CRIMINAL CASE LAW
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1.) R v. CHILDS, 2016 ONCJ 690
Judge: Justice Campbell
Background:
Stephen Childs was charged with possessing Dilaudid and Fentanyl for the purpose of trafficking. He elected to be tried by a Judge of the Superior Court and requested a preliminary hearing. During a focus hearing, the Crown indicated that it intends to call two officers to testify about the arrest and seizure of the drugs following a search incident to the arrest and intends to file a written report pursuant to s. 540(7) of the Controlled Drugs and Substances Act to demonstrate the drugs seized were possessed by the Accused for the purposes of trafficking.
Issue:
The Accused desires to hear from the officer (Cst. Sieberer) who concluded there were grounds to arrest Mr. Childs. His grounds to arrest arose from information he received from a confidential informant who has requested that his identity be protected. Despite the prosecution’s disclosure of the officer’s vetted report and handwritten notes, counsel for Mr. Childs would like to explore the sufficiency of the grounds for arrest, and in particular, the inferences drawn and conclusions made from information obtained not only from the informant but also in regard to the Cst. Sieberer’s efforts to corroborate that information.
Rule:
The prosecution is concerned that the proposed cross-examination of the informant handler might compromise the informer’s privilege, and adds that everything the officer might have to say about his involvement in the matter has already been disclosed. In addition, the Crown maintains that if the defence intends to examine the officer, leave of the court is required by way of a Dawson application. On the other hand, the Defence argued that a Dawson application is not required and adds that if the Crown does not intend to produce Constable Sieberer, a subpoena will be issued and service effected on the officer by the Defence to require him to attend for examination at the hearing.
Legal/Analysis:
Just as the preliminary hearing Judge may receive evidence on the part of the prosecutor, the Judge may also hear evidence called by the Accused in accordance with s. 540. Moreover, where the Crown seeks to rely on a witness statement or documentary evidence in accordance with s. 540(7), the preliminary hearing Judge shall, on application of a party, require a person to attend for a cross-examination with respect to the tendered documentary evidence.
The Crown has put forward a legitimate concern about protecting the identity of a confidential informant. The Crown argues that the evidence the defence intends to adduce goes beyond the incidental discovery purpose of a preliminary inquiry and raises concerns consistent with the Supreme Court’s statements in Garofoli and Dawson regarding the protection of an informer’s identity and the unnecessary continuation of proceedings. The Crown’s concern with respect to informer privilege is a genuine one. After reviewing the report and notes of Officer Sieberer who was the ‘handler’ of the confidential informant and made the call to arrest Mr. Childs, Ms. Comand has indicated that her desire to examine the police handler is not only in regard to his efforts to corroborate the information he received but also in regard to the inferences Cst. Sieberer drew from the facts he relied on in forming his grounds to arrest.
Conclusion:
The Defence does not have to bring a Dawson application or seek leave to cross-examine the handler of the confidential informant at the preliminary hearing. Crown counsel should notify Defence
counsel if they intend to call Cst. Sieberer or make him available at the hearing. Defence counsel can then proceed as they see fit. Insofar as protecting the informer’s privilege is concerned, it is a concern held not only by the Crown but also shared by the court.
2.) R. v. EDWARDS-CYRUS, 2016 ONCJ 379
Judge: Justice Ritchie
Charges:
Zachary Edwards-Cyrus, the Defendant, is accused of drug trafficking, possessing drugs for the purpose of trafficking and possessing the proceeds of crime (five counts in total). The Defendant has brought a motion under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that there has been unreasonable delay in bringing the charges to trial.
Background:
The charges in this case were laid on September 22, 2015, and that is when the time began to run. The trial date was set on April 29, 2016. The time frame in this case is quite long, considering the allegations involved a drug sale to an undercover police officer and drugs found on the Defendant’s person at the time of his arrest and drugs found in the Defendant’s premises when a search warrant was executed.
Legal Analysis:
The main disclosure took place on November 26, 2015. There were subsequent requests for additional disclosure by the Defence. The matter was adjourned (at the request of the Defence) for almost six weeks over the year-end holidays. A Crown pre-trial took place on January 8, 2016. A bail variation was arranged on January 26, 2016. By March of 2016, the Crown vetted and subsequently disclosed the Information to obtain the search warrant on March 31, 2016. A second bail variation was arranged in late March of 2016. Then a judicial pre-trial was arranged and held on April 29, 2016 (the same day that the trial date was set).
