct justice contrary to s. 139(2) of the Criminal Code by preparing false notes and reports.

[3] It is the position of the defence that the Crown has not proved the offences beyond a reasonable doubt.

B. The issues

[4] Crown and defence counsel agree that the live issues in this case are issues of fact:

(1) Did PC Nesbitt lie about the presence of cannabis in the car?

(2) Did PC Nesbitt plant cocaine in the car?

(3) Did PC Nesbitt prepare false notes and reports? Crown and defence counsel agree that the answer to this question will be "yes" only if the answer to either (1) or (2) is "yes".

C. Undisputed facts

[5] The following facts of this case are not in dispute.

[6] Jordan Nesbitt (“PC Nesbitt”) is a York Regional Police officer. On October 17 to 18, 2021, he worked the night shift. He was in uniform and operated a marked police vehicle. That vehicle was equipped with an in-car camera system (“ICC”) that had the capacity to record both images and sound. PC Nesbitt did not have a partner working with him that night.

[7] York Regional Police (“YRP”) vehicles equipped with ICC have two cameras. One camera is affixed to the dashboard and captures video directly in front of the cruiser. Another camera has a view of the rear compartment of the cruiser. The cameras are always on but only record video if they are activated. Activation can occur automatically or manually.

[8] The ICC includes four microphones to pick up audio. One microphone picks up audio from the front seats of the cruiser. The second microphone picks up audio from the rear compartment. These two microphones record audio when they are activated. Activation can occur automatically or manually. The third and fourth microphones are portable and are intended to be affixed to an officer’s uniform. If there are two officers in a cruiser, each can have their own microphone affixed to their uniform. For cruisers with a single officer, the second portable microphone can be used as a backup in the event the first microphone runs out of battery or otherwise malfunctions. The two portable microphones can only be activated manually. The officer can also manually mute any of these microphones.

[9] The ICC recordings from PC Nesbitt’s cruiser and PC Mac’s cruiser were filed as exhibits. The recordings provide a detailed and accurate account of the events, to the extent that those events occurred within camera view or microphone range of the ICC. The Crown and defence each provided transcripts of the audio recordings for my assistance that differ in some respects. My findings are based on my review of the actual recordings.

[10] Because PC Mac’s ICC provides a better view of what happened around the BMW, and PC Nesbitt’s portable microphone captured the most complete audio recording, the Crown filed as an exhibit a recording that blended PC Mac’s camera with PC Nesbitt’s audio-recording. The parties agree that the synchronization of those two sources of data is accurate.

[11] At 11:12:00 p.m., on October 17, 2021, PC Nesbitt drove into the parking lot of the Monte Carlo Inn in Markham. He saw a black BMW sedan, with its headlights on, backed into a parking spot. At 11:12:43 p.m., PC Nesbitt stopped his cruiser in front of the BMW in a fashion that prevented the BMW from driving away.

[12] As he arrived, PC Nesbitt used his mobile workstation (“MWS”) to query the BMW’s licence plate on police databases.

[13] At 11:12:51 p.m., PC Nesbitt activated his portable microphone. He got out of his vehicle at 11:13:00 p.m. and used his radio to advise dispatch that he was with licence plate CRWC982 at the Monte Carlo Inn. He then approached the BMW. He asked the occupants if they had a room at the hotel. They responded that they did not, and that they were waiting to meet someone to breed their dog. The dog was in the back of the BMW.

[14] At 11:14:00 p.m., PC Nesbitt asked the driver, Alton Smith, for his identification. Mr. Smith provided his health card. PC Nesbitt radioed dispatch to “run” Mr. Smith. While that was being done, PC Nesbitt asked Mr. Smith if he had been in trouble before. Mr. Smith told PC Nesbitt that he had charges before the court, and that the female passenger, Brittany Miller, was his surety. Ms. Miller offered to provide the papers relating to Mr. Smith’s release order, and PC Nesbitt agreed to receive them. The dispatcher advised PC Nesbitt that Mr. Smith was “accused, firearms related. Possible scheduled substance, proceeds of crime. Several more. He’s got conditions to reside with his surety.”

[15] At 11:16:15 p.m., PC Nesbitt asked dispatch whether another unit could come by, and was told by the dispatcher that PC Mac had been dispatched.

[16] Between 11:16:15p.m. and 11:18:50 p.m., PC Nesbitt continued to stand outside the driver’s door of the BMW, conversing with Mr. Smith and Ms. Miller about their dog. Mr. Smith asked PC Nesbitt what the problem was, and he responded that “normally we don’t see people sitting in the lot.” Ms. Miller said that if it was a problem to park in the lot, they would go somewhere else and let the person they were to meet know that they could not park there. PC Nesbitt told her “No, it’s all good.” He told Mr. Smith that another officer was coming, and that they would wait for the officer and go from there. He told Mr. Smith that they would then “read through your conditions and stuff.” PC Nesbitt asked who owned the car and was told it belonged to Ms. Miller.

[17] At 11:18:53 p.m., the dispatcher advised PC Nesbitt that “there’s more hits on this person in the wanted category, accused, prohibited. Just running that now.”

[18] At 11:19:20 p.m., Mr. Smith asked: “Is there something I’m missing? I don’t see anything.” PC Nesbitt responded: “No, the dispatcher is going over the conditions.” Mr. Smith said: “Oh no, over there, you kept pointing the light right there.” PC Nesbitt said: “Oh, I’m just looking around man. Yeah, always do.”

[19] After that, PC Nesbitt, Mr. Smith, and Ms. Miller engaged in general conversation until PC Nesbitt asked Ms. Miller for her identification at 11:21:07 p.m.. She provided her identification to PC Nesbitt, and he radioed dispatch with a request to “run a female”. Dispatch responded that she was “clear”.

[20] PC Mac arrived on scene at 11:22:34 p.m. PC Mac parked his cruiser so that his ICC camera was pointed at the driver’s door of the BMW. When he arrived, PC Nesbitt was standing at the driver’s door of the BMW, holding his flashlight in his left hand, illuminating Mr. Smith. PC Nesbitt turned towards PC Mac, as PC Mac approached on foot.

[21] PC Nesbitt and PC Mac spoke, and PC Nesbitt said that he was gong to look on the computer, and asked PC Mac to stay with Mr. Smith and Ms. Miller. PC Mac told PC Nesbitt that he had “run them” but that PC Nesbitt could do that one more time. PC Nesbitt handed some documents he was holding to PC Mac and said: “He’s a gun guy. I’m just gonna go look at it” and then “I’m gonna pull them out anyway.” PC Nesbitt had formed an intention at that time to remove Mr. Smith and Ms. Miller from the BMW and to search the BMW.

[22] PC Nesbitt then returned to his cruiser at 11:23:30 p.m. and used his MWS to query Mr. Smith on police databases. He also made inquiries with dispatch, including as to whether Mr. Smith was wanted.

[23] As PC Nesbitt worked in his cruiser, beginning at 11:23:30 p.m., PC Mac stood outside the driver’s door of the BMW, speaking with Mr. Smith. The BMW was illuminated by the headlights of PC Mac’s cruiser. PC Mac illuminated his flashlight and shone it into the BMW at 11:25:10 p.m., apparently to illuminate documents that Mr. Smith held. He turned the flashlight off and returned the flashlight to its holder at 11:25:15 p.m.

[24] At 11:25:20 p.m., PC Nesbitt moved his cruiser forward, and closer to the BMW, so that the BMW could not drive away.

[25] At 11:27:15 p.m., the dispatcher clarified to PC Nesbitt that the person who may have been wanted was not Mr. Alton Smith.

[26] PC Lo arrived on scene at 11:27:30 p.m. He stopped his police cruiser beside PC Nesbitt’s police cruiser. He asked PC Nesbitt if the driver had a driver’s license and offered to run him. PC Nesbitt responded: “I did. He’s a gun guy so…He’s on charges for a chunk [slang for gun] right now. I’m gonna pull him out right now.” They discussed Mr. Smith’s form of identification and then PC Nesbitt said: “He just got done up with a gun. I got it here, his returns. He’s SIP [special interest police. This acronym can be placed on an individual’s CPIC return to communicate that interest to other officers who query the person on CPIC] for drug trafficking. I’m gonna pull him out.”

