)) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 2468

CITATION : R. v. JERRON ALEXANDER, 2010 ONSC 2468 COURT FILE NO.: 0950000295-0000 DATE: 20100426 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – JERRON ALEXANDER Applicant\Accused )) )) )) )) ) ) A. Rourke, for the Crown A. Forbes, for the Applicant \Accused HEARD: April 19, 20, 21, 2010 Harvison Young J. REASONS FOR DECISION (DELIVERED ORALLY) Overview [ 1 ] Mr.

Alexander stands charged with one count of possession of cocaine for the purpose of trafficking, possession of the proceeds of crime, and a number of other counts (including assaulting a police officer and escaping lawful custody). He brings an application to have the evidence of cocaine and cash found excluded on the basis that his rights pursuant to ss. 8 & 9 of the Charter were violated and that the evidence should not be admitted pursuant to s. 24(2). The hearing proceeded by way of blended voir dire .

I will address the Charter application first. [ 2 ] The facts giving rise to this matter may be briefly outlined by way of overview. On August 1, 2007, Jerron Alexander was stopped by Officer Tim Barnhardt for what the officer testified was a failure to indicate a lane change on Trethewey Drive in west-end Toronto. This, like most of the facts surrounding this incident, is in dispute. Mr. Alexander denied making such an illegal lane change and testified that after he was stopped, Officer Barnhardt told him he had stopped him because he was “driving too cautiously”. Shortly after stopping Mr.

Alexander and after receiving the results of a CPIC check, Officer Gladu, who was in the area, arrived on the scene as well. Within about five minutes, Officer Gladu discovered a baggie with what turned out to be 27.2 grams of crack cocaine in the Applicant’s car. When he tried to arrest Mr. Alexander, Mr. Alexander wriggled free and a chase ensued, during which the Applicant allegedly assaulted Officer Gladu with a board he tore off a fence, and during which Officer Gladu pursued the Applicant over a number of fences and through a number of backyards in a residential area.

At one point, the Accused attempted to hide $1070 in cash in a flower bed. While his reasons for doing so are in dispute, it is admitted that he had the cash on his person and that he did hide it in the course of the chase. The Applicant ultimately did get away, and remained at large until he was picked up on unrelated matters almost one year later. [ 3 ] The central issues in this matter relate to the circumstances which gave rise to the discovery of the drugs.

The Applicant asserts that the detention was initially arbitrary, or in the alternative, that even if it was initially lawful, it became unlawful as the focus shifted from the initial Highway Traffic Act infraction to the officers’ suspicions about the accused, which I will review below. [ 4 ] The most important issues of fact and law, however, revolve around whether the cocaine was discovered in plain view, as Officer Gladu asserts, or whether the drugs were hidden in the car and discovered in the course of a search of the car.

As no basis for a search of the car was propounded, there can be no dispute that if the drugs were not in plain view, the search was unreasonable. [ 5 ] For the reasons that follow, I conclude that the Applicant has met his onus of establishing on a balance of probabilities that his Charter rights were violated and I also conclude that, pursuant to s. 24(2) of the Charter , this evidence should be excluded, and accordingly, the Accused must be acquitted on the charge of possession for the purpose of trafficking.

In addition, I find that the accused must be acquitted on the other charges as well, for reasons which I will review following my discussion of the Charter issues. The Issues

[6] The issues may be stated as follows: (

i) Did the initial stop constitute an arbitrary detention? (ii) Even if the initial stop was not an arbitrary detention, did it become one? (iii) Was the cocaine found in violation of the s. 8 rights of the Applicant? Did the initial stop constitute an arbitrary detention? [7] As with most of the legal issues in this case, the resolution of this issue is largely a matter of fact. [8] As a preliminary matter, it is clear that Mr. Alexander was “detained” from the time that he was initially pulled over byOfficer Barnhardt: see R. v. Harris 2007 ONCA 574 , [2007] O.J. No. 3185 (Ont.

C.A.) at paras. 17-22 (“Harris”). [9] Officer Barnhardt testified that he was driving west along Trethewey when he observed the car in question turn left ontoTrethewey and then move into the right lane without signaling. He testified that he followed the Applicant and observed that he waswearing his seatbelt. He also testified that he seemed to be reaching down to the right passenger side of the car.

