



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kampe, 2012
    ONCA 858

DATE: 20121005

DOCKET: M41715 (C54979)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Kampe

Applicant

Ernest J. Guiste, for the applicant

Lisa Csele, for the respondent

Heard: September 27, 2012

ENDORSEMENT

[1]

The applicant applies for an order to compel the Federal Minister of
    Justice to provide him with funding to appeal his conviction. The applicant was
    convicted of possession of cocaine for the purposes of trafficking. He was
    sentenced to 15 months imprisonment.

[2]

The Crown does not dispute that the accused lacks the financial means to
    retain counsel and the capacity to argue the appeal himself. Under s. 684 of
    the
Criminal Code
, the onus is on the applicant to satisfy the court
    that it appears desirable in the interests of justice that the accused should
    have legal assistance.

[3]

In order for it to be in the interests of justice to provide funding,
    the appeal must be arguable. Other factors to consider are the complexity and
    nature of the appeal, the legal principles it engages, and how those principles
    apply to the facts of the case.

[4]

Applicants counsel submits that the applicant should have legal
    assistance because this appeal engages the legal principles to be applied in
    racial profiling cases. While the legal principles engaged are one
    consideration, the merits of the appeal must be considered first.

[5]

A review of the evidence, the trial judges reasoning, and the arguments
    the applicant proposes to advance  on appeal is necessary. The transcript of
    proceedings was not available on the hearing of the application, but the trial
    judge summarized the evidence in detail.

[6]

The trial judge summarized the Crowns case against the applicant as
    follows:

Three police officers were involved in the events leading to
    the charges against Mr. Kampe - P.C. Fagu, P.C. Lee, and P.C. Ahmed. They
    testified at the trial as follows. On November 16, 2009 in the evening, they
    were in uniform on general patrol in an unmarked police van in the north end of
    Rexdale. The three officers were attached to the Community Response Unit of 23
    Division, a unit that deals with community complaints. Their duties as members
    of the Community Response Unit included patrolling "high crime" areas
    within 23 Division. These areas had a high incidence of drug trafficking, drug
    use, prostitution, noise, and drinking.

At about 10:35 p.m., the officers drove into the parking lot of
    121 Kendleton Drive, an area known to the officers as a "high crime"
    area. They noticed a grey Chevy Malibu with its interior light on backed in to
    a parking spot in front of 121 Kendleton Drive. This drew the officers'
    attention. Officers Fagu and Ahmed noted a male black driver and female
    passenger in the car. Officer Lee noted a male black driver and female white
    passenger in the car. The officers drove their van past the front of the parked
    car, stopped, got out, and approached the parked car from the rear. Officer
    Fagu approached the driver's side with P.C. Ahmed behind him. P.C. Lee
    approached the passenger's side.

P.C. Fagu testified that while standing just behind the pillar
    between the driver's door and the rear passenger door, he saw the male (who was
    later identified as Mr. Kampe) looking down in his lap at a piece of what appeared
    to be crack cocaine. He was able to observe this for a few seconds before Mr.
    Kampe noticed him. Once Mr. Kampe saw him, he closed his right hand and put his
    left hand on top. P.C. Fagu ordered him to open his hand. Mr. Kampe then moved
    his hand to the right side of his body and put it in his right pocket,
    according to P.C. Fagu.

P.C. Lee testified that he heard P.C. Fagu order Mr. Kampe to
    open his hand and saw Mr. Kampe put his clenched right hand in his jacket
    pocket. P.C. Lee reached across the passenger and grabbed Mr. Kampe's wrist out
    of his jacket pocket. Mr. Kampe's hand was empty.

Officers Fagu and Ahmed testified that they each took control
    of one of Mr. Kampe's arms and removed him from the car. P.C. Lee came around
    to the driver's side of the car, and while the other officers had Mr. Kampe's
    arms, he reached in to Mr. Kampe's right jacket pocket and removed a piece of
    crack cocaine that was wrapped and tied in plastic wrap.