[27] At 11:29:05 p.m., PC Lo proceeded to stand by the passenger side of the BMW. At 11:29:15 p.m., PC Nesbitt left his police vehicle and walked towards the passenger side of the BMW, putting on gloves as he walked. PC Nesbitt stood beside the passenger side window and asked Ms. Miller about a bag that appeared to be a prescription bag. She explained that it contained birth control pills that she picked up earlier that day. PC Nesbitt took the bag from her and placed it on top of the BMW. PC Mac remained standing beside the driver’s door.

[28] PC Nesbitt asked “do you guys have any weed in here?” Ms. Miller said “no”. PC Nesbitt explained that he asked because “when I was, remember when I was shining my light on the other side? It’s cause there’s there’s green flakes everywhere … by your feet”. As he said this, he turned on his flashlight and directed the light to the interior of the BMW and moved it about the front floorboard area. Mr. Smith expressed surprise and invited PC Nesbitt to shine his flashlight again to show that there were no green flakes. He did not do so. PC Nesbitt did not mention having seen any cocaine residue earlier.

[29] At 11:30:05 p.m., PC Nesbitt asked Mr. Smith and Ms. Miller to step out of the car, and to take the dog out with them. PC Lo moved to the driver’s side, behind PC Mac. Ms. Miller got out of the car. PC Nesbitt told Ms. Miller that he would take her bag, and she gave her purse to him. When she asked him why he was taking her bag, he told her that he did not want her to have it while he dealt with her. Mr. Smith asked why Ms. Miller was required to get out of the car, and PC Lo told him that everyone had to leave the car. PC Nesbitt said “I’m gonna do a search of the car too.”

[30] At 11:30:45 p.m., while Mr. Smith was still seated in the driver’s seat, PC Lo turned on his flashlight and shone it into the front passenger compartment, until Mr. Smith stepped out of the car at 11:31:10 p.m.

[31] Mr. Smith opened the rear driver’s side door and reached into the back seat in an apparent effort to disentangle the dog’s leash, so that the dog could get out of the car over the driver’s seat and through the driver’s door.

[32] At 11:31:20 p.m., Ms. Miller told PC Nesbitt: “I don’t understand what’s your reason for searching the car”. PC Nesbitt responded: “Yeah, I’ll explain it. When you’ve got – ah – well, we’re not – obviously we’re not gonna agree on it – but what I think is cannabis shake that’s unlawfully kept in a car.” Ms. Miller responded that they did not have cannabis and asked: “where’s the marijuana?”. PC Nesbitt answered: “I’ll be more than happy to show you after.”

[33] Mr. Smith joined Ms. Miller on the passenger side of the BMW.

[34] At 11:31:45 p.m., PC Nesbitt, speaking to PC Lo, said “Somebody’s gonna have to search this”, and asked Mr. Smith to give the dog to Ms. Miller. PC Lo then conducted a pat down search of Mr. Smith. PC Nesbitt radioed for a female officer to attend.

[35] At 11:32:05 p.m., PC Nesbitt directed PC Mac to “sort through” Mr. Smith’s conditions. PC Mac moved to stand by Ms. Miller, and reviewed documents.

[36] At 11:32:10 p.m., PC Nesbitt began his search of the BMW, beginning on the driver’s side. Using his flashlight, he looked about the driver’s compartment, including the inside of the driver’s door. He removed something from a compartment in the door, looked at it with the aid of his flashlight, and returned it to the door. He crouched low and appeared to look under the driver’s seat. At one point, he used one knee to kneel on the seat as he looked further into the car. Ms. Miller continued to insist that there was “no cannabis shake whatsoever” in the BMW, as she stood outside the car with Mr. Smith and PC Mac and PC Lo.

[37] At 11:33:58 p.m., still kneeling on the driver’s seat and reaching into the passenger side, PC Nesbitt turned his attention to Ms. Miller’s purse. At 11:35:00 p.m., he located two bags of apparent cocaine in the purse and told PC Mac and PC Lo: “Alright, hook’em both boys.” He got out of the BMW, walked to the passenger side, and told Mr. Smith and Ms. Miller: “you guys are under arrest.” When asked “for what”, PC Nesbitt responded: “possession of cocaine.” Handcuffs were applied to both. PC Nesbitt told them, and the other officers, that “we’re not done with the car though.”

[38] Ms. Miller was placed in the back of a police cruiser by PC Nesbitt. She was told by PC Nesbitt that she was under arrest for possession of cocaine, but that he was “not done” and that could change.

[39] Mr. Smith was placed in the rear of another police cruiser, along with the dog, by PC Lo and PC Mac. As they did that, PC Nesbitt continued his search of the BMW at 11:37:35 p.m. PC Nesbitt again entered the driver’s side door, kneeling with one knee on the seat as he reached into the passenger side area.

[40] At 11:37:50 p.m., PC Nesbitt spoke in an apparent effort to document what he had found. He said: “K, female’s purse, two big bags, of what appears to be cocaine, individually packaged, each done…” His voice trailed off at this point, as he continued to search the front passenger area. At 11:38:30 p.m., he said: “We’ve got a scale in the glovebox of the car.”

[41] At 11:38:40 p.m., as PC Mac and PC Lo returned to the BMW, PC Nesbitt said, “Just be careful. There’s got to be a chunk in here somewhere.”

[42] PC Nesbitt asked PC Lo whether he searched Mr. Smith “good”. PC Lo responded that he would “pull him out again and take out everything.” PC Nesbitt directed PC Lo to “search him good” because “he’s on charges for a gun right.” PC Lo said: “Yeah, I’ll go and [unintelligible] the cannabis.” PC Nesbitt directed him to “get right up”, and used a hand gesture to communicate that the search should be thorough. Mr. Smith was removed from the police cruiser and searched by PC Lo and PC Mac at the front of PC Nesbitt’s police cruiser. A bundle of cash was found.

[43] At 11:41:30 p.m., PC Nesbitt directed PC Lo and PC Mac to also keep a good eye on Ms. Miller because he had not done a good search of her. PC Mac radioed dispatch at 11:41:45 p.m. and was told that a female officer would be there soon.

[44] Between 11:39:35 p.m. and 11:43:13 p.m., PC Nesbitt was alone in the BMW while PC Lo and PC Mac were occupied dealing with Mr. Smith. At 11:39:50 p.m., for about five seconds, PC Nesbitt again looked at the interior of the driver’s door with his flashlight. After that, he moved to the rear driver’s side compartment of the BMW, opening the rear door to look in that area. He left both driver’s side doors open, and he moved to the trunk, opening it to look inside. He then moved to the passenger side and opened the rear passenger side door. After looking into the rear seat through that door, he closed that door and opened the front passenger side door. He searched the front passenger compartment, where the purse containing the bags of cocaine was situated. He is not visible for 30 seconds while he was in the passenger compartment because he was crouched lower than the ICC camera angle could view. He can be heard rummaging about during this time.

[45] At 11:43:13 p.m., PC Nesbitt emerged from the front passenger area of the BMW, closed the car door to that area, and joined PC Lo and Mr. Smith at the front of the police cruiser. PC Nesbitt engaged in an exchange with Mr Smith, apparently about whether and why Mr. Smith would not be released.

[46] At 11:43:38 p.m., PC Nesbitt returned to the BMW and crouched down into the driver’s floorboard area. He had his flashlight in his right hand. Nothing was visible in his left hand as he reached into the driver’s floor area. At 11:43:50 p.m., he said to Mr. Smith: “You even got coke on the floor right where you’re stayin’ bro, don’t tell me you didn’t know about it.”

[47] PC Nesbitt continued to rummage around in the driver’s area of the BMW until 11:43:55 p.m., when he stood up outside the BMW and radioed for a Forensic Identification Assistant (“FIA”) to attend and take photographs of “some evidence”. He then bent into the driver’s area again. He knelt with both knees on the ground. His upper body was inside the BMW, behind the driver’s door and out of view of the ICC camera.

[48] At 11:44:15 p.m., PC Mac and PC Lo returned Mr. Smith to the back seat of the police vehicle.

[49] At 11:44:30 p.m., PC Lo directed PC Brown, a female officer who had just arrived, to the cruiser where Ms. Miller was seated. PC Brown removed Ms. Miller from the cruiser and brought her to the front of PC Nesbitt’s cruiser where she searched Ms. Miller. PC Lo and PC Mac stood by. PC Brown’s search concluded at 11:47:19 p.m.

