



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2015 ONCA 800

DATE: 20151123

DOCKET: C58681

Hoy A.C.J.O., Weiler and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Barrington Thompson

Appellant

Mark Halfyard, for the appellant

Vanita Goela, for the respondent

Heard: October 8, 2015

On appeal from the conviction entered on January 29, 2014
    by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting without a
    jury.

Weiler J.A.:

A.

OVERVIEW

[1]

The appellant was charged with possession of cocaine and marihuana for
    the purpose of trafficking and possession of the proceeds of crime.

[2]

The appellant brought two applications pursuant to the
Canadian
    Charter of Rights and Freedoms
. The first was for an order for a stay of
    proceedings pursuant to s. 24(1) on the basis that the proceedings
    amounted to an abuse of process. In the alternative, the appellant sought an
    order excluding the admission into evidence of the drugs seized pursuant to s.
    24(2) because he alleged his right to be secure from unreasonable search and
    seizure under s. 8 had been violated.

[3]

The grounds for the applications were that the police obtained a search
    warrant for the appellants restaurant based on allegedly false information
    that Mr. Simpson was in possession of cocaine after leaving the restaurant. The
    police used this information to corroborate the tip from the confidential
    informant that the appellant was selling drugs from his restaurant.

[4]

The parties agreed that resolution of the
Charter
applications
    turned on two factual questions:

1.

Did the police fabricate seeing Mr. Simpson coming out of the
    restaurant?

2.

Did the police fabricate the claim that Mr. Simpson was in possession of
    crack cocaine?

[5]

The trial judge answered no to both questions and convicted the
    appellant of possession of cocaine for the purpose of trafficking. The other
    two counts were stayed on consent.

[6]

The appellant submits that the trial judge erred in misapprehending the
    evidence, in weighing the evidence, and in considering certain oath-helping
    evidence while assessing the credibility of the Crown witnesses.

[7]

I would dismiss the appeal for the reasons that follow.

B.

Factual Background

[8]

Det. Sgt. Correia testified that he received a tip from a confidential
    informant that the appellant was trafficking drugs from his restaurant packaged
    in takeout food containers. The police needed corroboration of the tip to
    obtain a search warrant for the restaurant, located near Queen and Lansdowne in
    Toronto.

[9]

On March 28, 2011, Det. Sgt. Correia and Det. Cst. Cameron held a
    briefing with their crew at 1:15 p.m. that Cst. Armstrong attended. The purpose
    of the briefing was to set up observations and to build grounds for a search
    warrant. The briefing concluded at 1:20 p.m. and Det. Sgt. Correia was in the
    area to begin surveillance of the restaurant at 1:25 p.m.

[10]

Det.
    Cst. Cameron was the road boss and central notetaker. As the road boss, he
    deployed officers to conduct observations at the restaurant and decided whom to
    arrest.

[11]

At
    1:39 p.m., Det. Sgt. Correia observed a man walk into the restaurant and leave a
    few minutes later with his hand in his left pants pocket. He relayed this
    information to Det. Cst. Cameron.

[12]

Csts.
    Armstrong and Fairclough observed the man described by Det. Sgt. Correia, who
    turned out to be Mr. Simpson, a cousin of the appellant. Det. Cst. Cameron
    directed the officers to arrest him.

[13]

Cst.
    Faircloughs evidence was that he identified himself as a police officer and
    tried to arrest the man as he walked northbound on Lansdowne. A struggle
    ensued. When the officers gained control of the man, Cst. Fairclough arrested
    him for possession of cocaine. Cst. Fairclough was standing beside Cst. Armstrong,
    who advised him he had located crack. Cst. Fairclough did not see the drug and
    did not hear Mr. Simpson state that he had purchased it from the appellant.

[14]

Cst.
    Armstrong testified that during the struggle he saw Mr. Simpson drop something
    and then attempt to push or jam it into the muddy ground. He testified that he
    found a plastic baggie twice knotted containing crack cocaine, which he put in
    the pocket of his jacket. He told his partner that he had found crack.

[15]

Cst.
    Armstrong arrested Mr. Simpson but released him on a promise to appear. He
    recorded the time as 1:15 p.m. on the Appearance Notice. This time conflicted
    with his and Cst. Faircloughs evidence that they received information that Mr. Simpson
    had entered the restaurant at 1:39 p.m.

[16]

At
    1:48 p.m., Det. Cst. Cameron learned that the police had recovered crack
    cocaine and that Mr. Simpson was in custody. He directed his team to enter the restaurant
    to arrest the appellant.