Officer Barnhardttestified that he activated his lights and siren shortly after the Black Creek intersection and the Applicant pulled over within what hecharacterized as a reasonable time. [10] The Applicant testified and insisted that he had, in fact, turned left onto Trethewey and gone directly into the right hand lane. He also testified that when he was stopped, Officer Barnhardt told him that he had been stopped for “driving too cautiously”. Mr.Alexander stated that he was angry and upset because he was sure that it was “stereotyping” because he was a black male.

According toOfficer Barnhardt, the Applicant got out of the car and was yelling when he first pulled him over, although he returned to his car after theofficer asked him to. [11] Officer Barnhardt testified that he intended to give the driver a caution. He testified that he did not “run the plates” until afterhe had pulled the Applicant over. The exchange with the Applicant when the Applicant was out of his car took place before he saw theCPIC return. When he did look at it, he saw that it was from Quebec and he couldn’t read it.

He stated that he approached Mr.Alexander on the driver’s side and asked him for his documents. He denied that he asked him anything about the Quebec return, sayingthat he could not read anything about this. He testified that the only problem with his documents were that the 30-day insurance slipprovided referred to a car other than the one the Applicant was driving.

Because Officer Barnhardt, who had only been a police officerfor a few months at the time, was unsure what to do with respect to the insurance slip or the Quebec return, he waved the unmarked cardriven by the more experienced Officer Patrick Gladu over when he saw him on the other side of Trethewey. [12] On the evidence before me, I do not conclude that the initial stop was arbitrary. I accept Officer Barnhardt’s evidence on thispoint. I do so because I do not find the Applicant’s recollection as to his precise movements in entering traffic on Trethewey Drive thatmorning reliable. As Ms.

Rourke for the Crown noted, it was his evidence that he was not told that he had been stopped for an illegallane change on that day, and he was then at large for almost a year. In her submission, which I accept on this point, it seems quiteunlikely that the Applicant would have remembered these details.

In short, I do not find that the Applicant has established an arbitrarydetention with respect to the initial stop on a balance of probabilities. [13] I do find it curious, however, that both officers in giving their evidence focused on the French content of the CPIC return,because there were a number of other words there in English. The words “caution: violent” were there, as was “wanted” and “radius” inrelation to Quebec. In fact, the words “loi sur les stupefiants” and “ailleurs aviser” were the only French words on the warrant.

Thesame report, further down, referred to other charges against the accused that included drug related offences, assault with a weapon andother matters. I find it hard to believe that the words that the officers did understand would not have made more of an impression thattheir testimony acknowledged. While I accept Officer Barnhardt’s evidence that he initially pulled the Applicant over for a trafficviolation, I find that both officers became much more interested very quickly in the profile of the Accused.

Even if the initial stop was not an arbitrary detention, did it become one? [14] Officer Gladu, on his evidence, did not get in his colleague’s car. Rather, he and Officer Barnhardt walked up to the driver’sside of the car. He stated that he asked the Applicant if he had ever been in trouble in Quebec. Officer Gladu testified that he then, still onthe driver’s side of the car, discussed the insurance slip with the accused. Later in his evidence, when asked about why he went back tothe passenger side of the car, he explained that this is what police officers are trained to do and that is why he did so.

The problem withthis is that Officer Gladu’s own evidence then raises the question of why he initially went to the driver side of the car. [15] In my view, it is clear from Officer Gladu’s own evidence that the detention quickly expanded well beyond that contemplatedby the Highway Traffic Act. Officer Gladu testified that he had officer safety concerns based on the CPIC return, the fact that they werein a high crime neighborhood, and that he had observed the accused reaching down and “fiddling” around the dash area of the car. Inaddition, the Applicant was sweating profusely and appeared to be agitated.

Officer Gladu testified that he went to the passenger side ofthe car and asked the Applicant whether he “had anything that he shouldn’t”. As Officer Gladu testified, he thought there was somethinggoing on though he was not sure what. He also testified that he did not think that he had grounds to arrest Mr. Alexander at that point. [16] Officer Barnhardt testified that, after Officer Gladu arrived on the scene, Gladu got in his squad car and they had a brief chatabout the insurance slip and the Quebec CPIC report issue.

