



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hillier, 2021 ONCA 180

DATE: 20210324

DOCKET: C67879

Feldman, Tulloch and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard
    Hillier

Appellant

Ryan Heighton, for the appellant

Amanda Hauk, for the respondent

Heard: in writing

On appeal from the conviction entered on September
    6, 2019 and the sentence imposed on December 13, 2019 by Justice A. Thomas McKay
    of the Ontario Court of Justice.

Nordheimer J.A.:

[1]

Richard Hillier appeals from his convictions on five
    counts of possession of prohibited substances for the purposes of trafficking and
    two counts of breach of probation. He also seeks leave to appeal the total sentence
    imposed of eight years imprisonment.

Background

[2]

On February 21, 2019, Constable Gill of the
    Waterloo Regional Police Service set up surveillance in an attempt to locate
    the appellant and effect his arrest on a
Provincial Offences Act
,
    R.S.O. 1990, c. P.33 (
POA
) warrant for driving under suspension in
    2017.

[3]

The appellant was observed walking up the street.
    He was approached by Constable Gill, who was in uniform. The appellant ran. Constable
    Gill gave chase. After about 100 meters, he grounded the appellant on his stomach
    in a pool of water. As they fell to the ground, the appellant grabbed his
    waistband. He refused to surrender his hands. After a struggle and numerous
    demands, Constable Gill gained control, cuffed the appellant to the rear, and
    sat him up. The appellant was sopping wet. Prior to conducting a field search,
    the appellant told Constable Gill he had something in his sock: 5.53 grams of what
    was later analyzed as a mix of fentanyl and six other substances in a
    prescription pill bottle.

[4]

Two other officers arrived on scene  Constables
    Burke and Robb. Constable Burke continued the search of the appellant. Constable
    Burke described the search as a safety search, not an invasive search. He
    seized, and subsequently turned over to Constable Gill, two cell phones, two
    lighters, and an amount of Canadian currency. The appellant was then charged
    with possession of fentanyl for the purpose of trafficking. The appellants
    shoulder bag was also searched. No drugs were found therein but multiple non-functional
    cell phones and packs of cigarettes were located.

[5]

The appellant was transported from the scene by Constables
    Burke and Robb. Prior to entering the rear of the cruiser, the appellant
    complained of shoulder pain. Constable Burke offered to double-cuff the appellant
    to take the pressure off his shoulders. This involved linking two sets of
    handcuffs to one another, extending the length. The appellant accepted this
    offer and was placed in the back of the cruiser. The cruiser did not have any
    cameras that might monitor the rear seats.

[6]

The officers departed the scene at 11:55 a.m.
    They first drove to police headquarters to pick up the
POA
warrant at
    12:13 p.m. They then arrived at Waterloo Regional Police Service Central
    Division at 12:26 p.m.

[7]

Upon arrival at Central Division, the evidence
    of the officers differed on what occurred. Constable Robb testified that he
    opened the back door of the cruiser and observed multiple dime bags scattered
    on the floor at the feet of the appellant. Constable Burke testified that it
    was he who opened the door of the cruiser. In either event, after removing the
    appellant from the cruiser, a bulge was noticed in the appellants mouth.
[1]
It was later established that the
    bulge was a ball wrapped in plastic containing 28.18 grams of a blend of heroin,
    fentanyl, methamphetamine, and other substances, similar to that found in the
    pill bottle in the appellants sock.

[8]

The appellant was taken to booking. Constable Robb
    went back to the cruiser to search the area and take an inventory of anything
    located. He testified that he found a black pouch on the right rear passenger
    side of the cruiser (at the footwell), with oxycodone pills, which were
    observed to be water-damaged and mushy, as a result of the pouch being water
    damaged.

[9]

Constable Robb also found:

a.

A gold pill container filled with suspected
    hydromorphone (tested as oxycodone) in the black pouch.

b.

A vial of suspected cocaine (later tested as methamphetamine).

c.

The ball of suspected heroin (later tested as
    heroin/fentanyl/methamphetamine) initially located in the appellants mouth.

d.

Methamphetamine on the rear drivers side seat
    (spilled across the seat and in the footwell on the drivers side) and in the
    rear passenger side footwell.

e.

A bag with multiple dime baggies inside, 69
    unused baggies in the black pouch, and multiple baggies with residue, found
    both in the black pouch and loose in the cruiser.

