HER MAJESTY THE QUEEN, v. TARA HAMILTON., 2013 NBPC 28

2013 NBPC 28 File No.: 6949002 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- TARA HAMILTON. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF DECISION: December 16, 2013 APPEARANCES: Jill Knee on behalf of Her Majesty the Queen W. Rodney MacDonald on behalf of the Accused

Ruling on the Charter Voir Dire M.R. CLOUTIER PROV. CT J. : I Introduction [ 1 ] Tara Hamilton, (“the Accused”), is charged with two counts; Count 1 is for the possession of cocaine for the purpose of trafficking, and Count 2 is for the possession of hydromorphone (Percocet) for the purpose of trafficking, each contrary to s. 5(3)(

a) of the Controlled Drugs and Substances Act, and one count of possession of proceeds of crime contrary to s. 354(1) (

a) of the Criminal Code . All three offences are alleged to have occurred in Saint John, New Brunswick on January 3, 2013. [ 2 ] The Crown presented three witnesses at trial: Cst. Kimball, Cst. Acker and Cst. Roy. I accept their respective evidence in its totality and I qualify it as being credible and reliable. Each testified in a straight forward manner and their accounts were not undermined. In particular, I find that Cst.

Kimball, much like the other witnesses, was forthright and unshaken in his evidence. [ 3 ] The Defence called no evidence on the Charter voir dire or the trial proper. [ 4 ] At trial, the Defence consented to Sgt. Michael McCaig’s report dated May 25, 2013 being admitted into evidence without the need to call him as a witness.

Similarly, the Certificates of Analysis, dated April 22, 2013 and May 26, 2013 respectively, which evidenced that the drugs seized and analyzed were crack cocaine and Oxycotin, were also admitted into evidence by consent. [ 5 ] The proceedings were conducted as a blended trial and Charter voir dire . II Issues [ 6 ] On August 8, 2013, the Defence filed a Notice of Application (“Application”) seeking the exclusion of the evidence pursuant to s. 24(2) of the Charter .

The grounds in support of the Application are that: (1) the arrest of the Accused was unlawful and in violation of s. 9 of the Charter; and, (2) the warrantless search of the Accused and of the vehicle she operated were both unlawful and each were contrary to s. 8 of the Charter . [ 7 ] The items which the Defence seeks to have excluded from the evidence comprise of three mobile phones, one pill presser, fifteen Percocet pills, one Cerax pill, a pill bottle containing crack cocaine and $885.00 Canadian Currency (“the items found in the search”). III Facts

[ 8 ] The facts are not largely in dispute. [ 9 ] In my view, there were no significant or substantive credibility issues or inconsistencies which arose out of the testimonies of the officers that touched on the issues to be decided. [ 10 ] Cst.

Kimball testified that, over the month preceding the arrest of the Accused, the Saint John Police Force, Street Crime Unit Department (“Street Crime Unit”), received information from a coded informant, proven to be reliable during the last five years and having led to multiple arrests, that a female named “Tara” was selling crack cocaine and Percocet pills in Saint John, New Brunswick. She was described as being approximately 25 years old and driving a gold colored Toyota Corolla, without any hubcaps, and bearing NB Licence Plate No. GBY 630 (“the Toyota vehicle”).

Often she was accompanied by a known prostitute, Tracy McKenney. [ 11 ] Cst. Kimball has been a member of the Street Crime Unit since 2008. He has had training in drug investigation techniques, human sources, undercover operations, jargon and modes of drug trafficking. He also has extensive experience in all aspects of drug investigations including surveillance, undercover work and acting as lead investigator. Cst. Kimball coordinated some 70 drug investigations which led to arrests.

He also acted as an undercover officer for at least 50 operations. [ 12 ] On January 3, 2013, while on patrol in the uptown area, Cst. Kimball spotted the Toyota vehicle identified by its plate number. Aboard was a female driver and one other occupant later identified as Tracy McKenney. Cst. Kimball therefore set up surveillance with other members of the Street Crime Unit, namely, Csts. Wilson, Acker and Haines. Unmarked police vehicles were involved. [ 13 ] Cst. Kimball and Cst.

