2013 QCCA 471, 2013 QCCA 471

R. c. Polat 2013 QCCA 471 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-005041-114 (500-01-042748-100) PROCÈS-VERBAL D'AUDIENCE DATE: 11 mars 2013 CORAM: LES HONORABLES JACQUES CHAMBERLAND, J.C.A. ALLAN R. HILTON, J.C.A. JACQUES J. LEVESQUE, J.C.A. APPELANTE AVOCAT SA MAJESTÉ LA REINE Me Dennis Galiatsatos Directeur aux poursuites criminelles et pénales INTIMÉ AVOCATE ALI POLAT Me Sonia Mastro Matteo Larouche & Associés, Avocats En appel d'un verdict d'acquittement prononcé le 10 novembre 2011 par l'honorable Isabelle Rheault de la Cour du Québec, district de Montréal.

NATURE DE L'APPEL : Acquittement – Trafic de stupéfiants Greffière: Catherine Dufour Salle: LOUIS-H.-LAFONTAINE AUDITION 9h30 : Début de l'audience. 9h30 : Argumentation par Me Galiatsatos. 9h49 : Argumentation par Me Mastro Matteo. 10h13 : Réplique par Me Galiatsatos. 10h15 : Suspension de la séance. 10h19 : Reprise de la séance. 10h20 : PAR LA COUR : Arrêt – Voir page 3.

Catherine Dufour Greffière PAR LA COUR ARRÊT [ 1 ] The Crown appeals the judgment pronounced by the Court of Quebec (the Honourable Isabelle Rheault, J.C.Q.) on November 10, 2011 acquitting the respondent Ali Polat of the following counts in an indictment: 1. On or about July 9, 2010, did have in his possession for the purposes of trafficking Heroin, committing thereby the indictable offence provided by section 5(2)(3)(

a) of the Controlled Drug and Substances Act. 2. On or about July 9, 2010, did have in his possession for the purposes of trafficking Cocaine, committing thereby the indictable offence provided by section 5(2)(3)(

a) of the Controlled Drug and Substances Act. [ 2 ] At the close of the Crown's case, but prior to Mr. Polat testifying in his own defence, his counsel presented a motion for non-suit arguing that the Crown had not led sufficient evidence to warrant a conviction.

[ 3 ] In the course of her judgment dismissing his motion, the trial judge observed that the record contained sufficient prima facie evidence from which one could infer the necessary components of the offences. In particular, she concluded that Mr.

Polat was in fact using the fictitious name "Adam" while controlling the activity of a person carrying out deliveries who had been arrested with heroin and cocaine on his person, and that his knowledge of the nature of the substances could be inferred from the use of well-known coded language used in the milieu to describe drugs. [ 4 ] After the dismissal of the motion for non-suit, the only additional testimony came from Mr. Polat.

The trial judge found his explanation of his implication in the events under review to be unworthy of belief. [ 5 ] The essential basis of the subsequent acquittal was that the trial judge considered the testimony of one of the police officers involved in the events giving rise to the charges, Iad Hanna, while credible, was not reliable, since some aspects of his testimony were given from memory and not reflected in his notes, and that he acknowledged there were many things he did not really remember. [ 6 ] The trial judge considered that the essence of the incriminating evidence against Mr.

Polat came from Officer Hanna. She held that the inferences to be drawn from the circumstantial evidence did not allow her to conclude that Mr. Polat was aware of the nature of the controlled substances in questions. Since the Crown had not met its burden to prove the guilt of the accused beyond a reasonable doubt, the trial judge acquitted him. [ 7 ] The Crown's appeal raises the following question of law alone, as required by paragraph 676(1)(

a) Cr.C .: Did the trial judge err in her assessment of the evidence by failing to consider all of it as a whole? [ 8 ] The Crown asserts that the trial judge based her decision to acquit on what she perceived to be deficiencies in the testimony of Officer Hanna, without having considered all of the evidence before her, and in particular whether the facts about which Officer Hanna testified that she found unreliable were established through other evidence.