A lot of legitimate activity took place over the seven-month period in question. However, there is one additional factor, which the Defence relied upon heavily. The Information To Obtain the search warrant (the “ITO”) could not be found for a period of about four months, from late October of 2015 to late February of 2016. It was determined that the ITO was lost in the court systems, not the prosecutor's office. Continuing efforts were made to find the ITO. The Defence took the position that it would not participate in a judicial pre-trial or set the trial date until the ITO was disclosed. As a result, matters did not move forward for a period of about two months. The search warrant was central to half of the charges, but noted was the fact that even without the search warrant evidence, the Crown could proceed on 4 out of 5 charges, and only one “proceeds” count would be lost.
The second time frame was a section 11(b) motion, set for June 20, 2016, a Garafoli application was set for August 19, 2016 and the trial was set for October 24 and 25, 2016. The timeframe was almost six months.
Conclusion:
There was prejudice towards the Defendant, flowing from the charges themselves and a potentially negative result at trial. However, delay is a relatively minor factor. Mr. Edwards-Cyrus was released on bail three days after his arrest.
There were five conditions of bail:
No weapons;
No illicit drugs;
Reside with surety;
10:10pm to 6am curfew, unless with surety; and
Maintain employment.
Conclusion:
The Defendant, in his affidavit, stated that he lost out on a better paying position because he couldn’t work in the late evening. That was raised with the Crown, and the Crown agreed to a midnight curfew. Considering the time to trial and circumstances, the total time of the trial was just over 13 months. There has been no unreasonable delay and no breach of the Defendant’s section 11(b) charter rights. Therefore, the application was dismissed.
3.) R v. GAYNOR
Judge: Justice G.R. Wakefield
Charges:
Mr. Gaynor’s trial resulted in findings of guilt on possession for the purpose of trafficking, regarding powdered cocaine; and on a possession for the purpose of trafficking, regarding OxyContin; possession of a sawed-off rifle contrary to s.92(3); possession of a restricted firearm, namely a 9 millimetre handgun, contrary to s.92(3); possessing a firearm obtained by a crime contrary to s.96(1); and a possession of a restricted device, namely an over capacity magazine, contrary to s.92(3).
The loaded firearm charge was withdrawn by the Crown and the balance of charges were conditionally stayed.
Trial Details:
The Crown’s starting position is one of three years on the firearms offences and a consecutive one-year on the cocaine. The Crown’s position on sentencing has already taken into account both the personal circumstances of the Defendant in constructing its sentencing, and is a position which is lower than most of the filed case law, pertaining to drugs and firearms.
The Crown compared similar cases and sentencing. Mr. Gaynor had 2 firearms, which one was altered with ammunition together and had a prohibited magazine which was unloaded. The drugs were not for personal use, but instead, for the purpose of trafficking in the community to receive monetary gain.
Mr. Gaynor was said to have acted in a professional way during his trial which should be acknowledged.
Background:
The statement of facts sets out the investigation resulting in a search warrant seizure for 5.6 grams of powdered cocaine with value of $560, $2873.50 in cash, four cell phones and a digital scale in the vehicle that Mr.Gaynor, the Defendant, was driving. There was a subsequent search of the Defendant's (Mr.Gaynor’s) residence, which resulted in the seizure of an unloaded, but functioning, Czech Small Arms 762, and a non-restricted rifle with a serial number removed, which were located in his bedroom. Additionally, seized from the safe were 2 magazines for the rifle, in which one was prohibited, and a functioning DAC 394 9mm restricted handgun that was previously stolen from Windsor, Ontario. The safe also contained 52 grams of powdered cocaine with the value of $5,200 and twenty OxyContin tablets, valued at $100, two boxes of ammunition for the rifle containing 40 rounds, a beretta airsoft pellet handgun, a digital scale and some personal documents of the Defendant, Mr.Gaynor.
Mr.Gaynor was not an offender high on the criminal organization ladder, nor a user-trafficker but rather self-admittedly involved for profit. He profited on the weakest members and most vulnerable in the community. The drugs were for the purpose of trafficking and he did not have the necessary licensing for the firearms nor did he properly store and secure the firearms. The number of firearms
and drugs and a realistic looking pellet gun stimulates the consistent connection between the drugs and guns.
