COURT FILE NO.: CR-24-90000029-0000 DATE: 20241120
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NOCKEEM PECK Defendant
Counsel: Volodymyr Fedorchuk, for the Crown Jeffrey Fisher, for the Defendant/Applicant
HEARD: October 28 and 29, 2024
MOLLOY J.:
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] Nockeem Peck was charged with possession of heroin for the purposes of trafficking. He brought an application to exclude the heroin from the evidence at trial on the grounds that it was obtained as a result of an arbitrary detention in violation of his Charter rights. Although originally electing a jury trial (which was scheduled for seven days), on the morning of trial he re-elected to be tried by judge alone. The Charter application and trial proper proceeded before me, on a blended basis, for two days, at the conclusion of which I dismissed the application, found the evidence admissible, and convicted Mr. Peck of possession of heroin for the purposes of trafficking. My reasons for those conclusions are set out below.
B. ANALYSIS: THE ALLEGED DETENTION
[2] I heard testimony from all three Peel Regional Police officers involved in Mr. Peck’s arrest: S. Sgt. Thomas Morrow; D.C. Kevin Clayton; and D.C. Shawn Galbraith. All three officers were on the Break and Enter team. On October 7, 2022, they were on the evening shift, in plain clothes, and in three separate unmarked vehicles. Their focus that evening was to conduct surveillance in the area of a hotel in Etobicoke, which was known to have connections to stolen cars, including cars used in a string of break and enters in the Brampton area. At 8:15 p.m., while stationary in his car in the hotel parking lot, D.C. Clayton saw a Toyota Sierra van pass through the lot at an excessively slow speed. He could see a driver, nobody in the second row of seating, and one person seated in the third row of seating. Both the driver and the passenger were wearing balaclavas. After passing out of his view, the van returned, making a second pass through the lot in the same manner. D.C. Clayton considered this to be suspicious behaviour. He contacted his supervisor, Det. Morrow (now a Staff Sergeant), who agreed it was suspicious. Det. Morrow decided that the three officers would follow the vehicle to see what was going on. There can be no issue with this decision. It is good policing.
[3] The Toyota Sierra travelled through neighbouring streets until it reached the parking lot of a nearby junior public school about one kilometer away. It was dark, and the parking lot was deserted apart from a row of parked school buses. The three officers took up observation posts in their cars at various locations outside the school parking lot. Initially, the Sierra was parked in one spot, but shortly afterwards it moved and parked between two school buses, with the front end of the car pointing towards a perimeter fence. Det. Morrow had eyes on the Sierra from his vantage point on a side street. The officers waited in place for a considerable period of time (estimated to be up to 45 minutes), but nothing happened. Det. Morrow remained concerned that the vehicle and its occupants were suspicious. He was also aware that there had been recent break-ins into schools in the area and school computers had been stolen. He decided that before just leaving the area, they would walk past the car to see what was going on. He testified that if the two occupants were just sitting there talking or eating dinner or anything else innocuous, the officers would simply leave.
[4] Det. Morrow was concerned about officer safety. He instructed the other two officers to put on their police vests, clearly identifying them as police officers, and told them not to walk behind the vehicle. He also told them that if the vehicle drove away, they should simply let it go. He said they had no discussion about detaining the two people in the van.
[5] The three officers headed toward the Sierra on foot. Det. Morrow approached toward the driver’s side. D.C. Clayton approached on the passenger side. Det. Morrow could not recall where D.C. Galbraith was. However, D.C. Galbraith testified that he also approached from the passenger side, but that he was about ten feet behind the other officers. D.C. Clayton also recalled that D.C. Galbraith was behind him, to his right.
[6] All three officers noted that the interior lights within the Sierra were on. D.C. Clayton was closest to the Sierra. He said both occupants had their heads down and did not see the officers approach. What would have been a second-row bench seat had been removed from the van. According to D.C. Clayton, one of the occupants was sitting on the floor of the area where the second-row seat would have been and the other was sitting on the third-row passenger seat. D.C. Galbraith also testified that both men had their heads down. However, he said both were sitting on the third-row bench seat.
