COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buttazzoni, 2019 ONCA 645

DATE: 20190808

DOCKET: C62015

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Buttazzoni

Appellant

Jill R. Presser, for the appellant

Howard Piafsky and Holly Akin, for the respondent

Heard: January 31, 2019

On appeal from the conviction entered by Regional Senior
    Justice Peter A. Daley of the Superior Court of Justice on November 27, 2015, and
    from the sentence imposed on April 1, 2016, with reasons reported at 2015 ONSC
    6411 and 2016 ONSC 1287.

Feldman J.A.:

Overview

[1]

The appellant was acquitted of importing cocaine, but convicted of
    conspiracy to import cocaine and possession of cocaine for the purpose of
    trafficking. He was sentenced to 17 years, concurrent on each count. The
    charges related to a shipment of 112 kilograms of cocaine from Guyana.

[2]

The main issue on the appeal turns on whether the appellants conviction
    for conspiracy to import was properly based in law and fact. The appellant also
    appeals his conviction for possession for the purpose of trafficking on the
    basis that certain utterances that were overheard by police should not have
    been admitted into evidence. Additionally, the appellant seeks leave to appeal
    his sentence.

[3]

For the reasons that follow, I would dismiss the conviction appeal,
    grant leave to appeal sentence, and reduce the sentence to 15 years concurrent.

Facts

[4]

On May 28, 2012, a container arrived at the port of Saint John, New
    Brunswick from Guyana. Canada Border Services Agency (CBSA) personnel inspected
    the container and learned that it contained a quantity of canned and prepared
    food products as well as 20 empty skid pallets acting as space fillers.
    Secreted in the wood framework of 19 of the pallets were 112 kg of cocaine with
    an approximate value between $3,920,000.00 and $8,960,000.00, depending on how
    it was sold. The consignee was Moes Island Grocery in Mississauga and the
    name Laurence.

[5]

Following the discovery of the cocaine within the pallets, the CBSA agents
    contacted the Royal Canadian Mounted Police (RCMP). The RCMP took control of
    the container and arranged for a controlled delivery. The cocaine was removed
    from the pallets in New Brunswick, and then, on June 6, the container was transported
    to Ontario. Once in Ontario, the RCMP returned one gram of cocaine to the
    pallets and installed electronic audio and physical surveillance devices. The
    police learned from the shipment broker that Lawrence Dalloo, a co-accused, was
    responsible for the container.

[6]

On June 7, 2012, while the container was still detained by the RCMP,
    Dalloo entered into a rental contract with respect to a storage unit at a
    Public Storage location in Brampton, Ontario. On the contract, Dalloo named
    himself as tenant and James Buttz as the only other person authorized to access
    the unit.  At trial, Dalloo confirmed that James Buttz was the appellant.

[7]

On June 11, 2012, the police began to intercept Dalloos private
    conversations pursuant to a wiretap authorization. On June 12, the appellant
    called Dalloo and, using cryptic language, asked about the container. The same
    day, Dalloo was in contact a number of times with people in Guyana about its
    status.

[8]

On June 13, the police delivered the container to a rail yard in
    Brampton. Dalloo learned it was available for pick-up there. He then arranged
    for a truck to pick up the container and drive it to the storage facility, rather
    than to Moes Island Grocery. The police had the storage facility under
    surveillance.

[9]

That afternoon, the appellant drove Dalloo to the storage facility to
    meet the container. The appellant punched in the entry code at the gate. That
    evening, they returned to meet the truck transporting the container and
    directed it to the storage unit. Dalloo signed a paper from the truck driver
    while the appellant stood nearby. After the driver left, the appellant appeared
    jubilant. The two men hugged each other, and the appellant performed a
    celebratory dance. The appellant made a call from his cell phone, reporting
    that it just got here. As they drove away past the container, the appellant
    stopped and patted it. The appellants car returned later that evening and
    drove around the container.

[10]

That
    night Dalloo received a call from Guyana and they discussed what was to happen
    from that point. It became clear that another co-accused, Rampersaud Ramlall
    (referred to as Teddy by Dalloo and the appellant), was to pick up the pallets
    containing the cocaine and return with Dalloos share later.

[11]

On
    June 14, 2012, the appellant called Dalloo. The appellant said he wanted to get
    it done that day. They also discussed paying someone named Andrew at the
    trucking company $200 for redirecting the container to the storage facility.
    Later that morning, the appellant picked up Dalloo and dropped him off at a gas
    station where Dalloo met Ramlall. Dalloo and Ramlall drove to the storage
    facility. Dalloo called another co-accused, his nephew Sean Hussain, asking him
    to tell Jay to bring bolt cutters as well as the dolly. At 12:15 p.m., all
    four men attempted to open the container. After it was opened, Ramlall and the
    appellant were observed entering the container. The appellant and Hussain then left
    the area.

[12]

After
    that, a white van arrived and the pallets were loaded into the van and driven
    to Ramlalls house in Whitby where they were unloaded into Ramlalls garage.
    Dalloo texted a number in Guyana and said, Ur boy have it.

[13]

Once
    the white van left the storage unit, the appellant and Hussain returned and,
    with the assistance of Dalloo, unloaded the rest of the containers contents.
    During that time, one of the surveillance officers who was hiding under a truck
    within earshot overheard conversation amongst the men, including utterances by
    the appellant, some of which the officer committed to memory and recorded
    later. These utterances were confirmed by Dalloo at trial. The appellant talked
    about being nervous. He asked if the wood had some in it. Dalloo answered,
    Yeah they left a skid. The appellant said, [B]e neat to break it open and
    see how it looks.

[14]

Police
    also intercepted phone conversations that evening between the appellant and
    Dalloo where Dalloo told the appellant that the skids would likely be opened
    the next day. The appellant expressed concern about whether theyre gonna dance
    all over it, meaning dilute the portion of the cocaine that they were to
    receive. Dalloo also appeared to threaten violence if they were cheated.

[15]

The
    next morning, when noise from the listening device inside the pallets alerted
    the police that they were being opened, police quickly arrested Ramlall and another
    co-accused, Gary Ramoutar, outside Ramlalls residence on the driveway.

[16]

Later
    that morning, police intercepted phone conversations between the appellant and
    Dalloo, in which the appellant questioned whether these guys fucked us. The
    appellant told Dalloo that he would have to tell fuckin Teddy [
i.e.

Ramlall] hes takin a fuckin bullet now, you know what I mean.  The
    appellant was subsequently arrested at his residence.

The Trial Judges Findings

[17]

At
    trial, Dalloo, who had previously pled guilty to importing cocaine and
    possession of cocaine for the purpose of trafficking, gave evidence that
    exonerated the appellant, but his evidence was rejected by the trial judge.

[18]

On
    the count of importing cocaine, the trial judge found that the Crown had failed
    to prove the first required element
i.e.
that the appellant had
    imported a substance into Canada. He found, at paras. 183-184 of his reasons
    for judgment, that the appellants involvement with the cocaine commenced
    after it reached Ontario, and there was no evidence that the appellant was
    involved in directing or causing another person to bring the cocaine into
    Canada. The appellant was aware of the cocaine being imported and its arrival
    in Ontario, but there was no evidence that the appellant played a direct or
    indirect role in the act of its importation: at para. 183.

[19]

On
    the count of conspiracy to import, the trial judge found that there was a conspiracy
    to import and distribute a large quantity of cocaine and that the appellant
    was a member of that conspiracy. On the issue of timing, the trial judge stated
    that the exact point when the appellant entered into the conspiracy was
    unknown, but it was while the conspiracy was ongoing. When discussing why the
    appellant was not guilty of importing but guilty of conspiracy to import, the
    trial judge explained, at para. 183 of his reasons, that he found the
    appellants role in relation to the importation was that of a co-conspirator
    in a scheme or plan which involved the importation and subsequent distribution
    of the cocaine and that role as a co-conspirator was part of the continuing
    offence of conspiracy.

[20]

The
    trial judge also found the appellant guilty of possession for the purpose of
    trafficking. He found the appellant was in constructive possession of the
    cocaine: he knew the nature and character of the substance, and he knowingly
    kept it or had it placed in the container and subsequently into the care of
    Ramlall for the appellants own use or benefit. The trial judge relied on the
    appellants conversations with Dalloo, both intercepted and overheard, as well
    as his conduct as demonstrating that he had a financial interest in the cocaine
    and that he retained a measure of control over it after it was taken by
    Ramlall.

[21]

Having
    found the appellant guilty of possession of 112 kg of cocaine for the purpose
    of trafficking and of conspiracy to import the 112 kg of cocaine, the trial
    judge sentenced the appellant to 17 years, concurrent on each count. The trial
    judge rejected the defence position that the appellant was a lower level
    participant in the scheme. He found no mitigating factors, and took account of
    the appellants recent record in Florida for conspiracy to possess with intent
    to distribute more than 100 kg of marijuana, for which he received a sentence
    of 40 months imprisonment as well as a 4-year term of post-sentence
    supervision. He was prohibited from possessing a controlled substance, and was
    subject to the supervision order when he committed these offences.