[50] Meanwhile, PC Nesbitt continued his search of the BMW, both knees on the ground, with his upper body inside the driver’s floorboard area. At 11:45:05 p.m., he appeared to look at the dashboard area. At 11:45:23 p.m., he knelt with both knees on the driver’s seat, and appeared to reach into the passenger compartment. He can be heard rummaging about, but it is unclear what he is doing. At times, his flashlight shines on the passenger side sun visor area. At 11:46:58 p.m., he backed out of the driver’s seat and stood up outside the BMW.

[51] Between 11:46:58 p.m. and 11:47:10 p.m., PC Nesbitt looked towards the interior driver’s door, holding his flashlight in his right hand to illuminate the door. He then bent over so that his face was closer to the interior side of the open door and transferred his flashlight to his left hand. He then straightened up and appeared to do something with his right hand at his right side.

[52] At 11:47:10 p.m., using the same tone he used earlier to document something, PC Nesbitt said: “A piece of cocaine in the window switch.”

[53] At 11:47:21 p.m., immediately after the search of Ms. Miller was finished, PC Mac approached PC Nesbitt. PC Nesbitt said: “Look man, there’s a piece of coke right where the window – I saw the – when I – as soon as I started talking to ‘em, like ya see all the white here, I knew it was coke right? I just didn’t want to say anything right away.” PC Nesbitt also pointed out a compartment in the centre console that he believed was a good place to hide a gun. PC Mac leaned into the driver’s seat to take a closer look. PC Mac then backed out of the BMW and used his flashlight to look about the driver’s compartment.

[54] PC Lo returned to the BMW at 11:48:21 p.m. PC Nesbitt showed him the compartment in the centre console and told PC Lo he had opened it. PC Nesbitt also said that he found a scale in the BMW. At 11:49:09 p.m., both PC Nesbitt and PC Lo stood outside the front passenger door. PC Nesbitt held the bags of cocaine found in Ms. Miller’s purse and showed them to PC Lo. PC Mac joined them and asked if FIA had been notified.

[55] PC Nesbitt continued to search the car, together with PC Lo. PC Nesbitt expressed his belief that there had to be a gun if Mr. Smith had drugs again, and a scale and cash. No gun was found.

[56] At 11:50:20 p.m., PC Nesbitt said to PC Lo: “Buddy, look at – look in the, where the window switch is, there’s a fucking thing of coke right in it, where you go to roll up the window, you see that? … While I was waiting for Cam, I saw all the coke on the floorboard too eh, yeah so I was like yeah.” PC Lo asked: “Why didn’t you hook him up for that?” PC Nesbitt answered: “Well I was gonna, but it’s just a little tiny bit.” PC Lo, who then looked in the driver’s floorboard area, said that there was another rock there.

[57] At 11:51:30 p.m., Sergeant Galonomos arrived on scene. PC Mac walked to the front passenger side door, reached into the BMW, and held up the bags of cocaine to show the Sergeant. He put the bags back on the front passenger seat. The bags were again removed from the vehicle and shown to Sgt. Galonomos by PC Nesbitt at 00:04:23 a.m.

[58] At 11:55:35 a.m., PC Nesbitt returned to the BMW from his cruiser, where he had been conducting further checks. He spoke with Sgt. Galonomos, saying: “I can’t believe there’s nothing in there.” The Sergeant responded: “But there’s some coke in there.” PC Nesbitt replied: “Yeah, no gun though. That I found. … Yeah. Buddy, I’m sitting here talking to him and there’s coke all over the floorboard. … And if you look where you do up the window, there’s a big rock of coke. Like, I’m here talking to him looking at all this white stuff and he’s like “sir what are you looking at?” … I’m like oh nothing. Just waiting for another officer to come so you can – uh – go through your conditions here.”

[59] The officers continued to speak with Sgt. Galonomos, mainly about their belief that they would find a gun in the BMW. PC Nesbitt spent more time in the driver’s compartment, kneeling on the seat, apparently looking for a gun. He got out of the driver’s compartment at 00:01:45 a.m. and turned his attention to the back seat area.

[60] At 00:05:08 a.m., PC Lo again bent into and looked around in the driver’s compartment.

[61] Sgt. Galonomos turned on his flashlight and looked about in the driver’s compartment at 00:07:40 a.m. After PC Nesbitt told him that they were waiting for the FIA officer, who would take photographs, PC Lo leaned into the driver’s compartment, holding evidence bags, into which he appeared to put something.

[62] In response to a question from Sgt. Galonomos at 00:05:08 a.m., about when he pulled up in front of the BMW, PC Nesbitt responded: “Well, I tightened up - once I saw the blow. I tightened up. I didn’t want them to take off anywhere.”

[63] The FIA officer arrived at 00:09:45 a.m. PC Lo and PC Nesbitt spoke with her and appeared to show her areas of the BMW. PC Nesbitt used his flashlight to illuminate areas within the BMW as he spoke with her.

[64] The FIA officer took photographs of the BMW between 00:11:17 a.m. and 00:19:28 a.m. Previously seized cash was removed from evidence bags, and placed on the driver’s seat, where it was photographed.

[65] Thereafter, PC Lo used evidence bags to collect the evidence from the car. At 00:25:25 a.m., he is seen on the ICC camera using the adhesive strip on an evidence bag to attempt to pick up something from the asphalt outside the open driver’s door of the BMW. He then appeared to apply the same bag to the floorboard of the BMW to collect something there. He made several attempts, in between which he appeared to use his flashlight to examine the evidence bag. Because PC Lo had not activated his portable microphone, he made no attempt to document what he was doing in real time. The seizures were completed at 00:33:00 a.m.

[66] The following items were seized from the BMW: 1) two bags of cocaine, one weighing 14.25 grams and the other weighing approximately the same amount from Brittany Miller’s purse; 2) one digital scale with suspected cocaine residue from the glovebox; 3) a small quantity, 0.06 grams, of cocaine seized from the driver’s area of the car; 4) two cell phones; 5) bulk cash in a total amount of $1,740 from Brittany Miller’s wallet, Alton Smith’s wallet, and Alton Smith’s pants pocket.

[67] It was a very windy night. This is apparent on the video recordings. Ms. Miller’s long hair is blown about when she is being searched. The shrubs around the parking lot were moving in the wind, and leaves were blown about. Bail papers placed on top of the BMW by PC Mac and a pill bottle that had been placed there were blown off the roof. The doors to the BMW were open from the time Mr. Smith and Ms. Miller were removed from the car until after the FIA photographs were taken and the evidence was collected into evidence bags.

[68] PC Nesbitt left the scene at 00:46:35 a.m.

[69] PC Nesbitt drafted notes, an initial officer report, and a synopsis that were provided to the prosecutor in support of the charges against Mr. Smith and Ms. Miller. In his initial officer report, PC Nesbitt recorded that he approached the BMW “to engage the occupants in general conversation.” PC Nesbitt recorded that when he spoke with the male driver,

“police [which, based on the context, I take to be a reference to PC Nesbitt himself] could see an off-white, powdery, dry and crystallized substance believed to be cocaine residue on the floorboard near the drivers feet. There was also a small white “rock” of suspected cocaine in the same area. At one point, as police had the suspected cocaine residue illuminated with their flashlight, the male driver said “is everything ok? Are you looking for something?” Further, police observed a green/brown, dry, leafy substance believed to be Marijuana residue also near the foot area of the driver.”

“Given the suspected Cocaine and Marijuana residue, both occupants were asked to exit the vehicle so a search could be facilitated.”

[70] In the synopsis for a guilty plea that PC Nesbitt drafted, he wrote: “In speaking to the occupants, police formed grounds to search the vehicle under the CCA and CDSA.”

[71] In the Report to a Justice prepared by PC Nesbitt in support of an application for an order detaining the seized items, PC Nesbitt wrote: “An investigation began under the Cannabis Cont …[the copy of the report filed in evidence is cut off, but context suggests that the missing part reads: Control Act for ] having Cannabis readily available. A search of the male driver, female occupant and vehicle resulted in the seizure of a large quantity of suspected cocaine.”

[72] Neither Alton Smith nor Brittany Miller testified at the trial. There is no admissible evidence from them as to what was, and was not, contained in or visible in the BMW.