That evidence includes not only the testimony of another police officer significantly involved in the events in issue, Stéphane Lemieux, but also that of Mario Morales, the lessor of an apartment at 2825 [Street A] where Mr. Polat lived, and the testimony of Mr. Polat himself, during which he made admissions against interest. [ 9 ] At the outset, it is clear that the Crown's appeal properly raises a question of law. In R. v.

J.M.H ., [1] the Supreme Court of Canada recognized that "[…] it is an error of law for a trial judge to assess the evidence piecemeal […]". [2] In that case, however, the Court found that the trial judge had not done so when he acquitted an accused of two counts of sexual assault "[A]fter summarizing virtually all of the evidence[…]" [3] and having concluded that “[i]n all of the circumstances of this case, notwithstanding that I do not believe the accused, notwithstanding that I am satisfied that sexual intercourse did occur on both of these occasions, I cannot be satisfied that [the complainant] was sexually assaulted without her consent”. [4] [ 10 ] A brief review of the facts in this case shows, however, that unlike the trial judge in J.M.H ., the trial judge in this case did not consider all of the evidence as a whole.

As a result, the Crown has succeeded in establishing an error of law justifying this Court's intervention. [ 11 ] On July 9, 2010, two plain-clothes police officers, including Officer Lemieux, witnessed someone with a bicycle steal a basket of cherries from an outdoor stand and pursued him in their unmarked car until he was arrested. That individual was identified as Maxime Tremblay. He had on his person cash, a slip of paper with some accounting records on it, a cell phone and drugs in several small Ziploc bags that were themselves contained in a larger bag.

The drugs were later found to consist of 4.3 grams of heroin and 2.75 grams of cocaine. [ 12 ] While being taken to the police station and after his arrival there, Mr. Tremblay's cell phone rang a number of times. Officer Lemieux answered on three occasions, and he testified that the callers complained that Mr. Tremblay had not yet shown up at their residences while insisting that he do so soon. The cell phone was subsequently given to Officer Hanna, who was tasked to carry out further investigation. [ 13 ] Upon his being handed the cell phone, it soon began to ring again.

When Officer Hanna answered it, the caller asked who he was, and he identified himself with the fictitious name "Martin". The caller identified himself as Adam, "le boss", and asked where Mr. Tremblay was, saying that he wanted to collect his things. When asked what things, Adam replied everything. During the same conversation, Adam specified that meant "tout, tout", including "le cellulaire, l'argent et les affaires". Adam then asked if Martin and Mr. Tremblay were at the residence of Jérémie, and upon receiving an affirmative answer, he said he would meet them there in 10 minutes.

Officer Hanna succeeded in surreptitiously obtaining Jérémie's address as being at 2524 [Street B], after which he requested Officer Lemieux and his plain-clothes partner to go there, which they did, arriving at around 9:00pm. [ 14 ] Officer Lemieux disembarked from his unmarked police car, and testified that he observed a Cadillac CTS in which three men were seated arrive at around 9:24pm. The person we now know is Mr. Polat was sitting in the front passenger seat, and all three men exited the vehicle. Officer Lemieux observed Mr.

Polat make a telephone call, whereupon Officer Hanna contacted him on the police radio system to say that Mr. Tremblay's phone, which he still had in his possession, was ringing. The same scenario would have occurred a number of times. [ 15 ] Mr. Polat and the two individuals accompanying him then re-entered the Cadillac and headed to 2207 [Street C], the residential address of Mr. Tremblay that he had given the police when he was arrested. Officer Lemieux and his partner as well as Officer Hanna followed them in their respective vehicles. The three occupants of the Cadillac again exited their car.

Officer Lemieux observed Mr. Polat approaching the door of 2207 [Street C] along with the two others. One of them knocked on the door, which generated no response. They then returned to the Cadillac. Mr. Polat and one of the other men, Omar, who we now know was someone with whom Mr. Polat had been arrested earlier that year for drug trafficking, set off on foot in different directions, while the third man re-entered the Cadillac and drove away.