[22]

Dalloo
    received a sentence of 15 years concurrent on a guilty plea to importing
    cocaine and possession of cocaine for the purpose of trafficking.

[23]

The
    trial judge found Ramlall guilty of conspiracy to import cocaine and possession
    of cocaine for the purpose of trafficking and imposed a sentence of 15 years,
    concurrent on both counts.
[1]
Ramlall had no criminal record.

Issues on the Appeal

[24]

The
    appellant raises the following arguments in relation to his conviction for
    conspiracy to import cocaine:

1.

The
    conviction for conspiracy to import was unreasonable because a trier of fact
    could not have convicted on a proper application of the law;

2.

The trial
    judge erred in law regarding when an importation ends and when a conspiracy
    ends; and

3.

The
    conviction for conspiracy to import was unreasonable because the trial judge
    failed to consider a reasonable alternative conclusion.

[25]

The
    appellant raises one argument in relation to his conviction for possession of
    cocaine for the purpose of trafficking:  the trial judge erred by admitting the
    utterances overheard by the police officer at the storage unit and using them
    to convict for possession for the purpose of trafficking.

[26]

He
    also seeks leave to appeal his sentence and advances two arguments:

1.

Should this court uphold both of the appellants convictions, the trial
    judge erred in principle in imposing a sentence of 17 years based on the finding
    that the appellants role was equal to that of Dalloo; and

2.

Should this court quash the appellants conviction for conspiracy to
    import but uphold his conviction for possession for the purpose of trafficking,
    the trial judge erred in principle in imposing a sentence of 17 years for possession
    for the purpose of trafficking.

Analysis

(1)

Appeal of the Conviction for Conspiracy to Import Cocaine

[27]

The
    appellant raises three grounds of appeal challenging the legal basis for his conviction
    for conspiracy to import. I propose to deal with the third ground first. With
    respect to this ground, the appellant submits that his conviction for
    conspiracy to import is unreasonable because the trial judge failed to consider
    a reasonable alternative conclusion.

[28]

While
    the trial judge found the appellant guilty of conspiracy to import, his reasons
    disclose that the conspiracy that was proved was conspiracy to import and
    distribute. The appellant argues that all of the evidence of the appellants
    involvement that the trial judge relied on to convict him of conspiring to
import
was evidence that proved his involvement in a conspiracy to
traffic
in
    cocaine after it arrived in Ontario. However, the appellant was not charged
    with conspiracy to traffic  only with conspiracy to import. Therefore, the
    trial judge should have considered and explained why the circumstantial
    evidence was only consistent with conspiracy to import and not conspiracy to
    traffic.

[29]

I
    agree with the appellant that if the trial judge convicted the appellant of
    conspiracy to import based only on acts that related to a conspiracy to traffic
    the drug once it was imported into Canada, that would constitute an
    unreasonable verdict. The Crown submits that the trial judge was entitled to find
    that the criminal agreement that actually existed was for a broader purpose and
    encompassed both importation and distribution, and that the evidence relied on
    by the trial judge made the appellant part of the entire scheme.

[30]

The
    Crown points to the following particulars of the evidence as reasonably
    supporting a joint criminal enterprise with Dalloo and the appellant as
    partners, and which encompassed an agreement to import cocaine from Guyana that
    continued in Canada:

·

Dalloos inclusion of the appellant as the only other person
    allowed access to the storage unit intended for the cocaine in his lease with
    the storage facility, dated June 7, 2012, which was a week before he took
    possession of the container;

·

The anxiety and concern shared by Dalloo and the appellant over
    the delays in delivering the container;

·

The appellant punching the security code to get access to the
    gated area of the storage facility when he arrived there with Dalloo on the
    afternoon of June 13, 2012;

·

The appellant engaging in counter surveillance, advising Dalloo
    in one call when they were expecting delivery that the OPOP was just
    leaving;

·

The appellants presence with Dalloo during the delivery of the
    container, which they believed contained a multimillion dollar shipment of
    cocaine, a factor the judge found to be consistent with the appellant having a
    direct interest in the delivery of the cocaine and the overall conspiracy to
    import it;

·

The appellants celebratory behavior as soon as the container was
    delivered;

·

The appellants inspection of the seals on the container with
    Dalloo, his participation in attempting to open it and his entry into the
    container once it was open;

·

Their shared understanding of the procedure to be followed,
    including not opening the container upon delivery, who was to be present when
    it was, and how it was to be handled;

·

Their discussion referring to Andrew, the person responsible for
    arranging for the transportation of the pallets;

·

Ramlalls direction to Dalloo to bring two with yourself makes
    three to the container;

·

The appellants utterances at the storage facility that were
    overheard by a hidden police officer, including hope those guys dont rip us
    bro, Im nervous, it doesnt take that long to rip into them I might drive to
    Whitby tonight.

·

Interceptions where the appellant discusses his fear that he and
    Dalloo have been cheated and that Ramlall will cut them out of their share of
    the imported cocaine;

·

The appellants threat to kill or do violence to Teddy [
i.e.
Ramlall]
    because the deal seemed to be falling apart; and

·

The appellant and Dalloos consistent use of the terms we, us
    and our when engaged in discussions about the cocaine.

[31]

The
    Crown submits that the appellants involvement with the container and its
    contents before it got to Ontario, and the fact that the drugs had to be
    imported for any of the rest of the scheme to operate, constituted ample
    evidence for the trial judge to find that Dalloo and the appellant were engaged
    in a joint venture that commenced with the agreement to import the cocaine.

[32]

I
    agree with the Crown that the trial judge was entitled to view the appellants
    level of involvement with the shipment before it arrived at the Brampton rail
    yard as evidence that his agreement with Dalloo included an agreement to import
    the drugs into Canada. The trial judge concluded, at para. 153, that the only
    rational inference that can be drawn from the circumstantial evidence, within
    the context of all the evidence, is the guilt of Mr. Buttazzoni with respect to
    the charge of conspiracy in Count 1. Count 1 was the charge of conspiracy to
    import. The trial judges finding answers the argument that the evidence was
    equally consistent with an agreement to traffic only.

[33]

Thus,
    I would reject this ground of appeal.

[34]

I
    now turn to the first two grounds of appeal relating to the appellants
    conviction for conspiracy to import cocaine, and I propose to address them
    together, given that they are closely related. In these two grounds of appeal,
    in essence, the appellant submits that, due to a misunderstanding and
    misapplication of the law as it relates to when the offences of importing and
    conspiracy end, the trial judge erred in finding the appellant guilty of
    conspiracy to import.

[35]

The
    appellant argues that while the larger conspiracy to import and distribute may
    have been a continuing conspiracy, the conspiracy to import
i.e.
the
    conspiracy alleged in the indictment  ended when the importation ended, and
    this preceded the appellants involvement. In
R. v. Vrany
(1979), 46
    C.C.C. (2d) 14 (Ont. C.A.), at p. 26, leave to appeal refused, [1980] 1 S.C.R.
    xiii, the court stated: Once the importation of goods is completed one cannot
    thereafter become a member of a conspiracy to import the subject goods.

[36]

The
    appellant submits that the importation ended when the drugs entered Canada and
    cleared customs in New Brunswick on May 28, 2012, relying on the majority
    decision in
Bell v. The Queen
, [1983] 2 S.C.R. 471, at p. 489, where
    the majority stated that importing a narcotic is not a continuing offence, and
    that it is complete when the goods enter the country.

[37]

The
    Crowns responding argument is that the trial judge fully understood that the
    result in
Bell

was that importing a narcotic is not a
    continuing offence and is complete when the goods enter the country. Although the
    trial judge mistakenly referred to the concurring reasons of Dickson J. (as he
    then was) in
Bell
, in which Dickson J. concluded, by contrast, that
    the offence of importing a narcotic is not over and done with until the goods have
    reached their intended final destination within Canada (at p. 481), the trial
    judges understanding of the law as expressed by the majority in
Bell

with respect to the temporal limits of the offence of importing was clear
    from his acquittal of the appellant for the offence of importing.

[38]

The
    Crown submits that unlike the offence of importing, the offence of conspiracy
    is a continuing offence; and, therefore, the appellant need not have joined the
    conspiracy before the importation was complete. The Crown relies for that
    proposition on
R. v. Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at
    para. 118, leave to appeal refused, [2004] S.C.C.A. No. 246;
Vrany
, at
    p. 26; and
R. v. Bogiatzis
, 2010 ONCA 902, 285 C.C.C. (3d) 437, at
    para. 33.

[39]

I
    do not agree that those cases stand for the proposition asserted by the Crown.
    In those cases, the issue was the application of the co-conspirators exception
    to the hearsay rule  specifically, the admission into evidence of declarations
    made by a co-conspirator in furtherance of a broader criminal agreement than
    the one charged in the indictment to prove the conspiracy that was charged. The
    concept was explained by Rosenberg J.A. in
Sauvé
, at paras. 115-118:

[115] The appellants submit, as a matter of law, that for the
    purpose of the hearsay exception the common design must either be the offence
    charged or a conspiracy to commit it.  Thus, they submit that even if
    there was a common design it was completed with the murder and any of the
    declarations after the killings were not capable of meeting the in
    furtherance requirement for the application of the exception.  The
    appellants submit that as a matter of policy the hearsay exception must be so
    limited to prevent a dangerous and unwarranted expansion of the exception.