Acker both testified as to the observations made during the course of surveillance on January 3, 2013 which began at approximately 9:30 p.m. It included the following stops: first stop

a) The Toyota vehicle stops near Sand Cove Road where a male quickly steps into the backseat. He exits within one minute and the Accused drives away in the Toyota vehicle; second stop

b) The Toyota vehicle proceeds to Charlotte Street where both the female operator and a female passenger, later identified as Ms. MacKenney, enter two separate buildings for a very short period of time. They then enter 167 Charlotte Street, which Cst. Kimball identifies as a known drug house, for approximately eight minutes before leaving in the Toyota vehicle; third stop

c) The Toyota vehicle then proceeds to Fort Howe Hotel parking lot where a black vehicle pulls in as well. The female operator of the Toyota vehicle attends the passenger side of the black vehicle for less than two minutes. She then returns to her vehicle. Both vehicles leave the scene; and fourth stop

d) Finally, the Toyota vehicle attends at Westmorland Road, behind a building, for about two minutes. The Toyota vehicle is still running with the lights on. It is dark so both officers cannot see anything although they observe some movement. [ 14 ] Cst. Kimball, who was coordinating the operation, testified that, immediately after observing the fourth stop, he had determined that he had reasonable and probable grounds to believe that the Accused was trafficking in drugs. He advised the rest of the surveillance team accordingly and directed Cst. Acker to proceed with an arrest. He pointed out the following factors in this respect:

1) He had information from a coded human source, proven reliable, with whom he had been working with for close to five years; 2) The source had led to multiple arrests; 3) The source had provided very specific information: a. Who: a female named “Tara”; b. Selling what: crack cocaine and Percocet; c. Where: in Saint John, NB; d. Description (of accused): approximately 25 years old; e. Vehicle description: a gold colored Toyota Corolla, without any hubcaps, and bearing NB Licence Plate No. GBY 630; f.

Other information: often accompanied by a known prostitute, Tracy McKenney. 4) The behavior exhibited by the Accused throughout the course of surveillance, despite no evidence of hand to hand transaction, was consistent with someone trafficking in drugs, namely, because of the visits of short duration including one at a location known as a drug house on Charlotte Street, meetings of short duration with an individual in her vehicle and with another one at the window of his vehicle, and relying mainly on what he observed during the first and third stops.

He had also made observations of behavior of this nature in the past and, based on his experience and training, he believed it was consistent with drug trafficking; 5) The information provided by the source was fully corroborated by what was observed on surveillance, particularly with respect to the type of vehicle including its noticeable features, namely the Toyota Corolla without any hubcaps, operated by a female approximately 25 years old accompanied by a passenger known as a prostitute along with the licence plate observed matching the information conveyed by the source.

Again, on the issue of corroboration, he also observed the female operator of the Toyota vehicle and her passenger attending a known drug house on Charlotte Street. [ 15 ] The Accused was arrested, without a warrant, by Cst. Acker at 77 Russell Street, Saint John, New Brunswick which turned out to be her home address. She was read her Charter rights, including the right to counsel and caution. Unbeknownst to the officers, the passenger, Tracy McKenney, was no longer in the vehicle. [ 16 ] Cst.

Kimball performed a search, incident to the Accused’s arrest, of the contents of the Toyota vehicle including her purse, and located three mobile phones, one pill presser, fifteen Percocet pills, one Cerax pill and $885.00 Canadian Currency. Likewise, while en route to the police station, a pill bottle containing crack cocaine was seized by Cst. Roy after she heard the sound of plastic falling on the floor from the Accused’s clothing. [ 17 ] On cross-examination, Cst. Acker admitted that, upon her arrest, the Accused had just exited the Toyota vehicle with a small dog in her hands.

She was not carrying any bag, package or purse. [ 18 ] Both Cst. Kimball and Cst. Acker testified that, during surveillance, they did not observe the Accused carrying anything to or from any residence or vehicle. Likewise, they both candidly admitted on cross-examination to never witnessing any hand to hand transaction nor had they formally ascertained, prior to arrest, the identity of the female referred to as “Tara” by the source’s information. IV Analysis [ 19 ] The Accused submits that her detention was in breach of s. 9 of the Charter and that the consequent warrantless search was in breach of s. 8.