[7] D.C. Clayton testified that when he reached the side window and was about one foot from the vehicle, he could see that the two occupants appeared to be removing drugs from two larger plastic bags and putting them into small dime bags. He immediately alerted the other two officers that the occupants of the vehicle were arrestable for drugs. He pounded on the window of the van, announced that they were police, told the two men they were under arrest, and ordered them to step out of the van. At that point, Det. Morrow was still ten feet away from the vehicle, as was D.C. Galbraith.
[8] When D.C. Clayton made this observation, he had clear grounds to arrest the men in the van based on his belief that he was witnessing a crime in progress. He subjectively believed that the two men were in possession of illicit drugs for the purposes of trafficking. Any reasonable person would come to that same conclusion. The arrest was lawful.
[9] This is not disputed by the defence. However, the defence position is that the actions of the officers in approaching the van as they did constituted a detention, that the detention was arbitrary, and that the officers thereby breached the rights of the accused under s. 9 of the Charter. I disagree. There was no detention, much less an arbitrary one. There was an immediate arrest, which was lawful, upon witnessing a crime being committed. No Charter rights were violated.
[10] The law is clear that not every police interaction with a member of the public is a detention. In this case, there had not even been an interaction with the police at the point where defence counsel argues Mr. Peck was arbitrarily detained. Prior to the lawful arrest, two of the officers had not yet reached the vehicle, none of them had spoken a word to the occupants, and neither of the men in the van knew the officers were there. The Supreme Court of Canada held in Grant that a detention occurs when an individual has been taken “into the effective control of the state authorities”. [1] Clearly, there was nothing about the police officers walking toward a vehicle, unbeknownst to its occupants, that can be characterized as those individuals being “taken into the effective control of the state authorities”.
[11] There can be situations where the police actually stop people and ask them questions, without those individuals being “detained” within the meaning of s. 9 of the Charter. As stated by the Supreme Court in R. v. Mann:
“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [2] [Emphasis added.]
[12] In R. v. Suberu, the Supreme Court reiterated that position, stating:
However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10(b). As Iacobucci J. aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint” (para. 19). [3]
[13] In this case, the accused was not stopped, he was not interviewed, he was not delayed, and he was not kept waiting. Nothing at all had happened to him in relation to the police. The police were merely walking towards the car in which he was a passenger. This kind of police action cannot possibly be characterized as a “significant physical or psychological restraint.” If the mere fact that police are approaching you means that you are detained, then police would never be able to walk about or drive around in the community. Everybody in their immediate area would be “detained” and entitled thereby to be immediately advised of their rights to counsel. This is an absurd proposition.
[14] It is not always easy to pinpoint the precise point at which a detention within the meaning of s. 9 of the Charter has taken place. The obvious situation is where the person is actually physically restrained by police without being arrested. However, many detentions do not fall into that obvious category.
[15] In 2009, the Supreme Court simultaneously released two decisions (Grant and Suberu) clarifying the parameters of what constitutes a detention. The factors to be taken into account were summarized in Grant as follows:
- Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
- In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [4]
[16] In Grant, a police officer approached Mr. Grant as he was walking along the sidewalk, stepped into his path, and made general inquiries. The Court held that at this point, Mr. Grant was not detained. However, the officer then told Mr. Grant to keep his hands in front of him so that he could see them. Two other officers then took up what the Court referred to as “tactical adversarial positions” immediately behind Mr. Grant. At the same time, the nature of the questioning became more focused, not merely surrounding background information, but specifically asking Mr. Grant if he had anything on his person that he should not. The Court held that at this point, Mr. Grant, although not physically restrained, was effectively detained, stating:
Although Cst. Gomes was respectful in his questioning, the encounter was inherently intimidating. The power imbalance was obviously exacerbated by Mr. Grant’s youth and inexperience. Mr. Grant did not testify, so we do not know what his perceptions of the interaction actually were. However, because the test is an objective one, this is not fatal to his argument that there was a detention. We agree with Laskin J.A.’s conclusion that Mr. Grant was detained. In our view, the evidence supports Mr. Grant’s contention that a reasonable person in his position (18 years old, alone, faced by three physically larger policemen in adversarial positions) would conclude that his or her right to choose how to act had been removed by the police, given their conduct.