[10]

The two officers also gave differing evidence
    regarding their inspection of the cruiser, prior to commencing their shift. Constable
    Robb testified that an inspection of the cruiser, including the rear footwell,
    was completed at the beginning of his shift by both himself and Constable Burke,
    and that no flashlight was used. Constable Robb also said that, just before the
    appellant entered the cruiser, he examined the footwell to make sure it was
    free of contraband. Constable Burke testified that his practice is to crouch
    down to check the footwell in his vehicle inspection, including using a
    flashlight. He did not note that he conducted this specific check on that day,
    but he testified that he always conducts the check in the same way. Constable
    Burke could not recall if Constable Robb assisted with or conducted checks of
    the cruiser that day. Constable Burke also testified that, as a matter of
    redundancy, he examines the space again before anyone is placed in the rear. He
    noted as the doors open, I look in to make sure nothing is there and then ask
    the person to get in. Both officers testified that the appellant was the first
    person in the rear of the cruiser that day.

[11]

Constable Atchison was the designated exhibit
    officer in this matter. The items that were initially seized by police were
    turned over to Constable Atchison by both Constable Gill and Constable Burke
    shortly after seizure. The seized currency was placed in a temporary locker,
    pending examination by the asset forfeiture officer. No photos were taken of
    the items before they were seized from the cruiser.

[12]

The substances seized were weighed and tested: 5.53
    grams of heroin/fentanyl/methamphetamine mixed with other substances was seized
    from the person of the appellant upon arrest. The following were seized from
    the police cruiser: 9.96 grams of methamphetamine, 28.18 grams of
    heroin/fentanyl/methamphetamine mixed with other substances, 1.46 grams of
    methamphetamine, and 12.9 grams of oxycodone pills (damp).

[13]

Constable Atchison made the decision to destroy
    a number of items of evidence during processing:

a.

Coins ($9.70 Canadian currency), because he
    believed them to be covered in a substance that [he] knew was an illicit substance.

b.

The purse containing the coins, which he
    indicated was an oversight on [his] part.

c.

All of the drug packaging, which was not
    described with any specificity in the officers notes or in
viva voce
evidence.

d.

A vial of suspected cannabis oil, which was not
    sent to Health Canada for testing.

According to Constable Atchison, these
    items were discarded because they were a biohazard. Constable Atchison also testified
    he did not see the significance in keeping them.

[14]

None of the seized items were tested for
    fingerprints, nor were identification photos taken before the items were
    destroyed. Constable Gill would have been responsible for this decision, but
    could provide no reason, stating I just didnt do it. Photos were not taken
    of the remaining exhibits until requested by the Crown shortly before trial.

[15]

The appellant testified in his own defence. He said
    that he was an addict, at the time, suffering from heroin and fentanyl
    addiction, having used for a month and a half straight at the time of his
    arrest. He indicated that, at the time, he was using maybe a quarter of a gram
    a day, and that he would purchase enough to last for two weeks, approximately
    4 to 5 grams.

[16]

The appellant acknowledged being arrested as
    described by the police and being searched. He was wearing a shoulder bag,
    which had no drugs in it. He acknowledged having a bottle in his sock, with 4.5
    to 5 grams, which he had purchased that same day, but no other drugs.

[17]

The appellant testified that, at the time of his
    arrest, he was wearing fitted jeans, a skin-tight shirt, a loose-fitting
    button-up shirt over top, and a small nylon jacket.

[18]

The appellant further testified that he
    volunteered to the arresting officer that there were drugs in his sock (he
    indicated that it was heroin). He also detailed multiple searches of his
    pockets at the roadside, which turned up quantities of money and two cell
    phones. He described the police going into every single pocket more than once,
    going as far as ripping his back jeans pocket.

[19]

The appellant testified that he was leaning
    forward when sitting in the cruiser because it relieved pressure on an injured
    shoulder. He testified that when leaning forward, he could see something shiny
    in the space at his feet. He kicked it with his foot, and he found a bag. He
    was able to reach it, pick it up, and unzip it. When he did, certain items fell
    out. There was a white ball wrapped in white plastic. He concealed it in his
    mouth because he was scared to be caught with it. He testified that I don't
    even know what's in the rest of the bag and I thought well, now, this is going
    to get pinned on me, whatever, I just  I don't know. He indicated in
    cross-examination [i]f I had knowledge that that was an ounce of fentanyl, I
    would not have put that in my mouth. Im better off putting a gun in my mouth
    and pulling the trigger when I know theres four bullets and pull it four
    times.