[
116
]

We do not accept the appellants submission on this
    issue.  In our view, the matter is settled by this courts decision
    in
R. v. Baron and Wertman
(1976), 31 C.C.C. (2d)
    525.  In that case, the court had to consider whether the trial judge
    erred in instructing the jury that the conspiracy to murder included a
    conspiracy to cover up the murder.  Martin J.A. dealt with the issue as
    follows at p. 550:

To engraft a conspiracy to avoid detection and
    prosecution, as a matter of law, on every conspiracy to commit a crime would
    have far reaching implications. The effect of such a doctrine would be to
    extend the duration of the conspiracy and to make the attempted bribery of a
    police officer or the subornation of a witness by one conspirator admissible
    against the other as an act done in furtherance of the presumed subsidiary
    conspiracy to escape detection and punishment.
Such a conspiracy
    could, of course, like any other conspiracy, be established by evidence

[emphasis
    added].

[
117
]

To a similar effect is the decision of this court
    in
R. v. Vrany
(1979), 46 C.C.C. (2d) 14 at 26:

However, those who conspire to commit crime do not do
    so with any nice or careful delineation of the offences intended and
a
    single conspiracy may encompass a number of closely linked crimes which may be
    essential to the success of the conspiracy and form part of the common design
.
    This fact may then lead to the admission into evidence of acts and declarations
    of one conspirator against another which occurred after the principal object of
    the conspiracy had taken place if those acts and declarations were in
    furtherance of the common design. [emphasis added].

[
118
]

In other words, the scope of the conspiracy, or in
    this case the common enterprise, does not depend on the definition of the
    particular crime charged but the nature of the agreement.  A court must be
    careful not to artificially graft on to a conspiracy to murder a conspiracy to
    avoid detection, or as in this case, a common design to use the murder as a
    means of intimidating others. However, if the evidence establishes such a
    conspiracy or common design, it can serve as a foundation for the hearsay
    exception.

[40]

The
    trial judge in this case did use the broader conspiracy to import and
    distribute as the basis upon which to determine if certain hearsay statements
    made by one co-conspirator, Dalloo, after the importation, were admissible
    against the appellant pursuant to the co-conspirators exception to the hearsay
    rule. In that context, he concluded that he was satisfied beyond a reasonable
    doubt that the appellant was a member of the broader conspiracy to import and
    distribute the cocaine.

[41]

However,
    that use of the broader conspiracy in the course of applying this hearsay
    exception does not enlarge the crime charged in the indictment, including the
    timing of the offence. As stated by this court in
Vrany
, at p. 26,
    [t]his rule  is an evidentiary rule and does not enlarge the definition of
    the conspiracy charged. In this case, the charge was conspiracy to import
    cocaine, and the law remains that the Crown was required to prove that the
    appellant joined that conspiracy before it was terminated  here, by the
    completion of its object, which was the importation of the cocaine.

[42]

Therefore,
    in order to properly ground a conviction for conspiracy to import, it was
    necessary for the trial judge to find that the appellant joined the conspiracy
    to import before the object of the conspiracy, the importation of the cocaine,
    was complete. To do so, he had to find what date the appellant entered the
    conspiracy. However, his only finding in this regard was that the date when the
    appellant entered the conspiracy as a participant was unknown, but that he
    entered the orbit of the conspiracy, as a full participant, during the life of
    the conspiracy: at para. 153.

[43]

The
    trouble with this finding is the use of the phrase during the life of the
    conspiracy. As noted above, the trial judge found that the appellant was a
    member of a conspiracy to import and distribute. Thus, it is not clear from
    this finding alone whether the trial judge found that the appellant became a
    member of the conspiracy before or after the termination of the importing
    offence. If it was the former, this would properly support a conviction for
    conspiracy to import, but if it was the latter, it would not.

[44]

In
    light of subsequent developments in the law relating to the offence of
    importing and the trial judges other factual findings, I am of the view that
    this ambiguity does not require a new trial. Let me explain.

[45]

Since
    the trial of these charges in 2015, this court has decided two cases,
R. v.
    Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018]
    S.C.C.A. No. 127, and
R. v. Onyedinefu
, 2018 ONCA 795, which have
    interpreted the majority decision in
Bell
in the context of different
    fact scenarios in order to determine when the offence of importing is factually
    complete. In
Foster
, at para. 106, this court concluded that the offence
    of importing is factually complete at the point when the contraband and its
    carrier have cleared customs and thereby become available to their ultimate
    recipient. In
Onyedinefu
, at para. 8, this court concluded that importing
    is a process that begins with the procurement of the contraband, its transport
    to a point of entry, and ultimately to a domestic destination or recipient.

[46]

These
    two cases had not been decided at the time of this trial. On appeal, counsel
    for the appellant took the position that the offence of importation ended in
    New Brunswick on May 28, 2012, which was when the goods entered the country and
    cleared customs. Respectfully, in light of
Foster

and
Onyedinefu
,
    this is not correct. While the majority judgment in
Bell

holds that
    the offence of importing is complete when the contraband enters the country
    (p. 489), this courts judgment in
Foster

notes, at para. 101,
    that that phrase says nothing definitive about
when
the offence[s]
    begins or ends (emphasis in original). In
Foster
, the contraband was
    hidden in the appellants clothing, and it was seized on the appellants arrest
    at secondary inspection at the Toronto airport. This court held, at para. 108,
    that while the importing offence was complete in law then, it was not complete
    in fact, because the the object of the importation  to bring cocaine from
    Jamaica to a Canadian recipient  had not concluded. In
Onyedinefu
, the
    appellant took possession of a package containing heroin that was delivered by
    FedEx. The package originated in India and came to Canada by way of the United
    States. This court held, at para. 8, that while the importing of heroin was
    complete in law when the heroin entered Canada, it was not factually complete
    until the appellant, who was the Canadian recipient, took possession of it. In
    this case, the container with the cocaine became available to the recipient
    (Dalloo) at the rail yard in Brampton on June 13, 2012, and he took possession
    of it on that date. Thus, in light of
Foster
and
Onyedinefu
, the
    offence of importation ended on June 13, 2012.

[47]

With
    this end date in mind, let me now turn to the trial judges other factual
    findings. The trial judge found, at para. 152 of his reasons for judgment, that
    he was satisfied beyond a reasonable doubt that [the appellant] had the
    intention to enter into an agreement to import cocaine into Canada, and that
    that intention had already existed at the time of the first intercepted
    communication between [the appellant] and Dalloo. The time of the first
    intercepted communication between the appellant and Dalloo was the morning of
    June 12, 2012. Thus, the trial judge found as a fact that the appellant had the
    requisite
mens rea
to join the conspiracy at least as of June 12. As
Bell

has now been interpreted in
Foster
and
Onyedinefu
,
that was prior to the
    termination of the offence of importing on June 13.

[48]

Directly
    after making his finding regarding
mens rea
, the trial judge made his
    finding regarding the
actus reus
, stating, at para. 153:

I am further satisfied beyond a reasonable doubt that [the
    appellant] entered into this agreement, which he knew to be for the unlawful
    purpose of importing and distributing a large quantity of cocaine into Canada.
    While the exact point in time where he entered the conspiracy as a participant
    is unknown, it is clear, and I am satisfied beyond a reasonable doubt, that he
    entered the orbit of the conspiracy, as a full participant, during the life of
    the conspiracy.

[49]

In
    my view, the trial judges finding with respect to the
actus reus
must
    be read in the context of his preceding finding with respect to
mens rea
.
    These findings are made one right after the other. Reading these findings
    together, I am of the view that when the trial judge found, at para. 153, that
    he was further satisfied beyond a reasonable doubt that [the appellant]
    entered into
this agreement
 (emphasis added), he was referring back to
    his finding regarding
mens

rea
above, such that it
    should be understood that the appellant entered into
this agreement
coincident with when he intended to enter it. While the trial judge is not able
    to pinpoint exactly when the intention to enter and the actual entry into the agreement
    occurred, it is clear from reading these two passages together that he found
    that they both existed at least at the time of the first intercepted
    communications between the appellant and Dalloo, and, thus, before the end of
    the offence of importing.

[50]

In
    further support of this conclusion, I note that the intercepted communication
    referred to by the trial judge involved the appellant asking Dalloo about the
    container using cryptic language. From a practical point of view, I fail to see
    how this evidence could be used to find that the appellant had the intention to
    enter into an agreement to import cocaine without also supporting the finding
    that he entered into the agreement. To conclude otherwise, in my respectful
    view, would be to go against logic and common sense. Thus, reading the trial
    judges reasons contextually and practically, I conclude that he found that the
    appellant intended to enter and did enter into an agreement to import cocaine
    prior to the termination of the offence of importing on June 13, 2012.

[51]

This
    finding is supported by the evidence at trial, including the following:

·

Dalloo testified that the appellant was with him when he rented
    the storage unit on June 7 (
i.e.
before the container was delivered to Brampton);

·

Dalloo included the appellants name on the storage agreement as
    the only other person who could access the unit;

·

the appellant reacted with jubilation when the container arrived
    at the storage facility; and

·

the appellant had a significant financial interest in the
    shipment.