The police conduct that gave rise to an impression of control was not fleeting. The direction to Mr. Grant to keep his hands in front, in itself inconclusive, was followed by the appearance of two other officers flashing their badges and by questioning driven by focussed suspicion of Mr. Grant. The sustained and restrictive tenor of the conduct after the direction to Mr. Grant to keep his hands in front of him reasonably supports the conclusion that the officers were putting him under their control and depriving him of his choice as to how to respond. [5]
[17] However, in the companion case of Suberu the Court found there was no detention. The facts in Suberu illustrate that the Supreme Court recognized the importance of not unduly restricting the ability of the police to investigate and to interact with the public without triggering the Charter rights of those individuals with whom they speak. In that case, police officers in Cobourg received information about the use of a stolen credit card at a local LCBO store. The first officer to arrive alerted the second officer by radio that there were two male suspects in the store. When the second officer arrived, he saw his colleague engaged with LCBO staff and a male customer. Mr. Suberu walked past the second officer and proceeded out of the store towards his car. As Mr. Suberu was getting into his minivan, the officer said, “Wait a minute. I need to talk to you before you go anywhere.” The officer then asked him some general questions about where he was from, the name of his friend in the store, and the name of the owner of the car. As he was speaking to Mr. Suberu, the officer received information on his radio that there had been a similar fraudulent use of a credit card in a nearby town, and the description and license plate of the minivan involved. At this point, the officer saw shopping bags in the minivan and concluded he had grounds to arrest Mr. Suberu, which he immediately did. He then advised him of his rights. The issue in this case was whether Mr. Suberu was detained prior to the arrest, such that he should have been advised of his rights earlier. The majority of the Supreme Court of Canada held that there was no detention when the officer told Mr. Suberu that he needed to speak to him before he could leave, and then proceeded to ask him some questions as he sat in the driver’s seat of his car.
[18] In coming to that conclusion, the Court considered the three factors established in Grant. The first factor involved a consideration of the circumstances giving rise to the encounter, as reasonably perceived by an individual in Mr. Suberu’s position. The Court reasoned that the officer was in the process of orienting himself to the situation as it was unfolding and attempting to “sort out the situation.” The Court held that this factor supported a finding that there was no detention, noting that, “In our view, it would also be unreasonable to require that the right to counsel be given the moment the police approach any suspect in the process of sorting out the situation.” [6]
[19] The second factor referred to in Grant relates to police conduct. Although the Court accepted that the officer’s words could be interpreted as an order not to leave, it noted that these same words could also be understood as the officer simply wanting some information. The officer made no attempt to obstruct Mr. Suberu’s movement, but merely stood by the side of his vehicle for a brief time asking him questions. The Court held that, “Taken as a whole, the conduct of the officer viewed objectively supports the trial judge’s view that what was happening at this point was preliminary questioning to find out whether to proceed further.” [7]
[20] The Court in Suberu also found that there was nothing about these circumstances that would have caused a reasonable person to believe that he could not leave.
[21] I note that the interaction between the officer and Mr. Suberu was markedly more directive than anything the officers in this case did. There was no interaction or encounter whatsoever between them and Mr. Peck prior to his arrest. Likewise, the officers in Grant boxed in the suspect and were asking him pointed questions about criminality while requiring him to keep his hands in front of him. Nothing like that happened in this case.
