) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 604

CITATION : R. v. Dingwall, Lefebvre and Piette, 2013 ONSC 604 COURT FILE NO.: 09-102 DATE: 2013/02/05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – RODNEY DINGWALL, ANDREW LEFEBVRE AND NOEL PIETTE ) ) ) ) ) ) ) ))))))) M. Lindsay and A. Berzins for the Federal Crown G. Chayko, counsel for the accused Rodney Dingwall D. Johnson, counsel for the accused Andrew Lefebvre W. Wade, counsel for the accused Noel Piette ) )))) HEARD: November 8 to 12, 2010; November 15 to 17, 2010; January 9 to 13, 2012; January 16 to 18, 2012 and December 13 and 14, 2012.

CHARTER APPLICATION RULINGS LEROY, J. [ 1 ] The accused were apprehended with a quantity of marijuana, a scale and $6,700 in cash on March 25, 2007. By application they submit that the police process compromised their rights under the Canadian Charter of Rights and Freedoms to the extent that the charges should be stayed or the resulting evidence should be excluded from the trial.

Part I: Introduction [ 2 ] Cornwall City Police Services (CCPS) received a 911 call on March 25, 2007 shortly after 3:00 p.m. from Shawna Flaro alerting them to an ongoing domestic dispute and suspected CDSA offences. Dispatch aired the report. [ 3 ] Constable Kikkert, of CCPS, responded and stopped a vehicle owned and operated by Rodney Dingwall same day between 3:00 p.m. and 3:30 p.m. on a stretch of Beaverbrook Road, north of Cornwall. A scale and thirty-two and one-half pounds of marijuana, packaged in 41 double vacuum packed zip-lock bags in two cardboard boxes were in the back seat of the car.

Shortly after, Constable Redmond stopped a vehicle registered to Matt Larin, operated by Andrew Lefebvre with Noel Piette, as passenger. He conducted a search of the vehicle and discovered the sum of $6,000 in a bag under the cup holders in the vehicle console. Andrew Lefebvre was carrying cash in the amount of $700. [ 4 ] Each accused is charged with possession, possession for the purpose of trafficking and conspiring to traffic marijuana, contrary to the Controlled Drugs and Substances Act ( CDSA) sections 4 and 5 and s. 465(1(

c) of the Criminal Code of Canada (C.C.C.) . Rodney Dingwall and Andrew Lefebvre are charged with possession of property that is the proceeds of crime in an amount exceeding $5,000 contrary to s. 354(1) of the C.C.C.

Part II: Issues

[ 5 ] The central issue on the Charter application is whether Constable Kikkert had the legal grounds to detain Mr. Dingwall on Beaverbrook Road when he did. The defence raise many more grievances; however, the necessary first ruling relates to the issue of whether Mr. Dingwall was arbitrarily detained. The Crown submits that the officer had the reasonable grounds to arrest at the time. Defence submits that the circumstances surrounding the source communication are so deficient that they reduce the stop to a random groundless stop.

There are sub-issues that require rulings that impact on the lead issue, as follows: [ 6 ] Evidentiary: 1. Is the Shawna Russell statement admissible on the voir dire and, if so, for what purpose? 2. Is the Edward Derouchie statement admissible on the voir dire and, if so, for what purpose? [ 7 ] Other Charter issues 1. Were Mr. Dingwall’s

section 7 rights to liberty, life and security of person breached by the destruction of the Cornwall police 911 recording; 2. Were Mr. Dingwall’s

section 7 rights to liberty, life and security of person breached by: i. Disturbance of the scene when Constable Kikkert opened the box flap; ii. Subsequent damage to the boxes when Constable Kikkert tried to separate one from the other during the preliminary inquiry; or iii. Commingling of the seizure into one large evidence bag. 3. Was Mr. Dingwall’s vehicle searched unreasonably – s. 8? 4. If the answer to any of the above is “yes”, then what, if any, are the remedies? 5. Were Messrs. Lefebvre and Piette arbitrarily detained and was the search unreasonable? 6.

If the answer to question 5 is “yes”, then what, if any, are the remedies? [ 8 ] Defence argue that the Charter breach plethora wrought by the police in this investigation reveals indifference to process and qualifies these as the extreme circumstances that call for a stay – 24(1) or the exclusion of the marijuana, scales and money from evidence in the trial – 24(2).

Part III: Factual Overview [ 9 ] Shawna Flaro was the source. She called 911 on March 25, 2007 at 15:02 (3:02 p.m.). She testified to reporting what she believed to be an accurate depiction of events as they occurred, at 422 13 th Street, Cornwall. Ms. Russell was landlord of the twelve-unit residential tenancy complex. The accused, Andrew Lefebvre and his girlfriend, Wendy Derouchie, were tenants. She concluded that the red Silverado half-ton truck belonged to Andrew Lefebvre because it was the vehicle he drove.

She said that her report to 911 included disclosure of her name and address, reference to an ongoing domestic dispute in the Lefebvre apartment, that she had been told there were 32 pounds of marijuana in the Derouchie/Lefebvre unit and that although she had not actually seen the marijuana, took the disclosure seriously. [ 10 ] Ms. Russell testified that while on the telephone with the call-taker, she observed Rodney Dingwall (a person with whom she was familiar) and Noel Piette (a person she had not seen before) enter the building parking lot in a brown Grand Am, driven by Mr. Dingwall.

They entered the building and the arguing stopped. She watched and reported live as a box was pushed (could not see by whom) and pulled (by Lefebvre) through a window of the Lefebvre basement apartment. She said that she observed them carry the box across the parking area and observed Mr. Dingwall place it in the back seat of the Grand Am. She confirmed on cross-examination that

she did not observe Noel Piette enter the Lefebvre apartment or handle a box. She stated that she described the participants, the vehicles including makes, models, colours and marker numbers, the manner and direction the two vehicles took when they departed as well as particulars pertaining to the box. She knew the box as one she had given to the Derouchie/Lefebvre tenants to assist with packing in anticipation of termination of the tenancy. She said the call ended after the two vehicles vacated the parking lot. [ 11 ] Constable Kikkert obtained her written statement later that night.

This statement discloses that Wendy’s father, Mr. Derouchie attended her apartment, reported the presence of drugs and asked for assistance. Mr. Derouchie asked her to call the police to report the domestic dispute. That much Ms. Flaro knew – she could hear them. The context for the dispute crystallized when Mr. Derouchie divulged the information about the contraband. [ 12 ] All communications to and from the police service communications centre are recorded. The call-taker and dispatch persons simultaneously enter salient aspects of reports into a computer assisted dispatch (CAD) program.

The recording of the conversations between Ms. Flaro and the call-taker and dispatch and patrol were preserved for 17 months and overwritten in July 2008. The CAD entries are permanently preserved and were adduced on the voir dire. [ 13 ] Correspondence between defence and crown counsel pertaining to required Stinchcombe disclosures was timely but did not directly address the 911 recording.

No one thought to request or secure a copy of the recording until October 2008, after the preliminary inquiry, twenty months after the record date. [ 14 ] Constable Kikkert understood that the communications centre had received information referencing a quantity of drugs in transport in the back seat of a brown Grand Am leaving 422 13 th Street in the company of a red Chevrolet Silverado half-ton truck. He requested a license plate search to confirm identity of the Grand Am’s owner, who was Mr. Dingwall and his home address.

With that information, he anticipated the route the vehicles would take to go there and intercepted them near the city limits. [ 15 ] Constable Kikkert concluded that the discovery of two vehicles matching the BOLO – model, make, colour, travelling together, temporally connected to the dispatch in a direction consistent with a route leading to Mr. Dingwall’s home address confirmed that these were the vehicles identified in the BOLO alert. [ 16 ] Constable Kikkert requested OPP notification as he crossed the city limits. That engaged the OPP communications centre.