It is clear from the evidence of both officers that the CPIC return and theQuebec ‘hit’ was as much or more of a concern as the insurance slip issue. At that point, Officer Barnhardt testified that his colleaguegot out of the car and walked over to the passenger side window of the Applicant’s car. Officer Barnhardt got out of his car but stayed atthe rear of the Applicant’s car and phoned the insurance people to follow up the questions relating to the insurance slip. OfficerBarnhardt also testified that he did not have any officer safety concerns in the circumstances.

[ 17 ] The Applicant testified that Officer Gladu parked his car in front of his (which both officers denied, though I do not find that anything turns on this point) and came over to the driver side of his car saying “ok, so where are the drugs and guns?”, and pulled him out of the car to pat him down. He testified that Officer Gladu did not look in his pockets but stated that it was just a pat down for weapons.

He was then told to get back in the car, which he did. [ 18 ] I am satisfied on a balance of probabilities that the questions asked by Officer Gladu relating to what the accused had took the detention beyond the scope of what was permitted by a Highway Traffic Act detention. As Officer Gladu conceded, he did not caution the Applicant or advise him of his rights at any point.

A lawful detention under the Highway Traffic Act does not, in and of itself, permit the police to “pursue any other legitimate police interests” during the course of that detention ( Harris , supra at para. 29 ). [ 19 ] While there may well have been objective grounds for some officer safety concerns, Officer Barnhardt did not share them, and one might think that, had there been such concerns, the Applicant would have been asked to step out of the car, patted down for weapons, and kept out of the car while the insurance issues were being investigated, in order to address any concerns about access to weapons that might have been inside the car.

In my view, the reasons for the questions went beyond that which could be justified by any officer safety concerns. [ 20 ] I accept the Applicant’s evidence that Officer Gladu conducted a pat down search, which makes sense in light of Officer Gladu’s evidence that there was an officer safety concern. Moreover, I find that such a concern could have been justified in the circumstances, given the apparent agitation of the Applicant and the “violent” notation on the CPIC check.

I find Officer Barnhardt’s denial that he had any such safety concerns more perplexing. [ 21 ] In short, I conclude that by the time the drugs were found, the detention had become arbitrary, thus violating the Applicant’s s.9 rights. As I will discuss below, however, and largely for the reasons expressed in R. v. Harris , supra , I would not exclude the evidence based only upon this breach. Had this been the only breach, I would not have considered it sufficiently serious, with a sufficient impact on the rights of the Accused, to overcome society’s interest in adjudicating the matter on the merits.

This brings me to a consideration of the s. 8 issue. Was the cocaine found in violation of the s. 8 rights of the Applicant? [ 22 ] It was Officer Gladu’s evidence that after the initial exchange with the Applicant, in which he testified that Officer Barnhardt was beside him at the driver side window, he asked him about the Quebec hit, and Mr Alexander explained that he was fine as long as he stayed in Ontario.

This part fits with the Applicant’s testimony that Officer Gladu asked him about this and he explained that this related to a marijuana matter and that he was fine as long as he stayed in Ontario. [ 23 ] According to Officer Gladu, as I have related above, he went to the passenger side of the Applicant’s car and, through the open window, engaged the accused in conversation about whether he “had anything he shouldn’t”. The Accused, according to Officer Gladu, denied that he did, and offered to open the glove box, in which nothing was found.

Officer Gladu continued the exchange of conversation, during which he testified that he saw the baggie on the floor of the passenger side, realized immediately what it was, reached in, grabbed it, grabbed the Accused and told him he was under arrest. The Applicant, who was sweaty and apparently wearing just a t-shirt sort of a top, managed to wriggle free and the chase was on. [ 24 ] The Applicant’s version of the discovery of the cocaine in the car was very different.

He testified that, following the pat-down search, Officer Gladu went to the passenger side of the car where he opened the door, got in the passenger side with one knee on the seat and looked in back seat, then turned around, opened the glove box, looked under the consul, and, when reaching up under and behind the dash, found the baggie of crack cocaine. [ 25 ] The Applicant’s evidence was that this baggie belonged to a friend who had borrowed his car and returned it the night before, without telling him that he had left a stash of cocaine in the car. [ 26 ] After considered reflection, and while I do not accept Mr.