D. The presumption of innocence and the burden of proof

[73] Before I turn to the evidence, I wish to say a few things about the law that governs my decision.

[74] My decision is not about whose evidence I prefer. My decision is not based on a choice between the evidence of the witnesses called by the Crown and the witnesses called by the defence. Rather, my decision must be based on the principle that the Crown is required to prove the allegations beyond a reasonable doubt.

[75] PC Nesbitt is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.

[76] PC Nesbitt started this trial presumed to be innocent of the charges against him. The presumption of innocence is only defeated if Crown counsel proves beyond a reasonable doubt every essential element of the offences charged.

[77] The obligation to prove PC Nesbitt’s guilt rests with the Crown. PC Nesbitt does not have to prove that he is not guilty.

[78] It is not enough for me to believe that PC Nesbitt is probably or likely guilty. In those circumstances, I must find him not guilty, because the Crown would have failed to prove his guilt beyond a reasonable doubt.

[79] PC Nesbitt testified that he did not lie about seeing cannabis in the BMW, that he did not plant cocaine in the driver’s area of the BMW, and that he did not prepare false notes and reports. If I believe his evidence, I must find PC Nesbitt not guilty.

[80] Even if I do not believe PC Nesbitt’s evidence, if PC Nesbitt’s evidence leaves me with a reasonable doubt that PC Nesbitt did what is alleged, I must find him not guilty because his guilt would not have been proven beyond a reasonable doubt.

[81] Even if the evidence of PC Nesbitt does not leave me with a reasonable doubt about whether he committed an offence, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

E. The evidence

(a) Constable Mac

[82] PC Mac testified that he did not see cannabis shake in the BMW and that he was in a position to have seen it, if it was on driver’s floor. He also testified that he did not see cocaine on the driver’s floor until after the cocaine was found in Ms. Miller’s purse and PC Nesbitt spent time alone in the BMW while PC Mac and PC Lo searched Mr. Smith and assisted in the search of Ms. Miller.

[83] PC Mac testified that on October 17, 2021, he was working in uniform on general patrol duty. He operated a marked police cruiser. He did not have a partner. He was dispatched to assist PC Nesbitt at the Monte Carlo Inn. When he arrived there, he saw PC Nesbitt standing outside the BMW, talking to the driver. He parked his cruiser facing the BMW and activated his ICC camera. PC Mac did not activate the portable microphone of his ICC at this time.

[84] PC Mac testified that he spoke with the driver while PC Nesbitt returned to his cruiser to run the driver. He talked to the driver and used his flashlight to see if there was anything to be concerned about.

[85] PC Mac’s flashlight was illuminated for five seconds, during which it was directed at the documents in Mr. Smith’s hands. In cross-examination, PC Mac agreed that he shone his flashlight on documents produced to him by Mr. Smith to enable him to read the documents. He added that he could do that and look in the car at the same time, but not that he in fact looked at anything but the documents at that time. There is no recording of his conversation with the vehicle occupants at this time because PC Mac had not activated his portable microphone.

[86] PC Mac testified that when PC Nesbitt shone his flashlight on the front floor area to illuminate the purported cannabis, PC Mac looked and did not see any cannabis in any area illuminated by PC Nesbitt’s flashlight. He also did not see any cannabis flakes or white powder residue when the driver’s side doors opened when Mr. Smith got out of the BMW and brought the dog out. The driver’s floorboard area was visible to PC Mac when the doors were open.

[87] PC Mac testified that when PC Lo shone his light into the car, he did not see any cannabis, and was firm in his evidence that he did not make a mistake about that. In cross-examination, he agreed that PC Lo was closer to the drivers’ door, and he was prepared to accept that PC Lo was showing the driver some cannabis that he could see, even though PC Mac could not see it.

[88] PC Mac testified that when PC Nesbitt told him about the rock of cocaine in the window switch and on the floor, he looked at those things. He testified that he did not see those things when he first spoke with Mr. Smith. He said that he had seen the floor mat earlier and that those items were not there. He was concerned because the powder was not there before. He was also concerned that he did not see any cannabis at the beginning. He did not articulate his concerns in his notes, to PC Nesbitt, or to any other officer that was present at the scene because he did not want to cause conflict with a co-worker.

[89] PC Mac’s evidence is problematic for several reasons.

(i) PC Mac’s evidence was wrong about material events

[90] PC Mac testified that before he first approached the BMW driver, PC Nesbitt did not mention a gun. In fact, PC Nesbitt told PC Mac, at that time: “He’s a gun guy.” That is recorded on PC Nesbitt’s ICC.

[91] PC Mac testified that when he talked to the driver, he used his flashlight to see if there was anything to be concerned about. His ICC shows that he turned on his flashlight for five seconds, to look at Mr. Smith’s paperwork.

[92] PC Mac testified that he reviewed his ICC recording the day after the events at the Monte Carlo Inn. He testified that he reviewed the entire video the next day, and that he was shocked because there was no sound from his microphone. He was sure that he had turned on his microphone as soon as he arrived. He was sure that he reviewed the entire recording the next day, and that there was no sound. He said that he would be shocked if he did in fact turn on his microphone at one point. There are two significant problems with this evidence.

[93] First, PC Mac was simply wrong about when he turned his portable microphone on. In cross-examination his ICC recording was played for him. The microphone was activated at 00:10:48 a.m. The microphone was on as he released Ms. Miller from the scene and while he spoke to PC Lo about what he was seizing from the car. PC Mac’s explanation for his confusion – that he probably muted his microphone at the beginning of the incident because it was making a loud noise, and that his microphone malfunctioned – was unconvincing. He forgot to activate his microphone at the outset of the incident, and later, when he realized his error, he turned it on. The recording shows when the microphone was activated. His reluctance to accept that he made a mistake, and to continue to try to explain it away, in the face of irrefutable evidence of his error, causes me to doubt the reliability of his evidence more generally. It appears to me that PC Mac assumed that his microphone was on because, as he testified, it is his practice to always turn on his microphone. He appeared to be more concerned with projecting an image of himself as a careful officer who does not make mistakes, than with telling me the truth.

[94] Second, PC Mac testified that during his next shift, the next day, he reviewed his ICC recording and PC Nesbitt’s report to confirm his suspicions. He was sure that he did that. Being more concerned after reviewing the records and PC Nesbitt’s report, PC Mac did not bring his concern to the attention of a supervisor because he did not want conflict with a co-worker. Rather, he chatted on WhatsApp with a group of his co-workers that he trusted and considered as friends. In cross-examination, PC Mac testified confidently that he would not have sent the WhatsApp messages before he watched his ICC footage because he would not have criticized another officer without first confirming his thoughts. In cross-examination, PC Mac was certain that he read PC Nesbitt’s report and watched the ICC video in the CIB office during his shift on October 18-19, 2021, before he sent his WhatsApp message to his friends. He was “shocked” that the records show that he did not access the ICC video until October 23, 2021. While there was some uncertainty as the trial unfolded about the reliability of the records that show when an ICC recording is accessed, it is an agreed fact that PC Mac did not access his ICC recording until October 23, 2021. He would not accept that his memory is wrong, and maintained his position that he watched the ICC video on October 18-19, 2021.

(ii) PC Mac’s response to what happened belies his account

[95] PC Mac learned that Mr. Smith had a lawyer, and learned the lawyer’s name, when he advised Mr. Smith of his right to counsel. PC Mac knew that Mr. Smith was being held for bail on a charge of possession for the purpose of trafficking cocaine. He testified that even though he believed that PC Nesbitt had planted evidence at the scene, he did not attempt to contact Mr. Smith’s lawyer or the Crown who was dealing with the bail hearing to let them know this. PC Mac explained that it was because he did not know what to do, he was afraid, did not want conflict, and did not want people to be upset with him.

[96] PC Mac did not report what he had seen to superior officers. Rather, he told a group of friends about it. It was one of those friends who reported what he told them to a superior officer.

[97] PC Mac made no note in his duty notebook about PC Nesbitt planting evidence, even though that is what he believed, based on what he saw and did not see. He explained in cross-examination that he did not put anything about his concerns in his notes, because he knew that his notes would be disclosed. He has never made a late entry to his notes to correct his omissions. Notwithstanding this evidence, PC Mac did not accept that he failed to report information that was relevant to the case against Mr. Smith, or that he hid evidence. His position about that is not credible.