The OPP recording of OPP on air dialogue and telephone collaboration between CCPS dispatch and the OPP communications centre was preserved and produced. [ 17 ] Constable Kikkert was alone between the first observation and the stop. He followed the two vehicles at a discreet distance for over 10 kilometres, awaiting backup. The two vehicles stopped parallel to one another at an intersection. He observed the occupants communicating. Constable Kikkert concluded that the occupants were alert to his presence at that point. He activated his emergency equipment and closed in. The area was secluded.

The car pulled to the side of Beaverbrook Road and the truck continued on. Constable Kikkert pulled up behind the car. He notified dispatch and approached the car from behind on the driver side. [ 18 ] Constable Kikkert was questioned during the preliminary inquiry and on the voir dire about whether he had reasonable grounds to detain, arrest and search the Dingwall vehicle. He did not conduct a critical analysis of where he and the circumstances stood on the reasonable grounds continuum as he pursued the two vehicles.

His testimony revealed that he was alert to the nomenclature but had not scrutinized the issue. [ 19 ] Constable Kikkert agreed that when he acted to stop the Dingwall vehicle the most he could have had was suspicion of contraband drugs in the back seat of the car. [ 20 ] Constable Kikkert had safety concerns as he approached the Dingwall vehicle. He was in a vulnerable situation. He was alone in a secluded location in the process of investigating a reported CDSA offence.

He stated that he scanned the interior of the vehicle, looking firstly for other occupants who might “pop up” and, secondly, for the boxes he understood contained marijuana. [ 21 ] He testified to seeing the “green leafy substance” inside plastic bags through gaps in the folds of the driver side box on the back seat. He characterized the observation as one of being in “plain view”. He described the juxtaposition of the bags of the substance to the top of the box variably. At trial, he described the observation as plastic bags pushing to the top of the box.

When testifying at the preliminary inquiry, he described two different juxtapositions including observations of bags one-half way to the top, both boxes were full with bags at the top of the opening. [ 22 ] Constable Kikkert states that the driver window was about half way down as he approached the car. After scanning the interior, Constable Kikkert moved into a position outside the driver door. He said that there was a strong aroma of green marijuana emanating from the car. He instructed Mr. Dingwall to turn the car off, drop the keys on the ground and to produce his driver’s licence, ownership etc. Mr.

Dingwall complied. [ 23 ] Constable Kikkert knew what green marijuana looked and smelled like. He had been the canine officer for Cornwall Police Services for seven years at the time. His training and canine experience put him in regular contact with green marijuana. As the canine officer, he participated in an eight-week course where he was exposed to green marijuana, cocaine and heroin as well as weekly training with the dog involving contact with green marijuana. He explained that green marijuana has a strong smell.

His experience in this capacity included drug warrant searches for city police, drug apprehensions at the border, in schools and in another city. [ 24 ] Constable Kikkert did not immediately communicate the standard Charter information to Mr. Dingwall. He explained the reason for the stop after production of the ownership and licence. He indicated to Mr. Dingwall that he was detained for the drugs in the back of the car. Constable Kikkert did not advise Mr. Dingwall that he was entitled to remain silent or that he had the right to counsel, with particulars. By the time Constable Kikkert had Mr.

Dingwall’s documents in hand, Constable Woolley and Sgt. Martelle arrived in separate vehicles. The time lapse between the stop and Sgt. Martelle’s arrival was eight minutes. As Sgt. Martelle approached, Constable Kikkert opened the driver side back door and lifted the flap on the near box, revealing many plastic bags containing the green leafy substance.

[ 25 ] He explained that his purpose was to verify marijuana content 100%. Sgt. Martelle viewed the contents simultaneously. Constable Kikkert acknowledges that he did not have or seek Dingwall’s consent to search the car. [ 26 ] Sgt. Martelle arrested Mr. Dingwall immediately and articulated the reason for detention and delivered the Charter informational rights. He too, noted the very strong and unmistakable smell of green marijuana emanating from the open window. He observed the two boxes, one closed and one popped up and described the look with a beer case flap metaphor. [ 27 ] Sgt.

Martelle instructed dispatch that they had reasonable grounds to stop the red truck. He acknowledged he was not thinking in terms of discovering more drugs in the truck. If anything, there might be money. He said that, in his experience, carriers will reduce risk by separating product and cash. [ 28 ] Sgt. Martelle and Constable Kikkert agree that exigent circumstances were not part of their thought process grounding the search. [ 29 ] Meanwhile, the OPP officers Redmond and Eamer located the red Silverado truck.

Redmond confirmed with OPP dispatch prior to the stop that drugs were in the car and that he had reasonable grounds for detaining and searching the truck as part of a CDSA investigation. As noted earlier, there was a plastic bag containing the sum of $6,000 in packets of $1,000 under the cup holder in the console and Mr. Lefebvre carried the sum of $700 in cash on his person. [ 30 ] Matt Larin was the registered owner of the truck. None of the accused acknowledges ownership or knowledge of the money in the vehicle. Mr.

Larin signed a surrender document authorizing the escheat of the money found in the truck. [ 31 ] All prosecution witnesses agreed there is no overt evidence of agreement among the three accused persons. [ 32 ] From there, the vehicles and contents were taken under Cornwall Police control. They stopped first at the vehicle compound site. The vehicles and contents were photographed.

The photographs are entered as exhibits. [ 33 ] The money, drugs and scale box were taken to the police station for processing. [ 34 ] CCPS General Order FOB040 sets out the procedures its officers are to follow as they process evidence to ensure integrity of the collection, preservation, control and disposition of evidence – Exhibit II. The procedures for processing drugs are set out in

section 6. [ 35 ] The pertinent instructions are as follows: 6.02.a The investigating officer, in the presence of the SDO , will weigh all seized drugs before being packaged. The weight shall be noted on the drug exhibit envelope or evidence bag.

The investigating officer and supervisor will note all pertinent information, including the weight of the drug, in their notebooks and in the RMS report. 6.02.b Samples of all drugs that are to be analyzed by Health Canada are required to be packaged in separate Health Canada Drug Exhibit Envelopes. 6.02.c The seizure of larger exhibits will be weighed and a sample of one gram from the exhibit will be removed and placed in a plastic bag and then placed inside the Health and Welfare envelope, which will then be sealed and the front of the envelope filled out. 6.02.d The remainder of the exhibit will be packaged and sealed in a plastic evidence bag with the property tag stapled to the bag. 6.02.e Drugs that are not intended to be analyzed can be stored in a properly sealed and tagged evidence bag. [ 36 ] Sgt.

Martelle was the SDO and processed the seized substance alone without Constable Kikkert, the investigating officer. He stated that he counted and weighed 41 vacuum-packed freezer bags having a cumulative weight of 32.5 pounds. He sampled five bags for forensic analysis and commingled the content of the 41 bags into one full size evidence bag. [ 37 ] Health Canada confirmed that the five samples were marijuana and certificates were adduced in evidence. [ 38 ] The condition of the cardboard boxes at the date of arrest is a contention.

The size, age, generic markings, design and cardboard material are the same for both. They were emptied within hours of the arrest. The cardboard degraded with use and over time. When Sgt. Martelle collected them for the preliminary inquiry, he placed one in the other. They have not been separated. When Constable Kikkert tried to separate them during the preliminary inquiry a flap was torn and he stopped immediately. [ 39 ] The central issue on the Charter application involves the grounds for the detention, arrest and search.

