Case Name:

Her Majesty the Queen v. [REDACTED]

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

[REDACTED]

Court File No. [REDACTED]

Ontario Superior Court of Justice

Judge: [REDACTED]

Heard: [REDACTED].

Judgment: [REDACTED].

(79 paras.)

Counsel:

[REDACTED], for the Crown.

[REDACTED] for the Defence.

Judge: [REDACTED]:--

INTRODUCTION

1 [REDACTED] pleaded not guilty to charges of trafficking, possession for the purpose of trafficking, and simple possession of crack cocaine. Crown counsel asked the Court not to deliberate on the simple possession charge as it was an included offence of the possession for the purpose of trafficking charge.

2 It is alleged by the prosecution that on September 5, 2008, the accused agreed to sell crack cocaine to an undercover police officer and that when arrested he had 5.5 g. of crack cocaine in his pants pocket.

3 [REDACTED] testified on his own behalf denying that he participated in any arrangement to sell an illicit narcotic. Although the accused did not directly state that the seized cocaine was planted on his person by one or more of the arresting officers, the implication of his testimony is that the investigating police officers framed him through false allegations.

4 For the reasons developed below, I find that the Crown has established guilt beyond a reasonable doubt.

THE "COLD CALL"

5 A couple of days prior to September 5, 2008 Peel Regional Police Service (PRPS) Constable [REDACTED], a member of the Street Crime Unit, received information from a confidential informant describing a crack cocaine dealer, known as "[REDACTED]", said to be active in the Brampton area. The informant described [REDACTED] as a black-skinned male in his twenties with a goatee and driving a black car. The informant provided the officer a cellphone number for [REDACTED].

6 Const. [REDACTED], and the other police witnesses, testified that prior to the time of [REDACTED]' arrest the name [REDACTED] and the phone number provided by the confidential informant were unknown to them. [REDACTED] testified that prior to September 5, 2008 he had had no dealings with any of the investigating police officers.

7 At about 7:19 p.m. on September 5, 2008, while partnered with Const. [REDACTED] and driving in an unmarked police van, Const. [REDACTED] made a "cold call" to the cellphone number for [REDACTED]. Such a call generally involves an approach to an unknown person about whom the police have partial information only of his involvement in criminal activity.

8 On Const. [REDACTED]' evidence, a male party answered the call saying "Hello" or "Hi" at which point he asked these questions: "You good? You around? Is this [REDACTED]?". The other party, according to the officer's recall and his notes, replied "Ya. Yo. What do you want? Where are you?"

9 Const. [REDACTED] informed the Court that when he responded that he was near the cemetery on Queen Street, the male party instructed him to go to Shoppers World (a shopping mall at Highway #10 and Steeles Ave. in Brampton) and to bring smokes, before asking, "What do you need?" The constable testified that when he replied, "A 60", the individual he believed to be [REDACTED] stated: "Okay".

10 Both Const. [REDACTED] and PRPS Const. [REDACTED], an acknowledged expert relating to the packaging, sale, value and distribution of crack cocaine, testified that in the street drug trade, a "60", refers only to crack cocaine - meaning a 60 piece, (.6 of a gram) or $60.00 worth.

11 The accused testified that on September 5, 2008, at about 7:20 p.m. while driving on his way to work for a 10:00 p.m. start as a security guard at the Pearson International Airport he received a cellphone call. He did not recognize the caller. There was static and poor reception as he spoke to the caller. Things were fuzzy and conversation mumbled. He was "multi-tasking" - it was difficult for him to drive and talk on his cellphone.

12 Initially, [REDACTED] testified that he believed from what he could hear, that he owed someone money or someone owed him money. He owed money to five people and five owed him money (his brother, sister, grandmother, nephew and Carlos who he knew through "mutual friends, acquaintances, family"). He then stated that he understood that "they were basically going to owe me money". Hearing a reference to "60", he believed that referred to money as he "recently lent out a lump sum of money to someone". The accused testified that he asked the identity of the caller and a location but did not get or hear answers. He made "a suggestion" that the caller bring him smokes. He offered suggestions of where they could meet including Shoppers World near the bus terminal and taxicab area in that mall.