Issue(s):
The question was asked, “why did the accused, Mr.Gaynor possess the firearms, if not to use them to kill or maim people if the need arises?” Guns and drugs are the most aggravating factor. Deterrence is a predominant factor.
Background of Defendant:
The Defendant, Mr.Gaynor, is a 25-year-old Canadian citizen and the report is overall positive for a young first offender. The defendant is from Jamaica where at 5-years-old, the father and mother were separated before his father moved to Canada and the mother moved to England. The defendant was left in Jamaica to be in the care of a cousin. At 12-years-old, he became too much of a responsibility and it was arranged for him to move to Canada to be with his father. Sometime between the ages of 16-21, the father excluded him from the home and told him he was old enough to be on his own.
Mr. Gaynor did have the perseverance to finish high school and attempt college, despite having financial issues. He met his partner and had a daughter and had a long job history. His girlfriend describes Mr. Gaynor as being in touch with his responsibilities to provide for his child.
Mr.Gaynor describes the criminal choices he made as something he never saw himself doing and it was noted the money he obtained with the drug trafficking was used towards his family and not for his own needs. With respect to Mr. Gaynor’s desire to help his family, he chose the route of a criminal way to make easy money. It was a decision that the community was put in jeopardy by guns and drugs.
Legal Analysis:
The mitigating factors taken into consideration is the positive presentence report. Despite his upbringing, Mr. Gaynor had managed to not have any prior convictions and had the ability to not fall into gang affiliation. Although his charter application failed, he still attended court and entered into a plea knowing the sentence would result in a deprivation of liberty. Throughout the time of his release, there were no allegations of breach or allegations of further criminal behaviour.
On the firearms offences, there will be a foundational sentence of two and a half years on each firearm count concurrently. Further, on the narcotic offences, it was noted again that the guilty plea would be for a first offender, an important mitigating factor that in other cases have resulted in sentences as low as nine months.
Conclusion:
In these circumstances, Mr. Gaynor was sentenced to a foundational nine months on each drug offence concurrent to each other, but consecutive to the firearms offences for a total of three years and three months.
4.) R. v GOULART, 2016 ONSC 1519
Judge: Justice Mcwatt
Charges:
The Applicant was charged with Possession for the Purpose of Trafficking Cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act (C.D.S.A.) and Possession of Proceeds of Crime contrary to sections 354(1)(a) and 355(b) of the Criminal Code. The charges arose as a result of the execution of a search telewarrant at the Applicant’s residence where police found 208 grams of cocaine and $28,600 in cash. The search warrant is grounded on information provided to Toronto Police from a confidential informant (CI).
Issue(s):
The Applicant seeks to set aside this section 11 CDSA search telewarrant on the basis that, as redacted for trial to protect the identity of the CI, it does not possess the requisite reasonable and probable grounds for issuance to search a private residence. Aas well, it is extremely deficient and ought to be quashed pursuant to a violation of s. 8 of the Charter. The evidence seized should be excluded pursuant to s. 24 (2) of the Charter of Rights and Freedoms.
Rule:
The Crown acknowledged at the outset of the application that the Information to Obtain (ITO) the warrant, as redacted for purposes of disclosure at trial, does not provide sufficient information to make out the reasonable and probable grounds required to support its issuance. The Crown then brought a Step Six cross-application to consider the portions of the ITO, which the issuing Justice of the Peace (JP), William Bromwell, had when he issued the warrant on May 9, 2013. The Crown provided a copy of the unedited ITO and a draft Judicial Summary of the redacted portions. The Step Six process and the resulting Judicial Summary has provided the Applicant with enough information from that excised material to make him “sufficiently aware of the nature” of it so that he can challenge it in argument or by evidence. On consent of the Crown, counsel for the applicant was permitted to and did cross-examine the Affiant of the ITO, Constable Tony Aiello, as part of the process.
Legal Analysis:
Evidence obtained by cross-examination of Cst. Aiello amplified the record in this case. There was no suggestion by the Applicant that his evidence affected the sufficiency of the warrant. He maintains the warrant’s deficiencies are profound enough. The Applicant challenges the validity of the warrant, through Cst. Aiello’s evidence, on the basis that he obtained a telewarrant because it was easier than waiting until the next day to appear before a JP in person.