[17]

When
    Det. Cst. Cameron entered the restaurant, Det. Sgt. Correia had already taken
    the appellant into custody. Det. Cst. Cameron observed plastic baggies of
    marihuana and what appeared to be crack cocaine. He ordered the scene to be
    frozen by preventing people from coming in and out of the restaurant while
    they waited for a search warrant.

[18]

The
    police obtained a search warrant for the appellants restaurant and executed the
    warrant at 6:33 p.m. They seized 44.95 grams of cocaine, 198.67 grams of
    marihuana and cash consisting of $665, US$1015, £40 and 50.

[19]

The
    Supplementary Record of Arrest prepared by Det. Sgt. Correia stated that Mr.
    Simpson advised he had purchased crack cocaine from the appellant.

[20]

Mr.
    Simpson acknowledged that he sometimes traffics in cocaine but he denied being
    in possession of cocaine on the date in question. His evidence was that he went
    to the restaurant to buy salt fish and was told none was available at that
    time. He returned to his home, which was nearby. He was on his way back to the
    restaurant to see if the salt fish was ready when he was arrested.

[21]

Mr.
    Simpson testified that after he attended court three or four times, he still
    had not received disclosure of the Crowns case against him. The Crown withdrew
    the charges.

[22]

The
    appellant testified that he does not sell drugs to Mr. Simpson because he is
    known to the police. The appellant admitted that he is also known to the
    police. He testified that Det. Sgt. Correia had arrested him one year earlier.
    On that occasion, the appellant had turned his back on Det. Sgt. Correia, when he
    cried out for his help during a struggle with a woman he was arresting inside
    the appellants restaurant.

[23]

The
    appellant submits that the police fabricated evidence of finding drugs on Mr.
    Simpson to obtain the warrant to search his restaurant, and that they had a
    motive to fabricate, because Det. Sgt. Correia held a grudge against the
    appellant for not assisting him in his struggle with the woman. She bit Det.
    Sgt. Correias finger during his struggle and instead of helping him, the
    appellant shepherded his 10-year-old son into the kitchen area.

[24]

Following
    the womans arrest, the police searched the restaurant and found a small
    quantity of drugs. The appellant was arrested, charged and later given a fine.

C.

reasons of the trial judge

[25]

The
    trial judge began her reasons by observing that the appellant and Mr. Simpson
    both had criminal records for trafficking in cocaine and that she could use
    this fact to assist her in deciding how much to rely on their testimony.

[26]

She
    considered inconsistencies in the evidence of the police officers.
    Specifically, at the time of his arrest, Mr. Simpson was not carrying drugs in
    a takeaway food container as specified by the confidential informant. Moreover,
    the officers evidence regarding the time of Mr. Simpsons arrest and the
    subsequent seizure was inconsistent with the Appearance Notice and the property
    report.

[27]

The
    trial judge rejected the appellants submission that the property report
    prepared by Cst. Armstrong, which recorded the time of the seizure as 1:00
    p.m., called into question the entire sequence of events surrounding the
    investigation. She observed that Cst. Armstrongs own notes indicated that he
    was attending a briefing at 1:15 p.m. The notes of other officers stated that Cst.
    Armstrong advised the other officers over the radio that he had found crack
    cocaine and that he had Mr. Simpson in custody at 1:48 p.m.

[28]

Cst.
    Armstrong testified that the Appearance Notice should have recorded the time
    releasing Mr. Simpson as 2:15 p.m. The trial judge accepted his explanation
    that the discrepancy was due to him looking at the clock in his police car and
    that the time may not been changed to Daylight Saving Time in the absence of
    any other explanation.

[29]

The
    individual notes of Det. Cst. Cameron, whose responsibility it was to record
    the timing of events, were missing, but the central notes were available. The
    trial judge did not place much weight on the loss of the original notes.

[30]

The
    trial judge also reviewed the evidence of Det. Sgt. Correia, who filled out a
    Supplementary Record of Arrest in relation to the appellant. He typed the
    following synopsis in part: [A male] was arrested a short distance away.
    Located on the male was a quantity of cocaine. The male advised that he had
    just purchased the crack cocaine from the accused, Barrington THOMPSON.

[31]

Det.
    Sgt. Correia could not recall whether someone had told him about the admission.
    It was possible he assumed Mr. Simpson made the admission because drug addicts
    often tell the police where they buy their drugs. Det. Sgt. Correia
    acknowledged that he cuts and pastes from other synopses when preparing
    Records of Arrests. He admitted that despite becoming aware before trial that
    the statement attributed to Mr. Simpson was false, he did not inquire into the
    source of the admission.