Officer Lemieux and his partner followed the individual in the car, and acting on Officer Hanna's orders, the Cadillac was soon stopped by other police officers. [ 16 ] Meanwhile, at 9:44pm Officer Hanna received another phone call from Adam on Mr. Tremblay's cell phone. He told Adam that

he and Mr. Tremblay were at a fast-food restaurant, and that he would meet him there. Officer Hanna also asked Officer Lemieux and his partner to go to the restaurant in question and to locate Adam. After they arrived there at 9:50pm, Mr. Polat turned up in a taxi, and promptly placed a telephone call. At the same time, Mr. Tremblay's cell phone rang, whereupon Officer Hanna ordered Officer Lemieux and his partner to arrest Mr. Polat. [ 17 ] When searched, Mr. Polat was found to have $50 cash, a cell phone and a receipt in the name of Adam Shani. Officer Hanna pressed the redial button on Mr.

Polat's cell phone, whereupon Mr. Tremblay's cell phone rang. [ 18 ] Officer Hanna later searched the Cadillac in which Mr. Polat had been seen in the front passenger seat. Cash in the amount of $735 was found where he had been seated. [ 19 ] Mario Morales testified that he had rented an apartment to Adam Shani, whom he identified as Mr. Polat from the witness box. [ 20 ] During his testimony, Mr. Polat admitted that he had been arrested in March of 2010 for trafficking cocaine and marijuana, and that he had done so at the initiative of Omar, with whom he had been arrested on that occasion.

After that arrest, he says he broke off contact with Omar, but did meet up with him on the evening of July 9, at which time he claimed Omar asked him to help him retrieve a cell phone and some cash from someone whom Omar could not contact, although Omar gave him no reason why he could not make that contact himself. [ 21 ] The incredulity of Mr. Polat's account is accentuated by his testimony that Omar told him that the person who would be responding on the cell phone he was meant to recover was named Martin, the same fictitious name that Officer Hanna used when answering Mr. Tremblay's cell phone.

He also claimed to be unaware exactly how much money he was meant to collect for Omar. [ 22 ] Despite the implausibility of the explanation he provided as to why the events in question occurred that evening, Mr. Polat's testimony established without doubt that: • He did travel to the two addresses on [Street B] and [Street C], that is, the respective residences of Jérémie and Mr. Tremblay; • He made several phone calls to Mr.

Tremblay's cell phone that evening; • He was arrested at the fast-food restaurant to which he had been directed by Officer Hanna; • He acknowledged that Adam Shani was his fake name; • He acknowledged that if indeed Omar had asked him to pick up money, it was likely the product of drug trafficking; • Omar was one of the two other persons who accompanied him that evening, despite Omar's supposed inability to pick up money and a cell phone from Mr. Tremblay; • Despite the fact the cell phone he was using supposedly belonged to Omar, he did not return it to him when they separated that evening after leaving Mr.

Tremblay's residence on [Street C]. [ 23 ] It is also particularly significant that during his testimony, Mr. Polat never denied the substance or tenor of his telephone conversations with Office Hanna, posing as Martin, that Officer Hanna described when he testified, which is set out in paragraph [13] above. [ 24 ] The trial judge identified the following elements that she considered made the testimony of Officer Hanna unreliable: 1) When he took the accused's cell phone and pressed the redial button, thus generating Mr.

Tremblay's telephone number, he had not verified the number beforehand, and could not say whether it had been called more than once; 2) He had verified the address of Mr. Tremblay at 2207 [Street C], but is not sure if that is the address of the door at which the accused knocked, and he did not write about this in his notes; 3) When Mr.