These examples all
    indicate that the appellant had joined the conspiracy to import the cocaine before
    the container arrived at the rail yard and therefore before the completion of
    the offence of importing.

[52]

As
    a result, I would not disturb the trial judges finding that the appellant was guilty
    of conspiracy to import cocaine. I would therefore dismiss the appeal on this
    count.

(2)

Appeal of the Conviction for Possession for the Purpose of Trafficking

[53]

The
    panel did not call on the Crown to respond to the ground of appeal pertaining
    to the admission of the overheard utterances and the effect on the appellants
    conviction for possession of cocaine for the purpose of trafficking. The trial
    judge delivered written reasons for his ruling on the admissibility of the
    utterances. The appellant submits that because the circumstances under which
    the utterances were overheard and later recorded made them unreliable, they had
    little probative value, and any such value was outweighed by their prejudicial
    effect.

[54]

The
    evidence given by the officer who was hiding under a truck and overheard the utterances
    by the appellant was that he committed 16 of them to memory and then later
    recorded them. The utterances were overheard over a period of 2.5 hours. In
    addition to these circumstances, the appellant points to the fact that the
    officer became more certain of the accuracy of his memory over the course of
    his testimony. Finally, the appellant submits that because the utterances were
    taken out of context, there was the potential for circuitous reasoning
    regarding their meaning and import to implicate the appellant:
R. v. Ferris
,
    1994 ABCA 20, 149 A.R. 1 [
Ferris

(C.A.)], affirmed [1994] 3 S.C.R.
    756.

[55]

We
    do not accept this submission. In his reasons, the trial judge considered the
    issues raised by the appellant. He found that the contextual evidence was more
    than adequate to allow the trier of fact to examine the utterances and determine
    their meaning. He referred to the test for admission of uttered words from
Ferris
(
C.A.
)
,
at para. 17:

The facts of this case are unique in that there exist no
    circumstances or context from which the true meaning of the words can be
    inferred. It is uncontradicted that the words were part of an utterance only,
    and that other words passed both before and after those words. It is
    uncontradicted that the words could have come at the beginning of a sentence or
    at the end of a sentence. In fact, the words may have been a part of a question
    such as You don't think I killed David? or a statement such as They think I
    killed David or They think I killed David but I didn't. His father could
    have asked him what the police think he did and he could have replied I killed
    David. Those utterances do not prove any fact in issue and are not an
    admission of guilt. Indeed, on the basis of the uncontradicted evidence, the
    possibility of statements with the words ... I killed David ... contained
    therein are numerous. There is no way of determining the meaning or thought to
    be attributed to the words. A trial judge could not ascertain, nor could the
    jury, the meaning of the words. The difficulty is compounded by the
    acknowledgement of Sergeant Schmidt that this accused was talking in a slow
    fashion, pausing, repeating himself or trailing off into nothing. The
    circumstances are all before the trial judge and he should determine whether or
    not the evidence is sufficient for a jury to conclude the meaning of the words.
    Without meaning being ascertainable the words are not relevant to any fact in
    issue and they have no probative value.

[56]

The
    trial judge then distinguished
Ferris
on the basis that the uttered
    words in this case were more than simply partial thoughts, and there was
    considerable context within which to consider them. I note that that context
    included all of the evidence regarding the delivery of the container to the
    storage unit, the unloading of the pallets into the vehicle bound for Ramlalls
    house in Whitby, and the fact that one pallet was left behind so that, for
    example, the utterance by the accused about breaking it open to see how it
    looks would be understood in that context. Finally, the trial judge observed
    that the question of the weight to be accorded to the utterances, including the
    accuracy of the officers recollections and of their notes, was for the trier
    of fact. For example, the fact that some of the recounted utterances were
    described as almost verbatim while others were a paraphrased synopsis would
    go to the weight rather than the admissibility of the utterances.

[57]

The
    trial judge concluded his ruling by finding that the probative value of the
    utterances exceeded their prejudicial effect.

[58]

The
    admission of such evidence is a discretionary call by the trial judge. In this
    case, he addressed that issue by identifying and applying the appropriate legal
    test for the admission of utterances, and he considered all of the frailties of
    the hearing and reporting of the utterances in the context of that test before
    determining that the evidence was admissible. The weight to be accorded to the
    evidence was left to the trier of fact.

[59]

We
    see no error in the approach of the trial judge or in his conclusion to admit
    the evidence of the utterances.

[60]

For
    these reasons, the conviction appeal is dismissed.

(3)

Sentence Appeal

[61]

In
    light of the dismissal of the conviction appeal, it is only necessary to
    address the appellants first ground of appeal relating to sentence.

[62]

The
    appellant seeks leave to appeal the sentence of 17 years, concurrent on each
    charge. He submits that the sentence of 17 years was demonstrably unfit and
    should be reduced to 13 years.

[63]

The
    appellant argues that the trial judge erred by finding, at para. 67 of his
    reasons for sentence, that the appellants level of participation was at least
    equal to that of Dalloo. Dalloo was the person who made all the arrangements
    with the seller in Guyana. He had been communicating with the seller for at
    least six weeks, whereas, at its highest, the appellants involvement commenced
    after the cocaine was in Canada. Therefore, the appellants level of
    participation was necessarily less than that of Dalloo, who was the importer.
    Further, the appellant argues that the trial judge failed to recognize that the
    appellant joined the conspiracy at a late stage and failed to treat that as a
    mitigating factor: see
R. v. Valentini

(1999), 132 C.C.C. (3d)
    262 (Ont. C.A.), at para. 112.

[64]

At
    his sentencing hearing, the appellant argued that he was not a lead participant
    in the conspiracy to import and therefore deserved a lower sentence than
    Dalloo. It was in that context that the trial judge analyzed the appellants
    role, concluding that he indeed had a high level of involvement, which included
    arranging for the containers safe delivery and the movement of its contents,
    the 112 kg of cocaine. The trial judge concluded, at para. 67 of his reasons
    for sentence:

All of this is consistent with Buttazzoni participating in the
    conspiracy at a significantly high level of involvement and financial interest,
    well above that of a courier.  His level of participation and financial
    interest in the importing and distribution of the cocaine was at least equal to
    that of Dalloo.  The evidence shows that they were working as partners with a
    shared interest in the safe delivery of the cocaine.

[65]

The
    finding that the appellant and Dalloo appeared to be working as partners once
    the drugs were delivered to Ontario was consistent with the finding that the
    appellant conspired to import the drugs as part of a scheme to import and
    distribute. However, the trial judge made no acknowledgement of the fact that
    it was Dalloo who made all the arrangements for importing the cocaine, and pled
    guilty to the offence of importing, while the appellant was acquitted of that
    offence.

[66]

In
    my view, the failure to acknowledge that significant difference in the level of
    the involvement of the two men led to an error in principle by treating them as
    equal for the purpose of sentencing. On the record, without Dalloo, the drugs
    would not have come to Canada.

[67]

In
    Dalloos case, the Crown asked for 16 years and the sentence imposed was 15
    years. In the appellants case, the Crown asked for 18 years, and the sentence
    imposed was 17 years.

[68]

Dalloo
    also had a criminal record from Florida; however, his was for production of
    marijuana
and
possession of firearms. His sentence there was five years
    imprisonment plus a five-year supervisory term, during which he was prohibited
    from possessing drugs. The sentencing judge at Dalloos sentencing hearing also
    noted that Dalloo had voiced to the appellant a threat of violence to Teddy if
    there were to be any rip-off. The appellant voiced a similar threat about Teddy
    to Dalloo. The sentencing judge specifically rejected Dalloos assertion that
    his motivation was just to support his family, given the magnitude of the
    quantity of cocaine that was brought into Canada. The sentencing judge also
    rejected rehabilitation as a significant factor in sentencing Dalloo, given his
    previous criminality and the potential effect of his offending conduct on
    thousands of people.

The difference for Dalloo was that he pled guilty after
    the preliminary inquiry and expressed remorse.

[69]

The
    most relevant precedent for the purpose of sentencing both men is
R. v.
    DOnofrio
,

2013 ONCA 145. The appellant in that case was convicted
    of possession of almost 112 kg of cocaine for the purpose of trafficking.
    Although his role was as a courier, he had high-level connections and was close
    to the importation scheme. He also had a related criminal record, similar to
    the appellant and Dalloo. DOnofrio received a sentence of 15 years, which was
    upheld by this court.

[70]

In
    my view, having regard to the appellants role in the scheme in comparison with
    that of Dalloo, the appropriate sentence for the appellant in this case is 15
    years, concurrent on both counts. Because Dalloo was the importer, his sentence
    would otherwise have been higher than the appellants had he not pled guilty
    and properly received a reduction in light of his plea.

Disposition

[71]

In
    the result, I would dismiss the appeal from conviction, grant leave to appeal
    sentence, and reduce the sentence to 15 years, concurrent on each count.

Released: KF August 8,
    2019

K.
    Feldman J.A.

I
    agree. P. Lauwers J.A.