[32]

The
    trial judge found that Det. Sgt. Correias statement was not substantiated
    and that he was negligent in assuming that Mr. Simpson said he obtained the
    drugs from the appellant.

[33]

The
    fact that Cst. Armstrong did not show Cst. Fairclough the crack found on
    Mr. Simpson was unfortunate but did not affect her ultimate conclusion.

[34]

There
    was no evidence to support the appellants assertion that Cst. Armstrong took
    the crack attributed to Mr. Simpson from the restaurant because there was no
    evidence that he went inside the restaurant. After Mr. Simpsons arrest
    and before the search warrant was obtained, Cst. Armstrong returned to the
    police station after being told that he was not needed at the restaurant.

[35]

The
    trial judge rejected Mr. Simpsons evidence as it required her to believe one
    of two implausible theories: either the officers followed him to his home
    without arresting him, waited outside in the hope that he would come out again
    soon, and then arrested him on his way back to the restaurant, or they did not
    know that he had been to the restaurant earlier, but encountered him after he
    left his house and arrested him anyway. The police evidence that he was
    arrested on his way home from the restaurant was more logical and persuasive.

[36]

The
    trial judge was not satisfied that the police fabricated either seeing
    Mr. Simpson leaving the appellants restaurant or that Mr. Simpson had
    crack in his possession at the time of his arrest.

[37]

She
    answered no to both questions.

D.

The appellants submissions

[38]

The
    appellant makes three submissions on appeal:

1. The trial judge materially misapprehended the evidence in
    explaining away problems in the timing of Mr. Simpsons arrest and the impact
    of the false statement in the Supplementary Record of Arrest;

2. The trial judge erred in placing no weight on the fact that
    the original central notes went missing and erroneously held that the
    consistency of the officers individual notes, prepared off of the central
    notes, alleviated any concerns about timing and inconsistencies; and

3. The trial judge erred in finding that the risk to the
    officers careers cut against the theory that they fabricated their grounds of
    arrest.

E.

analysis

(1)

Misapprehension of the evidence

[39]

A
    misapprehension of the evidence may relate to a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to evidence:
R. v. Cloutier,
2011 ONCA
    484, 272 C.C.C. (3d) 291, at para. 60. This court described a stringent
    standard for setting aside a conviction on the basis of a misapprehension of
    evidence in
Cloutier
, at para. 60:

The misapprehensions must be of substance rather than detail,
    they must be material rather than peripheral to the judge's reasoning and the
    alleged errors must play an essential part in the reasoning process, not just
    of the narrative. A mere misstatement or inaccuracy in the trial judge's
    treatment of the evidence does not constitute a reversible error. [Citations
    omitted.]

[40]

As
    stated by Doherty J.A. in
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 541, if an appellant can demonstrate that the conviction rests on
    such a misapprehension, the appellant has not received a fair trial: This is
    so even if the evidence, as actually adduced at trial, was capable of
    supporting a conviction.

[41]

With
    this definition in mind, I will now address the misapprehensions of evidence
    alleged by the appellant.

(a)

Problems with respect to the time of Mr. Simpsons arrest

[42]

As
    previously mentioned, the officers received information that Mr. Simpson
    entered the restaurant at 1:39 p.m. Cst. Armstrong recorded the time of Mr.
    Simpsons release as 1:15 p.m. in the Appearance Notice but it was also his
    evidence that he received information that Mr. Simpson entered the restaurant
    at 1:39 p.m. and that the arrest would have been made around 1:46 p.m. He
    prepared a property report that indicated the time of seizure as 1:00 p.m.

[43]

The
    appellant submits that the trial judges failure to address timing discrepancies
    amounted to a failure to give effect to the substance of the evidence. Further,
    it was unsurprising that the officers evidence was consistent on important
    times, since they made notes after the debriefing and after Det. Cst. Cameron
    typed the central notes for their collective use.

[44]

The
    trial judge considered the timing contradictions and was entitled to accept the
    police evidence, including Cst. Armstrongs explanation that he relied on the
    clock in the police car when recording the time in the Appearance Notice.

[45]

In
    any event, these timing discrepancies do not assist the appellant because the exact
    time of Mr. Simpsons arrest and seizure of cocaine was a matter of detail
    rather than substance. The appellant submits that the officers fabricated their
    evidence in relation to whether Mr. Simpson was arrested on his way home from
    the restaurant or going from his home to the restaurant. As the trial judge
    pointed out, quite apart from the police evidence, it was unlikely that the
    officers would follow Mr. Simpson home from the restaurant and wait around
    for an indefinite period hoping to arrest him if, and when, he came out.