13 In cross-examination, [REDACTED] gave this evidence:

Q. So you heard the person say to you when you asked, "What do you need?" respond "60" correct?

A. Right.

Q. So that would mean to you the person needed 60, correct?

A. Um ... to my understanding at the time, after hearing that I just basically thought the money, when they said "60", when I start to hear numbers, I think money.

THE SURVEILLANCE

14 Const. [REDACTED] testified that he and [REDACTED] met a second team of Street Crime Unit officers, Const[REDACTED] and [REDACTED], in the parking lot of a school near Shoppers World. He briefed the others regarding a pending crack cocaine sale by [REDACTED]. He and [REDACTED] then partnered in one van with [REDACTED] and [REDACTED] in a second van. Both vans proceeded to that area of the Shoppers World parking lot where the taxi cabs assembled.

15 The van in which Const. [REDACTED] was riding, driven by Const. [REDACTED], had a Blue and White Taxi sign affixed to its roof. They parked near about twenty taxi cabs in the north parking lot at Shoppers World. The two officers did not know the exact location of Const[REDACTED] and [REDACTED] but were in contact by their police mic phones.

16 At 7:25 p.m., Const. [REDACTED] again telephoned [REDACTED]'s cellphone number. He heard the party answer to whom he had spoken a few minutes earlier. On [REDACTED]' evidence, he reported to [REDACTED] that he was in a cab near the bus terminal at Shoppers World and that he had to hurry as his cabbie wanted to leave. The constable testified that as he was on this call he observed a black Jaguar vehicle go by driven by a black male speaking on a cellphone, a person who matched the details given by the confidential informant.

17 [REDACTED] acknowledged in his evidence that he drove through the lot and reversed his vehicle into an open parking spot along the fenceline to the west.

18 Const. [REDACTED] testified that [REDACTED] said, "I'm here now ... I'm ready. Let's go". He then completed the call by saying to [REDACTED], "Okay. I'll find you. I'll be there in a few seconds". The officer informed the court that he then saw [REDACTED] take the cellphone from his ear.

19 Const. [REDACTED] observed a black Jaguar drive slowly through the lot and recalled that he was alerted in advance by [REDACTED] that he would place the second call to [REDACTED]. He then saw the driver of the Jaguar raise a cellphone to his ear and, after a brief conversation, lower the phone.

20 Const. [REDACTED] testified that when [REDACTED] again called [REDACTED] he saw the driver, a black-skinned male, in the black Jaguar pick up his phone. He did not see him put the phone down.

21 Const. [REDACTED]'s recall seemed to have Const. [REDACTED] simultaneously operating the mic phone and making the cellphone call to [REDACTED]. The officer observed the target not to be on the phone and then using a cellphone after he understood [REDACTED] had placed his call.

22 Radio contact between the two police vehicles led to the officers agreeing that the occupant of the Jaguar was their target.

23 According to the accused, he sat in his car waiting for the caller to show up. He waited about ten minutes. In his evidence in-chief, there was no reference to receiving a second phone call before a vehicle drove quickly right toward the front of his car. In cross-examination, [REDACTED] stated that he was again called and it was "more or less the same person" he had spoken to earlier about money. On the accused's evidence, he again asked who he was meeting but received no response. Cellphone reception remained poor. Pressed on the point, the accused stated that he saw on his phone 'Private Number' appear leading him to think "it was a crank call or something".

[REDACTED]' FLIGHT

24 When the take-down was called, Const. [REDACTED] drove his van straight on to the front of the Jaguar to block its path. He did so quickly stopping a few feet short of the front bumper of the accused's vehicle. As he put the vehicle in PARK, he flicked on a light bar of flashing blue and red lights along the windshield visor.