The officers testified that Mr. Kampe was informed that he was
    under arrest for possession of crack cocaine. When they tried to handcuff him,
    Mr. Kampe began to struggle. The officers forced Mr. Kampe to the ground,
    handcuffed him, patted him down and took him back to 23 Division. During the
    pat down, Officer Ahmed testified that he found a cell phone and $404.40 on Mr.
    Kampe.

Officer Fagu testified that he searched the car and found a
    silver digital scale in working order between the driver's seat and the centre
    console, and two pieces of plastic wrap on the floor on the drivers' side. The
    car had been rented from Avis.

None of the officers knew Mr. Kampe or knew of him, nor had any
    of them dealt with Mr. Kampe previously.

[7]

The trial judge summarized the applicants evidence as follows:

Mr. Kampe testified, and related an entirely different version
    of events than the officers. He testified that he had just gotten into the car
    with a woman he had met earlier that day when an unmarked police car sped in
    front of his car and cut him off. Three officers approached the car from the
    front and came to the driver's door. They dragged him out of the car, assaulted
    him, arrested him and read him his rights. The officers searched him. P.C. Lee
    did not find crack cocaine in his jacket pocket. None of the officers said
    anything about finding crack cocaine or a scale at the scene, nor did they show
    him any crack cocaine or scale at the scene. He did not have any crack cocaine.
    He had never seen the scale before being paraded before the Staff Sergeant at
    23 Division that evening. The police have fabricated the story that the crack
    cocaine was found in his jacket pocket and the scale was found in the car. The
    money and cell phone that were seized from him belonged to him.

[8]

At trial, defence counsel made an issue of the fact that the Crown neither
    called the female passenger as a witness nor disclosed her identity to the
    defence. The police had not made a note of the womans identity. The only
    officer who interacted with the woman testified:

that when he approached the passenger's side of the car, the
    female saw him immediately and opened the door. He asked her who she was and
    why she was there. She identified herself with an Ontario health card. She
    appeared intoxicated. [He] called for a scout car and a female police officer.
    Other officers arrived in a scout car and the female went with those officers. [He]
    believes the other officers took her to a bus stop. [He] testified that he did
    not make a note of her name in his notebook. He did not believe he had grounds
    to arrest her. He did not search her. He agreed with [defence counsel] that she
    would have heard the events that unfolded that evening.

[9]

At the time of trial, the defence did not know the womans identity. The
    trial judge stated the following:

[The applicant] testified that he had just met the woman
    earlier that day. He was very vague about how he met her. He testified that he
    met her on the street near Danforth and Brimley. She had a dog with her. They
    made eye contact and exchanged phone numbers. She called him later that day. He
    called her back and later that evening picked her up at Danforth and Brimley.
    She came out of a building at Danforth and Brimley where [the applicant]
    assumed she lived. They drove back to [the applicant]'s apartment, where they
    stayed for 15 or 20 minutes. [the applicant] was going to take the woman home
    when police arrived at the car. [the applicant] testified that he does not
    remember the woman's name. He has never seen her since that evening.

[10]

Defence
    counsel asked the trial judge to draw an adverse inference from the fact that
    the Crown did not call the woman as a witness. He asks the trial judge to infer
    that the woman, had she been called, would have confirmed the applicants
    evidence about what happened that evening.

[11]

The
    trial judge remarked that the polices failure to make a note of the woman's
    name that evening or investigate her further is unusual, but went on to
    observe that [o]n the other hand, on the evening in question, Mr. Kampe knew
    the woman's name, her telephone number and her address. However, it made sense
    to her that the polices attention focused on Mr. Kampe once crack cocaine was
    found in his hand. Consequently, she concluded that the absence of [the
    womans] evidence does not logically give rise to a reasonable doubt in this
    case.