The first preliminary issue that requires ruling is the effect, if any, on the accused’s ability to make full answer and defence arising from the destruction of the

911 audio recordings. Defence argues that the loss of this evidence unfairly closes off areas of inquiry and possible defences relatingdirectly to the issue of constable Kikkert’s grounds to detain. Accordingly, I will discuss this matter first.

Part IV: Loss/Destruction of the 911 recording and impact on full answer and defence [40] In criminal matters, it is the Crown’s duty to disclose and to provide ongoing disclosure of all relevant evidence and non-privileged information in its possession, whether favourable to the accused or not: R. v. Stinchombe, (SCC), [1991]S.C.J. No. 83. The test of relevancy is whether there is a reasonable possibility that the information could assist the defence: R. v.Anutooshkin, (BC CA), [1994] B.C.J. No. 1871 (C.A.). [41] The Crown’s duty to disclose relevant evidence includes the duty to preserve relevant evidence.

That said and as noted by Mr.Justice Sopinka in R. v. La, (SCC), [1997] 2 S.C.R. 680, “despite the best efforts of the Crown to preserve evidence,owing to the frailties of human nature, evidence will be lost.” Accordingly, the loss or destruction of relevant evidence that was once inthe Crown’s possession or control does not automatically amount to breach of the Crown’s disclosure obligations. [42] The approach to be taken to a complaint that the Crown has failed to preserve relevant evidence was discussed by the Court ofAppeal in R. v. S.(G.), 2010 ONCA 296 , [2010] O.J. No. 1666.

Speaking for the court, Laskin J.A. stated: “The starting point is the Crown’s obligation to explain why the evidence was lost. That obligation flows from the Crown’s duty topreserve relevant evidence. Sopinka J. discusses two classes of cases: cases where the Crown’s explanation is unsatisfactory or theCrown gives no explanation at all and cases where the Crown’s explanation is satisfactory.

Where the Crown gives no explanation or where the Crown’s explanation shows that the evidence has been lost or destroyed because ofthe Crown’s “unacceptable negligence”, then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of theCharter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actualprejudice caused by the loss or destruction of the evidence. Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation.

Section 7 of theCharter has not been breached. Still, “in extraordinary circumstances” the accused may be entitled to a stay if the accused can showthat the lost or destroyed evidence is “so prejudicial to the right to make full answer and defence that it impairs the right of the accusedto receive a fair trial.”” [43] With respect to the appropriate remedy where evidence has been lost, assessing prejudice is invariably problematic andspeculative. To justify a stay, the accused must show that the loss of the evidence prejudices him in a substantial or material way.

In thatrespect, the availability of other evidence to accomplish the goal of the lost evidence is a critical factor. For example, a lost statement ofa complainant may be overcome by using the notes of the officer taken contemporaneously: R. v. D. (J.), [1996] O.J. No. 1907; orwhen original witness statements were destroyed in accordance with standard procedure a stay was refused because the prejudice thatmay have arisen was dissolved because the accused was able to cross-examine the witnesses and there was no evidence to indicate thedestroyed statements would have been favourable to the accused – R. v.

Deiffenbaugh, [1993] B.C.J. No. 635. [44] A motion for a stay of proceedings based on lost evidence cannot be decided until the end of the trial and all the evidence isin: R. v. Bero, (ON CA), [2000] O.J. No. 4199. A stay of proceedings is an appropriate remedy only where thebreach of an accused’s

section 7 rights has caused harm to the accused’s ability to make full answer and defence that cannot be remedied,or where irreparable harm would be cause to the integrity of the justice system if the prosecution were allowed to continue. Application to the facts Crown Explanation [45] The purport of the disclosure process is to not deny the accused a fair trial.

This involves both defence and Crown. [46] In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstancessurrounding the loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police actedreasonably in attempting to preserve it. The more relevant the evidence the higher is the police duty to preserve.

The analysis is directedto process – the court investigates the integrity of the process at this stage. [47] Where the failure to preserve is caused by the failure of the police to look beyond the needs of the prosecution to the widerquestion of the potential relevance of the evidence to the defence the explanation fails. [48] The 911 audio recording falls into the Stinchcombe relevance catch basin. That said, this destruction of evidence does notbreach the duty to disclose.

The city maintains a sophisticated 911 emergency response system with a practical and structured recordingmaintenance system that assures retrieval for at least one year after any recording date. [49] The 911 recording was made on March 25, 2007. It was taped over in July 2008 in the due course of recycling city 911audiotapes. No one thought to specifically ask for a copy of the recording until October 2008. The Crown was otherwise assiduous inproduction of required material. [50] There is no indication of bad faith or negligence. There is no basis to characterize the recycling practice as abuse of process.

In the circumstances, the CCPS practices surrounding the retention and recycling of their 911 recordings are practical and reasonable. Iaccept the Crown’s explanation as rational and reasonable. [51] The perceived relevance of the recording in July 2008 was that it was trifling. I accept Sergeant Martelle’s testimony that in

20 years of police work he had not processed a defence request to liberate a 911 recording as part of Crown disclosure. That none of theCCPS officers knew the details of the city recycling policy tends to confirm that assertion. The police cannot be expected to preserveeverything that comes into their hands on the off chance it may become relevant in the future. Defence did not request a copy untiltwenty months after the events recorded. [52] The recording was not real evidence. It is part of the narrative and its value is limited to informing context to the officers’responses.

The actual truth or accuracy of statements made during the call is not the real issue at that stage. The process of developinga sense of reliability involves the details forthcoming from the caller that raise the report from generalized suspicion into the realm ofindividualized suspicion. The fact of the call puts the police in a position of having to respond.

These records are distinguishable insubstance from police station video recordings of interaction between the police and the accused where the video is the evidence ofpolice misconduct, the resistance displayed by the accused, the degree of impairment displayed and so on is real evidence, although notdispositive. The prosecution’s duty to preserve is elevated in respect to real evidence because of the increased relevance.

The lostopportunity of hearing the lost recording does not elevate or diminish the reliability of the tip in the context of the inherently fluiddynamic, given all the other evidence adduced regarding the call. Prejudice to full answer and defence [53] If I am wrong in that conclusion and there is an infringement of the right of disclosure, it does not infringe on the right tomake full answer and defence.

I do not accept that there is a reasonable possibility that the infringement affected the outcome of the trialor affected overall fairness of the trial. [54] Defence argument is that the 911 recording informs the investigating officer’s reasonable grounds. There could besomething in the dialogue not disclosed in evidence that would reduce the conclusion of individualized suspicion to hunch orcoincidence.

Or, there could be something in the dialogue that could undermine credibility or illuminate other avenues of investigation. [55] The initial test for a breach of the right to disclosure is analytically distinct from the burden to be discharged to merit theremedy of a stay. The right to disclosure of all relevant material has a broad scope and includes material that may have only marginalvalue to the ultimate issue at trial.

The Crown may fail to disclose information which meets the Stinchcombe threshold, but which couldnot possibly affect the reliability of the result reached of the overall fairness of the trial process - R. v. Dixon, (SCC),[1998] 1 S.C.R. 244 para 23. There are no Charter remedies available unless the failure to disclose is also a violation of theconstitutional right to make full answer and defence. [56] Where the materiality of the undisclosed evidence, on its face, is very high a stay would be ordered on this basis alone.

Where the materiality of the undisclosed evidence is relatively low the court needs to determine whether any realistic possibilities werelost to defence. Counsel diligence or lack of diligence in pursuing disclosure is a factor. Consideration of the other evidence that doesexist and is available to defence and whether that evidence contains essentially the same information as the lost evidence is an essentialconsideration - R. v. J.G.B. – ONCA. [57] I recognize that once the tape is lost, assessing prejudice is problematic and to some degree speculative.