[20]

The appellant described the bag that he found as
    black cloth, six to eight inches wide, by three inches high. He testified that
    it was in a puddle of water at his feet and was wet. He said that he opened it
    out of curiosity or stupidity, and said, I dont know. Maybe I should have
    just kicked it back under the seat.

The trial decision

[21]

The appellant brought an application for a stay
    of the charges based on asserted violations of his rights under ss. 7 and 11(d)
    of the
Charter
. He submitted that the evidence which had been
    destroyed was relevant and highly probative and its loss prejudiced his right
    to a fair trial. As an alternative to a stay, the appellant sought the
    exclusion of the evidence found in the cruiser.

[22]

The trial judge dismissed the application. He
    rejected the appellants argument that the loss of the black pouch and the
    packaging material prejudiced the appellants right to make full answer and
    defence, since it meant that those items could not be tested for fingerprints.
    The trial judge said:

I disagree. In my decades of practicing law
    and sitting on the bench, I have yet to see a case where packaging material
    would have been fingerprinted in any scenario resembling this.

[23]

The trial judge also rejected that the black
    pouch itself was relevant. He said:

Similarly, the exact size of the fabric pouch
    is not central to the determination of the issues. It was a small fabric pouch,
    capable of being folded.

[24]

In terms of the destruction of this evidence,
    the trial judge accepted Constable Atchisons explanation that he did not feel
    that the items were, to use the words of the trial judge, of significant
    relevance.

[25]

On the merits, the trial judge rejected
    challenges to the officers evidence. He also found the appellants evidence
    did not stand up to scrutiny. On these points, the trial judge said:

Given that the contraband was present in the
    back of the cruiser and in Mr. Hillier's mouth when they arrived at Central
    Division, the only logical inference is that Mr. Hillier was in possession of
    the contraband when he was placed in the cruiser.

With respect to Mr. Hillier's evidence, it simply
    does not hold up to scrutiny. I do not believe his evidence, nor is his
    evidence capable of raising a reasonable doubt.

[26]

The trial judge found that the prosecution had
    proven the offences beyond a reasonable doubt and convicted the appellant on
    all counts.

Analysis

[27]

In my view, the trial judge erred in dismissing
    the appellants application regarding the destruction of the evidence. The law
    on this issue is set out in the Supreme Court of Canadas decision in
R. v.
    La
, [1997] 2 S.C.R. 680, where, in discussing the consequences where
    evidence is lost, Sopinka J. said, at para. 20:

This obligation to explain arises out of the
    duty of the Crown and the police to preserve the fruits of the investigation.
    The right of disclosure would be a hollow one if the Crown were not required to
    preserve evidence that is known to be relevant.  Yet despite the best efforts
    of the Crown to preserve evidence, owing to the frailties of human nature, evidence
    will occasionally be lost. The principle in
Stinchcombe
(No. 2),
supra
,
    recognizes this unfortunate fact. Where the Crowns explanation satisfies the
    trial judge that the evidence has not been destroyed or lost owing to
    unacceptable negligence, the duty to disclose has not been breached.

[28]

When evidence is lost, the Crown must explain
    how the evidence was lost. When considering the Crowns explanation, Sopinka J.
    said, at para. 21:

In order to determine whether the explanation
    of the Crown is satisfactory, the Court should analyse the circumstances
    surrounding the loss of the evidence. The main consideration is whether the
    Crown or the police (as the case may be) took reasonable steps in the
    circumstances to preserve the evidence for disclosure. One circumstance that
    must be considered is the relevance that the evidence was perceived to have at
    the time. The police cannot be expected to preserve everything that comes into
    their hands on the off-chance that it will be relevant in the future. In
    addition, even the loss of relevant evidence will not result in a breach of the
    duty to disclose if the conduct of the police is reasonable.  But as the
    relevance of the evidence increases, so does the degree of care for its
    preservation that is expected of the police.

[29]

In this case, the police did not take reasonable
    steps to preserve the evidence. To the contrary, the police purposely destroyed
    the evidence and did so without taking any photographs of it. The officer who
    destroyed the evidence said that he did so because [he] just didnt see the
    significance in keeping them. But the officer then fairly added, If I could
    do it again, I would have kept the brown purse.

[30]

The fact that the officer considered the items
    to be a biohazard did not justify their destruction. The police routinely handle
    all sorts of items that could be considered biohazards, but that fact does not justify
    their destruction. Drugs themselves are biohazards, but they must be retained
    in order to prove the offences charged. Indeed, the officer acknowledged that
    these items could have been saved until the court proceedings concluded.