I
    agree.
I.V.B. Nordheimer J.A.

[1]

Ramlalls conviction and sentence appeal was dismissed as
    abandoned by this court on May 3, 2016.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dudhi, 2019 ONCA 665

DATE: 20190822

DOCKET: C64147

Watt, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rusheed Martine Dudhi

Appellant

Mark Halfyard, for the appellant

Aaron Shachter, for the respondent

Heard: March 21, 2019

On appeal from the convictions entered by Justice George
    S. Gage of the Ontario Court of Justice on June 14, 2017, with reasons reported
    at 2017 ONCJ 398.

Paciocco J.A.:

OVERVIEW

[1]

During the arrest of Rusheed Dudhi, a man of colour, the arresting
    officer made a comment over the radio to his police colleagues about brown
    drug dealers. Mr. Dudhi relied on that comment and on the surrounding
    circumstances to argue that he was racially profiled and therefore arbitrarily
    detained, contrary to s. 9 of the
Charter
. While the comment clearly
    troubled the trial judge, he did not agree that an arbitrary detention took
    place. In his view, there was no link between the comment and the reason for
    the arrest.

[2]

However, the trial judge did find a separate s. 9 breach, because he concluded
    that Mr. Dudhis arrest for breach of recognizance was precipitous and unreasonable
    on a different basis. The arresting officer had seen Mr. Dudhi using a
    cellphone, but the arresting officer had reason and the means to inquire into
    whether the recognizance condition prohibiting Mr. Dudhi from possessing a
    cellphone was still in force. The arresting officer nonetheless relied on that
    condition to go ahead with the arrest, without checking. As it happened, the
    condition had been varied and Mr. Dudhi was no longer prohibited from
    possessing a cellphone.

[3]

Notwithstanding the breach, the trial judge declined to exclude the
    narcotics found in Mr. Dudhis vehicle on the basis that the admission of this
    evidence would not bring the administration of justice into disrepute.

[4]

For the reasons that follow, I would allow Mr. Dudhis appeal. I am of
    the view that the trial judge erred by improperly assessing Mr. Dudhis racial
    profiling claim. He also erred in finding that the search incidental to the
    unlawful arrest complied with s. 8 of the
Charter
, and in his s. 24(2)
    analysis.

[5]

I would therefore allow the appeal and set aside Mr. Dudhis conviction
    of possessing cocaine for the purpose of trafficking, as well as a related
    breach of recognizance conviction.

MATERIAL FACTS

[6]

On September 16, 2014, Cst. James Clayton of the Hamilton Police Service
    was conducting undercover surveillance in connection with a drug investigation.
    One of the vehicles of interest to the surveillance team was a blue BMW being
    driven by a white male.

[7]

In the very late afternoon, he saw a vehicle that matched that
    description  a BMW of the same colour and model  driven by Mr. Dudhi. Cst.
    Clayton followed in his unmarked car.

[8]

At the time, Cst. Clayton was in radio contact with fellow surveillance
    officer, Cst. Darryl Oosterhoff. Transcribed radio communications, made an
    exhibit at Mr. Dudhis trial, provide a significant record of what happened
    next.

[9]

While following Mr. Dudhi, Cst. Clayton asked Cst. Oosterhoff to verify the
    original target vehicles licence plate. Mr. Dudhi then pulled into a parking
    lot of a strip mall. Cst. Clayton did so too, to maintain observation.

[10]

Within a minute of asking for confirmation of the original target
    vehicles license plate, Cst. Clayton noticed that the vehicle he had
    encountered was not being driven by the white suspect he was looking for, but
    by a black man. He called off the request for the license plate of the suspect
    vehicle, saying [d]isregard. Its the wrong guy here.

[11]

Within roughly 30 seconds, Cst. Clayton asked Cst. Oosterhoff to run the
    license plate of Mr. Dudhis BMW. He explained:

And I got eyes on a blue BMW that theres a middle age black
    guy driving, and hes uh, looking for someone, driving around. Hes parked over
    in this plaza near the Montanas and uh, he was mean mugging me hard so Im
    going to pay attention to this guy.

[12]

In his evidence-in-chief, Cst. Clayton did not use the expression mean
    mugging when describing what prompted his interest in Mr. Dudhi. He testified
    that when he was in the parking lot, with no other vehicles around, Mr. Dudhi drove
    in front of his vehicle. Cst. Clayton testified in cross-examination that he
    believed that Mr. Dudhi was engaging in some counter-surveillance.

[13]

After being told of Cst. Claytons interest in Mr. Dudhi, Cst. Oosterhoff
    asked, [w]ant me to call the plate in? Cst. Clayton replied, [v]ery much so.

[14]

Slightly over two minutes later, Cst. Clayton reported that Mr. Dudhi
    was out of the car, [d]oing a lot of walking and waiting.

[15]

Approximately one minute later, Cst. Clayton asked [a]nything on that
    plate Darryl?

[16]

Cst. Oosterhoff replied:

Its taking me so long because its such a good one. [
The Records Clerk is] going to pull more conditions from the
    file
. So its Rusheed Dudhi born in 88. Hes accused with us on a [recognizance]
    of failure to comply x 2 and [possession for the purpose of trafficking].
    Conditions include no contact with people of criminal record, curfew 9 p.m., no
    drugs and
no cell phone or telecommunication device or
    pager
, etc. [Emphasis added.]

[17]

In fact, Cst. Clayton did not wait for all of Mr. Dudhis conditions to
    be pulled from the file. He responded, [w]ell hes on a cell phone, get your
    butt over here. He directed Cst. Oosterhoff to take him down in his car.

[18]

During Mr. Dudhis trial, Cst. Clayton affirmed the importance of
    providing a complete and detailed description of a suspect to other
    participating officers, and he said that he had a good opportunity to see Mr.
    Dudhi when outside of his vehicle. However, the only description he offered
    over the radio was, [h]es a
brown-skinned
, is
    there any description of him from Records? Because hes a huskier guy
    (emphasis added).

[19]

Shortly after, Cst. Clayton observed Mr. Dudhi get into the back seat of
    a white Mercedes SUV. Cst. Clayton provided Cst. Oosterhoff with the license plate
    of that vehicle, and then said:

Im not following because hes just going to do a loop and come
    back to his vehicle Im assuming. But this is going to be a drug deal. Ive
    already got him on his phone at 18:28-ish when hes playing around texting so
    theres grounds for this guy.

[20]

Three to four minutes later, Mr. Dudhi returned to the parking lot on
    foot. The trial judge accepted Cst. Claytons testimony that Mr. Dudhi stared
    at Cst. Clayton, got into the BMW, and drove away.

[21]

Cst. Clayton pursued Mr. Dudhi in his unmarked car, radioing the
    surveillance team of the BMWs movements. He commented while doing so, [d]efinitely
    a drug deal and hes definitely picked up.

[22]

Mr. Dudhi drove in what Cst. Clayton concluded, and the trial judge
    accepted, was an evasive manner.

[23]

Cst. Michael OHagan, who had joined in the pursuit, also joined in the
    radio conversation. He asked, referring to the original surveillance suspect, [i]s
    this our target?

[24]

Cst. Clayton responded:
[n]o, its another brown
    guy who is a drug dealer
 (emphasis added). These are the key words
    relied upon by Mr. Dudhi to establish his racial profiling claim.

[25]

When the officers were in a position to do so, they took down the BMW
    by boxing it in at an intersection. Cst. Clayton, the first officer to arrive,
    asked the driver whether he was Rasheed Dudhi. Mr. Dudhi affirmed that he was.
    Cst. Clayton removed Mr. Dudhi from the vehicle and told him that he was under
    arrest for failing to comply with the conditions of his release because he had
    a cellphone.

[26]

Mr. Dudhi immediately indicated that his no cellphone release
    condition had been varied. He eventually produced a judicial interim release
    order dated June 1, 2012, which allowed him to possess a single cell phone, the
    number of which was to be provided to Det. Read of the Hamilton Police Service.
    But before Mr. Dudhi produced this order, the officers noticed that, in
    addition to the cellphone he had in his hand, there was another cellphone in
    the centre console of the vehicle. So, they continued the arrest.

[27]

Mr. Dudhi was searched, as was the interior of his vehicle. The officers
    testified at trial that this warrantless search was conducted incident to
    arrest, for further evidence of a breach of recognizance offence. They denied
    that they were conducting a drug search.

[28]

During the search of the car, in the recessed well under the loose
    plastic cover of the rear seat fold down armrest, Cst. Oosterhoff found a
    concealed compartment with a finger hole to permit opening. Inside he located
    497.32 grams of cocaine, having a street value of $28,000 to $35,000.

[29]

As a result, Mr. Dudhi was charged with possession of cocaine for the
    purpose of trafficking, and two counts of breach of recognizance. The latter
    included one count for violating the no cellphone condition, and another count for
    violating the condition to abstain from possessing narcotics.

THE TRIAL AND THE JUDGMENT

[30]

At trial, Mr. Dudhi brought a
Charter
challenge. On consent,
    the trial judge conducted a blended trial, without a separate
Charter voir
    dire
, so that the officers evidence would not have to be repeated. At the
    close of the Crowns case, the trial judge received submissions on the
Charter
arguments, and then proceeded with the trial. It is convenient in these
    reasons to separate the
Charter
issue from the trial finding.