In this case;however, to the extent there is prejudice to ability to conduct full answer and defence, it is mitigated to the point of disappearance by theevidence that was adduced, including full thorough cross-examination of Ms.

Flaro’s testimony, her statement made a few hours after theevent, the CAD records, the evidence of the call-taker, the dispatch person, the OPP recording and officers’ testimony and notes, all ofwhich was evidence containing essentially the same information as the lost evidence. [58] The relevance of the destroyed recordings centers on Constable Kikkert’s subjective and objective belief in whether therewere reasonable grounds to suspect a clear nexus between the individuals he was following and a recently committed or still unfoldingcriminal offence.

Defence had access to everyone involved with the 911 call and the detentions, searches and arrests together with thecaller’s statement given within hours of the events, the CAD entries and the OPP communications center recordings all of which informthe individualized suspicion relative to a suspected crime in progress requisite for at least an investigative detention.

The patrol officerdoes not hear the 911 dialogues between the call-taker/dispatch and caller as he formulates the appropriate response to a report. [59] The evidence adduced does not raise the spectre of spurious report or false accusation that might have the effect of affectingoutcome or illuminating other avenues of enquiry. From the evidence adduced, it is patently clear that Ms.

Flaro identified herself andaddress, that she disclosed report of substantial quantity of marijuana in transit in the back seat of the Dingwall vehicle, the identity oftwo of three of the accused, their vehicle makes, models, colours, marker numbers and direction of travel. For the reasons stated underthe analysis of the legality of the initial detention, whether Ms.

Flaro is the eye witness source for every aspect of the report is not amaterial consideration. [60] Although the delay in requesting the 911 recordings was approximately twenty months after the events and has to be aconsideration in the assessment of impact on trial fairness, it is a subsidiary component of my conclusion.

I accept the submission bydefence counsel tying the realization of the possibility that the 911 recordings may illuminate reasonable grounds to the preliminaryinquiry. [61] I conclude that there was no negligence involved in the loss of the 911 recording and there is no breach of the duty ofdisclosure. If there was a breach, it did not prejudice full answer and defence. [62] If those conclusions are incorrect, the loss of the 911 recordings on these facts does not justify a stay of proceedings.

A stayunder s. 24(1) is limited to exceptional/rarest of circumstances at the abuse of process end of the spectrum where prejudice to ability tomake full answer and defence is tangible. A stay is only granted in the clearest of cases, meaning conduct which shocks the conscienceof the community and is so detrimental to the proper administration of justice that it warrants judicial intervention – R. v. Power (1994)

(SCC), 89 C.C.C. (3d) 1 – SCC. My sense is that a stay of proceedings on these facts would be of concern to theinformed community. [63] Further, if my conclusions are incorrect, the loss of the recording and the impact on full answer and defence would notsupport exclusion of the real evidence discovered in the two vehicles under s. 24(2). It may be concluded that Constable Kikkert oughtto have known of the city recycling policy and should have broadened the scope of anticipated evidence in his control to include therecordings. [64] In R. v.

Grant, 2009 SCC 32 the Supreme Court revised the approach to s. 24(2) and held the analysis should be reorientedtowards: 1. Seriousness of the Charter-infringing conduct – as noted the officer’s oversight, if it could be calledthat, arises in an environment where they had not experienced a defence request to liberate 911 recordings. The evidence that was preserved and adduced reduces the seriousness of the breach, if there is one to thepoint of disappearance; 2. The impact upon the Charter-protected interests of the accused – the way impact is assessed varieswith the kind of evidence sought to be admitted.

The significance of the impact of the violation where non-bodily physical evidence is obtained turns on the manner of discovery and the degree to which the manner ofdiscovery undermines the Charter protected privacy interests of the accused. Here, the circumstance of thecall raises individualized suspicion at the very least, and allows at the beginning individualized suspicionmeriting an investigative detention with its limited search opportunities; and 3. Society’s interest in having criminal interests adjudicated on their merits, which will generallyauger in favour of admissibility.

Part V: Evidentiary Issues [65] The next preliminary issues that are precursor to the merit of the stop and search are the evidentiary issues regarding theadmissibility of the statements by Shawna Flaro and Mr. Edward Derouchie and, if so, for what purpose. [66] Is the Shawna Flaro statement admissible on the voir dire and if so for what purpose? Is the Edward Derouchie statementadmissible on the voir dire and if so for what purpose? [67] The Crown submits that the statement provided by Ms.

Russell to Constable Kikkert during the evening of the arrest shouldbe admissible evidence in the voir dire as proof of the fact that it was made and serves as “other evidence” available to defence in thedestroyed evidence analysis. It is tendered not for the truth of content or to oath-help as a prior consistent statement rather to fill in thebackground narrative contextualizing her decision to make the 911 call. Defence contests.

Alternatively, defence submits that astatement obtained from Wendy’s father, Edward Derouchie, on a later date is equally admissible in the context of narrative and not forthe truth of the content. The Crown contests. Hearsay evaluation [68] Both are out-of-court declarations. Not every out-of-court statement is hearsay – R. v. Khelawon, 2006 SCC 57. The criticaldefining feature of the exclusionary hearsay rule is the purpose for which the declarant’s statement is being introduced through therecipient witness.

When an out-of-court declaration is adduced for the truth of its contents it is hearsay, it is presumptively inadmissibleand only admissible under a traditional or principled exception to the exclusionary rule. The primary concern for admissibility lies in theinability of the opposing side to cross-examine the declarant to test reliability. [69] Where an out-of-court statement is adduced in the context that the truth of its contents is not the issue it is not hearsay.

Shawna Russell statement [70] The Russell statement is not hearsay and is admissible for the fact it was made and serves to ameliorate the consequencesarising from recycling the 911 tapes. Its admission also resolves a mid-hearing ruling that was wrong in law. The Crown is required toshow legal detention. Subjective belief in grounds for the stop is relevant. Third party reports are pertinent in the progression toreasonable grounds, not for the truth of the declarant’s assertion, but for the development of the constellation or totality of circumstancesavailable to the officer at the time.

Defence objected when Ms. Russell was about to explain how she came to hear about the marijuanain the Lefebvre apartment. I erred in sustaining the objection – R. v. Collins, (SCC), [1987] 1 S.C.R. 265. [71] If I am incorrect as to the hearsay component, the reliability issues inherent in this out-of-court statement weresignificantly mitigated by the opportunity that defence had to fully cross-examine Ms. Russell on the statement, her state of mind andrecollection of events.

Admissibility of the Derouchie Statement [72] Edward Derouchie’s out-of-court statement is inadmissible. The Crown chose Ms. Russell as the genesis for the narrative asit pertains to officer state of mind and perspective. He did not testify in the voir dire. He did not dialogue with the communicationscenter. Anything he might say or not say has minimal probative value informing the issue of the totality of circumstances known orunderstood, rightly or not, by the investigating state officer when he detained Mr. Dingwall.

Part VI: The stop – was it arbitrary? Was the search of theDingwall vehicle unreasonable? [73] Charter detention jurisprudence mirrors the approach developed for searches and seizures. Unlawful detention is necessarily arbitrary under s. 9 – R. v. Grant (2009), 2009 SCC 32 , 66 C.R. (6th) 1. A lawful detention is not arbitrary unless the lawauthorizing the detention is itself arbitrary. Overview – Reasonable grounds to detain [74] The detention inherent in this stop was a justifiable use of the police power of investigative detention. The 911 call requiredpolice response.