25 Const. [REDACTED] described his upper garment as a police vest bearing the reflective letters "POLICE", with his police badge hung around his neck clipped to his vest. In his view, given his height, all of this could be seen through the van window above the dashboard. The officer recalled that the accused looked at him as the van stopped. He then quickly reached to the passenger side of the vehicle as though reaching for something. Const. [REDACTED] reported seeing this same movement by the driver. Const. [REDACTED] testified that the Jaguar windows were down. He informed the court that he shouted, "Police. Show your hands". The officer exited the van. [REDACTED] responded by opening his driver's door, leaving it open, and running before the officer could get to the Jaguar. Const. [REDACTED] testified that he took chase continuing to scream, "Police. Stop running". He recalled others shouting as well.

26 [REDACTED] testified that a blue van drove quickly straight toward the front of his Jaguar exceeding the speed limit for the parking lot. He feared a collision. He saw no flashing lights on the vehicle. He didn't want to get hit or suffer possible injury so he exited his vehicle, and then, in his words, "continued to remove himself from the devastation area".

27 Const. [REDACTED] testified that [REDACTED] did not respond to the shouts of "Police. Stop running". He too gave chase wearing a police vest and his badge in the manner described by Const. [REDACTED].

28 On the accused's evidence, when he looked back he saw "a couple of guys" exit the van. He was shocked and did not know what to think. He ran along the fence-line. He saw someone in a taxi driving parallel to his position. When he again looked back he saw four or five guys chasing after him. As he ran, he heard no commands, direction or messages from the men in jeans, t-shirts and jackets. He jumped the fence to escape from these "attackers" or "assailants". He feared for his life and wanted to avoid an altercation. He had no sense that the men running behind him were police officers.

29 On the evidence, [REDACTED] ran north through the parking lot along the chain-link fence. He then jumped the fence and ran across the grass on the other side.

30 Const. [REDACTED] testified that when [REDACTED] began to run, he drove his police van parallel to the pursuit by the officers on foot. Everything was happening quickly. With the van window down, from a distance of about twelve feet, he yelled "Police. Stop". When [REDACTED] jumped the fence, he stopped the van. He and Const. [REDACTED] exited and joined the foot pursuit.

THE ARREST AND SEARCH

31 Const. [REDACTED] ran through an opening in the fence. He caught up to the accused on a grassy knoll and tackled him to the ground. To his recall, his fellow officers were not far behind. He alone effected the arrest. After a brief struggle to get [REDACTED]' hands behind his back, he handcuffed the accused. [REDACTED] testified that he informed the accused that he was under arrest for trafficking. While the arrestee remained on the ground, he conducted a pat down search for weapons and C.D.S.A. substances.

32 Const. [REDACTED] from his position about fifty feet behind, perceived that both Const[REDACTED] and [REDACTED] apprehended [REDACTED]. To Const. [REDACTED]' recall, within seconds he caught up to Const. [REDACTED] and [REDACTED] who were with the accused.

33 Const[REDACTED] and [REDACTED] testified that it was Const. [REDACTED] who caught the accused by taking him to the ground and handcuffing him. The witness confirmed that no other officer had physical contact with the accused and that only [REDACTED] searched the prisoner.

34 Const. [REDACTED] testified that in the front right pocket of the accused's jeans he located some small balled up newspaper, kleenex material containing a hard substance, and white shopping bag-like plastic concealing what the witness believed to be crack cocaine. The witness testified that, at this point, he would have said words to the effect of, "He's got" or "There's product".

35 Const. [REDACTED] testified that he recalled Const. [REDACTED] as he saw his colleague search the accused's front pocket, saying "He's got" or words to that effect meaning drugs had been located. Const. [REDACTED] informed the court that he then immediately returned to the police van he had left unoccupied blocking a travel lane in the Shoppers World parking lot. The other officers walked back separately with the arrestee.

36 Constable [REDACTED] testified that he assisted the accused to his feet and turned custody over to Const. [REDACTED]. He turned the pocket seizure over to Const. [REDACTED] back at the parking lot with [REDACTED] acting as the exhibits officer.