A.

The Charter Challenge

[31]

Mr. Dudhis
Charter
motion alleged that he was arbitrarily arrested
    contrary to s. 9, and that he had been unreasonably searched contrary to s. 8.

[32]

Mr. Dudhi advanced two grounds for his arbitrary arrest claim.

[33]

First, he said his arrest for breaching the no cellphone condition was
    precipitous. The arresting officer knew that there were more [judicial interim
    release] conditions on his electronic file, and that a review of those additional
    conditions might reveal that Mr. Dudhi was no longer subject to a cellphone
    prohibition. As it happened, a variation to the recognizance had removed the
    cellphone prohibition relied upon for Mr. Dudhis arrest. Mr. Dudhi argued that
    the decision to proceed with his arrest, without confirming that the condition
    justifying the arrest was still in force, was therefore arbitrary.

[34]

Second, Mr. Dudhi claimed that the arresting officer engaged in racial
    profiling, violating his right to be free from arbitrary detention.

[35]

With regard to s. 8, Mr. Dudhi contended that the officers conducted a
    pretence search. Mr. Dudhi argued that the focus of the officers investigation
    was on a suspected drug deal. He claimed that the officers conducted the search
    of his vehicle for narcotics under the pretence that they were searching
    incidental to his arrest for breaching the no cellphone condition.

[36]

The trial judge accepted Mr. Dudhis first s. 9 argument:

I find that proceeding with an arrest on the basis of
    information that all concerned knew was incomplete was both arbitrary and not
    objectively reasonable and the stop and arrest was therefore a breach of
    Dudhis right under section 9 of the
Charter
to be free from arbitrary
    detention.

[37]

In his testimony during the blended trial, Cst. Clayton claimed race
    played no part in Mr. Dudhis investigation, arrest, or search. He was later
    challenged about this in cross-examination:

Q: Im going to suggest to you when you said earlier  Im quite
    shocked at the idea that race never played in this investigation in any way.
    Im going to suggest that comment that you say there notes another brown guy
    is a drug dealer, Im going to suggest that that shows this

A: Im not racist, if thats what youre saying. Im not
    racist. Race did not have anything to do with this.

[38]

After confirming that there would be no re-examination, the trial judge
    asked follow-up questions:

Q: Officer, the original target  was he also a black?

A: He was a white male.

Q: So can you help me with what you meant by another brown guy?

A: Another drug dealer, that was my reference, and he was a
    brown male. Theres no racial overtones to suggest that Im targeting someone of
    race. It was a drug investigation originally, being  a blue BMW motor vehicle
    being driven by a white male. My investigations are never racially motivated or
    targeted, only through police intelligence and observations.

Q: But you didnt say another drug dealer.

A: Thats correct.

[39]

During argument on the
Charter
motion, the trial judge made it
    clear that he was having difficulties accepting that a racial profiling
Charter
breach had been made out. His concerns focused on the timing of Cst.
    Claytons impugned statement, after Cst. Clayton had formed his grounds for
    arrest. He challenged Mr. Dudhis counsel on this:

And my only point is that its not clear to me how I can take
    that objectionable statement and transfer it back to what happened at the mall.

[40]

After further argument on the point, he said:

Well, the problem I see with that argument, counsel, is that it
    kind of ignores everything that happens at the mall after the eyeballing. Now
    if the constable had been eyeballed, and thought to himself, Well, hes got
    brown skin and hes previously been charged with trafficking. I think Ill
    follow him and stop him just to see what hes up to, I might agree with you.
    But the officer didnt do that.

[41]

The trial judge addressed the racial profiling challenge only briefly in
    his decision, rejecting it with these words:

The comment another brown guy who is a drug dealer does not
    reflect well on Officer Clayton. His explanation for why he used that
    expression was not convincing. Nevertheless the comment was made after he had
    information on the basis of which he legitimately believed he had grounds to
    arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by
    Dudhis behaviour at the mall. In other words, although there is a suggestion
    of racialized thinking inherent in the remark, it did not inspire any
    precipitous or improper action.

[42]

The trial judge did not find that a s. 8 breach occurred either. The
    Crown conceded before us that he should have. To rely on the search incident to
    arrest power requires a lawful arrest, and the trial judge found that Mr.
    Dudhis arrest was arbitrary. The entire arrest was tainted, as was the search
    conducted incident to it.

[43]

The trial judge did not directly address Mr. Dudhis separate s. 8 pretence
    search argument, but it is clear he rejected it. In the course of his s. 24(2)
    ruling, the trial judge said that the search had been conducted incidental to
    the breach of recognizance arrest, and that the search was confined to the area
    arms length from the driver seat and in the location where the two cell phones
    were located. Therefore, a search of the interior of the vehicle for the
    presence of other cellphones within the reach of the driver was justified.

[44]

Notwithstanding the s. 9 breach he did find, the trial judge admitted
    into evidence the drugs found in the vehicle, based on the factors set out in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge concluded that
    the failure by the officers to dig deeper into the status of Mr. Dudhis release
    conditions was not a deliberate effort to circumvent
Charter
rights,
    and falls closer to the less serious negligence or lack of due diligence end
    of the continuum. He also found that the seriousness of the breach was
    attenuated because Mr. Dudhi could have been stopped for [
Highway Traffic
    Act
] purposes, or to see if the cellphone Mr. Dudhi was using complied
    with the amended release conditions. He noted that the expectation of privacy
    in a vehicle sits at a lower level than a residence, and then concluded, [i]n
    summary, none of the
Grant
factors favours exclusion.

B.

The tRIAL

[45]

Based on the evidence he admitted, the trial judge found Mr. Dudhi to be
    guilty of possession of cocaine for the purpose of trafficking, and breach of
    recognizance for possessing those narcotics.

[46]

Mr. Dudhi was acquitted of another count of breach of recognizance for
    possession of more than one cellphone, because the Crown failed to prove that
    the second cellphone was connected to a network and capable of supporting
    communication.

[47]

Mr. Dudhis convictions occurred in the face of defence evidence. He testified
    for the defence, as did his brother, Anthony Reid. Not surprisingly, the incredible
    and implausible story they told did not raise a doubt in the trial judges
    mind.

[48]

In essence, the brothers testified that even though Mr. Dudhi was the
    registered owner of the vehicle he was driving, Mr. Reid actually owned and
    financed the motor vehicle. Mr. Dudhi permitted Mr. Reid to put the vehicle in
    Mr. Dudhis name because Mr. Dudhis credit rating was better.

[49]

Mr. Reids evidence was that he hid the drugs in a stash box he had
    installed in the vehicle before he was arrested and incarcerated in February or
    March of 2013. Although Mr. Dudhi was using the car, he did not tell Mr. Dudhi about
    the drugs, including after he was released on strict conditions in December 2013.
    Mr. Reid said he hoped to get the $30,000 worth of cocaine from the vehicle
    himself, after his release conditions lightened up. Mr. Reid explained that he did
    not come forward after Mr. Dudhis September 2014 arrest, only doing so in 2015
    after he found God.

[50]

For his part, Mr. Dudhi confirmed that he had never been told and was
    unaware the drugs were in the car.

[51]

The Crown contends that the rejection of this manifestly implausible
    testimony was inevitable, but concedes that the trial judge erred in rejecting
    Mr. Reids testimony by relying on the fact that he first disclosed in
    circumstances wherein his admission could not be used against him. This
    concession is appropriate. Absent a proved motive to testify falsely, such as
    a plot to lie or to obtain favours, it is an error of law to discredit a
    witnesss evidence because they are testifying under the protection of s. 13 of
    the
Charter
:
R. v. Jabarianha
, 2001 SCC 75, [2001] S.C.R. 430,
    at paras. 26-27. There was no evidence to bring this case into the
Jabarianha
exception.

[52]

The Crown asks us to apply the curative proviso to this error. The
    invitation is tempting, but in my view, we need not decide whether we will do so,
    given how I would resolve the appeal issues related to the
Charter
.

ISSUES

[53]

The contested
Charter
issues on appeal can be framed simply, as
    follows:

A.

Did the trial judge err in rejecting the s. 9 racial profiling
    challenge?

B.

Did the trial judge err in not excluding the narcotics pursuant to s.
    24(2)?

ANALYSIS

A.

THE TRIAL JUDGE ERRED IN REJECTING THE CLAIM OF RACIAL PROFILING

(1)

The Meaning of Racial Profiling

[54]

Racial profiling has two components: (1) an attitudinal component; and
    (2) a causation component. As Brown and Martin JJ. explained in
R. v. Le
,
    2019 SCC 34, at para. 76, for the majority of the Court:

[T]he concept of racial profiling is primarily concerned with
    the motivation of the police. It occurs when race or racial stereotypes about
    offending or dangerousness are used, consciously or unconsciously, to any
    degree in suspect selection or subject treatment. [Citations omitted.]

