R. v. Thompson (B.), 2015 ONCA 800

• Judge: Hoy, A.C.J.O., Weiler and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 08, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 800;(2015), 343 O.A.C. 76 (CA)

R. v. Thompson (B.) (2015), 343 O.A.C. 76 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.030

Her Majesty the Queen (respondent) v. Barrington Thompson (appellant)

(C58681; 2015 ONCA 800)

Indexed As: R. v. Thompson (B.)

Ontario Court of Appeal

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

November 23, 2015.

Summary:

Cocaine was found in Thompson's restaurant pursuant to a search warrant obtained by the police. The warrant was based upon information that an individual was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant. Thompson was found guilty of possession of cocaine for the purpose of trafficking. He appealed, submitting 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.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 8374 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Cocaine was found in the accused's restaurant pursuant to a search warrant - The warrant was based upon information that an individual (Simpson) was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant - The accused sought a stay of proceedings - He alleged that the search of the restaurant violated his right to be free from unreasonable search and seizure under s. 8 of the Charter - The trial judge convicted the accused of possession of cocaine for the purpose of trafficking - The Ontario Court of Appeal, in dismissing the appeal, stated that "[t]he decision whether or not to grant a stay is a discretionary remedy of last resort that must meet the 'clearest of cases' standard ... . That is not the situation here. 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 judge's use of logic in finding that the police did not fabricate seeing Mr. Simpson come out of the appellant's 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." - See paragraphs 69 and 70.

Criminal Law - Topic 4851

Appeals - Indictable offences - Grounds of appeal - General - Cocaine was found in Thompson's restaurant pursuant to a search warrant - The warrant was based upon information that an individual (Simpson) was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant - Thompson was found guilty of possession of cocaine for the purpose of trafficking - On appeal, he submitted that the trial judge erred in considering certain oath-helping evidence while assessing the credibility of the Crown witnesses - In rebutting the accused's suggestion that the police fabricated evidence and were motivated to do so because of a grudge, the Crown elicited evidence from officer Correia that if he were caught lying in an investigation he would lose his job - The Ontario Court of Appeal did not read the trial judge's reasons as engaging in forbidden oath-helping - 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 accused - See paragraphs 64 to 68.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - Cocaine was found in the accused's restaurant pursuant to a search warrant - The warrant was based upon information that an individual (Simpson) was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant - The accused was found guilty of possession of cocaine for the purpose of trafficking - On appeal, he invited the court to infer that the Crown's withdrawal of the charges against Simpson meant that the police fabricated evidence that Simpson had crack cocaine in his possession - The Ontario Court of Appeal declined to do so - "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 ... . Such speculation cannot establish arbitrary or improper motives for which a s. 24 Charter remedy would lie" - See paragraphs 49 and 50.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - Cocaine was found in the accused's restaurant pursuant to a search warrant - The warrant was based upon information that an individual (Simpson) was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant - The accused was found guilty of possession of cocaine for the purpose of trafficking - On appeal, the accused submitted that the trial judge erred in placing little weight on the missing police notes from the day of the investigation - The accused could not compare the rough handwritten central notes with the typed version - The Ontario Court of Appeal held that, in the circumstances, the trial judge did not err - "[T]he quality of the record-keeping and the adequacy of an officer's notes are important ... . In the post-Stinchcombe era, a police officer's notes are more than an aide memoire and a potential source of fruitful cross-examination; they are a source against which to check the Crown's disclosure. ... . [W]hen 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. This appears [to] have occurred in this case. ... 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." - See paragraphs 54 to 63.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - Cocaine was found in the accused's restaurant pursuant to a search warrant - The warrant was based upon information that an individual (Simpson) was arrested coming from the restaurant and found to be in possession of cocaine, which the police used to corroborate a tip from a confidential informant - The accused was found guilty of possession of cocaine for the purpose of trafficking - On appeal, he submitted that the trial judge misapprehended the evidence by failing to address police discrepancies with respect to the time of Simpson's arrest and seizure of cocaine - The Ontario Court of Appeal disagreed - The trial judge considered the timing contradictions and was entitled to accept the police evidence - In any event, the exact time of Simpson's arrest was a matter of detail rather than substance - Similarly, the time of the seizure was only relevant because of the accused's submission that the police planted drugs obtained from the restaurant on Simpson after his arrest - The trial judge found that there was no evidence that the police went inside the restaurant after Simpson's arrest - The timing of Simpson's arrest and the seizure was therefore peripheral to the trial judge's reasoning - See paragraphs 39 to 47.

Evidence - Topic 200

Interference and weight of evidence - Inferences - Whether reasonable inference or speculation - [See first Criminal Law - Topic 4865 ].

Police - Topic 2215

Duties - General duties - To make notes - The issue here was that the accused could not compare the police officer's missing handwritten central notes with the typed version - The Ontario Court of Appeal stated that "the quality of the record-keeping and the adequacy of an officer's notes are important ... . In the post-Stinchcombe era, a police officer's notes are more than an aide memoire and a potential source of fruitful cross-examination; they are a source against which to check the Crown's disclosure. ... . [W]hen 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." - In this case, the Court held that the trial judge did not err in placing little weight on the lost notes - See paragraphs 58 to 60.

Cases Noticed:

R. v. Cloutier (B.A.) (2011), 278 O.A.C. 331; 272 C.C.C.(3d) 291; 2011 ONCA 484, refd to. [para. 39].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 40].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 50].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 50].

Schaeffer et al. v. Wood et al. (2011), 284 O.A.C. 362; 107 O.R.(3d) 721; 2011 ONCA 716, revd. on other grounds, [2013] 3 S.C.R. 1053; 452 N.R. 286; 312 O.A.C. 1; 2013 SCC 71, refd to. [para. 56].

R. v. Jinje, 2015 ONSC 2081, refd to. [para. 57].

R. v. Stinchcombe (1991), 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 58].

R. v. Odgers, 2009 ONCJ 287, refd to. [para. 58].

R. v. Thompson (D.), [2014] O.T.C. Uned. 250; 111 W.C.B.(2d) 181; 2014 ONSC 250, refd to. [para. 59].

R. v. G.S. (2010), 266 O.A.C. 159; 254 C.C.C.(3d) 153; 2010 ONCA 296, refd to. [para. 69].

United States of America v. Mathurin, 2013 ONSC 2575, refd to. [para. 70].

Counsel:

Mark Halfyard, for the appellant;

Vanita Goela, for the respondent.

This appeal was heard on October 8, 2015, before Hoy, A.C.J.O., Weiler and Huscroft, JJ.A., of the Ontario Court of Appeal. In reasons written by Weiler, J.A., the Court released the following judgment, dated November 23, 2015.