[46]

Similarly,
    the time of the seizure, erroneously recorded in the property report, is only
    relevant because of the appellants submission that the police planted drugs
    obtained from the restaurant on Mr. Simpson after his arrest. The trial judge
    found that there was no evidence that Cst. Armstrong went inside the restaurant
    after Mr. Simpsons arrest. The evidence is that he returned to the police
    station.

[47]

The
    timing of Mr. Simpsons arrest and the seizure was therefore peripheral to the
    trial judges reasoning. She did not misapprehend the evidence or its
    significance.

(b)

The false statement in the appellants Supplementary Record of Arrest

[48]

The
    appellant essentially submits that because Det. Sgt. Correias statement in the
    Supplementary Record of Arrest was false, the trial judge should not have
    characterized it as unsubstantiated. She should have inferred that Cst. Armstrongs
    evidence that he found cocaine on Mr. Simpson was also false and part of a
    plot to frame the appellant. The appellant does not suggest that the statement
    was used in the Information to Obtain the search warrant. The appellant points
    out that Cst. Armstrong did not say anything to Cst. Fairclough about Mr. Simpson
    dropping something on the ground or trying to hide anything in the mud and he
    did not make a notation to that effect.

[49]

The
    appellant invites this court to infer that the Crowns withdrawal of the
    charges against Mr. Simpson without reasons means that the police fabricated
    evidence that Mr. Simpson had crack cocaine in his possession.

[50]

Drawing
    a negative inference from the withdrawal of charges against Mr. Simpson
    would require this court to engage in speculation, because the Crown is not
    obliged to give reasons for the exercise of its prosecutorial discretion: see
R.
    v. Beare
, [1988] 2 S.C.R. 387, at pp. 410-11. Such speculation cannot
    establish arbitrary or improper motives for which a s. 24
Charter
remedy
    would lie: see
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167, at
    para. 36.

[51]

The
    trial judges characterization of Det. Sgt. Correias evidence does not mean
    that she erred in rejecting the inference that Cst. Armstrong planted cocaine
    on Mr. Simpson. Her finding that Mr. Simpson had crack cocaine on him when he
    was arrested is supported not only by the evidence of Cst. Armstrong, but also
    by evidence that he was ordered to return to the police station after the
    arrest and the absence of evidence that Cst. Armstrong entered the restaurant.
    The trial judge was alive to the appellants position and commented that it was
    unfortunate that Cst. Armstrong did not show the crack cocaine he had located to
    Cst. Fairclough.

[52]

Portions
    of Mr. Simpsons evidence support the trial judges conclusion. Mr. Simpson
    acknowledged that he sometimes traffics in cocaine when he is out of work or
    when he wants a bit of extra money for the horse races. On the day in question,
    he was planning to go to the races.

[53]

In
    summary, although the trial judge characterized Det. Sgt. Correias statement as
    being not substantiated rather than false, in the circumstances, her characterization
    does not constitute a reversible error.

(2)

The missing notes

[54]

As
    the central notetaker, it was Det. Cst. Camerons responsibility to prepare
    rough central notes. He testified that he attended a briefing the day after the
    appellants arrest during which he would have made any corrections to his rough
    notes. The officers involved could have suggested changes and corrections to
    his notes based on their observations. He would have made these in the rough
    notes. After the debriefing, he believed he typed the central notes. Det. Cst. Cameron
    testified that the units practice is to type the central notes and then for
    the officers to write their own notes from the central notes.

[55]

The
    appellant submits that the trial judge erred in placing little weight on the
    loss of the entire spare Crown brief including Det. Cst. Camerons original
    notes from the day of the investigation. Without his original notes, Det. Cst. Cameron
    could not say what information was added, altered or deleted at the debriefing,
    prior to typing the central notes. The appellant further submits that the loss
    of this evidence undermines the trial judges conclusion that discrepancies in
    the individual officers versions of events is of no import because their
    notes, produced from the central notes, were consistent on important times.

[56]

In
    support of this submission, he relies on
Wood v. Schaeffer
, 2011 ONCA
    716,

107 O.R. (3d) 721, revd on other grounds 2013 SCC 71, [2013] 3
    S.C.R. 1053, for the proposition that when notes are used to refresh an
    officers memory at trial, it is vital that the notes used record the officers
    own independent recollection of the events in question.