Search warrants, based on information from a CI, must be assessed by the degree to which the information predicting the crime was compelling, its credibility and whether the information was corroborated by police.
The CI’s tips were compelling. The CI knew the Applicant by name and for at least a ten-month period by the time of providing the police with information. The CI had purchased cocaine from Mr. Goulart in or before July, 2012, and purchased another amount of cocaine from the Applicant again later in 2012. The CI provided information about the specific amounts of cocaine she/he purchased from the Applicant along with the location of the purchase, the increment at which the Applicant sold cocaine, the source of her/his knowledge about the Applicant’s possessing the cocaine and the timeframe she/he acquired that knowledge. The CI gave the police firsthand information about a third sale of cocaine by the Applicant within two weeks of May 9, 2013 – the date the search warrant was executed. The CI saw the Applicant enter the premises at 168 Gladstone Avenue once this deal was complete.
Additionally, the CI provided Mr. Goulart’s address and described the residence at 168 Gladstone Avenue in Toronto, Ontario. The CI physically identified it to two police officers. The CI had attended the address at other times. The CI told police that the Applicant stores cocaine and proceeds of the sales of the drug at the address and that he is familiar with the residence – including providing details regarding other occupant(s) the Applicant lives with at his home. The firsthand nature of this information was compelling and was evidence in the ITO, upon which the issuing JP, acting reasonably, could issue the telewarrant to search Mr. Goulart’s residence.
Further Details of the Investigation:
The warrant was issued at 7:48 pm and executed at 8:37 pm. Cst. Aiello testified that he was working a 4:00 pm to 2:00 am shift. Mr. Goulart was one investigation along with others the Cst. had ongoing and a window appeared for him to focus on the Applicant. Cst. Aiello testified that on May 9, 2013, when he commenced his duties, the warrant was not complete. The added information he got was provided by a surveillance officer who told him that Mr. Goulart was entering the target residence at 5:05pm.
As a result of locating the Applicant in his residence and having the manpower to execute the warrant that night, he believed the time was right, so he applied by the telewarrant procedure because there were no Justices sitting at the Old City Hall Courthouse before whom he could appear in person after 5:00pm. Cst. Aiello testified that he hoped to execute the warrant that night if “things were aligned”. The Justice was not told that the warrant was urgent because the Affiant did not consider it as being urgent. The Applicant submits that because the warrant was not urgent, the officer should have appeared in person the next day. Cst. Aiello’s evidence was consistent and cogent. He had concerns the information he had was becoming stale the longer police waited to have the warrant issued and executed. The cocaine he hoped to find at the residence could easily have been sold. The Applicant was in the home on the night they executed the warrant. A nighttime execution coincided with the right number of officers plus a road boss on duty that shifted to execute the search.
Conclusion:
There is also no s. 8 breach on this ground of the Application. The Application is dismissed.
5.) R v. KOSTEREWA, 2016 ONSC 7231
Judge: Justice A.J. Goodman
Charges:
The Applicant is charged with one count of possession for the purpose of trafficking in cocaine, contrary
to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”), one count of possession of proceeds of crime and unlawfully possess a prohibited weapon, contrary to their respective provisions of the Criminal Code. All of these offences are alleged to have occurred in the City of Hamilton on November 7, 2014. The Applicant pleaded not guilty to the three counts alleged in the indictment, however, offered no opposition to the facts as it relates to the cocaine and other contraband seized from him personally upon his arrest.
Rule:
The Applicant seeks to exclude certain evidence seized by the police from his motor vehicle under a judicially authorized search warrant by virtue of an alleged breach of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”). The Applicant also raises an issue with respect to the indictment and a violation of the single transaction rule.
Issue(s):
Mr. Paquette, counsel for the Applicant, submits that his client does not dispute the fact that he was trafficking cocaine. That said, it is submitted that the Affiant did not have reasonable and probable grounds to support the subsequent issuance of the search warrant with regards to the Applicant’s motor vehicle.
The Applicant submits that the ITO did not disclose the requisite reasonable grounds in relation to the motor vehicle. In his factum, the Applicant submits that the ITO does not disclose whether Source A has a criminal record or what Source A's motivation was for providing information to police.