37 Const. [REDACTED] testified that he recalled Const. [REDACTED] saying, before they returned to the parking lot, that he had located crack cocaine on the accused.

38 Const. [REDACTED] testified that he did not see any personal search that may have occurred as he remained focused on the prisoner as he lay on the ground. He informed the court that he now "believe[d]" that [REDACTED] told the other officers he had found crack cocaine and marihuana.

39 On [REDACTED]' version of events, after a short foot race in an open field, he stopped as he was out of breath. At that point, Const. [REDACTED] grabbed him attempting to explain that he was "a cop" and explaining that "he ... wanted to talk or arrest me I guess". When he asked why he was being chased, he dialogued back and forth with the officer. In cross-examination, the accused stated, "they basically grabbed me". [REDACTED] further noted that at a point Const. [REDACTED] grabbed one of his arms. He was not tackled to the ground. He was not searched or told any reason for an arrest. When the other officers caught up, they said "they just wanted to talk ... I was being arrested or being detained for something".

40 In his evidence in-chief, [REDACTED] maintained that he was walked back to a police van in the parking lot and handcuffed there. In cross-examination, the witness stated:

He grabbed me and like he tried to put handcuffs on me and after they were successful in putting the handcuffs on me, they motioned me back to their vehicle more or less ...

The accused then reverted to saying he walked back to Shoppers World without handcuffs.

41 [REDACTED] variously testified that he walked with the four officers voluntarily and of his own will back to the police van, and, that Const. [REDACTED] was physically forcefully pulling him back toward the police van.

THE VEHICLE SEARCH

42 Const. [REDACTED] testified that once he returned to the parking lot he had no further contact with [REDACTED]. He searched the trunk of the Jaguar.

43 Const. [REDACTED] searched the interior of the Jaguar. On the front passenger seat, he located a digital scale and two cellphones. He used his cellphone to again dial the phone number he had for [REDACTED] and saw his own number come up on one of the two cellphones as it rang.

44 Crown counsel questioned [REDACTED] as to whether he had a digital scale in his vehicle on September 5, 2008:

Q. You had a digital scale with you correct?

A. Um ... specifics of what was in my actual vehicle cause that wasn't in my pocket, and it wasn't on my person, I don't really necessarily recall that. I mean I had a few things in my vehicle. They said they went through my vehicle. They said ... the police officers let me know they found it inside my vehicle.

The witness then stated that he had no digital scale.

45 Const. [REDACTED] described the seizures received from Const. [REDACTED], and tested by Health Canada, as a 3 gram piece of crack cocaine, a 2.5 gram piece of crack cocaine, and 1 gram of cannabis marihuana.

46 Under cross-examination, the police witnesses denied having crack cocaine in their possession or making any drug seizures earlier in the evening of September 5, 2008.

CUSTODY OF THE ARRESTEE AT THE SCENE

47 Const. [REDACTED] testified that once he returned to the mall parking lot with the accused he informed him of his right to counsel, cautioned him, and conducted a further search. Const. [REDACTED] was also present and took custody of the accused. Const. [REDACTED] confirmed these details. Const. [REDACTED] testified that he then re-walked the path run by the accused in order to check for any discarded contraband. He had no further contact with [REDACTED]. Const. [REDACTED] recalled that he asked the accused a number of set questions about drug trafficking and dealers in the area.

48 In direct examination, [REDACTED] stated that he was first searched at the van itself. He had no idea why he was under arrest until at the police station. He was placed in the back of the van on the floor as the rear seats had been removed. At first, he was alone. Then Const[REDACTED] and [REDACTED] entered the vehicle and began to interrogate him. While questioning him, the officers punched him in the head. He turned to avoid being hit in the face or in some "essential part" of his body that might cause him to bleed a lot, be paralyzed or die. This went on for twenty to twenty-five minutes until a cruiser arrived to transport him to the police station.