The nature of 911 calls is variable and diverse. 911 is part of the city emergency response facility and requirement forresponse is axiomatic. This call reported observation of a suspected criminal offence with detail as to vehicle model, colour, platenumbers, occupants and identity, direction of travel together with caller’s identity, address and contact information that assuaged concernfor vindictive false accusation. This caller was not shielded by immunity. It was not an anonymous call.

It wasn’t as if once ConstableKikkert located the two vehicles there was any doubt they were the ones referenced by the caller. [75] At the center of the defence submission is the premise that the criminal aspects of the 911 report were not corroborated byConstable Kikkert in any way before he decided to detain Mr. Dingwall. Details that accurately predict innocent events do not, on theirown, constitute the basis for reasonable grounds to arrest.

Defence argue that Constable Kikkert should have been more proactive indetailing the veracity of the report relating to marijuana in the Dingwall vehicle. [76] Defence argue that the information Constable Kikkert had was obviously and intrinsically unreliable. They point to the factthat Ms. Flaro did not personally observe marijuana and was an untested first-time informant to 911. The flaw is that every dispatchinvolves at least double repetition of the report. An eyewitness caller relays information to the call-taker who communicates to dispatch,who communicates to patrol.

In this case, it is a matter of adding one additional level of repetition, namely the communication from Mr.Derouchie to Ms. Flaro. The caller’s belief does not have to be based on personal knowledge. That Ms. Flaro did not personally observethe drugs is not dispositive. Reasonable grounds may be based on information without infringing the hearsay rules – Eccles v. Bourque,[1975] 2 S.C.R. 735. The officer who takes the call doesn’t get to talk with the caller until later. The only difference here from theparadigm, is that the call-taker did not talk directly to the eye witness.

There is a flow of information and the patrol officer, who iswithout a crystal ball, cannot possibly know how much of what has been reported is true or false. The second flaw is that thejurisprudence tends to measure reliability by resort to the details disclosed. The more details provided by an informer about the allegedoffence and caller, the more the responding officer can rely on it in forming subjective reasonable grounds. [77] The only way to validate the criminal components of such reports is to proceed in little steps seeking a better sense of all thecircumstances.

Police must be empowered to respond quickly, effectively and flexibly to the diversity of encounters they face. Anofficer may briefly detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual isconnected to a particular crime and detention is necessary. [78] Whether reasonable and probable grounds exist is a fact based exercise dependent on all or the totality of the circumstances ofthe case.

In assessing whether RPG existed, judges are often improperly asked to engage in a dissection of the officer’s grounds lookingat each in isolation retrospectively assessing officer opinion developed during a rapidly changing dynamic at the scene without theluxury of judicial reflection - R. v. Bush, 2010 ONCA 554 – Durno J. [79] Constable Kikkert, notwithstanding his perplexity, asserted subjective belief in the requisite suspicion for an investigative stopat trial.

I might add that, in my view, there is nothing inappropriate for a prosecutor to discuss the case with the investigating officerbetween preliminary and trial so long as notes are taken, as they were here. [80] The Crown submits that Constable Kikkert had reasonable grounds to arrest Dingwall and search his vehicle based on theFlaro 911 call and verified details that included occupants, vehicle models, colours, marker numbers, temporal connection, travelling intandem and direction of travel.

Defence submits that Constable Kikkert did not have grounds to stop or search the vehicle arguing thatthe dispatch information was inherently unreliable. Neither position stands scrutiny. [81] The backdrop to assessment of interactions between state and citizen is that the duties imposed on police are broader thantheir authority to act. The reasonable grounds limits on police authority to arrest necessarily invoked a metamorphosis into thecompromise of investigative detention.

The Supreme Court has expanded police common law powers, including detention powersthrough the use of the “ancillary powers doctrine”. [82] Grounds for detention, arrest and search are on the same spectrum or continuum that has certainty or proof beyond reasonabledoubt at one end and hunch, intuition or gut feeling at the other. A detention based on mere hunch is arbitrary. A search on the samegrounds is unreasonable. The requisite reasonable grounds – objectively and subjectively viewed for an arrest and search are furtherfrom the hunch end of the spectrum than grounds for an investigative detention.

[83] “Investigative detentions are premised on reasonable grounds to suspect a clear nexus between the individual being detainedand a recently committed or still unfolding criminal offence and are closer to the hunch end of the spectrum than grounds to arrest. Thedetention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’ssuspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence.

The power is notlimited to crimes actually known to police but extends to crimes that are reasonably suspected. Reasonable grounds figures at the frontend of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminalactivity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all thecircumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, theliberty interfered with, and the nature and extent of that interference in order to meet the second prong of the Waterfield test... The powerto detain cannot be exercised on the basis of a hunch, nor can it be a de facto arrest” – R. v.

Mann, 2004 SCC 52 , [2004] 3S.C.R. 59. [84] In comparison, reasonable grounds to arrest means an honest belief in the guilt of the detainee (subjective) based on aconviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, wouldreasonably lead an ordinary prudent, cautious and informed man, placed in position of the accuser, to the conclusion that the personcharged was probably guilty of the crime alleged (objective) - R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. [85] A reasonable ordinary, prudent informed person could not conclude that Mr.

Dingwall was probably guilty of CDSApossession for purpose of trafficking prior to the stop. At trial, Constable Kikkert declared reasonable grounds, in the context of groundsfor arrest, prior to the stop. He did not apply a critical assessment to all the circumstances. Constable Kikkert was inconsistent anduncertain on this issue. He agreed during testimony at the preliminary inquiry that he did not have reasonable grounds to arrest andsearch. Whether it is a matter of nomenclature, as suggested by Mr.

Lindsey, or not is not important. [86] The obligation of the police to respond to tipster 911 calls is axiomatic. Given the mandate to investigate crime and keep thepeace, the police are empowered to respond quickly, effectively and flexibly to the diversity of encounters experienced daily on the frontlines of policing. Public policy clearly requires that the police ab initio have the authority to investigate 911 calls – R. v. Godoy, [1998]1 S.C.R. 311. [87] The jurisprudence recognizes the police duty to investigate without arrest based on caller information.

Recent jurisprudentialillustrations may be helpful. [88] In R. v. Clayton, [2007] S.C.R. 725, the SCC accepted, without comment that the 911 system assumes that the police willreact in a timely fashion to the information provided and are entitled to rely on such information. There, an anonymous individual calledpolice from a coffee shop located across from a strip club reporting that approximately ten men of colour were congregated outside theclub and four had handguns. He described the model and colour of four vehicles he associated with the group of individuals.

TheSupreme Court approved the police roadblock to screen all users. Mr. Clayton was not one of the ten or so men. His vehicle did notmatch the description provided. [89] In R. v. Mann, the stop is approved on the basis of reasonable suspicion, without comment. The police received a radiodispatch detailing a break and enter in progress together with a description of the alleged offender. They saw Mr. Mann in the vicinityand considered him to be a close enough match to merit an investigative detention. [90] The appropriate police response to anonymous tips was analyzed by Mr. Justice Doherty in R. v. Lewis, (ONCA).

There, the investigating officer received an anonymous telephone call reporting that a clean-shaven, heavy-set man of colournamed Keith Lewis would be taking a particular flight from Pearson Airport the next day. She said Lewis would have a two-year oldboy in his care and would be carrying cocaine concealed in a wine or Appleton rum bottle. She would not reveal her identity, herconnection to Lewis or how she learned of the information passed on. The officer did not know the person who called. The call lastedten minutes. [91] At trial, the officer in R. v.

Lewis was similarly inconsistent and uncertain as to subjective belief in having reasonable groundsto arrest and search. [92] Justice Doherty began the analysis with the premise that where the allegation relates to possession of narcotics, the “totality ofthe circumstances” must be such as to raise a “reasonable probability” that the target is in possession of the suspected contraband at thetime of the arrest or search: R. v.