[55]

The attitudinal component is the acceptance by a person in authority,
    such as a police officer, that race or racial stereotypes are relevant in
    identifying the propensity to offend or to be dangerous:
Peart v. Peel
    Regional Police Services Board
(2006), 43 C.R. (6th) 175 (Ont. C.A.), at
    para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component
    requires that this race-based thinking must consciously or unconsciously play a
    causal role. Meaning, race or the racial stereotype must motivate or influence,
    to any degree, decisions by persons in authority regarding suspect selection or
    subject treatment.

[56]

There are passages in the case law that can be taken to suggest that
    racial profiling does not occur unless there is no reasoned foundation for the
    suspect selection or subject treatment other than race or racial stereotyping.
    In other words, if there is other information that would meet the required
    legal standard  whether that required legal standard is reasonable suspicion
    [also known as articulable cause] or reasonable grounds  racial profiling does
    not exist even if race or racial stereotypes contribute to suspect selection or
    subject treatment.

[57]

A passage from
Quebec (Commission des droits de la personne et des
    droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training
    Center)
, 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 33, quoted by Brown
    and Martin JJ. in Le, at para. 77, can be strained to read this way:

Racial profiling is any action taken by one or more people in
    authority with respect to a person or group of persons, for reasons of safety,
    security or public order, that is based on actual or presumed membership in a
    group defined by race, colour, ethnic or national origin or religion,
without factual grounds or reasonable suspicion
, that
    results in the person or group being exposed to differential treatment or
    scrutiny. [Emphasis added.]

[58]

There is a similar passage in
R. v. Brown
(2003), 64 O.R. (3d)
    161 (C.A.), at para. 11, that the Crown relies upon before us to argue that [t]o
    succeed on an application alleging a s. 9 breach on the basis of racial
    profiling, an applicant must show that it was more probable than not that there
    was no articulable cause for the stop, specifically that the stop was based on
    the persons colour.

[59]

This is not the law. As Brown and Martin JJ. said in
Le
, at
    para. 76, racial profiling occurs where race or racial stereotypes are used
to any degree
in suspect selection or subject treatment
    (emphasis added). Similarly, in
Peart
,

at para. 91, Doherty
    J.A. explained:

[Racial profiling] is wrong regardless of whether the police
    conduct that racial profiling precipitates could be justified apart from resort
    to negative stereotyping based on race. For example, a police officer who sees
    a vehicle speeding and decides to pull the vehicle over
in
    part
because of the drivers colour is engaged in racial profiling
even though the speed of the vehicle could have justified the
    officers action
:
Brown v. Durham Regional Police Force
(1998),
    131 C.C.C. (3d) 1 (Ont. C.A.). [Emphasis added.]

[60]

The case law that relates racial profiling to the absence of reasonable
    suspicion or reasonable grounds must be understood in the context of the
    principle that policing decisions based on race or racial stereotypes are not,
    by definition, objectively reasonable decisions. For example, in
R. v.
    Brown
, at para. 10, Morden J.A. cited
Brown v. Durham Regional Police
    Force
in explaining that [i]f a police officer stops a person based on
    his or her colour (or on any other discriminatory ground) the purpose is
    improper and clearly would not be an articulable cause (citations omitted).

[61]

Similarly, I read para. 33 of
Bombardier
as consistent with the
    proposition that a decision made in reliance on race or racial stereotypes cannot
    provide the reasonable basis for that decision. In
Le
, Brown and
    Martin JJ. made this same point after quoting para. 33 of
Bombardier
,
    when they said that a detention based on racial profiling is one that is, by
    definition, not based on reasonable suspicion: at para. 78.

[62]

In my view, it is self-evident that a decision need not be motivated
solely or even mainly
on race or racial stereotypes to
    nevertheless be based on race or racial stereotypes. If illegitimate thinking
    about race or racial stereotypes factors into suspect selection or subject
    treatment, any pretence that the decision was reasonable is defeated. The
    decision will be contaminated by improper thinking and cannot satisfy the legal
    standards in place for suspect selection or subject treatment.

[63]

Put simply, passages such as para. 11 of
R. v. Brown
, and para.
    33 in
Bombardier
, are entirely consistent with the proposition
    accepted in
Le
and
Peart
. Where race or racial stereotypes
    are used to any degree in suspect selection or subject treatment, there will be
    no reasonable suspicion or reasonable grounds. The decision will amount to
    racial profiling.

[64]

This outcome is sensible, even leaving aside questions about what
    reasonableness entails. If objective considerations could negate improper
subjective
reliance on race or racial stereotypes, the
subjective
component of these legal standards would be
    ignored. That should not be. As was recently explained in
R. v. Lai
,
    2019 ONCA 420, at paras. 29-30, the subjective component of the relevant legal
    standards plays an important role in ensuring that the police act for
    legitimate purposes and turn their minds to the legal authority they possess:
    see also
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 27. A body of law
    that permits officers to exercise their power when subjectively, their
    decisions are influenced by race or racial stereotypes, has little to commend
    it.

[65]

Moreover, it would undermine other relevant interests at stake to accept
    that racial profiling does not occur even when race or racial stereotypes influence
    a decision, unless there is no reasonable foundation for that decision. In
Peart
,

Doherty J.A. explained in simple terms, at paras. 91 and 93, why racial
    profiling is wrong. It is offensive to fundamental concepts of equality and
    human dignity. It not only undermines effective policing by misdirecting
    resources and alienating members of the community, it fuels negative and
    destructive racial stereotyping. This mischief, including the offence against equality
    and human dignity, operates whenever race or racial stereotypes contaminate
    decision-making by persons in authority.

[66]

In sum, there are two components to racial profiling. The first is the
    attitudinal component, which is the acceptance by a person in authority that
    race or racial stereotypes are relevant in identifying the propensity to offend
    or to be dangerous. The second is the causation component, which requires that
    this race-based thinking consciously or unconsciously motivate or influence, to
    any degree, decisions by persons in authority in suspect selection or subject
    treatment.

(2)

The Trial Judge Erred in his Analysis of the Causation Component

[67]

The trial judge committed two errors in his racial profiling reasoning,
    each relating to the causation component. First, he believed improperly that the
    racist comment made by Cst. Clayton could not support a racial profiling
    finding because it was uttered after the decision to arrest had already been made.
    Second, he gave undue weight to what he felt were reasonable grounds that would
    have justified Mr. Dudhis arrest in any event.

[68]

The place to begin is with the trial judges findings relating to racial
    profiling. As I read the trial judges decision, he found that Cst. Claytons
    conduct satisfied the attitudinal component, but not the causation component.
    Therefore, he concluded that racial profiling did not occur.

[69]

For convenience, I will repeat the trial judges brief analysis of the
    racial profiling allegation:

The comment another brown guy who is a drug dealer does not
    reflect well on Officer Clayton. His explanation for why he used that
    expression was not convincing. Nevertheless the comment was made after he had
    information on the basis of which he legitimately believed he had grounds to
    arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by
    Dudhis behaviour at the mall. In other words, although there is a suggestion
    of racialized thinking inherent in the remark, it did not inspire any
    precipitous or improper action.

[70]

As can be seen, the trial judge did not
expressly
find that Cst. Clayton satisfied the attitudinal component of racial profiling.
    However, that finding is necessarily implicit in his reasoning.

[71]

Cst. Clayton testified that when he commented, [n]o, its another brown
    guy who is a drug dealer, he was simply saying that this was another drug
    dealer, other than the initial surveillance target, and that this person was a
    brown male. In his decision, the trial judge found that this innocent
    explanation was not convincing, and that the comment did not reflect well on
    Officer Clayton. These features of the decision make plain that the trial
    judge found Officer Clayton harboured racial stereotypes, consciously or
    unconsciously. It is equally clear that the trial judge concluded the actual
    explanation for the comment was that it reflected an offensive, stereotypical
    link between race and crime. Even though he couched his finding gently, by
    referring to the suggestion of racialized thinking inherent in the remark, the
    only rational interpretation of his finding is that the comment reflected Cst.
    Claytons belief that there is a link between brown skin and drug dealing.

[72]

The trial judge stopped short, however, of finding that this attitude
    contributed to Cst. Claytons decision to arrest Mr. Dudhi. The trial judge
    said it did not inspire any precipitous or improper action.

[73]

It is open to a trial judge in an appropriate case to find that despite an
    officers demonstrated conscious or unconscious racist attitude, that attitude
    did not influence the decisions that were made. As Brown and Martin JJ. recognized
    in
Le
, at para. 80, it is still open to a trial judge to determine
    that something that often occurs [namely, racial profiling] did not actually
    happen in the particular case before them. I would therefore not interfere
    with the trial judges finding, had it been properly arrived at. The difficulty
    I have here is that this finding was not, in fact, properly arrived at.

[74]

First, as indicated, the trial judge gave undue and improper emphasis to
    the timing of the impugned statement  the fact that it was made after Cst.
    Clayton had already decided to arrest Mr. Dudhi.

[75]

To understand the problem with this thinking, it is helpful to
    appreciate that racial profiling is as difficult to prove as it is pernicious.
    As Doherty J.A. recognized in
Peart
, at para. 95:

Racial profiling can seldom be proved by direct evidence.
    Rather, it must be inferred from the circumstances surrounding the police
    action that is said to be the product of racial profiling.