Relevant sections of the Charter [ 20 ]

Section 8 of the Charter provides that: “Everyone has the right to be secure against unreasonable search and seizure” while s. 9 provides that: “Everyone has the right not to be arbitrarily detained or imprisoned”.

General principles [21] An accused bears the burden, on a civil standard, of persuading the Court that his or her Charter rights or freedoms have beeninfringed: R. v. Collins, (SCC), [1987] S.C.J. No. 15 at par. 21. [22] Once an accused has established that a search was a warrantless one, the onus then shifts on the Crown to show, on a balance ofprobabilities, that the search was reasonable.

A search will be reasonable if it was authorized by law, if the law itself is reasonable and ifthe manner in which the search was carried out was reasonable: See Collins, supra, at par. 23. [23] Section 495(1) of the Criminal Code provides that any peace officer may arrest without warrant a person who, on reasonablegrounds, he believes has committed or is about to commit an indictable offence. [24] It is trite law that the power to search incident to an arrest is an exception to the ordinary requirements for a reasonable search inthat it requires neither a warrant nor independent reasonable and probable grounds.

Rather, it arises from the fact of the arrest. This isjustifiable because the arrest itself requires reasonable grounds. The legality of the search is thus dependent upon the legality of thearrest. If the arrest is found to be invalid, the search will be found to be invalid as well: R. v. Caslake, (SCC), [1998] 1S.C.R. 51 at par. 13. [25] The requirement for reasonable grounds for arrest has both a subjective and objective aspect. An arresting officer mustsubjectively have reasonable grounds to base the arrest. In addition, those grounds must be justifiable from an objective point of view.

Areasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest.However, the police are not required to establish a prima facie case for conviction for making the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at par. 17. [26] Without the reasonable grounds required by s. 495(1) of the Criminal Code, the Accused argues that the police did not have theauthority to arrest her without a warrant.

In addition, since her arrest would be considered unlawful, the detention could necessarily bearbitrary within the meaning of s. 9 of the Charter on the authority of R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. [27] It has also been repeatedly held that, in order for there to be reasonable grounds for arrest, mere suspicion is not sufficient unlessit rises to the point of credibility-based probability: R. v. Bareuther, [2012] O.J.

No. 5863 at par. 70. [28] The various elements of the conduct of an accused should not be assessed in isolation as to whether they rise to the requiredstandard of probability, but rather, as demonstrated in Storrey, supra, at par. 18, reasonable grounds may be objectively based on thecumulative effect of the observations together with the supporting information in the possession of the police at the time of the arrest. [29] I am also mindful of the comments made by Mr. Justice Richard of the Court of Appeal of New Brunswick in R. v.

Burke,[2011] NBCA 51 at par. 18 with respect to the “totality of the circumstances” approach: In my respectful view, the trial judge’s decision in the present case cannot be upheld against that standard of review. While the judgeidentified the correct legal test, that is “the totality of the circumstances” approach, he made a fatal error in his application of that test. As the Chief Justice pointed out in Goodine, “the genius of the ‘totality of the circumstances’ approach […] lies in the flexibility that itprovides” (para. 28).

This flexibility is such that, in some circumstances, it is permissible to make an arrest solely on the basis of theinformation received from one or more informers, even, in some cases, where the tip is from an anonymous source.

As he explained: [...] [L]ack of corroboration of the “criminal” aspect of a tip by an untested anonymous source does not preclude a finding that an arrestbased on that tip was lawful, at least where the following circumstances are in play: (1) there is no evidence that an improper motiveunderlies the tipster’s report; (2) the corroborated “neutral” data would lead a reasonable and dispassionate observer to infer that thetipster is both closely acquainted with the target and privy to the criminal activity being reported; and (3) that observer would be at a lossto point to any fact-based, as opposed to speculative, justification for the conclusion that the allegation of criminal conduct is unreliable.In my view, the issue for trial judges is always whether, having regard to the totality of the circumstances, sufficient grounds existed tolawfully carry out the arrest.

In other words, there is no hard and fast rule; what is required is a case-specific determination that reflectsan assessment of the totality of the circumstances apparent to the arresting officers at the time they took action. [para. 20] (Underline mine) [30] The Supreme Court of Canada also addressed the “totality of the circumstances” approach in Debot, (SCC),[1989] 2 SCR 1140: At least three concerns must be addressed in weighing whether or not the evidence relied on by the police justified a warrantless search. First, was the information predicting the commission of a criminal offence compelling?