The Applicant submits that with a full consideration of the s. 24(2) factors, all of the evidence obtained from the motor vehicle ought to be excluded.
Background:
On November 17, 2014, members of the Vice and Drug unit set-up surveillance in the area of 310 Fall Fair Way, Unite 48, in Binbrook, Ontario. At 5:23 pm, the Applicant was observed to pull-up in his black Chevrolet Cruze, license plate number BSH X36. He entered the visitor’s lot. By 6:06 pm, the Applicant was observed to leave the residence on his motorcycle and then proceed to Binbrook Fairgrounds, where he entered the rear parking lot. Between 6:10pm and 6:20pm, the Applicant was observed meeting with two separate vehicles. With respect to the first vehicle, he was observed reaching into the front passenger side window. No one exited from the vehicle. The Applicant appeared to speak to the occupants while having a cigarette before the vehicle drove away. With respect to the second vehicle, the Applicant was observed entering the back seat of the truck where he remained for a few minutes before he exited and the truck drove away.
After the truck's departure, the Applicant was observed leaving on his motorcycle and driving to a Tim Horton's plaza. There, he was observed meeting up with an unknown white male. The Applicant and the male subsequently entered a vehicle, with the male entering the driver's seat and the Applicant entering the passenger's seat. At that point, police approached the vehicle on foot and arrested the Applicant for possession of cocaine for the purpose of trafficking.
A search incident to arrest located a small Ziploc bag with approximately 0.5 grams of cocaine and $50 in Canadian currency in the Applicant's front right pant pocket as well as an operational pocket sized digital scale in his front jacket pocket. A further search of the Applicant's person revealed a $1000 bundle of Canadian currency in his front left jeans pocket; a wallet with $895 Canadian currency in his right rear jeans pocket; a baggie in his left breast jacket pocket containing approximately 15 grams of cocaine; and a dark coloured iPhone 5.
Following this arrest, Officer Griffin attended at Central Station and drafted an information to obtain (“ITO”) CDSA search warrant for 310 Fall Fair Way, Unit 48 and the Applicant’s vehicle. The issuing justice granted the Search Warrants.
Officer Beck conducted the search of the vehicle and he located 38 dime bags, each containing powder cocaine. The dime bags were inside of a larger Ziploc bag concealed inside the fuse box compartment of the vehicle near the steering wheel. The total weight of that cocaine was 44.91 grams. Also hidden in the vehicle’s fuse box area, was a second larger Ziploc bag containing 124.57 grams of powder cocaine. A set of brass knuckles was located inside a pouch behind the front passenger seat.
Legal/Analysis:
Ms. Antoniani, on behalf of the Federal Crown, submits that there were sufficient grounds to support the issuance of the search warrant for the vehicle. The information provided by Source “A” was very compelling and detailed. Source “A” had first-hand knowledge along with police observations of the Applicant, his residence and vehicle over the course of several days. Source A was also a known and proven source. The information provided was credible, compelling and corroborated.
It is necessary to assess the substantive core of the ITO, including any misleading information, irrelevancies, omissions, lack of evidential foundation, matters arguably short on detail, potentially misleading language, as well as other factors, and ask whether the Applicant has demonstrated the absence of any reasonable basis for the issuance of the warrant.
The Affiant claimed that Source “A” is a street source. In the redacted segment of the ITO, the Affiant goes on to state that the Applicant is dealing cocaine out of his residence and from his vehicle which is described as a black four door vehicle, believed to be a Dodge Avenger. Source “A” goes on to state that the Applicant has cocaine on his person. The Affiant conducted further checks related to the Applicant.
Conclusion:
The application is dismissed. The Applicant has not established a breach of his rights pursuant to ss. 8 and 24(2) of the Charter. Accordingly, all of the drug or drug-related evidence arising from the search of his Chevrolet Cruze motor vehicle at 310 Fall Fair Way, Binbrook, is admissible in trial.
6.) R v. STAIRS
Judge: Justice Coats, J.
Charges:
Matthew Stairs was charged on a three-count indictment for possession of a controlled substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA), assault, contrary to s. 266 of the Criminal Code of Canada, and failure to comply while bound by a probation order, contrary to s. 733.1(1) of the Criminal Code.