Debot (1986), (ON CA), 30 C.C.C. (3d) 207 at 219, aff’d (1989) (SCC), 52 C.C.C. (3d) 193 at p. 213. [93] He wrote that the totality of the circumstances encompasses factors which are relevant either “to the accuracy of the specificinformation supplied by the tipster or the reliability of the informant as a source of information to the police” – emphasis addedby writer.

The collective significance of all the circumstances facing the officer must be considered in light of all common sense andpractical experience; individual pieces of evidence should not be viewed in isolation or discounted without due regard for the entire context – R. v. Bramley (2009), 2009 SKCA 49 , 67 C.R. (6th) 293 at para 47, 60. [94] In Lewis the central argument focused on the extent to which information provided by the tipster must be confirmedindependently before it can constitute reasonable grounds for arrest and search.

There, the anonymous tipster provided details as to time,description, flight number, destination and company – the young child, all of which was independently confirmed. None were probativeto the criminal aspect of the information. Mr. Justice Doherty emphasized that the risk of false allegations is significant when the tipsteris shielded by anonymity. He concluded that absent confirmation of details other than those describing innocent and commonplaceconduct, information supplied by an untested anonymous informant “cannot, standing alone”, provide reasonable grounds for an arrestand search.

That does not derogate from the police duty to investigate. [95] The value of the caller’s information depends on the context of the call - visceral or anonymous, the source of theinformation, the nature of the information and eventually the extent to which the police are able to confirm that information before the

arrest or search. Application to facts [96] The Dingwall detention was lawful. Officer Kikkert was acting on individualized suspicion that Dingwall was implicated inthe criminal activity under suspicion and the detention was reasonably necessary to fulfill his duties. [97] CCPS had the grounds to conduct an investigative detention based on the 911 call. Ms. Flaro was not an anonymous caller. She was candid as to address, telephone number and identity. She was not a privileged police informant nor was she a bare, anonymousCrime Stopper caller.

On an objective and subjective basis, that transparency reduces the concern for malicious false allegationsignificantly and is factored into the constellation of reliability indicia. [98] Ms. Flaro testified to hearing the ongoing domestic dispute. She observed Mr. Dingwall and Mr. Piette arrive on scene, loadthe box or boxes and depart hastily. She relied on Wendy Derouchie’s father’s report about the drugs and passed it on to the police. [99] As in Lewis, the nature of the information confirmed by Ms.

Flaro, such as verification of markers, colors, vehicle makes andmodels, location and direction of travel at the material time, conjoined with a narcotics allegation, while not amounting to reasonablegrounds to arrest, confirm more than rumor, gossip or generalized suspicion. The police were bound by duty to investigate the report ofa significant quantity of contraband in the back seat of the Dingwall vehicle. [100] The only viable action that Constable Kikkert had available was to stop the Dingwall vehicle. The police rely heavily on citizenreporting in law enforcement.

There will always be some risk of false allegation. The investigative constraints inherent in an investigative detention operate to mitigate concerns for malicious and baselessreports. [101] The legal constraints inherent in an investigative detention, imposed by the common law, ameliorate the concern for falseallegation. If Constable Kikkert’s observed an empty back seat that would have been the end of the matter and the investigation wouldconclude based on the narrative provided. The right to be left alone in a motor vehicle is in the lower end of the privacy spectrum.

Given that the contraband was supposed to be in the back seat of the car, the only means available to verify, to preserve evidenceinvolved a brief stop/detention. [102] At the center of the defence argument is the proposition that Constable Kikkert failed to evaluate or test the informationimparted to him by dispatch before deciding to intercept the accused. The defence are concerned that he did not go to the Lefebvreapartment unit before embarking on the chase. Mr. Chayko applied the “automaton” label to Constable Kikkert. [103] The disposition of this submission lies in context.

To be sure, there are many circumstances where police are expected to auditreports of criminal activity before advancing the investigation toward the suspect. This is not such a case. The source self identified anddisclosed her address and contact information. She may well have been mistaken about what she was reporting, but this was not ananonymous caller hiding from subsequent scrutiny. In addition, it was a 911 call and the police are expected to respond proactively. Noofficer has a crystal ball in the vehicle. He can never know to what extent what he hears from dispatch is accurate and reliable.

Therewill always be time to be retrospective. The situation depicted was fluid and dynamic. If he chose to stop and interview the sourcebefore planning the intercept strategy, he would have defeated the efficacy of the communications center in their delivery system and itwould have amounted to neglect of duty. [104] In all cases involving the issue of whether reasonable grounds exist for some level of police intrusion the analysis is a fact basedexercise dependant on the totality of the circumstances.

A dissection of the officer’s opinion on grounds looking at each in isolationretrospectively in a rapidly changing dynamic is improper. That is what defence asks me to do here. The progression from investigative detention to grounds for arrest [105] Constable Kikkert was entitled to make a visual inspection of the interior of the Dingwall’s vehicle – R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615, as is the case on any vehicle stop, whether related to driving regulation or as part of aninvestigative detention. In Mellenthin and R. v.

Belnavis, (SCC), [1977] 3 S.C.R. 341, 118 C.C.C. (3d) 405, the courtsrecognize that police officers need not ignore other legitimate aspects of their general duties and powers when performing their duties. When so engaged, officers are not expected to ignore their perceptory senses – whether visual, olfactory or auditory. Put metaphorically,the eyes, ears and nose cannot be guilty of trespass. [106] The search constraints inherent in an investigative detention applied.

The only evidence is that the officer’s grounds emergedfrom the limited authority to investigate to grounds for arrest in the context of a CDSA stop on the basis of senses of sight and smell. Sight – he saw the boxes in the back seat – they were in plain view - alluded to in the dispatch as well as the green leafy substance hecould see through the flaps. He was a long term canine drug detection officer for the Cornwall Police Services, familiar with the lookand smell of unburned marijuana. Olfactory - he smelled the strong aroma of green marijuana emanating through the driver side openwindow. Sgt.

Martelle, an officer with experience in drug investigation confirmed the strong smell. Olfactory perception [107] The sense of smell is subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands ofthe police. However, it cannot be said that smelling an odour of marijuana can never provide the requisite reasonable and probablegrounds for arrest. The circumstances under which the olfactory observation was made will determine the matter. See R. v. Polashek (ON CA), (1999), 45 O.R. (3d) 434, [1999] O.J.

No 968 (C.A.). [108] I accept that Constable Kikkert recognized the strong aroma of green marijuana releasing from the Dingwall vehicle. A trainedofficer is entitled to draw inferences and make deductions drawing on experience. Constable Kikkert had been performing drug

investigation for 7 years and was familiar with the look and smell of marijuana as part of initial and ongoing canine unit training. Hewas central to searches for drugs in schools, border, warrant searches in Cornwall and Brockville. Sergeant Martelle, clearly the mostexperienced officer involved, (20 years) confirmed the strong smell of green marijuana.

The strong aroma was a material component ofthe progression to reasonable grounds to arrest and search. [109] The strong smell of green marijuana releasing, observed by both officers, from the driver window definitely complemented thecollective totality of circumstances in the progression to the conclusion that Dingwall was probably guilty of the offence alleged(objective). Kikkert had objectively reasonable grounds to arrest Dingwall at that point.

Given that he subjectively believed he hadgrounds to arrest and search before that, he clearly believed that he had reasonable grounds to arrest at that point. [110] The facts here are distinguishable from those in Lewis. There, the officer could not marshal objectively reasonable grounds toarrest until he searched the luggage and confirmed the bottle buried in the suitcase.