Alexander’s evidence that he did not know the drugs were there and that they were not his, I do accept his version of the manner in which they were found for a number of reasons. [ 27 ] As a general matter, there are a number of points at which Officer Gladu’s evidence in particular does not, on my assessment, make sense. First of all, he testified that he went first to the driver side of the car to ask Mr. Alexander about the insurance issue, and later explained going to the passenger side by stating that this was what they are trained to do for security reasons.

This does not explain why he went initially to the driver side. [ 28 ] Second, and more importantly, Officer Gladu testified that after he went to the passenger side of the car, the Applicant voluntarily opened the glove box to show there was nothing in it, and that it was during the ensuing conversation that he noticed the baggie with the drugs in plain view on the floor below. I find it highly unlikely that a trained police officer, who was, on his own evidence, very suspicious that something was going on, would not have immediately noticed this as soon as he approached the passenger side of the car.

The police photo that was introduced into evidence taken from about the vantage point at which Officer Gladu testified he was when he saw it showed a white object against a black floor mat. [ 29 ] The Applicant testified that he would not have been driving around with this in plain view, especially in light of the fact that as a black man, he was likely to be stopped. While I do not find this claim to have any probative value, I do find it unlikely that he would not have been able to get it away from plain view by the time Officer Gladu found it, even by pushing it under the front seat.

The Crown submitted that it might have fallen from the “stash spot” whose entry point was roughly above the place where Officer Gladu said it was found. I find this unlikely, and it does not, in any event, explain why Officer Gladu would not have seen it when he first approached the passenger side of the car. [ 30 ] For these reasons, I find that the drugs were not in plain view, but were found by Officer Gladu in the course of his search of the car. The Crown did not argue that such a search, if found to have taken place, could have been lawful. I also note that it was clear

from Officer Gladu’s own evidence that he did not think he had the grounds for an arrest or a search of the car prior to discovering thecocaine. Accordingly, the search was a clear violation of the Applicant’s s. 8 right to be free from unreasonable search or seizure. [31] In short, I find that the Applicant has established that both his ss. 8 & 9 Charter rights were infringed. I now turn to aconsideration of s. 24(2) of the Charter and the question of whether the evidence should be included or excluded. Section 24(2): Should the evidence be excluded? [32] As the Supreme Court held in the recent decision of R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 67-68: [67]The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration ofjustice” is often used to indicate the processes by which those who break the law are investigated, charged and tried.

More broadly,however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. [33] As both counsel for the Crown and Defence submitted, the three considerations are: (

i) the seriousness of the breach (ii) the impact of the breach on Charter protected rights (iii) society’s interest in the adjudication of the case on the merits. The Seriousness of the Breach [34] In this case, in light of the findings of I have made on the evidence, the breaches were serious indeed. As I indicated earlier,the continued detention became arbitrary when Officer Gladu pursued matters extending beyond the alleged traffic violation. It is clear,in my view, that Officer Gladu was not restricting his inquiries to weapons or officer security issues.

He did not believe that he hadgrounds to arrest, as he testified. He did not advise Mr. Alexander of his right to counsel. [35] While this breach, in and of itself, might not be considered serious, it is clear that courts, in considering the seriousness ofCharter breaches, consider whether there was an isolated and inadvertent breach, or whether there was a multiplicity of breaches: see R.v. Calderon, (ON CA), [2004] O.J. No. 3474 (Ont. C.A.) at paras. 93-96. [36] In this case, there was a multiplicity of breaches.

I have found both that the continued detention was arbitrary, and that anunlawful search of the car took place. Even if there had not been an arbitrary detention, the s. 8 violation was extremely serious. As isclear from my findings based on the evidence before me, this is not a case where officers mistakenly though honestly thought they had aright to search. It is clear that they knew they did not. In addition, and relatedly, Officer Gladu misled the court in claiming that thedrugs were in plain view. Regrettably, I must conclude that this was bad faith. This is an extremely serious sort of a breach.

As CronkJ.A. stated in R. v. Harrison, 2007 ONCA 574 , [2007] O.J. No. 3185 (Ont. C.A.) at para. 160, later cited with approval by theSupreme Court of Canada, “the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of theadmissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleadingtestimony in court from persons in authority.” [37] This was deliberate, flagrant conduct.