Legal Proceedings:
On March 19 -21 of 2018, April 12, 2018, and April 27, 2018, a pre-trial application was heard where Mr. Stairs asserted that his rights to s.8 and 9 of the charter were violated. He requested the exclusion of evidence. On May 10th 2018, Counsel and Mr. Stairs were advised that his application was dismissed for the reasons that follow. On May 10th 2018, Mr. Stairs opted to have a trial by Judge alone.
After the release of the Charter ruling, Mr. Stairs had pleaded not guilty on all 3 accounts. On count one of the indictment, being possession for the purpose of trafficking, Mr. Stairs admitted the underlying facts and invited the court to convict him on this count. Mr. Stairs was found guilty. The trial proceeded on count two, the assault. Count three, being the breach of probation, will be discussed when the matter returns to Court on June 18, 2018, as will the sentencing on count one.
Counsel agreed that the evidence of the three officers from the Charter voir dire could apply to the trial without the need to recall the officers as witnesses. Additional evidence from three witnesses was heard – Santo Andrew Berlingieri, Ms. Marcela Manriquez, and John Stairs. The Crown called all three witnesses.
Background/ Mr.Berlingieri’s Evidence:
On June 1, 2017, Mr. Berlingieri was driving southbound on Ford Drive in Oakville and believed that he observed an assault being committed by a male driver against a female passenger in a car stopped and facing the opposite direction on the other side of the road. Mr. Berlingieri drove past the vehicle and continued southbound, and observed the vehicle make a u-turn and drive behind his truck in the same direction. He continued to observe what he believed to be an ongoing assault. Approximately 15 minutes later, Mr. Berlingieri called 911 to report the incident, and provided the make, model, and colour of the vehicle, and a licence plate of “BEWN 480 or 483.”
For the reasons set out in the Charter ruling, police officers located the vehicle Mr. Berlingieri had observed at 2273 Devon Road, Oakville, Ontario. It was also found that the officers legally entered the residence, and after entering the residence, a female named Marcela Manriquez came up from the basement. Matthew Stairs was initially arrested in the basement for assault and breach of the probation order.
Briefly, the evidence from the officers is that after lawfully entering the residence, a female, who they later noted to be Ms. Manriquez, came up from the basement stairs and met with the officers. The officers observed that Ms. Manriquez had injuries to her face.
Mr. Berlingieri’s Evidence:
Some things to note from Mr. Berlingieri’s evidence given in chief;
Once the car was one car length, give or take, behind his truck, Mr. Berlingieri observed the female being hit or struck in the head area again by the driver’s right arm or hand. Mr. Berlingieri did not know for sure if every single strike was being landed on the female. It looked like she was being struck in the head area. He observed the female trying to protect herself. She was squirming. The female made a ducking motion with her head buried in her arms. The driver then had the passenger in a headlock. The driver’s right arm was around the female’s neck. Mr. Berlingieri could not say how long this lasted. He testified that it looked like the female was kicking her feet trying to get out of the hold. Mr. Berlingieri said the visibility was clear. It was not raining. Mr. Berlingieri testified that he cleans the mirrors everyday on the truck. It is part of an inspection.
Background/Ms.Marcela Manriquez’s Evidence:
Ms. Marcela Manriquez evidence given in chief;
Ms. Manriquez is 32 years old. She acknowledged that she is currently dealing with a drug addiction and is taking methadone for treatment. She had been taking methadone for six years and gets it daily in Hamilton, Ontario from a pharmacy. She takes the methadone in front of the pharmacist and gets a receipt.
When asked if Matthew Stairs (“Mr.Stairs”) had said anything else to her, Ms. Manriquez asked to read the transcript of her statement to the police of September 2, 2017. She then said Mr. Stairs was upset about having to look for her, and that she had taken so long and should have taken the car. He was also upset about her use of Methadone because it makes your teeth fall out.
They both have an inside joke about the methadone. Ms.Manriquez sometimes thinks it's funny, but also insulting, so they apparently started play-fighting. She then stated it wasn’t exactly play-fighting. Mr.Stairs insulted her and she punched him. She tickled him. They were wrestling a little bit because he was driving. She said she punched him in his stomach, playfully on his side, because he was driving. Mr.Stairs tried to get her in a headlock but he could not because he was driving. She tickled him. He tried to stop her. He did not get her in a headlock because she ducked. Mr.Stairs cannot stand being tickled. She tried to tickle him. They were both in a better mood then.