[57]

The
    issue here is that the appellant could not compare the rough handwritten
    central notes with the typed version, not that each officer failed to prepare
    individual notes or that the notes were made in a group, as in
R. v. Jinje,
2015 ONSC 2081, [2015] O.J. No. 1590.

[58]

I
    appreciate that the quality of the record-keeping and the adequacy of an
    officers notes are important, as noted in
R. v. Odgers,
2009 ONCJ
    287,

[2009] O.J. No. 2592. In the post-
Stinchcombe
era, a
    police officers notes are more than an aide memoire and a potential source of
    fruitful cross-examination; they are a source against which to check the
    Crowns disclosure.

[59]

The
    purpose of central notes was discussed by Pattillo J. in
R. v. Thompson
,

2014 ONSC 250, 111 W.C.B. (2d) 181, at para. 18:

The evidence establishes that the purpose of central notes is
    to enable the officers engaged in a real time police exercise to be able to
    concentrate on the task at hand without having to worry about noting down
    times, observations and actions during their involvementAt the end of the
    surveillance, the information in [the central notetakers] handwritten notes [are]
    canvassed with each officer and the observations [are] confirmed to reflect
    each officers recollection. [The central notetaker] then type[s] up his notes

[60]

Pattillo
    J. held, at para. 19, that when central notes are relied upon it is important
    that every officer involved in the investigation review them as soon as
    possible after the event to ensure that the observations or actions attributed
    to them have been accurately recorded.

[61]

This
    appears to have occurred in this case. The appellant received disclosure of
    the typed report concerning the surveillance of his restaurant. The typed notes
    were a copy of the handwritten notes. The fact that the additions or deletions
    on the handwritten notes are not shown on the typed copy does not mean that the
    quality and adequacy of the central notes is lacking.

[62]

After
    reviewing the central notes, the officers made separate notes of their own
    participation. The officers involved that day testified and each testified that
    he had an independent recollection of the events in question. Each officer was
    subject to cross-examination.

[63]

In
    the circumstances, the trial judge did not err in placing little weight on the
    lost handwritten central notes.

(3)

The risk to the officers careers

[64]

In
    rebutting the appellants suggestion that the police fabricated evidence and
    were motivated to do so because of a grudge from a year earlier, the Crown
    elicited evidence from Det. Sgt. Correia that if he were caught lying in an
    investigation he would lose his job.

[65]

The
    trial judge stated, at para. 61, that she was not persuaded that there was a
    hidden agenda surrounding the arrest of the [appellant] and Mr. Simpson, or
    that the officers were complicit in [Det. Sgt.] Correias plan which would
    necessarily involve jeopardizing their own reputations and careers.

[66]

The
    appellant submits that the trial judge found Det. Sgt. Correia to be more
    credible because of the professional consequences he faced as a police officer
    if he lied.

[67]

I
    do not read the trial judges reasons as engaging in forbidden oath-helping.

[68]

In
    rejecting the appellants position that the police fabricated evidence that Mr.
    Simpson was in possession of cocaine, the trial judge was entitled to state a
    countervailing fact; namely, that if a police officer engaged in fabrication,
    he and those complicit with him would necessarily be jeopardizing their
    careers. The risk involved was a legitimate consideration to be weighed against
    the alleged satisfaction of getting the appellant for refusing to assist Det.
    Sgt. Correia in his struggle with the woman at the restaurant.

(4)

Overall

[69]

The
    decision whether or not to grant a stay is a discretionary remedy of last
    resort that must meet the clearest of cases standard:
R. v. Sheng,
2010
    ONCA 296, 254 C.C.C. (3d) 153, at para. 44. An appellate court may only
    intervene if the court below misdirected itself or came to a decision that is
    so clearly wrong that it amounts to an injustice:
United States of
    America v. Mathurin
, [2015] O.J. No. 4487, at para. 38. That is not the
    situation here.

[70]

The
    trial judge did not make any material error in her assessment of the
    credibility of the witnesses, in weighing the evidence, or engage in oath
    helping. The trial judges use of logic in finding that the police did not fabricate
    seeing Mr. Simpson come out of the appellants restaurant is sound. In
    addition to the evidence of the officers who were alleged to have engaged in
    fabrication, there is independent support in the record for her finding that
    Mr. Simpson was in possession of crack cocaine. As a result, the search of the
    appellants restaurant did not violate his right to be free from unreasonable
    search and seizure under s. 8 of the
Charter
.

F.

DISPOSITION

[71]

For
    the reasons I have given, I would dismiss the appeal.

Released: (A.H.) November 23, 2015

Karen M. Weiler J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree Grant Huscroft
    J.A.