[76]

This makes it necessary for judges to consider all of the circumstances
    surrounding the police action. The trial judge failed to do so because he
    allowed the timing of the statement to dull its impact.

[77]

During argument, the trial judge put to Mr. Dudhis counsel its not
    clear to me how I can take that objectionable statement and transfer it back to
    what happened at the mall. The trial judge then went on to find that racial
    profiling had not been established in part because the comment was made after
    the observations that provided the grounds for arrest.

[78]

It was an error for the trial judge to isolate the officers comment in
    this way. It is well established that after-the-fact conduct by an accused
    person can be important circumstantial evidence in revealing their earlier
    state of mind:
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433. Similarly,
    if an officers state of mind is a material issue that officers relevant subsequent
    conduct, including comments made by the officer, can equally be used as
    circumstantial evidence of the officers earlier state of mind. Here, the
    comment reflected an attitude or belief, and attitudes or beliefs do not come
    and go in the moment. They are held. This is an important circumstance that
    remains relevant, even where a statement revealing the attitude or belief is
    made proximate to, but after, an impugned decision has been made. In those rare
    cases where conscious or unconscious racist attitudes or beliefs are exposed by
    evidence at trial relating to the event in question, the trial judge must closely
    consider whether the attitudes or beliefs  shown to be held by the officer at
    the time  may have contributed to the decision made. This can only properly be
    done by closely examining all of the circumstances of the case.

[79]

Here, for example, there was other evidence consistent with racial
    profiling. Mr. Dudhi is a man of colour who was driving an expensive car, a
    well-known risk factor for racial profiling:
R. v. Smith
, 2015 ONSC
    3548, 338 C.R.R. (2d) 1, at paras. 182-183;
R. v. Khan
(2004), 189
    C.C.C. (3d) 49 (Ont. S.C.), at para. 68. Within roughly 60 seconds of
    recognizing that Mr. Dudhi was not the suspect who was to be put under
    surveillance, Cst. Clayton communicated Mr. Dudhis skin colour when describing
    his suspicious behaviour. Cst. Clayton also precipitously chose to arrest Mr.
    Dudhi before completing his inquiry into the release conditions. These features
    do not make inevitable a finding that Cst. Clayton was racial profiling at the
    time but, as I say, they are consistent with racial profiling. The trial judge
    should have paid closer attention to these features of the case when
    considering whether the attitude reflected in Cst. Clatyons brown guy who is
    a drug dealer comment may have influenced the decision he made to arrest Mr.
    Dudhi.

[80]

In addition, the officer provided what the trial judge found to be an
    incredible explanation for the comment he made. As Morden J.A. accepted in
R.
    v. Brown
, at para. 45:

[W]here the evidence shows that the circumstances relating to a
    detention correspond to the phenomenon of racial profiling and provide a basis
    for the court to infer that the police officer is lying about why he or she
    singled out the accused person for attention, the record is then capable of
    supporting a finding that the stop was based on racial profiling. I accept that
    this is a way in which racial profiling could be proven.

[81]

Of course, here the trial judge did not find that Cst. Clayton lied
    directly about why he singled out Mr. Dudhi for attention. But the trial judge
    did find that Cst. Clayton gave incredible testimony about why, in the course
    of the arrest, he made a comment that portrayed racist thinking. The trial
    judge should have considered whether the officers attempt to deny that the
    comment was racist was an attempt to mask the thinking that went into the
    decisions the officer made.

[82]

The trial judge also erred by giving undue weight to the presence of reasonable
    grounds in defeating a racial profiling finding.

[83]

Recall that in addition to relying on the timing of the statement, the
    trial judge rejected the claim of racial profiling because the officer had
    information on the basis of which he legitimately believed he had grounds to
    arrest Dudhi and his interest in Dudhi had been legitimately tweaked by
    Dudhis behaviour at the mall. The trial judge then continued, [i]n other
    words, although there is a suggestion of racialized thinking inherent in the
    remark, it did not inspire any precipitous or improper action.

[84]

I am troubled by the trial judges use of the phrase in other words.
    This phrase equates the presence of reasonable grounds with the conclusion that
    the racialized thinking inherent in the remark did not inspire improper
    action. There is no such fast link. The presence of reasonable grounds does not
    disprove racial profiling.

[85]

To be sure, as Strathy C.J.O. observed in
R. v. Safarzadeh-Markhali
,
    2014 ONCA 627, 122 O.R. (3d) 97, at para. 20, affd on other grounds, 2016 SCC
    14, [2016] 1 S.C.R. 180: [t]he absence of objective grounds for detention, or
    the fabrication of grounds, can lead to an inference that the detention was
    racially-motivated. Similarly, the presence of objective grounds is no doubt
    relevant in providing an alternative, innocent explanation for a decision to
    detain. However, the trial judge put things far too strongly. The presence of objective
    grounds does not undermine a finding of racial profiling. As described, racial
    profiling can exist, regardless of whether the police conduct that racial
    profiling precipitates could be justified apart from resort to negative
    stereotyping based on race:
Peart
, at para. 91.

[86]

To be clear, I am not purporting to find that racial profiling occurred
    in this case. I am simply expressing my view that the trial judges racial
    profiling analysis was undertaken in error.

B.

THE TRIAL JUDGE ERRED IN HIS SECTION 24(2) ANALYSIS

[87]

Mr. Dudhi also alleges that the trial judge committed errors in his
    section 24(2) analysis. The Crown conceded before us that the trial judges s.
    24(2) analysis was deficient. Specifically, the trial judge believed wrongly
    that none of the
Grant
factors favours exclusion. The Crown agrees
    with Mr. Dudhi that some of the considerations required by
R. v. Grant
do favour exclusion. The Crown also conceded that the trial judge failed to
    demonstrate that he had conducted a proper balancing.

[88]

The Crown asked us to remedy these deficiencies by conducting the s. 24(2)
    analysis and finding that the admission of the evidence would not bring the
    administration of justice into disrepute. We cannot accept the Crowns
    invitation. If racial profiling did occur, this is an aggravating factor that
    elevates the seriousness of the breach:
R. v. Li
, at para. 78. It may
    be, as Mr. Dudhi urged before us, that even absent racial profiling, racially
    inappropriate conduct by an officer falling short of racial profiling that
    occurs in the course of effecting an arbitrary detention makes the breach more
    serious, but I will leave that proposition unresolved given that it was not
    argued before the trial judge. The immediate point is that it cannot be
    determined whether the admission of the evidence would bring the administration
    of justice into disrepute until a new trial has settled all of the relevant
    circumstances that inform a proper s. 24(2) decision.

[89]

Since a new trial is required, it is helpful to identify two other
    difficulties in the trial judges s. 24(2) decision that were properly raised
    before us.

[90]

First, I cannot accept the trial judges finding that the failure of the
    officers to dig deeper before arresting Mr. Dudhi falls closer to the less
    serious negligence or lack of due diligence end of the continuum. This conclusion
    reflects an error in principle: the continuum spans good faith to bad faith. Negligence
    or the lack of due diligence does not fall at either end of that continuum. In
Le
,
    at para. 143, Brown and Martin JJ. observed that good faith is not
    demonstrated by pointing to mere negligence in meeting
Charter
standards,
    and that courts may be required to dissociate themselves from evidence obtained
    as a result of police negligence in meeting
Charter
standards. The
    negligence demonstrated by the officers in this case is far removed from good
    faith and actually sits more proximate to the bad faith end of the breach
    spectrum:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras.
    100-103;
R. v. Dhillon
, 2010 ONCA 582, 260 C.C.C. (3d) 53, at paras.
    49-51;
R. v. Burke
, 2009 QCCA 85, 312 D.L.R. (4th) 196, at paras. 76-82,
    affd on other grounds, 2009 SCC 57, [2009] 3 S.C.R. 566.

[91]

Second, I cannot agree with the trial judges view that even had the
    police learned that the cellphone prohibition had been varied, they could have
    stopped Mr. Dudhi in any event under the authority of the
Highway Traffic
    Act
. I agree with Mr. Dudhis submission on this point. Had the police used
    the
Highway Traffic Act
to pursue a drug investigation, this would
    have been a pretence stop, contrary to the
Charter
:
R. v. Harris
,
    2007 ONCA 574, 225 C.C.C. (3d) 193, at paras. 30-32, 63;
Brown v. Durham
    Regional Police Force
, at paras. 31, 38-39.

[92]

Nor could Mr. Dudhi have been stopped, as the trial judge believed, to check
    to see whether the cellphone he possessed complied with the terms of this new
    recognizance. There were no grounds available to the officers to believe that
    the cellphone Mr. Dudhi was observed with did not comply with the terms of his
    new recognizance. He would have been arbitrarily detained had he been pulled
    over to check randomly whether he was complying.

DISPOSITION

[93]

Given the legal errors I have identified, I would allow the appeal, set
    aside the convictions, and order a new trial.

Released: DW August 22, 2019

David M. Paciocco J.A.
I agree. David Watt J.A.
I agree. Gary Trotter J.A.