[22] Defence counsel argued that physical restraint is not required for there to be a psychological detention. That is clearly true, as has been determined in long-standing jurisprudence, including the Supreme Court’s seminal decision in Grant. However, it is police conduct that must give rise to the psychological restraint, not the mere fact that the police are walking by.
[23] Defence counsel before me relies primarily on the Court of Appeal decision in R. v. Thompson. [8] In that case, a man was sitting in his parked car at a shopping plaza at night. Police had received an anonymous tip about drug dealing from a car in the plaza, but had no reason to believe it was this particular car. The police parked two cruisers behind Mr. Thompson’s car, which the Court of Appeal described as “boxing in the appellant so he could not drive away.” [9] The Court of Appeal held that as soon as the police blocked the car, preventing the accused from leaving, the accused was detained and entitled to be advised of his rights. The police did not advise the accused of his rights at that time. Having blocked his escape, they approached the car, one officer on each side of the vehicle, and shone powerful flashlights inside. They directed the passenger to roll down her window and ordered both occupants to produce identification and vehicle ownership documents. In the course of doing that, the officers saw that both the accused and his passenger had been smoking marijuana (which was illegal at the time) and arrested them. They then searched the car and found a scale, 29 grams of cocaine, 5 grams of marijuana, 8 grams of hash oil, 12 grams of hash, and approximately $18,000 in cash. The accused was charged with possession of cocaine for the purposes of trafficking. There was evidence at trial that the accused did not know his car was blocked in until the flashlight was shone into the window. However, the Court of Appeal held that the test for determining whether a detention had occurred is an objective one, based on what a reasonable person in those circumstances would believe. The question to be determined is whether a reasonable person would conclude that he was not free to leave and had to comply with the police direction or demand. [10]
[24] In Thompson, the Court of Appeal considered the three factors established in Grant as quoted above. In considering the first factor (the circumstances giving rise to the encounter), Jamal J.A. held that the initial act of the police approaching the car was fairly characterized as “general neighbourhood policing”, as they thought it was suspicious for a car to have its engine running in a parking lot late at night. [11] However, once the police physically obstructed the car, a reasonable person would conclude that he was being detained. [12]
[25] On the second factor, Jamal J.A. characterized the police conduct as being “authoritative from the outset.” [13] He held:
As in Grant, the police effectively took control of the appellant’s car and its occupants, first by obstructing the appellant’s car, and then by approaching the car and seeking information from the appellant and the passenger: see Grant, at para. 49.
While the police did not engage in physical contact with the appellant before his arrest, their physical proximity in blocking his car would have created “an atmosphere that would lead a reasonable person to conclude that the police were taking control of the situation and that it was impossible to leave”: Le, at para. 50. [14]
[26] Finally, the Court in Thompson held that the third factor in Grant also supported a finding that the individual was detained, referring to the reasonable belief of a black man sitting in his car at night when his car is obstructed by two police officers without apparent reason. The circumstances of the accused is the only factor that this case has in common with Thompson, and also Grant. Mr. Peck was a young black man.
[27] The defence has fastened on the Thompson decision as applicable to the case before me mainly because the accused in that case did not know that the police had blocked in his car. Applying the objective test, the Court of Appeal held that this did not mean he could not have been detained. That is not this case. Here, the police did not block in Mr. Peck’s vehicle. They could have done so. They had three vehicles. Instead, they merely walked toward the vehicle. Unlike the situation in Thompson, these officers did not order the two occupants in the car to do anything and did not demand identification. They had no interaction with them whatsoever and did nothing to block the vehicle. They were merely present, while wearing police vests.
[28] I strongly reject the suggestion by the defence that the presence of police vests was in some way intimidating. The police acted absolutely appropriately in donning those vests. It is important for police safety, and it is important for the protection of the public. Most people, in particular those not engaged in criminal activity, would be reassured upon seeing the vests. Police officers clearly identifying themselves as such must not be taken as being a tactic of intimidation.