[98] PC Mac testified that he decided that if he was subpoenaed to court for the case against Mr. Smith, he would contact the Crown and let them know privately that he did not see cannabis or cocaine in the BMW, and then it would be up to the Crown to decide what to do. He would tell the Crown because if he said this in court, it would look bad for him and the York Regional Police officers. PC Mac’s evidence about this was astonishing. He is more concerned with appearances than with justice, causing me to wonder about his agenda when he testified at this trial.

[99] The way PC Mac responded to what he thought he saw, or not, tells me two things. First, he was uncertain about what he saw. Second, he is much more concerned with impression management, and what others think about him, than he is with upholding the law. Neither inspires confidence in his evidence.

(iii) Prior inconsistent statements

[100] PC Mac was cross-examined about whether PC Nesbitt told him anything about having seen cannabis in the BMW when he first arrived on scene and before he positioned himself outside the driver’s door of the BMW, He testified that PC Nesbitt did not tell him about having seen cannabis. I found PC Mac’s evidence to be troublesome because his answers shifted in accordance with his understanding of where the cross-examination was going. At one point, it was unclear to me whether he was telling me what he believed to be true, or what he had previously testified to, or what he thought he may have said to an investigator. Eventually, his evidence about this was undermined.

[101] I find that PC Mac did not have a good recollection of what happened when he arrived on scene, and that what he purported to remember when he testified was in fact an attempt on his part to reconstruct what happened based on what he saw and heard in the recordings he reviewed. Worse, he was not candid about that. Rather, he gave his evidence confidently, and without qualification, until he had to acknowledge that his evidence reflected what he believed after he “put everything together”, and “figured out” that PC Nesbitt did not say “cannabis” when PC Mac first arrived on scene.

[102] PC Mac was confronted with the fact that he told Detective Holmes, an investigator with the Professional Standards branch, that PC Nesbitt mentioned cannabis when PC Mac arrived on scene. Although PC Mac testified that what he said to Det. Holmes was true, he explained that he made a mistake during the interview and that his memory was better now than it was when he spoke to Det. Holmes four months after the incident. He also testified that he did not tell Crown counsel of his error during his meeting with Crown counsel before the trial, or before he commenced his evidence, even though he realized he made a mistake after he watched the recording of his interview with Det. Holmes and the blended recording of his ICC camera and PC Nesbitt’s microphone. He explained that he did not bring this error to the attention of the Crown because he knew that defence counsel would find his mistake and cross-examine him about it. He testified that he would not volunteer that he made a mistake until he was asked about it.

[103] PC Mac’s statement to Det. Holmes that PC Nesbitt mentioned cannabis when PC Mac arrived on scene is a significant inconsistency with PC Mac’s trial evidence. PC Mac’s evidence about why he did not bring his mistake to the attention of the Crown when he realized he made a mistake when he spoke with Det. Holmes was astounding. It causes me to wonder what else about his evidence was wrong, and not revealed to be so because no one asked.

[104] PC Mac testified that he met with Superintendent Wilson and Inspector Dolson before he was interviewed by the Professional Standards officer. In cross-examination, he testified that he told them the truth and did not hold anything back. He testified that he was sure that he told them that he did not see the drugs, and that he did not say that he might have missed it.

[105] The defence urges me to use an alleged inconsistency between what PC Mac told Superintendent Wilson and what he testified to at trial to discredit PC Mac’s evidence. PC Mac did not admit that he told Superintendent Wilson that while he did not see the drugs in the car, he may have missed them. Therefore, to rely on an inconsistency between PC Mac’s trial evidence and his statement to Superintendent Wilson, for the purpose of discrediting PC Mac, the defence had to prove that he told Superintendent Wilson that he did not see the drugs, but might have missed them.

[106] Superintendent Wilson was called to testify about what he was told by PC Mac. He testified that on February 4, 2022, he met with PC Mac to discuss the incident at issue in this trial. He did not take verbatim notes of their conversation. He recalled that PC Mac told him that he did not see any drugs in the car, but he could have missed it and was not sure. PC Mac had concerns about the search but did not want to get people in trouble. Superintendent Wilson testified that he was not taking a statement from PC Mac, and that his notes reflect his “takeaway” from their meeting. His understanding was that PC Mac was not sure that the drugs were not there before the search was conducted.

[107] The Crown submits that the defence did not prove PC Mac’s allegedly inconsistent prior statement to Superintendent Wilson because the senior officer asked leading questions during the conversation and could not recall the questions asked of PC Mac, and so the context for PC Mac’s words is missing. The Crown further submits that Superintendent Wilson’s notes of what PC Mac said were not made contemporaneously with the statement, and it was not a formal statement.

[108] Section 11 of the Canada Evidence Act, RSC 1985, c C-5, is a rule grounded in the notion that witnesses are to be treated fairly. It requires that a witness alleged to have made a prior inconsistent statement be afforded an opportunity to confirm whether the statement was made, or not, and to explain any inconsistency. If the witness denies making the alleged prior inconsistent statement, it must be proved by the party alleging that the statement was made.

[109] In this case, Superintendent Wilson did not make contemporaneous notes of what PC Mac said, but rather wrote down his “takeaway” or “overview of what I took from him”. He did not attempt to create a verbatim record of what PC Mac said. PC Mac was not afforded an opportunity to read the notes and agree with them.

[110] I find that the statement sought to be relied on by the defence to contradict PC Mac’s in-court evidence has not been proven, and I do not rely on it in my assessment of PC Mac’s credibility or reliability.

(iv) Conclusion regarding the evidence of PC Mac

[111] The reasons to doubt PC Mac’s reliability and credibility are many. In addition to the issues I have already identified, I find that the video recording of PC Mac’s actions outside the driver’s door demonstrates that he could have failed to see drugs that were in the driver’s floorboard area of the BMW, because Mr. Smith was seated in that area when PC Mac interacted with him, thus obscuring PC Mac’s view of the footwell area, and because PC Mac did not appear to be looking at the driver’s footwell area. Although the BMW was illuminated by the lights of the police cruisers, the footwell area was not illuminated when the doors to the BMW were closed.

[112] I am unable to rely on PC Mac’ s evidence to conclude that there was no cannabis in the BMW as described by PC Nesbitt, or that the cocaine that is visible in the photographs of the driver’s area of the BMW was not there and visible to PC Nesbitt as he described.

[113] The problems with PC Mac’s evidence are not attenuated when it is considered along with the other evidence. There is no other evidence that permits me to conclude, when looking at the evidence as a whole, that I can rely on PC Mac’s evidence. I will explain.

(b) Emily Carey

[114] Forensic Identification Assistant Emily Carey, a civilian employee of the York Regional Police, testified about photos she took of the BMW. The photos are in evidence.

[115] When Ms. Carey arrived on scene, she spoke with PC Lo and PC Nesbitt about what photographs were required.

[116] Ms. Carey recalled the officers pointing out to her a white rock crystal substance in the driver’s door, the floorboard, bags of drugs, a digital scale, and two bags of Canadian currency. She could not say whether they told her about cannabis shake, or not. She did not have anything in her notes about cannabis shake. She typically makes notes about what she was asked to do, what she did, and what she noticed. She had no memory of seeing any obvious cannabis shake in the BMW.

[117] I find that when Ms. Carey took her photographs, there was no obvious cannabis shake in the BMW. Several witnesses were presented with versions of her photos that were substantially enlarged and gave various opinions with respect to the nature of a few minute specs of what appeared to be organic matter. None of these opinions were convincing. The photographs did not represent what PC Nesbitt might have seen on the night in question, particularly when they were enlarged and zoomed in on bits of debris.

[118] The photographs taken of the two baggies of cocaine show that the baggies were fastened by knots. There is no evidence before me from any of the officers who weighed the cocaine and extracted samples for submission to Health Canada for analysis about whether it was difficult, or not, to untie those knots and open the packages.

(c) Sergeant Steve Galonomos

[119] At 12:07:83 a.m., Sgt. Galonomos bent over, leaned in the driver’s compartment of the BMW, and used his flashlight to illuminate the area of the driver’s feet. He lifted the floor mat, and looked underneath to see if there was a hidden compartment for a gun there. He had a specific note of doing this because, to this extent only, he participated in the search. He did this before Ms. Carey took photographs of the area.