The fact that the Accused has the record that he does may well have encouraged thepolice, and Officer Gladu in particular, to assume that there was no chance that his word would be believed over theirs. But for theparticular circumstances of this case as I have related above, this assessment might well have been correct. The Impact on the Applicant’s Charter Interests [38] It is clear from the case law that a person may have a significant privacy interest in a car, particularly his own car.

While it istrue that this interest is less intense that the interest in one’s home, it is still a significant interest: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 30-31, R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341 at para. 19, R. v. Reddy, 2010BCCA 11 , [2010] B.C.J. No. 49 (B.C.C.A.) at para. 106. Unlike R. v. Alkins, 2007 ONCA 264 , [2007] O.J. No. 1348(Ont.

C.A.), in which the Court held that a lower privacy interest is afforded the driver of a borrowed or rented car, in this case, theApplicant was driving his own car and the extent of his privacy interest should be considered accordingly. [39] Moreover, persons in the position of this Applicant are in vulnerable positions as far as the protection of their rights for thisreason. If our Charter is to be more than empty rhetoric, we must be vigilant that it not, in effect, protect only those who are alreadymainstream members of society and fail outright to protect the marginalized or more vulnerable.

Society’s Interest in Adjudication on the Merits [40] As the majority stated in R. v. Grant, supra at para. 84: The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of theadministration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence

charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for theaccused are high. [41] There is no question that society has a strong interest in the adjudication of the merits in cases such as these. Cocainetrafficking is a serious offence and there is no question that the amount in issue was not merely for personal use, as counsel for theApplicant conceded. The seriousness of the breach in this case, however, and the impact on the Applicant’s Charter interests mustoutweigh these factors in this case.

Accordingly, the Application is allowed and the evidence of the cocaine excluded. An acquittalwill be entered on the charge of possession of cocaine for the purposes of trafficking (Count 1). The Other Charges [42] I will address the other charges in turn. At the outset, however, I can say that , had the evidence of the cocaine beenadmissible, I would have found that the Crown had established knowledge and control beyond a reasonable doubt. Applying R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, I did not accept the evidence of the Accused that he had lent the car to a friend whohad returned it the night before and who, he claimed, had admitted to him that he left the drugs in it. Although the Accused consideredthis person a good friend, he did not know his last name and did not divulge other information about him. This evidence was self-servingand incredible. I do not accept it and it does not raise a reasonable doubt. The car belonged to the Accused, and he was the sole occupantwhen it was stopped.

Had the evidence been admissible, I would have found that the Crown had established guilt on Count 1 beyond areasonable doubt. [43] Count 2 alleges that the Accused assaulted Officer Gladu with intent to resist lawful arrest. As I have found that the arrestwas not lawful, based as it was on the discovery of evidence found in the course of an unlawful search that must be excluded, there is nobasis for finding that the arrest was lawful: see R. v. Plummer (ON CA), [2006] O.J. No. 4530 (Ont. C.A.).

I notethat Officer Gladu also testified that he did not consider that he had grounds to arrest before finding the drugs. As a result, the Applicanthad a right to resist the arrest. As Rosenberg J. A. noted in Plummer, supra at para. 48: "...a person is entitled to resist an unlawfularrest, even where the unlawful arrest is attempted by a police officer." [44] As far as the allegation of assault is concerned, I would also find that the Crown has not proven the elements of the assaultsalleged beyond a reasonable doubt. The Accused denied throwing punches at Officer Gladu, though he admitted waving a board at him.

He testified that he did not intend to hit or injure Officer Gladu, but just to keep him away in order to escape, which, as he testified, hewas desperate to do in the circumstances. In short, the Accused’s evidence is that his intent was to escape and not to assault OfficerGladu. [45] Mr. Alexander testified and I must therefore apply the principles from R. v. W.(D.), supra,to the consideration of theevidence.

While I did not find his evidence to be entirely credible in all respects, his evidence and that of Officer Gladu’s did not differto the extent that both men testified that Officer Gladu’s injuries were sustained in the course of a foot chase, over fences and throughbackyard gardens, while Mr. Alexander was trying to get away from Officer Gladu.