49 In cross-examination, the accused at first stated that he was "placed" in the van before stating that Const[REDACTED], [REDACTED] and [REDACTED] picked him up and "threw" him into the back of the van, with Const[REDACTED] and [REDACTED] remaining with him after the door was closed. By the point of cross-examination, the accused stated that these officers not only punched him but elbows were thrown, he was kicked and spat upon, and called names.

50 [REDACTED] informed the court that he sustained injuries in the form of bruises. Subsequently, he was unable to file a complaint because the police at PRPS 22 Division denied him access to the relevant forms.

51 Const. [REDACTED] testified that he sat in the driver's seat of the van. The accused was in the rear. He had no conversation with the accused in the ten-minute wait for the transport cruiser.

52 Each of the four police witnesses denied any physical mistreatment of [REDACTED] or any threats to the arrestee. The evidence of these witnesses rejected the suggestion that they were all in the police van with [REDACTED] at any time.

THE EXPERT WITNESS

53 PRPS Const. [REDACTED], who testified as an expert witness respecting the use, pricing, packaging, terminology and distribution relating to crack cocaine, provided this evidence:

(1) 5.5 g. of crack cocaine, standing alone, may not indicate an instance of drug trafficking. Depending on other circumstances such as how the substance is packaged and the presence/absence of drug paraphernalia, such a conclusion could be drawn.

(2) 5.5 g. would, as a general rule, yield 55 hits. An average user consumes .1 to .2 g/hit. A user would consume in the range of 1 gram or more daily.

(3) The value of 5.5 g. of crack cocaine at the street level would be about $550.00. While possible, it would be an unusual purchase for an average user. It would be a week's worth of drug.

(4) A heavy, heavy binge user might consume 5.5 g. of crack cocaine in two days.

(5) An average user generally buys at one time less than 1 g. of crack cocaine, for example, $40-80.00 worth. The user ordinarily does not hold for long, going directly and quickly to a safe location to consume.

(6) Dealers commonly package crack cocaine in white plastic bag material or clear or brown plastic or in kleenex.

(7) A heavy drug dealer would generally use a knife, razor blade or a fingernail to break off lesser quantities from a crack cocaine chunk. A chunk could also be crushed by hand to produce smaller weights.

(8) A dealer uses a scale to ensure he is selling an accurate weight. Dealers tend to weight slightly to their own advantage in dealing with customers. Only very rarely, does a purchaser ever possess a scale.

(9) Dealers commonly have multiple cellphones divided between business and personal and commonly use a nickname to assist in avoiding detection.

(10) A dealer would not expect to receive a call requesting "crack cocaine" but rather reference to a weight, i.e. "60" or, above a 100-piece (1 g), reference to a dollar amount of "Food, Rock, Hard or Candy".

ANALYSIS

Introduction

54 On behalf of the defence, Ms. [REDACTED] elected not to proceed with its filed application alleging breaches of s. 8 of the Charter. Accordingly, the trial proceeded without the accused seeking to challenge the constitutionality of the police conduct.

General Principles

55 The evidence of a single witness may be capable of raising a reasonable doubt.

56 A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.

57 Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution's ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused's evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

58 A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness' evidence, how a witness' version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

59 In and of itself, the testimony of a police witness is not deserving of more credit or weight than the evidence of an ordinary witness. The power bestowed on peace officers, and the ever present risk of abuse of that power, particularly in low visibility encounters with suspects, requires a trier of fact to carefully scrutinize the whole of the evidentiary record.

60 Trafficking is defined in s. 2 of the C.D.S.A. as including sale, transport or delivery of a prohibited substance or an offer to do so. Where the alleged trafficking is an offer to sell, the actus reus of the offence is the making of an offer, and when accompanied by intent to do so, the necessary mens rea is made out: R. v. Campbell, [1999] 1 S.C.R. 565 at para. 25. To constitute trafficking, transport of a prohibited substance contemplates movement of the substance for the purpose of promoting its distribution to another person: R. v. Gardiner (1987), 35 C.C.C. (3d) 461 (Ont. C.A.) at 463-5.