[120] Sgt. Galonomos testified that he had an open-door policy, and that officers, including PC Mac, could come to him if they had a problem with another officer. PC Mac did not express any concerns to him about this incident.

[121] Sgt. Galonomos’ evidence is of limited value in this case. He attended the scene after the search had occurred. His job, as patrol supervisor, was to provide advice to the officers as to next steps. His notes were sparse. His memory of the incident was poor. There was nothing exceptional, from his perspective, about this incident. He testified that “my brain is like a sieve.”

(d) PC Lo

[122] PC Lo was called as the court’s witness. Both defence and Crown counsel were permitted to cross-examine him. My reasons for proceeding in this manner are the subject of a separate judgment.

[123] PC Lo had been serving as an officer for less than two years when he attended the Monte Carlo Inn to assist PC Nesbitt. He was not dispatched to assist PC Nesbitt. He put himself on that call to assist PC Nesbitt. PC Lo testified that he attended mostly for officer safety reasons because he heard on his radio that the person that PC Nesbitt was with was on bail for drugs and firearms.

[124] PC Lo and PC Nesbitt were friends.

[125] PC Lo was shown the blended recording from PC Mac’s ICC and PC Nesbitt’s microphone. He testified that at 11:30:51 p.m., as he was talking to the driver of the BMW, he turned on his flashlight and pointed it at the driver’s side floorboard. He pointed with his right hand and said “cannabis”. He testified that later, between 11:32:36 p.m.and 11:33:08 p.m., when he was standing with the driver, he pointed to the car at what he saw earlier on the driver’s side to convey to Mr. Smith that there was cannabis shake on the mat. He testified that at 11:33:28 p.m., he explained to Ms. Miller that there was cannabis on the driver’s side of the BMW. He based his explanation on his own observations. After refreshing his memory from the recording, he was certain that he saw cannabis shake on the driver’s floorboard, on the carpeted area, not on the floor mat. He described the flakes as green, very small, and “not everywhere”. The green flakes were so miniscule that he could not pick them up with his fingers.

[126] PC Lo testified that PC Nesbitt told him to try to collect the cannabis from the BMW. PC Lo explained that he tried to use the adhesive strip of an evidence bag to collect cannabis shake that he had seen. He first pressed the adhesive strip on the floorboard of the BMW. When he attempted to do that, he realized that there was nothing for him to pick up. He then used the same adhesive strip to try to collect something from the pavement outside the car, because whatever was on the ground had come from the car. He then returned with the adhesive strip to the lower area of the driver’s side inside the car. This evidence struck me as absurd. The photographs taken by Ms. Carey show that there were leaves on the asphalt around the BMW. Leaves are also seen on the adjacent grassy area behind the BMW. This is unsurprising because the incident occurred on a windy night in mid-October. If PC Lo could not pick up any cannabis inside the car, any evidence he might have obtained by using the adhesive strip to try to pick up any dry brown leafy substance that might have been present on the asphalt on that windy October night would have been worthless. It does not appear that the adhesive strip he used was preserved as evidence. PC Lo testified that it was probably disposed of. He testified that if he had picked up any cannabis, he would have preserved the bag. He testified that because he was not successful in his efforts to pick up any cannabis shake, he forgot to note that in his notebook. PC Lo’s approach to collecting evidence to support his and PC Nesbitt’s assertion that there was cannabis in the BMW, strikes me as an ultimately futile attempt by PC Lo to find support for their position that there was cannabis in the BMW.

[127] PC Lo acknowledged that there were errors in the notes that he made in his duty notebook on the night of the search of the BMW. He made a note that at 11:28 p.m. PC Nesbitt told him that there was cannabis shake and a white powdery substance on the floorboard of the driver’s seat. After watching the blended recording, he realized that this did not happen. PC Lo testified that his note at 11:28 p.m. is chronologically incorrect. He testified that PC Nesbitt did not advise him about the cannabis, but rather mentioned it to Ms. Miller, and that PC Nesbitt did not tell him about seeing the white powdery substance until after the arrests were made. This mistake concerns me because the mistake coincides with PC Nesbitt’s account in his notes and initial officer report that he saw white powder and a green/brown leafy substance believed to be cannabis near the foot area of the driver. The error in PC Lo’s notes appears contrived to support PC Nesbitt’s account. PC Lo’s explanation about what the note really meant, and that it was “chronologically” incorrect is unconvincing because that is not what the note says.

[128] It is difficult to know what to make of PC Lo’s evidence about whether there was cannabis in the BMW. There was not cannabis there in a sufficient quantity to collect it with the adhesive strip of the evidence bag. While he testified that he saw miniscule green flakes that he identified as cannabis shake on the driver’s floorboard when he spoke with Mr. Smith while he was still seated in the BMW, and with Ms. Miller at the side of the BMW, and did refer to those when he spoke with them at the time, I am concerned that, as with his notes, PC Lo was acting in support of PC Nesbitt who had decided to “pull” the occupants out of the BMW to search it. But I cannot reach this conclusion with confidence. As I will explain presently, the driver’s area of the BMW was much disturbed between the time of the initial interaction between Mr. Smith and the officers, and when efforts were made later to document what the officers say they saw.

[129] PC Lo also testified about why he asked PC Nesbitt a reasonable question: “why didn’t you hook him up for that” after PC Nesbitt told him that he had seen cocaine on the floorboard. He said that PC Nesbitt responded that it was a tiny bit. PC Lo explained that his question was reasonable because if he believed that he had seen cocaine, he would just arrest the person. He testified that there is no rule that requires an immediate arrest in those circumstances, and that every officer has their own way of doing things.

[130] PC Lo removed .25 grams from each bag of apparent cocaine, to send to Health Canada for analysis. He also sent the entire amount that he seized from the floorboard and the door switch. It is an agreed fact that all three samples were tested by an analyst from Health Canada and were found to be cocaine.

(e) Constable Nesbitt

[131] PC Nesbitt testified. He denied that he lied about seeing cannabis shake, that he planted evidence, or that he prepared false reports.

[132] PC Nesbitt was 27 years old when he testified. He comes from a policing family and always wanted to be a police officer. He went to Durham College and attended the police foundations program. After college he was hired by the Durham Region Police Service as a special constable. He was hired by the York Regional Police Service in April 2019. After undergoing training, he was sworn in as a police constable on September 12, 2019. After working with a coach officer, he first worked solo in about January 2020. He had been a police officer for two and a half years when he encountered Mr. Smith and Ms. Miller in the parking lot of the Monte Carlo Inn.

[133] On October 18, 2022, PC Nesbitt decided to do a proactive patrol of the Monte Carlo Inn parking lot. He believed it to be a hotspot for criminal activity such as firearms, drugs, domestic violence, wanted people, and regulatory offences. He usually tried to go there several times during each shift.

[134] When PC Nesbitt entered the Monte Carlo Inn parking lot, he saw the BMW with its lights on and engine running. It was the only car with its lights on. He knew nothing about the car. He drove towards it and queried the licence plate on his MDT. He learned that Alton Smith, a person associated to the registered owner, was on a release order with conditions. He pulled up to the BMW in a fashion that made sure that it could not drive off. He turned on his spotlight so that he could see how many people were in the BMW. He activated his ICC and portable microphone.

[135] PC Nesbitt approached the driver and spoke with Mr. Smith. He explained that he asked if Mr. Smith had a room at the Inn because that helped him to understand why the car’s occupants were there and whether they were being truthful. When he spoke with Mr. Smith, he used his flashlight to look for anything of concern, such as weapons, drugs, alcohol, or cannabis. It was his practice to look for weapons because that was a matter of officer safety. It was his practice to look for open alcohol or readily accessible cannabis because that would provide him with authority to search the car. Notably, PC Nesbitt did not say that he looked for open alcohol or readily accessible cannabis because the presence of such things in a car gave rise to road safety concerns.

[136] PC Nesbitt testified that when he spoke with Mr. Smith, he saw a green and brown leafy material in the driver’s footwell that he believed was cannabis shake, and a white powder and clump that he believed could be cocaine. He did not see anything in the window switch at that time. He did not alert the occupants of the BMW about his observations because there was no other officer on scene. He testified that he did not want to escalate things because he was there by himself. He was concerned that there could be a firearm in the car. This strikes me as sensible and prudent.