[29] Defence counsel argued that the intention of the officers in approaching the van should be taken into account. He further argued that I should accept the evidence of D.C. Galbraith on this point, rather than the evidence of the other two officers. Defence counsel submitted in argument that D.C. Galbraith testified that the plan was to speak to the occupants, get their identification, and then run their names on the police CPIC system. I do not agree that the intention of the officers was relevant, and, in any event, defence counsel’s recollection of D.C. Galbraith’s evidence is mistaken.
[30] D.C. Clayton testified that the plan was to walk up to the vehicle to see what it was doing there and that, if it was not involved in criminality, they would walk away. Det. Morrow, who was in charge and who decided what the plan would be, testified that they would approach the vehicle to have a look at what its occupants were doing. He said if they were just sitting there talking or eating dinner, the officers would leave. When asked in cross-examination if he would necessarily need to talk to the occupants, Det. Morrow disagreed. He agreed, however, that he was prepared to speak to them, depending on the circumstances, and this was one of the reasons it was important for the officers to be wearing their police vests.
[31] I do not find D.C. Galbraith’s testimony to be materially inconsistent with that of the other two officers. Because my own notes and recollection of D.C. Galbraith’s testimony differed from that of defence counsel, I obtained the audio recording and listened to it again. In chief, he testified that the plan was to investigate the people in the van and speak with them. He confirmed that in cross-examination, stating that the plan was to investigate by approaching the vehicle and speaking to the occupants. When asked if there was a plan to get their names, he hesitated and stated that he did not make the initial observation and was there more as an officer in a safety role. When asked if he “expected” someone would get their names, he again hesitated and said that there could be “an escalation to where you would ask somebody’s name.” He went on to explain that if two people were just talking, an officer might not ask for their name. He said he might ask “what’s going on” and if there was no problem, he probably would not ask for a name. He said he did not recall any plan in this case to ask for their names. Then, when specifically asked if he “expected” they would get names and run them on CPIC, he said he did not want to speculate.
[32] I do not consider anything D.C. Galbraith said to be materially inconsistent with the evidence of the other two officers. All of them agreed that the plan was to approach on foot to see what was going on with the van. If there was a non-criminal explanation for what the van was doing there, they would simply leave. If the van drove away, they would not try to stop it. This was a fluid situation. Depending on what they found when they got to the van, they might or might not speak to the occupants.
[33] In any event, the officer’s intention is not relevant to whether there was a detention. [15]
[34] Defence counsel also cited the Court of Appeal decision in R. v. Tutu as supporting his argument. [16] That decision basically just applies the Thompson decision. In Tutu, the police officer blocked off a car with his own cruiser. He then knocked on the car window, told the occupants to turn down the music, demanded their identification, and told them to stay in the car while he returned to his car to run a check on the information provided. This was found to constitute a detention. Nothing like that happened in this case.
[35] Finally, the defence also relies on the Supreme Court of Canada decision in R. v. Le. In that case, five young black males were gathered in the backyard of a private residence. [17] They were doing nothing wrong, merely talking. Three police officers arrived and entered the fenced backyard without a warrant and without seeking permission to enter. One officer proceeded to question the accused, demanding that he produce identification and asking him about the contents of a satchel he was carrying. The police ordered him to keep his hands where they could see them. The Supreme Court found that this constituted a detention. In coming to that conclusion, the Court emphasized the conduct of the police in coming onto private property without permission as an action that was authoritative and intimidating and went beyond what could be considered as community policing. I would distinguish this case on its facts. Here, the accused and his companion were not on their own private property. They had been driving around in the community wearing balaclavas on their faces and then had parked at a deserted school parking lot for about 45 minutes. This was suspicious behaviour and warranted investigation. The police did not act in a threatening manner, did not intrude into the personal space of the accused, and did not make any demands of the accused. They were merely walking towards the car in the parking lot. This is completely different from the surrounding circumstances and the police conduct in Le.