[12]

The
    trial judge rejected the applicants testimony and accepted the testimony of
    the police officers. She found that the applicants testimony did not leave her
    with a reasonable doubt that he was in possession of the crack cocaine and the
    digital scale. Taken together with the fact he had two cell phones and over
    $400 in cash, and there being no indication the crack was being consumed, she
    found he possessed the crack for the purpose of trafficking.

A.

Analysis

[13]

I
    begin by identifying the arguments that the applicant seeks legal assistance to
    advance on appeal. Applicants counsel proposes to argue that the trial judge
    failed to properly deal with the applicants defence of racial profiling. He
    submits that when racial profiling and the planting of evidence are raised as a
    defence, and the accused takes the stand, it is not enough to simply accept the
    evidence of the police and reject the evidence of the accused. Instead, he says
    the trial judge should heed this courts observation in
R. v. Brown
(2003), 64 O.R. (3d) 161, at para. 44:

A racial profiling claim could rarely be proven by direct
    evidence. This would involve an admission by a police officer that he or she
    was influenced by racial stereotypes in the exercise of his or her discretion
    to stop a motorist. Accordingly, if racial profiling is to be proven it must be
    done by inference drawn from circumstantial evidence.

[14]

He
    argues that, had the trial judge properly considered all the circumstantial
    evidence, she would have inferred that the applicant had been racially profiled
    and would have accepted his testimony.

[15]

Counsel
    for the applicant also proposes to renew on appeal his argument that the trial
    judge should have drawn an adverse inference from the Crowns failure to call
    the passenger as a witness. He submits that an important aspect of the
    circumstantial evidence is that, as the police witnesses acknowledged under
    cross examination, the passenger had material evidence to give. The trial judge
    should have inferred that she would have corroborated the applicants
    testimony.

[16]

There
    is no doubt that the type of racial profiling claim considered in
Brown
and the type of allegations of deliberate racist misconduct made in this case
    must be proven by inferences from circumstantial evidence. However, I see no merit
    in the argument that the trial judge failed to consider all the circumstantial
    evidence before rejecting the applicants evidence.

[17]

The
    trial judge was alive to the applicants allegations of racism on the part of
    the police. She noted trial counsels final submission that these charges were
    yet another example of racial profiling and tunnel vision on behalf of the
    Toronto Police Services. She expressly instructed herself that she [should] not
    give the police officers' testimony any more weight than the testimony of Mr.
    Kampe simply because they are police officers. She carefully considered the
    plausibility of each witnesss evidence, the internal inconsistencies of each
    witnesss evidence, and how each witnesss evidence fit with all the evidence called
    at trial.

[18]

One
    specific factual difference in the two versions of events was whether the
    police approached the applicants car from the front or from the rear. The
    trial judge preferred the evidence of the officers that they approached from
    the rear because it was more in keeping with standard police practice. She
    accepted the officers explanation that [i]f the occupants of a car are
    engaged in illegal activity, approaching from the rear is safer for the police
    and allows the police to gain the element of surprise. On the whole, she found
    the testimony of the officers to be credible and reliable.

[19]

On
    the other hand, she noted that Mr. Kampe was unable to recall the name of the
    woman who was in the passenger seat of the car with him, where she lived, when
    he rented the car, or the purpose for which he rented the car. He was vague
    about how he met the woman who was in the car with him. She concluded that he
    was not a credible witness.

[20]

The
    trial judge considered the applicants criminal record. It included convictions
    for possession of a credit card obtained by crime, possession of property
    obtained by crime, obstructing a peace officer, possession for the purpose of
    trafficking, failing to comply with a recognizance, criminal harassment, and
    possession of a prohibited or restricted weapon. Although the applicant admitted
    that he had been convicted of these offences, he testified that he did not
    commit most of them.

[21]

On
    my reading of the trial judges reasons, it is clear she did not fail to
    consider the circumstantial evidence before her and, in particular, the fact that
    the police did not investigate the female passenger. She remarked that this was
    unusual but found she was unable to infer from the failure of the woman to
    testify that she would have supported either [the applicants] version of the
    events or the police officers version.