[137] PC Nesbitt called for another unit because he knew there were two occupants and a dog in the BMW and he had decided to search the BMW. He testified that he had formed grounds to search under the Cannabis Control Act, 2017, SO 2017, c 26, Sch 1. His grounds were based on his observations of a green and brown leafy substance in the drivers footwell, and also that Mr. Smith was on charges for selling drugs. Although there was a small amount of a white powder that PC Nesbitt thought might be cocaine, it was not enough for him to make an arrest and proceed with a charge.

[138] As an aside, and to be clear, I have not considered or decided whether a police officer who sees a few flakes of something they believe to be cannabis on the floorboard of a car has objectively reasonable grounds to conclude that there is readily available cannabis in the vehicle, such that section 12 of the Cannabis Control Act (“ CCA ”) authorizes a search of the vehicle. The question to be decided by me is whether PC Nesbitt lied about seeing cannabis in the BMW.

[139] When PC Mac arrived, PC Nesbitt told him that Mr. Smith was a “gun guy” because it was important for PC Mac to know that for officer safety.

[140] When PC Lo arrived, PC Nesbitt told him that Mr. Smith was on a release order for possessing a firearm because it was important for PC Lo to know that for officer safety. PC Nesbitt testified that he also told PC Lo that he was “pulling them out” because he wanted to let him know that he was going to search the BMW. He did not tell PC Lo why he was going to do that because he had worked with him many times in similar situations and assumed that PC Lo would know that he was going to do a CCA search because “it was the most common reason we searched a car.”

[141] PC Nesbitt testified that he donned gloves as he walked from his cruiser to the passenger side of the BMW because he was going to search the BMW.

[142] PC Nesbitt testified that he narrated finding the two bags of cocaine in the female’s purse and the scale in the glove box to help himself if the matter against Mr. Smith and Ms. Miller “went to court and for general evidentiary purposes.” Later, he narrated his finding of a piece of cocaine in the driver’s window switch. It strikes me as odd, if that was the purpose for which PC Nesbitt memorialized his observations, that he made no reference to the marijuana shake that he relied on as his authority to search the BMW or the white powder that he saw while Mr. Smith and Ms. Miller were still in the BMW before the search began.

[143] In his evidence in chief, PC Nesbitt was shown a photograph of the driver’s footwell area taken by Ms. Carey. He circled an area where he saw what he believed to be marijuana shake. He clarified in cross-examination that what he circled in the photograph is something he saw in the photograph that he thought could be shake. He did not circle shake that he had seen when looking into the BMW as he interacted with the driver, because he could recall only that he saw shake in the driver’s footwell and floorboard area. In his notes, he recorded that he saw “weed shake by his feet.” When PC Nesbitt was shown a photograph taken when Ms. Carey was standing outside the open driver’s door, PC Nesbitt could not with certainty circle what he saw when the driver was in the vehicle. He could not say with certainty where he saw the white powder, other than that it was in the floormat area, where the driver’s feet would have been.

[144] In cross-examination, PC Nesbitt testified that he saw what he believed to be cannabis shake, and he still believed as he testified that it was cannabis shake. He testified that if a police officer believes that he sees cannabis shake in a vehicle, then he is authorized by the CCA to search the vehicle. He denied that he saw dirt and claimed it was cannabis so that he could search the BMW. In addition to seeing the green/brown dry leafy substance, he knew that Mr. Smith had been charged with selling drugs previously, and that it was not uncommon for drug dealers to smoke cannabis. He did not smell any cannabis and did not see any other evidence of cannabis use at that time.

[145] PC Nesbitt testified that a photograph taken by Ms. Carey that showed the two baggies of cocaine appearing to be tied shut, looked exactly as he found them. He did not untie either of the baggies or take anything contained in them out of the baggie. He did not touch the baggies except when he found them. PC Nesbitt denied that he planted cocaine in the driver’s side of the BMW.

[146] PC Lo was tasked with collecting the evidence from the BMW. His conversation with PC Nesbitt was captured on PC Nesbitt’s microphone recording. PC Nesbitt asked him “You got the dope?” PC Lo replied: “I will. Just gonna use this tape [indiscernible].” PC Nesbitt noted that he normally has scotch tape but did not have his bag. PC Lo told him that “I’ll just use this”, referring to the adhesive strip of an evidence collection bag. PC Lo explained that this was about using the adhesive strip of an evidence collection bag, as he had done on other occasions, to pick up cannabis. This exchange supports a conclusion that PC Nesbitt believed that there was cannabis shake present in the BMW that could be collected.

[147] On October 17, 2021, PC Nesbitt manually activated his ICC and portable microphone before he spoke with Alton Smith and Brittany Miller. He testified that he assumed that PC Mac’s ICC was activated and functioning. PC Mac testified that other officers, including PC Nesbitt, would have expected his camera to be on. Any police officer could tell that the camera was on by looking at the camera because a light illuminates when it is on. PC Nesbitt testified that he did not know whether PC Mac or PC Lo had activated their portable microphones, but that he believed that they were supposed to have them on. I find that PC Nesbitt knew that he was working in an environment that was being recorded in a variety of ways. I find that he did everything he was supposed to do to activate his own recordings.

[148] There are concerning aspects to PC Nesbitt’s evidence. Although he testified that he saw both cocaine residue and cannabis shake when he first looked into the BMW, he told Sgt. Galonomos only about seeing cocaine. He also told Sgt. Galanomos that he “tightened up” once he “saw the blow”. His evidence that it was his practice to look for open alcohol or readily accessible cannabis because that would provide him with authority to search the car supports the conclusion that for PC Nesbitt, this was all about getting into the car to find evidence of crime. His statements to both PC Mac and PC Lo, when they separately arrived on scene, that he was going to “pull them out”, referring to the vehicle occupants, confirms this impression.

[149] Before I reach a firm conclusion about PC Nesbitt’s evidence, I must decide whether, and to what extent, the evidence of an expert witness called by the defence is admissible.

F. The admissibility of the evidence of John Margetson

[150] In this trial by judge alone, both parties agreed that it would be appropriate to proceed to determine the admissibility of Mr. Margetson’s evidence in a blended voir dire, during which the entirety of his evidence would be heard, leaving the question of the admissibility of his opinions to be determined later, with the evidence to be applied at the trial if I determine it to be admissible.

(a) Admissibility

[151] The defence sought to have John Margetson provide expert opinion evidence about the indicia of street level drug trafficking, including methods of use, packaging, pricing, modus operandi, and distribution methods of persons trafficking in controlled or illegal drugs, and about the identification of controlled substances and other drugs, including cannabis/marijuana.

[152] The Crown disputed his expertise only in relation to the identification of cannabis/marijuana.

[153] Mr. Margetson clarified that he could only opine that something looks consistent with a controlled substance but could not say more because there are many other things that would have that appearance. He cannot say that something is a controlled substance.

[154] Mr. Margetson is a retired former member of the Toronto Police Service. He has extensive experience in drug investigations. He has considerable experience as an undercover police officer involved in buying drugs and has supervised more than 600 such operations. He has taken numerous courses about drug investigations and has lectured many times in that area. He has been qualified to provide expert opinion evidence in courts in Ontario more than 140 times. He has prepared expert reports for many more cases that did not go to trial.

[155] Mr. Margetson’s opinion about what a substance appears to be is informed by his experience as a police officer. He often dealt with cases where marijuana and shake were expected to be present.

[156] Mr. Margetson was aware of his obligation to the court to be neutral and transparent.

[157] Expert opinion evidence may be admissible if it is: 1) logically relevant; 2) necessary to aid the trier of fact; 3) it is not subject to exclusion by an exclusionary rule; and, 4) the expert is properly qualified. If these four threshold requirements of admissibility are established on a balance of probabilities, I must go on to balance the potential risks and benefits of admitting Mr. Margetson’s evidence to decide whether the potential benefits justify the risks.

[158] The Crown concedes that Mr. Margetson’s opinion about the indicia of street level drug trafficking, including methods of use, packaging, pricing, modus operandi, and distribution methods of persons trafficking in controlled or illegal drugs would be logically relevant to the issues in the trial, necessary to aid me, and not subject to an exclusionary rule, and that Mr. Margetson is properly qualified. I agree. I also find that the benefits of receiving that evidence outweigh any risks in this judge alone trial. Mr. Margetson’s evidence about these issues will be applied by me.