[36] In my view, there was nothing about the police conduct in this case that could be construed as a detention. They did not block the vehicle. They made no demands. They asked no questions. They were engaged in appropriate community policing. This vehicle was observed driving in a suspicious manner in an area being staked out by police because of criminal-related activity in the area. The crime being investigated was break and enters. Both occupants, in early October, were wearing balaclavas. That was also suspicious. The vehicle then went to a deserted school parking lot at about 8:30 p.m., parked between some school buses, and simply sat there for 45 minutes. For the 1 hour and 23 minutes the police had the car under surveillance, it had travelled only one kilometer, and nobody had gotten out or gotten in. There had been break-ins at schools in the area, with the thieves targeting computer equipment. In my view, the officers at that point were duty-bound to investigate further in the interests of crime prevention. Had the police officers in this situation boxed in the Sierra van and investigated the men inside to see if they were planning a break-in, I would likely have held this to be a lawful detention, not an arbitrary one. However, the officers deliberately did not do that, but rather merely walked up to the vehicle, their weapons holstered, to see what it was doing there. That was, quite simply, good and conscientious policing. It would have been irresponsible of the officers to have simply ignored these suspicious circumstances. If the officers had merely asked the individuals in the van what they were doing there, I would not have found that to be a detention. That would be equivalent to what the officer did in Suberu. But the officers in this case did not even do that. D.C. Clayton saw the drugs in the van before they got to the point of being able to ask any questions.
[37] I find there was no detention right up to the point that there was a lawful arrest. The application is therefore dismissed and the evidence seized is admissible.
C. ALTERNATIVELY, ADMISSIBLE UNDER s. 24(2)
[38] In the alternative, if I had found there to be a detention, I would nevertheless have admitted the evidence at trial, applying the Grant test with respect to the analysis under s. 24(2) of the Charter. To the extent there was a detention, it could only have been for a matter of seconds. One police officer had barely reached the car, at which point he could already see the drugs. The earliest point in time when the persons detained could have been advised of their rights was at the very same time that they were told they were under arrest. The police were acting in good faith in investigating suspicious activity and were using their best efforts not to overstep their duty to investigate. They could have blocked in the car. They could have drawn weapons. Instead, they merely walked toward the car. The seriousness of any state intrusion on the rights of the accused was at the low end of the spectrum. Further, the impact on the rights of the accused was minimal. If there was a detention, I do not consider it to have been arbitrary, but rather supported by an objectively reasonable suspicion of illegal activity. There was no time to provide the accused with his rights upon detention, because he was placed under arrest simultaneously. Finally, this was a large quantity of heroin. The public interest strongly favours including the evidence and deciding the case on its merits. In my view, after weighing these factors in the balance, if such evidence was excluded in these circumstances based on the police conduct involved here, a right-thinking and informed member of the public would be justifiably appalled.
D. THE ACCUSED IS GUILTY AS CHARGED
[39] The accused did not testify, as is his right.
[40] According to the testimony of D.C. Clayton, he saw Mr. Peck dealing physically with the heroin in the large bags and transferring it into small bags suitable for street level trafficking. If I accept that evidence, Mr. Peck is clearly guilty of possession of heroin for the purpose of trafficking. Only D.C. Clayton saw Mr. Peck actively involved with the heroin packaging. The other two officers were too far away.
[41] The defence urges me to reject the evidence of D.C. Clayton as being wholly unreliable, internally inconsistent, and inconsistent with other evidence.
[42] I found the evidence of D.C. Clayton to be compelling, truthful, and reliable. That is not to say there were no inconsistencies. It would be an extraordinarily rare case for three witnesses to provide the exact same evidence with respect to the details of what happened in a dynamic situation. I will deal with the inconsistencies highlighted by the defence.