[22]

There
    is nothing in
Brown
that supports the contention that the trial judge
    erred in principle in failing to draw an adverse inference from the fact that
    the Crown did not call the passenger as a witness.

[23]

In
    my view, the trial judges analysis and her reasons for rejecting the applicants
    testimony are unimpeachable. There is no merit in an appeal that seeks to
    revisit the trial judges credibility findings, which led her to conclude that
    the applicant was in possession of cocaine. That the credibility findings were
    made in a case involving allegations of racial profiling does not infuse the
    appeal with merit. It is not in the interests of justice that the applicant should
    have legal assistance to appeal the conclusion of the trial judge that he was
    in possession of cocaine for the purpose of trafficking.

[24]

Despite
    this conclusion, I have pondered at great length the aspect of this case that
    the trial judge described as unusual. On the police officers testimony, what
    first attracted the polices attention to the vehicle was the fact that it was
    parked in a high crime area with its interior light on and was occupied by a black
    male driver and a white female passenger. Upon approaching the vehicle from the
    rear, they noted that the occupants were looking at a piece of crack in the
    applicants hand. The applicant, who is black, was searched and arrested. The
    police did not search or otherwise investigate the white occupant of the
    vehicle. One of the arresting officers believed that uniformed police, who
    arrived later, took the female passenger to a bus stop.

[25]

The
    rejection of the applicants testimony in no way precludes the applicant from
    relying on the Crowns evidence to argue that the police engaged in racial
    discrimination that breached the
Charter of Rights and Freedoms
. Such
    an argument could be based on racial profiling, similar to the conduct found
    in
Brown
, or on a wider formulation of racial discrimination based on the
    differential treatment of the applicant during the course of the police
    investigation. In either case, an essential component of such an argument is that
    the applicant apply under s. 24(2) of the
Charter
to exclude the evidence
    implicating the accused.

[26]

When
    making an application under s. 24(2), an accused does not dispute the factual
    circumstances that make out the elements of the offence, but argues that the
    evidence tendered to prove the offence should be excluded because it was
    obtained in breach of the
Charter
.

[27]

Counsel
    for the applicant claimed in oral argument that an application was made at
    trial to exclude evidence under s. 24(2). Counsel for the Crown did not agree. The
    trial judge, at the very outset of her analysis, stated unequivocally [t]he
    constitutionality of the conduct of the police was not challenged. No
    applications were brought by Mr. Kampe alleging a breach of his rights under
    the
Charter
, or related to the nondisclosure of the name of the
    passenger. The material filed on the application does not include a
Charter
application and the applicants factum on the application makes no reference to
    one.

[28]

On
    the material before me, I find that the applicant did not bring a
Charter
application to exclude evidence. At trial, the applicant did make allegations
    of racist misconduct by the police, but those allegations were wrapped up as
    part of his defence of factual innocence. The position he took did not require
    an order excluding the cocaine. His defence explained its presence in his pocket
     the police planted it. The significance the applicant placed on the passenger
    was that, if called, she would corroborate the applicants testimony that he
    was factually innocent. He did not advance an alternative argument that the differential
    treatment of the passenger supported an inference of a
Charter
breach,
    requiring a
Charter
remedy.

[29]

The
    applicant may have had a good tactical reason not to advance such an
    alternative argument at trial. Advancing such an argument could have undermined
    the force of the applicants testimony that he was not in possession of the
    cocaine.

[30]

I
    have not been satisfied that it is in the interests of justice to order legal
    assistance to advance an appeal on the basis that the trial judge failed to
    exclude the evidence implicating the accused.

[31]

The
    application is dismissed. The applicant may renew the application before me if
    he is able to file materials demonstrating that a
Charter
application
    to exclude evidence was made at trial, as claimed by the applicants counsel.