Here, the tipster was not anonymous, the boxes wereon the back seat, Kikkert observed what he was looking for, namely green, leafy substance and the aroma of green marijuana wasstrong. [111] I conclude that Kikkert had reasonable grounds to arrest Dingwall before opening the door and lifting the flap. In R. v. Debot(1987), (ON CA), 30 C.C.C. (3d) 207, the ONCA agreed that some searches incident to arrest can precede the actualarrest. It is axiomatic that a search may not precede an arrest and serve as part of its justification.

A search preceding arrest may beincident to arrest provided that the police officer had reasonable grounds, prior to the search, for arresting the accused under s. 495 of theC.C.C. The search was not unreasonable. It was as gentle and unintrusive as it could be. Accordingly, the stop and arrest were notarbitrary. The search The warrantless search – was it unreasonable? [112] Warrantless searches are presumptively unreasonable. Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145,per Cory J. Searches incident to arrest are an exception to that presumption – R. v.

Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679. [113] A warrantless search, particularly in respect to vehicle searches, does not require reasonable grounds beyond the grounds thatwere sufficient to support the lawfulness of the arrest. Providing the arrest is lawful and the object of the search is related to the crime,the sole issue is the reasonableness of the search. The rationale for this power is based on: 1. Officer and public safety; and2. The need to prevent evidence in the control of the detainee from being destroyed; and3. Discovery of evidence that can be used at the arrestee’s trial – Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158. [114] The scope of the power was enlarged to include the prompt and effective discovery and preservation of evidence relevant to theguilt or innocence of the arrested person – R. v. Lim (No, 2) (1990), 1 C.R.R. (2d) 136. It was enlarged further when it was held that thepolice were entitled to search the car driven by the accused since it was still in the vicinity of the arrest even though the search was notundertaken immediately upon arrest – R. v. Speid (1991), 8 C.R.R. (2d) 383 (ONCA). [115] Constable Kikkert suggested that the marijuana was in plain view.

Defence submits that the evidence obtained as the result ofthe unreasonable search in breach of Mr. Dingwall’s

section 8 Charter rights should be excluded at trial. Plain view The act of opening the box was a search. [116] Constable Kikkert’s contention that the marijuana was in plain view is rejected. If the marijuana was in plain view when hescanned the interior he did not need to open the flap to enhance it. The plain view doctrine allows an officer to seize - without a warrantevidence and contraband found in plain view during a lawful observation. The plain view doctrine confers a seizure power not a searchpower.

Almost all evidence is in plain view the moment it is seized. [117] The police may not move objects to get a better view. Constable Kikkert stated that he discerned the presence of the greenleafy substance – which he concluded was marijuana, through the gap between the top flaps of the cardboard box nearest the driver sidewindow as he scanned the vehicle interior. He said his purpose for the scan was to verify there was no one else in the vehicle. Hecharacterized the discovery of marijuana immediately apparent as “plain view” and not as a search as such.

His stated purpose inopening the back door and lifting the box flap was to certify the discovery. It was a search. Search incident to arrest [118] The operator of a motor vehicle has a reasonable expectation of privacy (REOP), but not heightened. Automobiles arelegitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemptionfrom the usual common law principle – R. v. Caslake, (SCC), [1998] 1 S.C.R. 51.

Although there is an expectation ofprivacy in automobile travel, it is markedly decreased relative to one's home or office: See for example R. v. Wise, (SCC), [1992] 1 S.C.R. 527, 70 C.C.C. (3d) 193. The police have considerable leeway in the circumstances of an arrest that they do nothave in other situations. The exigent search argument

[ 119 ] The defence argue that once the stop/arrest was made there were no exigent circumstances that required the officers to further the search without first obtaining a search warrant. That position is without merit. Binnie J. in R. v. Nolet, 2010 SCC 24 paragraph 52 summarily dismissed this argument by noting that the basis of the warrantless search was not “exigent circumstances” but connection or relatedness, i.e. to trigger the common law authority to search for evidence of the crime to which the arrest related: Cloutier v. Langlois , at page 186.

The seizure of the 31 pounds of marijuana was Charter compliant as it was discovered during a valid search for evidence incidental to a valid arrest. [ 120 ] Lastly, on this issue, if I am incorrect in the conclusion that the stop and search are Charter compliant, the Grant 24(2) analysis does not result in exclusion. [ 121 ] Constable Kikkert’s conduct was appropriate. He was following dispatch direction. He may not have conducted an analysis of where his thinking stood on the reasonable grounds continuum, rather he concluded reasonable grounds to arrest.

When challenged he acknowledged that what he had was suspicion. He was forthright in that respect. He may not have delivered the Charter informational component immediately; however I accept that officer safety was at the forefront of his thinking at the time and the delay did not have any effect on Mr. Dingwall’s right to make an informed choice about whether to cooperate or not. No statement was obtained to my knowledge and if there was it came after full Charter informational compliance. [ 122 ] This was a CDSA stop.

The only evidence is that Constable Kikkert observed the boxes and the green leafy substance thought to be marijuana in the boxes in the back seat. Vehicle searches are at the lower end of the degree of intrusiveness contemplated in the search spectrum.

Part VII: Charter s. 7 – Box degradation [ 123 ] In the five years since the arrest the boxes have degraded. Sgt. Martelle put one inside the other to transport them to the preliminary inquiry. They remain that way and counsel were reluctant to disengage them for fear of damage. I do not understand why they did not extricate the inner box on videotape. [ 124 ] Defence argue that Mr. Dingwall’s

section 7 rights were breached because they cannot test Constable Kikkert’s evidence as to what he observed through the window. I disagree. A search inherently disturbs the status quo . It is impossible to recreate. The bare fact of processing necessarily changes the cardboard’s integrity. The police are required to process the contraband. That process necessarily involves lifting, carrying and otherwise moving the boxes, removing the contents and so on. The police are required to process evidence. Process inflicts change.

There never is opportunity of recreating the scene or processing evidence in pristine version. We pursue a fair trial, not a perfect trial. It is not as if the boxes are of any special quality. Cardboard degrades with time. I take notice that in everyday life cardboard containers degrade with use and time and storage conditions. The first time defence conceives the alleged deficiency is at the preliminary inquiry. The boxes were twenty months older than they were at date of arrest.

The opportunity of testing Constable Kikkert’s observations dissipated, not by anything the police did but rather by the passage of time.

Part VIII: Commingling Drugs from 42 individual bags into one evidence bag [ 125 ] The defence submission is that the practice of commingling the contents of 42 individual bags into one compromises the evidentiary value of the forensic results confirming that at least five of forty-two bags contained marijuana.

The context for that submission is that there are other substances similar in appearance to marijuana and it could be that one or more of the remaining thirty- seven bags contained other legal substances and by commingling, defence were denied meaningful opportunity of conducting independent forensic testing under s. 605 of the Criminal Code . [ 126 ] The evidence from Sergeant Martelle is that every bag contained the same substance as the five that were sampled.

Analysis [ 127 ] The commingling of the 42 bags does not prejudice the defence and complies with the CCPS manual. [ 128 ] The rule (in Hodge's Case ) makes it clear that cases are to be decided on the facts proved in evidence and conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. [ 129 ] It is not for the court to speculate without an evidentiary basis. No conclusion can bed rational conclusion that is not founded on evidence .

There is no evidentiary basis for the possibility that one or more of the remaining bags contained a sample other than marijuana. For the purposes of independent testing, there is no practical difference between random sampling of the contents of 42 identical bags and random sampling from one container. [ 130 ] By commingling the bag contents, the state assumes the risk that one or more of the samples return with negative result. In terms of best practice process, the preferable course would be to maintain the substance in separate evidence bags until the certificates of analysis arrive.