[31]

The trial judge did not properly analyze the
    significance of the items that were destroyed to the majority of the offences
    charged. How the drugs came to be in the backseat of the cruiser was a critical
    factual issue and the fabric pouch was central to its resolution. It is
    important on this point to realize that the three officers involved with the
    fabric pouch, all gave different descriptions of it:

·

Constable Robb described it as a black pouch,
    similar in size to a fanny pack, but could not recall how it opened, from
    where it opened, or how it fastened.

·

Constable Burke described it as a small, black
    change purse, made out of a felt-type material, being what you would
    remember your grandmother to have in her purse that would keep hergrocery
    money in, with a clasp opening at the top, and just large enough to fit some
    change and a small amount of cash inside. He estimated its dimensions as three
    inches long by three inches tall and three quarters of an inch thick.

·

Constable Atchison described it as sort of
    being brown and sort of the size of a females clutch pursemaybe eight inches
    sort of in a rectangular shape, though he did not recall the way it opened,
    and he inferred that it was cloth.

[32]

It must be kept in mind, on this issue, that
    this pouch is the apparent source of the drugs, and other items, found in the
    back seat of the cruiser and in the appellants mouth. It must also be kept in
    mind that the appellant was thoroughly searched at the scene of his arrest,
    such that a number of items were found including drugs, currency, and other
    items. It must be further kept in mind that the appellant was handcuffed to the
    rear from the time of his arrest until after he arrived at Central Division and
    was removed from the cruiser.

[33]

In these circumstances, it is problematic how an
    item, like this fabric pouch, could have been on the appellants person and yet
    not be found in the course of the search of the appellant. Indeed, it is hard
    to see how an item, described by at least one of the officers as being like a
    fanny pack, could have been missed in such a search, especially when one considers
    what the appellant was wearing at the time: fitted jeans, a skin-tight shirt, a
    loose-fitting button-up shirt over top, and a small nylon jacket. It is also
    difficult to understand how the appellant could have retrieved this item from
    where it was apparently so well-hidden on his person, given he was handcuffed
    to the rear throughout his time in the cruiser.

[34]

In order for the trial judge to properly
    consider the evidence on the issue of the drugs found in the rear of the
    cruiser, it cannot be refuted that being able to look at the fabric pouch would
    be of singular significance, especially in light of the differing descriptions
    given by the officers of the pouch. If the physical size of the pouch would
    lead to a conclusion that it could not realistically have been missed in a
    search of the appellants person, then that fact would have to pose a serious question
    whether the pouch was actually in the possession of the appellant. It could
    certainly raise a reasonable doubt regarding that fact.

[35]

Coupled with that reality is the additional fact
    that the officers involved gave differing accounts of how and when the cruiser
    was searched prior to the appellants involvement. The two officers did not
    agree on who did the search or how it was done. Indeed, these same two officers
    could not even agree on who drove the cruiser on the day in question.

[36]

Being able to see the pouch would certainly have
    assisted in determining the likelihood that it could have been hidden on the
    appellant. That determination would, in turn, have to have had an impact on the
    evaluation of the appellants evidence regarding what happened. Again, it would
    have to factor into whether the appellants evidence raised a reasonable doubt.

[37]

While it is of less importance to this issue, I would
    add that the trial judge ought not to have taken what appears to be judicial
    notice, from his own experiences, of the likelihood of finding fingerprints on
    the items of concern. If the Crown wished to advance this argument, in an
    effort to lessen the significance of the destroyed evidence, it ought to have
    called proper expert evidence on the subject. It was not open to the trial
    judge to fill in that evidentiary gap from his own experiences  evidence, I
    note, that counsel did not have any opportunity to challenge: see
R. v.
    J.M.
,
2021 ONCA 150, at paras. 48-56.

[38]

The respondents effort to characterize the
    evidence as insignificant, and the actions of the officers as reasonable, is contradicted
    by the facts. Constable Atchison himself acknowledged, in hindsight, that the
    evidence ought to have been retained. In addition, the trial judges acceptance
    of Constable Atchisons view at the time, that the items were not of
    significant relevance, is not the proper test to be applied. It is not the
    officers personal view of the evidence that counts. As Doherty J.A. said in
R.
    v. Hersi
, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 32:

It is, however, no part of the police function
    when considering whether material should be preserved for disclosure purposes
    to assess the potential significance beyond a consideration of relevance in the
    broadest sense. In my view, it is unacceptable that, almost 30 years after
Stinchcombe
,
the [undercover officer] could operate under the belief that he need save
    only relevant material that he viewed as significant
. [Emphasis added].