Second, where a "tip" originating from a sourceoutside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making thedecision to conduct the search? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meetthe standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

(Underline mine) [31] Equally important, in Debot, supra, the Supreme Court informs us that an officer who decides that a suspect should be searchedis the person who must have reasonable and probable grounds for believing the suspect is committing an offence. That officer may ormay not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered thesearch had reasonable and probable grounds for doing so. Case law – “No Observation of Hand to Hand Transactions” [32] In R. v. Caravaggio, [2012] O.J. No. 1618 (Ont.

C.A.), the arresting officer had received information from an unnamed reliableinformant that the accused was selling drugs from his vehicle. The officer subsequently observed a male person leaning though thewindow of the accused’s car in an alley near a café known for drug dealing. The Court of Appeal held that, although the officer couldnot say that he observed a drug transaction between the accused and the other man, their interaction was suspicious and at leastconsistent with a drug transaction.

When combined with the information from the confidential informant and the officer's observations ofthe accused's vehicle and its location, the court held that there was sufficient basis for a finding that the officer had reasonable andprobable grounds for the arrest. [33] Most importantly, in Caravaggio, supra, the Court of Appeal of Ontario noted that although the officer was not sure that a drugtransaction was going on, when coupled with information from the informant about the accused selling drugs from his vehicle,reasonable and probable grounds existed. [34] Likewise, in R. v. Garner, [2013] O.J.

NO. 323 (Q.L.), surveillance conducted by the officers identified conduct of the accusedwhich was consistent with trafficking. However, no actual deals or hand to hand transactions were seen. The accused was arrested and, ina search incidental to arrest, four grams of drugs plus $1,010.00 in cash were found. The court held that the arrest and search of theaccused was lawful. This was not a case in which police acted on mere supposition or an unsupported hunch.

The fact that the policebelieved, based on the information received from the confidential informant, that Garner was involved in the drug trade, and set out toobtain evidence through a surveillance operation to support an arrest and subsequent prosecution did not undermine the reasonableness ofthe grounds for the arrest following the surveillance.

The fact that Garner's conduct in attending various locations for short durations wasconsistent with lawful activity did not exclude the possibility that it was also consistent with involvement in drug transactions. [35] There are many cases where the court has held that an officer had reasonable and probable grounds to arrest someone without awarrant based on his observations as an experienced drug officer. [36] For example, in R. v. Hanson, [2009] O.J. No. 4152 (SCJ), Garton J. found that an officer's observations were enough to satisfythe subjective and objective test for arrest.

The officer observed a man making a flicking motion on the palm of his hand with his indexfinger as though he were moving "little articles" and also observed two other males who stood nearby observing the man's palm. Incoming to the conclusion that the arrest was reasonable, at par. 55, Garton J. considered R. v. Golub (1997), (ONCA), 117 C.C.C. (3d) 193 (Ont.

C.A.) (at par. 18), where the court pointed out that information that would not meet the reasonablenessstandard on an application for a search warrant may still meet the standard in the context of an arrest because of volatile and rapidlychanging situations. [37] To recap, the totality of the circumstances considered by Garton J. in Hanson, supra, included: the extensive experience of theofficer, the actions of the person observed, that the officer only had one or two seconds to make his observations, that the personobserved clearly had something in the palm of his hand that he was moving, that the other two males appeared to be looking at what theperson was holding, that the officer had seen a similar flicking motion hundreds of times in connection with the purchase and sale ofcrack cocaine, and that the three males were not standing entirely out in the open.

Applying the law to this matter [38] On closing arguments, the Defence particularized its Application. It argues that the officers had received source informationregarding a female named “Tara”, yet, they made no attempt prior to arrest to formally ascertain her identity. The Defence also arguesthat the two stops mainly relied upon by the officers as grounds for arrest, namely the first and third ones, fall short of evidence of drugtrafficking in the absence of any hand to hand transaction observed. These are attractive arguments.