Tremblay's cell phone rang after the Cadillac arrived at 2524 [Street B], it rang several times, but could not say if the calls were from Polat because the caller was identified as "unknown". [ 25 ] These supposed deficiencies are amply covered by the testimony of Officer Lemieux and Mr. Polat's statements against interest in his testimony, of which the trial judge made no mention in reaching her conclusion that there was a reasonable doubt as to his guilt. Moreover, her conclusion contradicts what she determined in dismissing Mr.

Polat's motion to dismiss to the extent that she held earlier, based on exactly the same evidence, that there was significant circumstantial evidence establishing concomitance between Mr. Polat dialing his cell phone and the ringing of Mr. Tremblay's cell phone, which Officer Hanna had in his possession. [ 26 ] In any event, there is no doubt, let alone a reasonable one, that Mr. Polat was incessantly telephoning Mr.

Tremblay's cell phone, which is a critical feature of the evidence that the trial judge obscured because of her perception that the testimony of Officer Hanna was unreliable. [ 27 ] The Crown is therefore correct in its assessment that the trial judge's analysis was the result of a piecemeal approach that was limited to identifying perceived deficiencies in the testimony of Officer Hanna, without taking any account of the corroborative testimony of Officer Lemieux, the admissions against interest of Mr.

Polat, the content of his conversations with Officer Hanna, which he never denied, and the nature of the illicit substances found on Mr. Tremblay when he was arrested. It is apparent that all of the evidence was not considered in relation to the ultimate issue, which amounts to an error of law justifying appellate intervention. [ 28 ] The next issue is the relief that the Court should grant. The Crown contends that the Court should not only allow the appeal and set aside the verdicts of acquittal, but substitute verdicts of conviction on the two counts and proceed to impose a sentence.

[ 29 ] Three possibilities are open pursuant to paragraph 686(4)(

b) Cr.C . upon a Crown appeal being allowed from a verdict of acquittal of an indictable offence tried before a judge alone: • order a new trial; • substitute a verdict of guilty and impose a sentence warranted by law; • substitute a verdict of guilty, remit the matter to the trial court and direct it to impose a sentence warranted by law. [ 30 ] The record before the Court does not raise a reasonable doubt as to Mr. Polat's guilt of the offences with which he was charged. He was clearly acting as a directing force behind the activities of Mr.

Tremblay, who evidently was engaged in the delivery of the substances that were found on him, heroin and cocaine, to purchasers who were calling him on his cell phone to hasten the delivery of the drugs he was carrying when he was arrested. Mr. Polat described himself as Mr. Tremblay's "boss" when speaking to Officer Hanna, and as the trial judge found in her judgment dismissing the motion for non-suit, he spoke in an aggressive and intimidating manner about the recovery of what Mr. Tremblay had on him, which we know to be heroin and cocaine. [ 31 ] Mr.

Polat's testimony served to corroborate the Crown's case in several important respects and weaken his position by the assertion of a wholly implausible defence. [ 32 ] The proper order should therefore be for the Court to substitute verdicts of conviction of the two offences charged, and conditionally stay the second count based on the rule against multiple convictions arising out of the same transaction. [5] [ 33 ] The Court does not, however, have adequate information that would allow it to impose a sentence at this stage of the proceedings, nor is it equipped to have the kind of sentencing hearing that is a daily occurrence in the Court of Quebec.

In the circumstances it is preferable to remit the matter to that court for the sentencing of Mr. Polat. [6] FOR THESE REASONS, THE COURT : [ 34 ] ALLOWS the appeal; [ 35 ] SETS ASIDE the verdicts of acquittal pronounced by the Court of Quebec; [ 36 ] SUBSTITUTES verdicts of conviction on the two counts in the indictment; [ 37 ] CONDITIONALLY STAYS the conviction on the second count in accordance with the rule against multiple convictions arising out of the same transaction; [ 38 ] RETURNS the file to the Court of Quebec for the sentencing of the respondent. JACQUES CHAMBERLAND, J.C.A. ALLAN R. HILTON, J.C.A.

JACQUES J. LEVESQUE, J.C.A.