One or more negative results would form the requisite evidentiary foundation for the defence argument and the Prosecution would not be in a position to establish the weight of the illegal substance. In this case, the five forensic results proved positive for marijuana and the only inference in evidence is that the residual material is marijuana.

Part IX: Continuity [131] Defence submit that sloppy storage raises issues as to whether the garbage bag full of marijuana produced for the trial is thesame one filled by Sgt. Martelle on March 25, 2007. They cite the fact that the identification tag fell off, that it weighed two poundsless at trial than when Sgt. Martelle weighed it in originally, and that the original bag was placed in another bag by someone in theinterim and was torn. Sgt.

Martelle confirmed the bag of marijuana tendered for the court is the same one he compiled in processing. [132] The extent to which the Crown proves the continuity of real evidence in a narcotics case, and whether or not breaks incontinuity makes evidence inadmissible are questions of fact for the trier of fact to decide. Breaks in the chain of continuity reduce theweight that can be given to the proffered evidence: R. v. Andrade, (1985), (ON CA), 18 C.C.C. (3d) 41 (Ont. C.A.). [133] The Crown must show beyond a reasonable doubt that the material seized from an accused was a prohibited substance.

To thatend, the Crown must prove that the substance dealt with by, or in the possession of, the accused is the same substance that is alleged inthe information or indictment. Continuity of possession of the substance from the accused to the law enforcement officer to the analystis crucial. However, proof of continuity is not a legal requirement and gaps in continuity are not fatal to the Crown's case unless theyraise a reasonable doubt about the exhibit's integrity - see R. v. Dawdy and Lamoureaux (1971), (ON CA), 4 C.C.C.(2d) 122 (Ont.

C.A.). [134] There is no issue that the five samples for which there are certificates of analysis were removed from the boxes in Mr.Dingwall’s vehicle, that they were placed in secure sample containment and were delivered to the analyst for testing. Continuity fromseizure to the analyst was proven on a standard close to certainty. [135] Again, the issues raised by defence are speculative. The only evidence proffered is that the substance in the large garbage bagis the same as that processed by Sgt. Martelle on March 25, 2007. It is about two pounds lighter today than it was four years ago.

Itwould be surprising if it was not. One would think that the merit of having to produce the seized goods in specie before the court wouldhave long dissipated. I ask rhetorically, if the seizure involves a fifty-foot tractor-trailer container what is the merit of preserving thatquantity for four years to show it to the trier? What about the logistics of and security issues involved in taking it to court? Theimportant evidence is that of processing from seizure to analysis. The defence requires time and opportunity to conduct its ownanalysis.

After that, the business records or approved analytical certificates compiled in processing are the evidence. This grievance iswithout merit. [136] Police processing complied with all but subparagraph 6.02(c).a of CCPS General Order FOB040. It is poor practice for oneperson to process the contraband. Here, little turns on the deficiency; however, by disregarding the practice order, Sergeant Martelle,and by implication the prosecution assume responsibility had evidence arisen that challenged his processing conclusions.

Part X: The validity of the stop and search of the Silverado [137] Ms. Flaro said that Rodney Dingwall was a regular visitor to the Lefebvre/Derouchie apartment during their tenure, to theextent that she had designated a parking spot for him so he would not park in slots assigned to other tenants. She was familiar with Mr.Dingwall’s vehicle. She noted, as well, that Mr. Lefebvre drove the red Silverado to the extent that she concluded he owned it. [138] She observed Mr. Dingwall and Mr. Lefebvre carry a box and saw Mr. Dingwall place it in the back seat of his car.

Sheobserved the two vehicles rapidly vacate her parking lot. She recalled that one or the other or both squeaked their tires as they left. Sheconcluded that the operators of both vehicles were intent in making a speedy escape. This information was conveyed to the call-taker. [139] Prior to finding the two boxes of marijuana in the back seat of Mr. Dingwall’s car, the grounds for stopping the Silverado weretenuous.

Constable Kikkert confirmed as much when he said his information was that the drugs were in the car, so when the truckcarried on after he activated the emergency equipment to stop the car I expect he was relieved. [140] The discovery of the marijuana in the Dingwall vehicle elevated the grounds in relation to the Silverado from meagre groundsto detain for investigative purposes to reasonable grounds to arrest and search, in the context of a common criminal purpose related toCDSA offence. [141] Sgt. Martelle declared that he relied on experience to declare reasonable grounds to arrest after finding the marijuana.

Hesuspected that the proceeds and drugs would be kept separate and called it. That may not be the strongest logic and to permit relianceon broad generalizations about loosely defined classes of people is to invite dependence on stereotypes and prejudices in lieu ofevidence. The test is reasonable grounds for belief. [142] The information he had was that there was a CDSA operation ongoing that involved the two drivers and vehicles whichmaintained formation until Constable Kikkert activated his emergency equipment to stop the car.

The discovery of the marijuanacongealed reasonable grounds for arrest and search relative to the very offences charged before the court. At that point in theprogression, he had an honest belief in the guilt of the occupants of the Silverado (subjective) based on a conviction, founded onreasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinaryprudent, cautious and informed man, placed in position of the accuser, to the conclusion that the persons to be charged were probablyguilty of the crime alleged (objective) - R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241. [143] Cash correlates with large quantities of illicit drugs. Ms. Flaro described the vehicles, the occupants and how they removed thebox from the apartment into the Dingwall vehicle. The accused persons, Lefebvre and Dingwall, were participants in that activity. Ms.Flaro described what she witnessed. From the investigating officer’s perspective, it was reasonable to suspect that the occupants of the

Silverado were involved in a common illegal purpose relative to the marijuana sitting in the back seat of the Dingwall vehicle. OfficerRedmond stipulated that he was not going to detain the occupants of the Silverado until Cornwall Police confirmed a drug seizure. Hewas clearly alert to the search constraints involved in an investigative detention relative to search incident to arrest. [144] Noel Piette, as passenger in the Silverado, did not have a protected expectation of privacy in the vehicle - R. v. Edwards (1996), (SCC), 45 C.R. (4th) 307 (S.C.C.); R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341.

He did not own orcontrol the vehicle and there is no evidence of a special relationship with the driver. He did not control access to the vehicle, nor wasthere any subjective evidence that he expected there to be privacy in the vehicle. [145] Further, the privacy interest in a vehicle belonging to someone other than the operator is reduced. [146] The exigent search argument fails here for the same reasons earlier stated.

Part XI: Conclusion [147] Accordingly, the rulings on the issues raised by counsel are as follows: 1. The exhibits seized from the Grand Am vehicle of Mr. Dingwall, namely two boxes containing marijuana, a set of scalesand a marijuana cigarette are admissible in the trial and not excluded pursuant to Charter principles. 2. The sum of money seized from the Silverado pickup and sum of money found on the person of Mr. Lefebvre are admissiblein the trial and are not excluded pursuant to Charter principles. 3.

The written statement from Shawna Flaro made March 25, 2007 is admissible on the voir dire not as proof of its contentsrather as proof it was made. 4. No remedy flows from the tape-over of the 911 recordings. 5. No remedy flows from the degradation of the cardboard boxes. [148] The Charter applications brought by defence are dismissed. Justice Rick Leroy Released: February 5th, 2013 CITATION: R. v. Dingwall, Lefebvre and Piette, 2013 ONSC 604 COURT FILE NO.: 09-102 DATE: 2013/02/05

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – RODNEY DINGWALL, ANDREW LEFEBVRE AND NOEL PIETTE CHARTER APPLICATION RULINGS Justice Rick Leroy Released: February 5 th , 2013