In cross examination, Ms. Manriquez stated that Mr.Stairs had never hit her and did not that day. He did not punch, bite, scratch, threaten, or kick her. She said if he did, she would remember and would have called the police. It would stick out in her memory because it would be shocking to her.
Legal Analysis:
Ms. Manriquez constantly denied being physically assaulted. She denied this to the officers on June 1, 2017, the date of the incident. She denied this in her statement to the police. She denied this at the trial. Her evidence in this regard was not accepted, she was also found to not be a credible witness for the reasons set out above, and this reflects the credibility of her description of what transpired in the vehicle. Her evidence that she gave, implying consent to the physical assault in the vehicle, was not accepted, by virtue of it being play-fighting, to be credible.
Conclusion:
It was also found that Ms. Manriquez’s evidence was not reliable. She could not recall details. On the other hand, Mr. Berlingieri had no doubt about what he saw. The Judge accepted his evidence that Mr. Stairs assaulted Ms. Manriquez. Mr.Stairs intentionally applied force to Ms. Manriquez without her consent. For those reasons, Mr. Stairs was found guilty of assault.
7.) R v. ALLY, 2017 ONSC 5375
Judge: Justice Lemay
Background:
The accused, Mr. Ally, is charged with possession of cocaine and possession of cocaine for the purposes of trafficking. All of these charges relate to an arrest of Mr. Ally on July 17h, 2015, as well as a search of his home on that day. These charges flowed from surveillance conducted by the police on July 17th, 2015, which in turn, flowed from information that the police received from a confidential informant. Once the surveillance was completed, the accused was arrested, drugs were allegedly found in his possession and a telewarrant was obtained for the search of his residence. Further evidence was found during the search of the accused’s residence.
Issue(s):
The accused is bringing a Garafoli application to challenge the issuance of the telewarrant, and to seek the exclusion of evidence obtained, pursuant to the telewarrant.
In advance of the Garafoli application, the accused has brought a motion for production of information from the police relating to the confidential informant and the Information to Obtain. For the reasons that follow, the accused’s production motion is dismissed.
First, in support of the motion, the accused has provided the Affidavit of Elina Marinosyan, a law clerk in his counsel’s office. The Affidavit goes on to identify that there was a confidential informant involved in this case, and to ask for additional documentation. The Affidavit of Ms. Marinosyan does not provide any further evidence supporting the accused’s motion.
Second, the investigation revealed that the accused was the registered owner of a white Mercedes. He was followed by police on July 17th, 2015. On the evening of July 17th, 2015, he was allegedly in this white Mercedes in a parking lot of a shopping mall. Another person entered the car briefly and then exited the car. The other person was then stopped and found to be in possession of a small quantity of cocaine.
The accused was then arrested for trafficking in a controlled substance and a search was conducted. The search allegedly found cocaine in the possession of the accused. At this point, the accused was arrested and taken to jail.
In the evening of July 17th, 2015, the police applied for and obtained a search warrant for the accused’s house. A redacted copy was provided of the Information to Obtain, which was sworn by Constable Brian Lorette of the Peel Regional Police. Cst. Lorette is not the confidential informant’s handler, and Cst. Lorette was provided with information about the reliability of the confidential informant from the confidential informant’s handler.
Legal/Analysis:
As a result of these events, the accused’s notice of motion seeks the following production:
An Order directing the Crown prosecutor to produce further disclosure of the following material subject to vetting,
(a) all original unredacted source handler notes (SHN) of all of his conversations and meetings with the confidential informant;
(b) all original unredacted source debrief reports (SDR) from the Handler to the Affiant;
(c) all central note taker reports during the surveillance relied upon in the Information to Obtain;
(d) all notes between Police Constable Sean Osbourne and Police Constable Brian Lorette in relation to the applicant;
(e) Copies of Ecops report referred to in the Information to Obtain (if any were made):
(f) All police officers notes on the surveillance on July 17, 2015.