[159] Mr. Margetson’s opinions about the identification of controlled substances and other drugs, including cannabis/marijuana is not admissible. As the evidence unfolded, it became apparent that the defence sought to rely on Mr. Margetson’s opinion about the nature of material visible in the photographs taken by Ms. Carey. His evidence, based on zoomed in photographs, that some material could be cannabis, but could also be something else, is not necessary to assist me because it is of no assistance. It is of no assistance because the issue in this case is whether PC Nesbitt saw something he believed to be cannabis shake as he stood outside the BMW at the Monte Carlo Inn. Whether Mr. Margetson could spot something, in a much enlarged photograph, lit by a camera flash, cannot assist me to decide what PC Nesbitt saw. Mr. Margetson testified that the people who were there, like Ms. Carey, were in the best position to say whether there were cannabis flakes present.

(b) The admissible evidence of John Margetson

[160] Mr. Margetson testified that powder cocaine is typically sold to the consumer of cocaine in gram or ½ gram amounts. Dealers may have pre-packaged amounts or may use a digital scale to weigh out an amount. Buyers of powder cocaine, who are not addicts, may buy larger amounts, such as an ounce, for personal use. A scale is needed because it is difficult to eyeball the weight. Traffickers often deal from motor vehicles. Crack cocaine is typically sold by dollar value, in pieces weighing a fraction of a gram. The dealer often chips off a piece from a larger block and provides the piece to the buyer.

[161] The amount of cocaine seized from Ms. Miller’s purse is consistent with an amount possessed by a street level trafficker. The size and appearance of the digital scale found in the BMW is similar to that commonly used by street level traffickers, either when they sell or purchase drugs. The amount and denominations of money found in the possession of Mr. Smith and Ms. Miller, are also indicative of participation in drug trafficking, which is a cash payment, exact change, sort of business. The presence of a white powdery residue in the seam of the driver’s seat of the BMW, and small, white pieces of something that appears to be cocaine on the floor mat and in the window switch is typical of the sort of spillage that occurs when a driver separates out the amount of the sale from a larger amount on their lap. Mr. Margetson testified that these are generally not clean operations.

[162] Based on his review of the photographs of what was found in the BMW, and his review of a video-recording of Mr. Smith after he was seated in the rear of a police cruiser during which time he appears to be moving something from the front of his pants and pushing it into his rectum, Mr. Margetson concluded that what he saw was consistent with the occupants of the BMW trafficking cocaine from the vehicle. The presence of white powder and pieces in the driver’s area was consistent with cocaine having been broken down in that car, though he could not say when that happened.

[163] I accept the evidence of Mr. Margetson that the presence of white powder and pieces in the driver’s area was consistent with cocaine having been broken down in that car, and that the things seized from the BMW support an inference that Mr. Smith and Ms. Miller were selling cocaine from the BMW.

G. Analysis

(a) Breach of trust

[164] The crown alleges that Jordan Nesbitt committed a breach of trust in connection with the duties of his office, by lying about the presence of cannabis in the BMW. The Crown submits that it has proven this offence beyond a reasonable doubt because:

(1) PC Mac did not see any cannabis and PC Mac is a credible and reliable witness.

(2) Neither Ms. Carey nor Sgt. Galonomos saw any cannabis shake in the BMW.

(3) PC Nesbitt was motivated to search the BMW to look for firearms, and he knew that if he saw cannabis in the BMW that would provide him with authority to conduct that search.

The Crown urges me to reject the evidence of PC Nesbitt and PC Lo.

[165] PC Nesbitt’s evidence that he saw cannabis flakes in the BMW before he decided to search the vehicle leaves me in a state of reasonable doubt about that issue. While Ms. Carey did not see cannabis flakes when she looked in the BMW, and I find that the evidence presented to me in an attempt to prove that there were in facts bits of cannabis visible in the photographs she took is unpersuasive, that does not prove the state of the BMW when PC Nesbitt first looked into the vehicle. That is because the driver’s area was significantly disturbed by a number of forces between the time PC Nesbitt made his observations and the time that Ms. Carey took the photographs.

[166] Mr. Smith, the driver, was initially seated in the driver’s seat and got out of the car. The dog jumped in and out of the driver’s seat. PC Nesbitt knelt on the driver’s seat several times as he searched about the center console and passenger side of the BMW. Both PC Lo and PC Mac also entered the driver’s area. Sgt. Galonomos lifted the driver’s floormat. It was windy enough to blow things off the roof of the BMW and the doors were left open for significant amounts of time. All of these factors, in combination, compromised the integrity of the evidence located in the driver’s footwell.

[167] PC Nesbitt’s request of PC Lo to “get the dope” by applying an adhesive strip supports a conclusion that PC Nesbitt believed that there was cannabis shake present in the BMW that could be collected.

[168] PC Nesbitt’s evidence that he saw cannabis shake in the BMW is not contradicted by other reliable evidence.

[169] I cannot rely on the evidence of PC Mac that there was no cannabis shake in the BMW for reasons I have already provided. He was not a credible and reliable witness.

[170] There is no evidence from Mr. Smith or Ms. Miller about the state of the BMW when they encountered PC Nesbitt.

[171] I am not satisfied beyond a reasonable doubt that PC Nesbitt did not see cannabis flakes in the BMW.

(b) Fabricating Evidence

[172] The Crown alleges that PC Nesbitt did, with intent to mislead, fabricate evidence with the intent that it should be used as evidence in a proposed judicial proceeding, by placing a substance alleged to be cocaine in the driver’s area of the BMW. The Crown submits that PC Nesbitt put the cocaine in a place where he could say it was in plain view, so that he could rely on that authority to search the car to look for a gun.

[173] PC Nesbitt denied that he put any cocaine in the driver’s area, or that he moved cocaine to be able to say that he saw it in plain view when he looked in the BMW. There is no good reason to reject this evidence. There was no reason for him to place cocaine anywhere in the BMW because he did not rely on seeing cocaine in the driver’s area in order to search the BMW.

[174] The Crown submits that while it may not make sense for PC Nesbitt to plant cocaine and then not rely on a plain view authority for his search, this should not cause me to doubt that he planted the cocaine because this was not a well-orchestrated, pre-meditated planting of evidence, but rather was something he made up on the fly. That is one possible explanation for the absence of any motive for PC Nesbitt to do what the Crown alleges. Another, equally plausible explanation is that he did not do what the Crown alleges.

[175] The photographs show abundant areas of white powder in the driver’s area of the BMW, in places that would not have been visible to PC Nesbitt when he looked in the driver’s window while Mr. Smith was seated in the BMW, but also in places that would have been visible to him. While PC Nesbitt had quite some time alone in the BMW, and his actions therein are not visible on PC Mac’s ICC, there is no reliable evidence that he accessed the cocaine in the two plastic packages that were seized from Ms. Miller’s purse.

[176] There is compelling evidence that the cocaine could have been deposited in the driver’s area of the BMW without the intervention of PC Nesbitt. The evidence of Mr. Margetson explained how pieces of cocaine and cocaine powder could have been deposited where they were when Mr. Smith trafficked cocaine.

[177] PC Mac’s evidence, at its highest, is only that he did not see cocaine in the driver’s area of the BMW. I cannot rely on the evidence of PC Mac that there was no cocaine in the driver’s area of the BMW for reasons I have already provided.

[178] I am not satisfied beyond a reasonable doubt that PC Nesbitt planted cocaine in the BMW.

(c) Attempt to obstruct justice

[179] The Crown alleges that PC Nesbitt wilfully attempted to obstruct, pervert, or defeat the course of justice in a judicial proceeding by preparing false notes and reports.

[180] To convict PC Nesbitt of this charge, I must be satisfied beyond a reasonable doubt of his guilt on either Count 1 or Count 2. As I have already explained, I am not so satisfied. Therefore, Count 3 has not been proved beyond a reasonable doubt.

Released: October 2, 2024 Amended: October 22, 2024 (updated with new citation number only)

COURT FILE NO.: CR-22-911-3350-0000 DATE: 2024-10-02 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – JORDAN NESBITT REASONS FOR JUDGMENT Justice Jocelyn Speyer

Released: October 2, 2024 Amended: October 22, 2024 with new citation number only