61 A trier's careful scrutiny of the evidence led by the prosecution and the defence should be even-handed, for example, equally discriminating measures of critique without a forgiving of deficiencies in one party's case and not the other without good reason.

62 The circumstances of a particular drug transaction may not involve use of the precise name of a prohibited substance. For example, trafficking was established in circumstances where, after an undercover officer asked where she could "get something", the accused asked what she wanted, and the officer replied "just a forty piece", and a transaction followed: R. v. M.F. (2000), 146 C.C.C. (3d) 187 (Ont. C.A.) at para. 2, 13-4.

63 Liability for the crime of trafficking, depending on the particular facts of a case, may be justified even when the quantity of cocaine is small: see, for example: R. v. M.F., supra (.4 g.); R. v. Shaw (2007), 257 N.S.R. (2d) 344 (C.A.) (1 g.); R. v. Saari, [2006] B.C.J. No. 1473 (C.A.) (2.66 g.); R. v. Lennartsson, [2006] A.J. No. 707 (C.A.) (.3 g.); R. v. Kirwin, [2006] B.C.J. No. 352 (C.A.) (1 g.).

64 It therefore stands to reason that an individual may possess a small quantity of cocaine for the purpose of trafficking (for example, R. v. Jones (2006), 244 N.S.R. (2d) 290 (C.A.) (2.92 g.)). Put differently, the actus reus of possession for the purposes of trafficking contrary to s. 5(2) of the C.D.S.A. does not include a minimal traffickable quantity as was described in R. v. Chan (2003), 178 C.C.C. (3d) 269 (Ont. C.A.) at para. 23, 24, 27, 32-35 (leave to appeal refused [2003] S.C.C.A. No. 453):

The appellant submits that, because the controlled delivery package contained only a single gram of heroin, it was not open to the trial judge to convict him of possession of heroin for the purpose of trafficking. In particular, the appellant contends that possession of a single gram of heroin is not sufficient to constitute the offence because an element of the actus reus is missing.

...

Put another way, the appellant contends that one gram of heroin is not a trafficable quantity.

...

First, in my view, possession of a particular quantity of a controlled substance is not part of the actus reus of the offence of possession for the purpose of trafficking.

...

Notably however, none of s. 5(2), the definition of "traffic", or the relevant authorities refers to quantity or to knowledge of a particular quantity as an element of the offence or as a component of the actus reus.

...

That said, the quantity of a controlled substance that an accused person possesses often plays a role in determining whether an inference of possession for the purpose of trafficking should be drawn. However, the fact that quantity can be, and often is, an indicium of purpose, does not make it a part of the actus reus of the offence.

As noted, neither s. 5(2) of the Controlled Drugs and Substances Act nor the definition of "traffic", nor the relevant authorities stipulate that quantity is a part of the actus reus of the offence.

...

Accordingly, although relevant to proof of an accused person's intent, I conclude that the quantity of a controlled substance that an accused person possesses does not form part of the actus reus of the offence of possession for the purpose of trafficking.

65 It is important to have regard to all the circumstances, viewed cumulatively, for example, the presence of individually wrapped packages and multiple cellphones (R. v. Johnson (2006), 213 O.A.C. 395 (C.A.), at para. 1, 4), in order to determine whether the conduct of the accused had a commercial character and "was unlike that of a mere user of cocaine" and "clearly pointed to him being a trafficker": R. v. Silver, 2007 YKCA 4 at para. 17.

Findings of Fact

66 Ms. [REDACTED] quite rightly submitted that, quite apart from any reliance on [REDACTED]' version of events, the trier of fact should have regard to inconsistencies in the evidence of the four police witnesses who dealt with the accused on September 5, 2008. There were indeed differences respecting such things as whether Const. [REDACTED] received information to go to Shoppers World or to a specific location in the mall, the order of the second call to [REDACTED] and the alert to the second police van that that call was being made, where precisely the accused's vehicle was positioned in the parking lot when the second call was made, how many officers touched the accused at the point of arrest before the return to the parking lot, whether Const. [REDACTED] announced and in what terms the discovery of cocaine and perhaps marihuana on [REDACTED]' person, etc.