Considering all the evidence, I find that Mr.Alexander’s evidence raises a reasonable doubt as to whether he had the requisite intent to assault Officer Gladu in the course of hisattempt to escape. [46] Finally, even if the Applicant’s intent was to assault Officer Gladu in the course of his escape, I find this to have constituted areasonable and not excessive use of force to defend himself against an unlawful arrest. As Rosenberg J.A. stated in R. v. Richards, (ON CA), [1999] O.J. No. 1420 (Ont.

C.A.) at para. 13, in a case with facts similar to those at bar: … If the arrest was lawful, the appellant was required to submit to it and his subsequent conduct, at least as described by ConstableAikman, amply supported the convictions. On the other hand, if the arrest was unlawful, the appellant could not be convicted of theoffences of escaping lawful custody and assaulting a police officer with intent to resist arrest.

Further, depending on the view a trier offact took of the subsequent altercation between Aikman and the appellant and whether the appellant used excessive force to defendhimself against an unlawful assault, the appellant might have a defence to the charge of attempted choking and uttering a death threat. [47] For the foregoing reasons, an acquittal must be entered on Count 2. [48] Count 3 alleges that the Accused escaped from lawful custody after his arrest contrary to s. 145(1)(

a) of the Criminal Code. As with count 2, the offence is not made out because the custody in issue was not “lawful”. An acquittal will be entered on Count 3.Count 4 alleges that the Accused assaulted a peace officer engaged in the execution of his duty contrary to s. 270(2)(a).

For the reasonsdiscussed above, an acquittal must be entered on these counts as well, as the intent element of assault has not been made out and theAccused was justified in resisting arrest as the arrest had been unlawful. [49] Count 5 alleges that the Accused did “commit mischief by willfully damaging without legal justification or excuse andwithout colour of right property, to wit: the fence of Jackie Capicio the value of which did not exceed five thousand dollars”. On theevidence before me, I am satisfied beyond a reasonable doubt that it was Mr. Alexander and not Officer Gladu who tore the board off thefence.

I do not accept Mr. Alexander’s evidence on this. Officer Gladu was armed with a gun and a baton, while, on all the evidence,Mr. Alexander was not. There would have been no reason for Officer Gladu to remove the board. However, the Crown has not satisfiedme beyond a reasonable doubt that Mr. Alexander did not have any legal justification or excuse or colour of right for so doing. It is onlylogical that if Mr. Alexander had the right to defend himself against an unlawful arrest, he had the right to take some measures thatwould allow him to effect such a defence. Unarmed and faced with an armed police officer, Mr.

Alexander acted in self-defense intearing the board off the fence and he was legally justified in doing so: see R. v. Walker, [2009] A.J. No. 788 (Alta. Prov. Ct.) at para.109. Accordingly, an acquittal will be entered on Count 5. [50] An acquittal must be entered on Count 6 which alleges that the Accused “did in committing an assault on Joseph Gladu use aweapon, to wit: a wooden fence board, contrary to

Section 267(

a) of the Criminal Code”. Once again, the requisite element of intent toassault has not been established beyond a reasonable doubt, with the result that a verdict of not guilty must be entered on this count aswell.

[ 51 ] Finally, Count 7 alleges that Mr. Alexander “did have in his possession proceeds of property, to wit: one thousand and seventy dollars in Canadian currency, of a value not exceeding five thousand and seventy dollars in Canadian currency…knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly from the commission in Canada of the indictable offence of Trafficking in Cocaine, contrary to section 354(1) (

a) of the Criminal Code . The Crown alleges that the $1070 that Mr. Alexander deposited in the garden was proceeds of dealing in crack cocaine. This count must fall because, as the count is drafted, it clearly depends on the link between the cash found and the drugs that were found in the car.

As the drugs are excluded from evidence, this cannot be done, and thus, the Accused must be acquitted on Count 7. [ 52 ] For the foregoing reasons, then, the following verdicts will be entered: Count 1: not guilty Count 2: not guilty Count 3: not guilty Count 4: not guilty Count 5: not guilty Count 6: not guilty Count 7: not guilty. Harvison Young J. Released: April 26, 2010 CITATION : R. v. JERRON ALEXANDER, 2010 ONSC 2468 COURT FILE NO.: 0950000295-0000 DATE: 20100426 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JERRON ALEXANDER REASONS FOR DECISION (DELIVERED ORALLY) Harvison Young J.

Released: April 26, 2010