[39]

In my view, the destruction of these items was
    the result of unacceptable negligence on the part of the police. Their
    destruction impaired the right of the appellant to make full answer and defence,
    resulting in a breach of the appellants rights under ss. 7 and 11(d) of the
Charter
.

Remedy

[40]

What then is the appropriate remedy? A stay of
    proceedings is a remedy of last resort. The prosecutions failure to preserve
    evidence does not automatically entitle the accused to a stay of proceedings,
    even when that failure amounts to an abuse of process:
R. v. Bero
(2000),151
    C.C.C. (3d) 545 (Ont. C.A.), at para. 42.

[41]

I cannot conclude that this case is one of those
    rare and clear cases where a stay is appropriate. In fairness, the appellant
    does not press for that remedy. Rather, I consider the appropriate remedy, arising
    from the ss. 7 and 11(d) breaches, is to exclude the evidence found in the
    cruiser pursuant to s. 24(2) of the
Charter
.

[42]

Applying the factors from
R. v. Grant
,
2009 SCC 32, [2009] 2 S.C.R. 353, I consider the destruction of this evidence
    to constitute a very serious infringement of the Crowns disclosure obligations.
    Indeed, it is difficult to understand how, in 2019, such a casual approach could
    be taken to the items that were destroyed, in light of their disclosure value. I
    also consider that the destruction of these items had a significant impact on
    the right of the appellant to make full answer and defence. In terms of
    responding to the charges arising from the items found in the back seat of the
    cruiser, the appellant was left with only his evidence on what happened. Access
    to the fabric pouch might have lent considerable support to what he says
    happened, or at least raised a doubt regarding it. Lastly, I accept that the
    exclusion of the evidence undercuts society's interest in the adjudication of
    the case on its merits but, when the first two factors strongly favour
    exclusion of the evidence, the third factor will rarely alter the balance in
    favour of admission:
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643,
    at para. 63.

[43]

Given that exclusion, the convictions on
counts 2, 4 and 5 must be set aside. As there is no other
    evidence in relation to those charges, acquittals must be entered.

[44]

This result does not, however, affect the
    convictions for the offences that arose outside of the matters relating to the
    items found in the cruiser. The drugs found on the appellant at the time of his
    arrest are not impacted by these conclusions nor are the facts that underlie
    the breach of probation convictions.

[45]

There is, however, a separate issue with respect
    to the drugs found on the appellant at the time of his arrest (count 1). The
    appellant did not dispute that he had possession of those drugs, but he contended
    that they were for personal use and not for the purpose of trafficking. The
    trial judge never resolved that issue, presumably as everyone became focussed
    on the issues respecting the drugs in the cruiser, which were admitted to be in
    quantities consistent with possession for the purpose of trafficking. Nevertheless,
    a finding on that issue is necessary in order to prove one of the essential elements
    of count 1, possession for the purpose of trafficking. Further, not only was
    there no express finding by the trial judge on this element, the Crown did not
    lead evidence on the point.

[46]

In those circumstances, the conviction on count
    1 must also be set aside. In its place, as the appellant requested, a
    conviction for simple possession is substituted.

Sentence appeal

[47]

Given my conclusions regarding the conviction
    appeals, I do not reach the sentence appeal.

Conclusion

[48]

The appeal is
    allowed, the convictions on counts 2, 4 and 5 are set aside and acquittals are
    entered on those counts. With the agreement of the respondent, the conviction
    on count 3 is quashed.
[2]
The conviction on count 1 is set aside
    and a conviction for simple possession is substituted. The convictions on counts
    6 and 7 remain, as do the sentences imposed on those counts. The ancillary
    orders regarding weapons prohibition, DNA samples, and forfeiture also remain.

[49]

That leaves this
    court to impose a proper sentence on the substituted conviction for simple
    possession on count 1. The parties shall file written submissions on the appropriate
    sentence to be imposed, including allowance for time already served. The
    appellant shall file his submissions within 15 days of the date of these reasons
    and the respondent shall file its submissions within 10 days thereafter. No
    reply submissions are to be filed without leave.

Released:
March 24, 2021 K.F.

I.V.B. Nordheimer J.A.

I agree. K. Feldman J.A.
I agree. M. Tulloch J.A.





[1]

The bulge was described as larger than a golf ball,
    smaller than a hardball.



[2]
The respondent conceded that the conviction on count 3  possession
    for the purpose of trafficking cocaine  cannot stand. The substance, believed
    to be cocaine, tested as methamphetamine.