The defence pointed to inconsistencies between D.C. Galbraith’s evidence and the evidence of the other officers as to the plan made before approaching the vehicle. I dealt with this point above. I do not consider there to be a material inconsistency. However, even if there was, D.C. Galbraith was more peripherally involved. It was D.C. Clayton who made the initial observations of suspicious activity and Det. Morrow who decided the plan. If anyone was going to initiate contact, it would have been one of those two officers. D.C. Galbraith, on his own evidence, was ten feet to the rear and involved in an officer safety role. To the extent there was any minor difference in their evidence, I accept the evidence of D.C. Clayton and Det. Morrow over that of D.C. Galbraith.
D.C. Clayton said that one of the men was sitting on the floor where the second-row bench seat would have been, and the other man (Mr. Peck) was on the third-row bench seat. D.C. Galbraith said they were both sitting on the third-row bench. This is an immaterial detail. There are two possible explanations for the difference. First, D.C. Clayton was right next to the van and in a better position to observe, whereas D.C. Galbraith was ten feet away and to the side. Second, D.C. Clayton testified that the man who had been on the floor jumped into the front when he saw D.C. Clayton and appeared to be searching for the car keys. D.C. Clayton attempted to taser him, but the man opened the door, jumped out of the car, and ran. D.C. Galbraith could be mis-remembering the point in time when he saw the raised elevation of the second man, particularly given his vantage point.
At trial, D.C. Clayton testified that he saw both men with their hands into the larger bags and transferring heroin to the smaller dime bags. In his evidence, D.C. Clayton was shown a photograph of a number of items on the floor of the van which he had taken after Mr. Peck’s arrest. He identified one of those items as a “make-shift spoon”, which was used to transfer drugs into the dime bags. In cross-examination, D.C. Clayton disagreed with the suggestion put to him by defence counsel that he did not see Mr. Peck touch any of the bags. He was then taken to the transcript of his cross-examination at the preliminary hearing and the following statement was put to him: “They’re using like a small little spoon, from what I can remember.” [18] Defence counsel did not put to him the remaining part of his answer that directly followed that statement which was, “That was, just, again, a quick observation.” [19] The preliminary hearing transcript was filed as part of the applicant’s materials on the application. At no point at trial or at the preliminary hearing did D.C. Clayton say anything inconsistent with respect to Mr. Peck having his hands in the large bag of heroin and transferring heroin from the large bag to the small bag. When this first excerpt was put to the officer in cross-examination at trial, he said that it was not his memory now that they were using a spoon to transfer the drugs, but he said he was not sure. If this is an inconsistency at all, it is a minor one. D.C. Clayton was clear that Mr. Peck was actively involved in the re-packaging of the drugs and was handling the bags of heroin. Given the brief moment he had to observe this, I do not consider it to be important to his reliability or credibility if he is unsure whether Mr. Peck was using only his hands or also the tiny white spoon found on the floor of the van.
When originally shown the photograph he took (which was marked as Exhibit 1 at trial), D.C. Clayton said it accurately depicted what he saw through the window at the time of the arrest and that he did not touch any of the bags containing the heroin or the two digital scales before taking the picture. D.C. Clayton also seized a white plastic bag from the front seat of the car, which had other bags of drugs within it. He said he did not touch any of the contents out of concern that there might be fentanyl present. When shown what appeared to be a white plastic bag at the edge of the Exhibit 1 photograph, he said he was not sure if that was the bag from the front seat. At the preliminary hearing, he testified that he did not touch any of the items on the floor, but that he had taken the white plastic bag from the front seat and placed it on the floor area in the back seat. When confronted with this apparent discrepancy at trial, D.C. Clayton again said that he is not sure today if he did that, but that he accepted what he said at the preliminary hearing. I do not consider this to be an inconsistency. What is key is that he did not touch any of the items already on the floor (i.e., the two large bags of heroin, the small dime bags, and the two digital scales). Whether he added the white bag containing the other drugs is of no moment. It is at the very edge of the photograph and Mr. Peck is not facing any charges with respect to the contents of that bag. He is charged only with the heroin.