The accused advances the following arguments in support of his request for additional production:
a) The police were only acting on a “hunch” when they got the warrant to search the accused’s house.
b) The information in the source notes and other items sought would assist the accused in understanding the information that the confidential informant had, and in preparing his argument for the Garafoli application.
c) It is possible that the confidential informant became an agent of the police and lost his (or her) confidential informant status.
On this application, the accused did not point to any evidence that supported his assertion that the confidential informant was acting as an agent of the police. He did argue that it was possible that the confidential informant had engaged in transactions with the accused as an agent for the police.
The Crown asserts that the accused’s position on this motion cannot succeed for the following reasons:
a) There is no evidentiary foundation for either the production requests or the assertion that the confidential informant lost the protection of the privilege.
b) The arguments that the accused is advancing on this motion go to the merits of the application, and should be addressed once the Garafoli application is actually brought.
c) Portions of the motion, particularly dealing with the request to cross-examine the affiant, are premature.
Conclusion:
In this case, the accused has not provided any factual foundation for believing that the source documents being sought are “reasonably necessary” or will otherwise advance the understanding of the Garafoli application or the merits of the case. As a result, there is no basis for the disclosure that the accused is seeking. Also noted, the accused’s assertion that the police were searching his house on a “hunch” rather than on reasonable suspicion is an argument on the merits of the Garafoli application, and should not be considered at this preliminary stage. For the above reasons, the accused’s production motion is dismissed.
8.) R v. COLTON, 2021 ONCJ 249
Background:
On August 6, 2020, the accused, Craig Colton pleaded guilty to possession of cocaine and ecstasy for the purpose of trafficking, possession of cannabis for the purpose of selling, two counts of trafficking in cocaine, trafficking in psilocybin and possession of the proceeds of crime. These offences were committed between February 15 and March 13 2019.
In February of 2019, the OPP (Ontario Provincial Police) set-up an undercover sting operation into Mr. Colton and the business he was running at the Braaapshack Powersports in Lakefield, Ontario. Information received said Mr. Colton was selling drugs out of his shop.
On February 15, 2019, an undercover officer went into the shop acting as a drug user who needed a supplier. Mr. Colton showed the officer the cocaine, as well as telling him about the weed, mushrooms and pills he also had available in the shop. The cocaine was analyzed to be 93% pure. The officer obtained a warrant.
On March 13, 2019, after Mr. Colton told the undercover officer that his supply was replenished, they went in and seized 6 ounces of cocaine, 3.4 pounds of psilocybin and 14 pounds of marijuana.
Mr. Colton at the time, was 36 years old and had a prior conviction in 2008 for trafficking.
Since being charged 2 years prior, Mr. Colton had engaged in counselling for his substance abuse, underlying childhood trauma and mental health, including depression and PTSD. He had not re-offended and had since found new employment. Mr. Colton was described as polite, cooperative and remorseful, and it was believed that Mr. Colton would be a suitable candidate for future community supervision.
Legal/Analysis:
Although they had seen Mr. Colton taking steps towards rehabilitation and being remorseful for his wrongs, the Crown still believed the seriousness of the offences committed by Mr. Colton require a penitentiary sentence to send an important message to Mr. Colton and the public that drug trafficking will never be taken lightly. Mr. Colton conceded that he was selling the drugs to support, not only his own addiction, but his failing business and lifestyle. His intent was not to profit, but only to get by in life.
The Crown used R v Graham to support their argument of how serious the offence of trafficking cocaine is to the safety of the public. The Crown also argued that Mr. Colton was a mid-level cocaine trafficker, not a street-level trafficker as the Defence tried to argue.
The Defence proceeded to argue that Mr. Colton sold the cocaine to an undercover officer as a customer. No discussion took place about reselling the cocaine the officer bought from Mr. Colton. The Defence concluded that Mr. Colton was a street-level trafficker who sold product directly to consumers, not a mid-level trafficker who supplied product to streel-level dealers.
Issue(s):
The question asked was, is permitting Mr. Colton to serve a conditional sentence of imprisonment in the community appropriate? It needed to be determined if he would present an undue risk or harm to the community. If that level or risk is manageable, then it must be considered if serving a community-based sentence would be consistent with the purpose and principles of sentencing.
Conclusion:
It was concluded that a lengthy period or community supervision was the sentence that would be the best protection for the community in the long-term and the one that best promotes respect for the law.
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