However, as will be seen, they haveimportant flaws. [39] First, and foremost, it is axiomatic that criminals involved in illegal activity may be expected to conceal their illegal conduct andto seek to have their activities perceived as innocuous. [40] That the Accused's conduct observed during the surveillance was consistent with lawful activity, especially because it did notreveal any hand to hand deals or transactions, does not, in my view, exclude the possibility that it may also be consistent withinvolvement in drug transactions.

[41] Cst. Kimball testified that, based on his experience and training, the Accused's behavior in attending at various locations for shortdurations was consistent with involvement in drug transactions. In my opinion, this was a reasonable conclusion to draw, when supportedby the information he had from his confidential source, and by the fact one of the locations the Accused visited, namely on CharlotteStreet, was known as a drug house. [42] This was not a case of the officers acting on mere supposition or on an unsupported hunch that the female referred to as “Tara”was involved in drug trafficking.

On the contrary, it was a decision to arrest based upon the cumulative effect of information within thepossession of Cst. Kimball coupled with his observations of “Tara’s” conduct while under surveillance. [43] The facts of this case can also be distinguished from the very singular ones in R. v. Powell, [2013] ONSC 4169 wherethe police had only observed the accused making two stops the day of his arrest. However, in the instant case, Cst.

Kimball and hissurveillance team had observed the Accused making a total of four stops prior to her arrest, including one on Charlotte Street at alocation known as a drug house. [44] Likewise, in Powell, supra, the arresting officers had previously arrested the accused based on information provided by the sameuntested confidential information and that search had revealed nothing of significance and no charges were laid. This, of course, tendedto negate the reliability of the same confidential information that was in the hands of the officers when they subsequently arrested theaccused.

Again, and by contrast, in the instant case, the confidential information that was in the hands of Cst. Kimball was that of acoded source proven reliable for close to five years prior to the Accused’s arrest. [45] The next issue raised by the Defence is whether the officers, in particular Cst. Kimball, had reasonable and probable grounds tobelieve that the female they arrested was the “Tara” they were looking for.

In my view, “Tara” was of such unique description;approximately 25 years old, driving a Toyota Corolla without any hubcaps, bearing a specific plate number and often traveling with aknown prostitute, that she could not be missed. Moreover, in applying the “totality of the circumstances” approach, it is significant thatthe Accused, who perfectly matched the description provided by the proven reliable source, was also observed attending a known drughouse on Charlotte Street. [46] At any rate, I find that the description given to Cst.

Kimball by his source was sufficiently detailed and sufficiently specific andthat the Accused did fit that description to such a degree as to "meet the standard of reasonableness", to borrow the language in DeBot,supra. [47] While it is arguable that the officers could have extended the surveillance to make more observations, or perhaps initiated someother investigative measures to gather more evidence before proceeding with the arrest; for example, by formally ascertaining “Tara’s”identity or determine who was the registered owner of the Toyota vehicle, that is not the test.

Assuming those investigative means wereavailable and possibly fruitful, the issue is not whether the police had perfected their case against “Tara” before arresting her, butwhether "the totality of the circumstances" meets the standard of reasonable and probable grounds. Clearly, it is not enough to argue thatsomeone else might have conducted more surveillance before proceeding with an arrest.

The question is whether an officer hadreasonable grounds, viewed both subjectively and objectively, based upon the information he had at that time, to justify the arrest. [48] In my opinion, the approach submitted by the Defence, which I reject, seeks to isolate the individual observations made by thepolice for scrutiny. It also fails to give sufficient weight to the cumulative effect of those observations when viewed within the context ofthe information provided by Cst. Kimball’s source.

As well, it appears that the Defence seeks to effectively call for the imposition of astandard of a prima facie case for conviction which, as indicated in Storrey, supra, is not required. V RULING ON THE CHARTER VOIR DIRE [49] In the result, I am satisfied that the totality of the evidence in the circumstances supports a finding that Cst. Kimball hadreasonable grounds, attaining the point of credibility-based probability, to arrest the Accused. Therefore, in my view, there was no breachof s. 9 of the Charter.

The warrantless search being incident to the valid arrest, it follows that there was no breach of s. 8 of the Charter.Moreover, there was no suggestion that the manner in which the search was carried out was unreasonable. The Charter Application isaccordingly dismissed. [50] Consequently, the items found in the search will be admitted into evidence. Dated at Saint John, New Brunswick, this 16th day of December 2013. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court