[43] There was one other inconsistency not mentioned by the defence. D.C. Clayton testified that when he observed the van in the hotel parking lot, both men were wearing balaclavas. He said he communicated that to the other two officers over the police radio. Det. Morrow confirmed that was the information he received. However, D.C. Galbraith testified that his recollection was they were wearing masks, which he clarified to mean surgical masks. Nothing was made of this discrepancy at trial, and I agree it is trivial. However, I mention it here for the sake of completeness.
[44] I do not find any of these minor inconsistencies to be significant in my overall assessment of D.C. Clayton’s evidence that he saw the two men, one of them being Mr. Peck, with their hands in the large heroin bags, and transferring the drugs from there to the small baggies. I note that the presence on the floor of the van of two larger bags of heroin, two digital scales, and a quantity of dime bags is corroborative evidence of the repackaging being a joint effort.
[45] Defence counsel also points to the less than thorough search of the van performed by D.C. Clayton as further evidence supporting his position that D.C. Clayton’s testimony should be rejected as unreliable. Again, I do not accept that position. I agree that a more careful search could have been done and also that D.C. Clayton could have been more careful about labeling the evidence bags in which he placed the drugs for transport to the police station. Defence counsel noted that the two balaclavas described by D.C. Clayton were not found. That may be attributable to the less than thorough search, or it may be that the driver of the car who escaped the scene had them on his person. D.C. Clayton also did not photograph the entire van and its contents. He did not seize the small white spoon.
[46] In a perfect world, a better search would have been done and more extensive photographs would have been taken. However, my function is not to grade D.C. Clayton on his performance as a Scenes of Crime Officer. The question is whether his evidence is reliable and credible as to his observations of Mr. Peck handling the drugs while in the back seat of the van. I find that it is both. I am satisfied beyond a reasonable doubt that D.C. Clayton made the observations he described in his evidence.
[47] Defence counsel would not concede the continuity of the exhibits seized by D.C. Clayton. Because these three officers were with the Peel Regional Police and the arrest was made within the geographical boundaries of the Toronto Police Service (TPS), Mr. Peck was transferred to them for booking, as were the drugs seized. Based on the testimony of the officers from the TPS who were called to testify, I am fully satisfied that the heroin and scales seized by D.C. Clayton from the floor of the van were properly transferred, identified, and logged into the property locker system at 23 Division of the TPS. The defence did concede that these substances were duly tested and were confirmed to be heroin. The total weight was approximately 105 grams, which is conceded to be consistent with possession for the purpose of trafficking.
[48] The defence argues that the Crown has failed to prove that Mr. Peck had control of the heroin on the floor of the back seat of the van. He made much of the fact that Mr. Peck was not the driver, and that the driver had fled the scene, leaving his property behind. There were other drugs seized in the car, with personal items belonging to an individual named Kevin Wilson, with an address of 104 Lexington Avenue. The Sierra van was registered to an individual with the same surname, who also resided at 104 Lexington Avenue. This means nothing. It was known that there was a second person in the car, and Mr. Peck was never said to be the driver. Defence counsel argues that Mr. Peck’s mere presence in a vehicle where there are drugs is not sufficient to place him in control of those drugs. That is a correct proposition of law, but an incorrect characterization of the facts. The defence relies on the decision of R. v. Ali which is readily distinguishable on its facts and of no assistance on this point. [20] In this case, the Sierra van was parked at the school for close to 45 minutes. A very large quantity of drugs in open bags and two digital scales were on the floor right in front of where Mr. Peck was seated. Those drugs were in the process of being packaged into smaller dime bags for sale. That would be sufficient to find that Mr. Peck was in possession of those drugs. However, there is more in this case. Based on the evidence of D.C. Clayton, which I accept, Mr. Peck was actively involved himself in this repackaging exercise.
[49] Accordingly, I find Mr. Peck guilty of the sole count on the indictment – possession of heroin for the purposes of trafficking.