67 The time period from the first call to the accused until his arrest was about eleven minutes. Matters unfolded quickly. Not surprisingly, the officers had notes of what they considered to be material events but not videotape-like quality recording of every frame of what transpired.

68 There was a core consistency in the officers' evidence especially on such matters as the accused's use of his cellphone in the Shoppers World parking lot, the abundant indicia of a police presence at the point of the take-down, the flight of [REDACTED], the finding of what was believed to be crack cocaine on his person when he was apprehended outside the parking lot, and the witnesses' refutation of mistreatment of the arrestee.

69 These witnesses provided their evidence professionally without becoming argumentative and without the hint of an agenda. They did not know Mr. [REDACTED] prior to September 5, 2008. Although only one factor to consider, there does not appear to be any motive to fabricate their account nor was one suggested by the defence.

70 Considering the totality of the evidence, I believe any inconsistencies, or apparent inconsistencies, in the officers' evidence to be innocent flaws of recall, not material, and certainly not the product of attempts to promote false evidence.

71 The substance of the police witnesses' testimony is that a phone arrangement was made to buy a 60 piece of crack cocaine from [REDACTED] at Shoppers World.

72 Const. [REDACTED]' evidence, if accepted, of giving his drug order in street level drug slang in response to [REDACTED]'s question, "What do you need?" followed by [REDACTED]'s direction to the mall and his subsequent attendance there with crack cocaine would amount to trafficking. The circumstances of such an attendance by [REDACTED] using the nickname or street name [REDACTED], the separately wrapped chunks of crack cocaine totalling 5.5 g. in weight, the digital scale at the ready and the two cellphones, raise a compelling case of possession for the purposes of trafficking.

73 [REDACTED]' evidence was transparently incredible. As a witness, he was at times unresponsive, for example in cross-examination in answering the prosecutor's question regarding the digital scale. He provided strained responses, for example about difficulties hearing [REDACTED]' first call because he was multi-tasking, and, in his attempts to reconcile being in a hurry and therefore driving straight to Shoppers World with the need to await his unknown debtor to get to the mall by bus. There were difficult pauses, for example in coming up with the name Carlos and who he was. Claiming to be driving on his way to work at the Toronto Airport over 2 1/2 hours before his start time, with only a short stop planned to pick up work clothes, made little sense.

74 In her closing submissions, Ms. [REDACTED] frankly acknowledged that some aspects of [REDACTED]' evidence were difficult to reconcile.

75 The accused failed to describe a second call from Const. [REDACTED] in his in-chief testimony. His account of poor cellphone reception strains credulity. [REDACTED]' description of running from a scene of potential devastation was nonsensical. Advancing a lack of a protective search by the police on the grassy knoll after running to that location defies common sense. The accused flip-flopped on the place of the handcuffing. [REDACTED]' version of his mistreatment - a prolonged beating in the parking lot of a public mall - became more extravagant in cross-examination. The accused was an entirely incredible witness.

76 The weight of credible and reliable evidence is all against the accused. I accept the evidence of the prosecution witnesses where it differs from that of the accused. Beyond that, on this record, and considering the whole of the evidence, there is no reasonable doubt as to liability for possession for the purpose of trafficking and for trafficking.

77 [REDACTED] agreed to sell crack cocaine. The deal went badly for him when the authorities moved in at Shoppers World. He well knew the police were about to apprehend him. That is why he ran. He was tackled by Const. [REDACTED] and handcuffed. That officer located crack cocaine in his pants pocket. No drugs were planted on the arrestee. The story of mistreatment at the hands of the police is a fabrication.

CONCLUSION

78 The accused is acquitted on the possession charge.

79 There are findings of guilt on the trafficking and possession for the purpose of trafficking counts.

[REDACTED]

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