R v. R.M. (cross-examination of police witnesses) | Examples Of Favourable Verdicts

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

AGAINST

RUBEN MILLER

* * * *

EXCERPTS OF THE PROCEEDINGS AT TRIAL
[EVIDENCE CALLED]
BEFORE THE HONOURABLE MR, JUSTICE REINIER
On Monday, August 25th, 2006
At Old City Hall, TORONTO, Ontario

Courtroom 123

* * * *

APPEARANCES:

M. Kreuk, Ms. Counsel for the Crown

T. Pain, Mr. Counsel for Ruben Miller

* * * *
EXCERPT OF THE PROCEEDINGS:

HAYDEN DUBOIS: SWORN

EXAMINATION IN-CHIEF BY MS. KREUK:

Q. Good afternoon, Officer Dubois.
A. Hello.
Q. I understand you’re a member of the Toronto Police Service.
A. I am.
Q. And how long have you been a member?
A. July 18, 2000.
Q. And I understand you investigated the matter before the Court today.
A. I did.
Q. And you made notes of your involvement.
A. I did.
Q. And when did you make those notes?
A. During and immediately after.
Q. Have you made any additions, alterations or deletions to those notes?
A. No.
Q. And would referring to your notes assist you in refreshing your memory today?
A. Yes, it would.
MS. KREUK: May I have the Court’s permission to allow Officer Dubois to refer to his notes?
THE COURT: Any . . . .
MR. PAIN: No objection.
THE COURT: . . . objection? Okay, you may use your notes.
MS. KREUK: Q: I’m going to ask you to take your mind back to the early morning hours of August 28th, 2005. I understand you were on duty that day.
A. I was.
Q. And what shift were you working?
A. Um, I believe I was working midnight shift, which is eleven o’clock at night ’til seven o’clock in the morning.
Q. Okay. And were you in uniform?
A. I was.
Q. And were you in a scout car?
A. I was in a fully marked scout car with roof lights and a siren, Scout 8254.
Q. Could you describe the weather conditions that day?
A. Um, the roads were clear and dry; um, the weather was warm.
Q. And can you tell me how you came to be involved in this matter?
A. Um, at approximately 12:45 a.m. on the 28th, I was — another unit was investigating two youths at the rear of Systems Technology Institute. I was on general patrol. I had stopped by to see if they were okay because I hadn’t heard from them in a while. Um, while sitting there, I observed an Acura Integra drive slowly down the road, down the road, down Glennville. I believe it was Glennville.
Q. And was there any other traffic in the area at that time?
A. If, if there was, it would have been very sporodic — or sporadic. It was hardly any traffic at that hour on that side street.
THE COURT: Now, what street, again?
A. Just — it’s either Glennville or Glennmount. I get the two confused, Your Honour. I apologize.
THE COURT: Well, start off with the major intersection.
A. Cait- . . . .
THE COURT: What would be the major intersection?
A. Ah, Graywood and Glennville, I believe. It’s either a -ville or the -mount.
THE COURT: I don’t know the streets myself.
A. It’s Glennville.
THE COURT: I wasn’t saying it because I thought you had given me an incorrect street name. I was just trying to understand roughly where it is. It’s Graywood. . .
A. And Glennville.
THE COURT: Is it north of the Danforth. . . .
A. Yes.
THE COURT: . . . south of the Danforth?
A. There’s Danforth, there’s a side street called Strathmere.
THE COURT: Yeah.
A. There’s Systems Technical Institute. And then the next street north of that is Glennville. It runs east and west.
THE COURT: So it’s east/west, north of the Danforth?
A. Yes.
THE COURT: And but this is actually off of — what street, again, did you say?
A. We were on Glennville. The rear parking lot is on Glennville.
THE COURT: Okay. What is the north/south street.
A. Graywood. . .
THE COURT: Graywood.
A. . . .on the — to the east and. . . . .
THE COURT: That’s what I, that’s what I was not writing down, Graywood. Okay. Thanks.
MS. KREUK: Q: So you said you observed an Acura drive slowly.
A. Yeah. It drove extremely slow westbound on the street and had a very loud muffler and appeared to be taking an interest in what we were, what we were doing.
THE COURT: Something, did you say, about the muffler?
A. It had a very loud muffler which is. . .
THE COURT: A loud muffler.
A. . . .what drew my attention to it. I heard it come from up the streets. It slowed down. When the vehicle slowed down, the muffler wasn’t as pronounced. Um, so, I, I looked over to the driver of the vehicle and it was very dark in this area, though. I couldn’t make out a description of him at this point. Um, the officers that were investigating the two people behind Systems Tech., they were okay, so I decided to find out what this driver was doing. I put the vehicle in drive and began to turn slightly out of the parking lot and the Integra accelerated westbound on Glennville at a high rate of speed.
Q: And. . . .
THE COURT: As your car came out of the driveway.
A: Just as I started to turn, he took off.
MS. KREUK: Q: And what color was — I believe you said it was an Acura Integra.
A: Yeah. At this point it was just dark. Like, it was a dark coloured Acura Integra. I couldn’t make out the colour. I later, after dealing with the accused, it was found to be black.
Q: Okay. And what made you decide to follow him?
A: Um, at this — during this incident, I was assigned to the Traffic Enforcement Unit and vehicles with loud mufflers like that, they don’t conform to the Highway Traffic Act, so that’s initially what would have drawn my attention to him, and the suspicious behaviour that when we — when I went to turn around, like to pull the vehicle out of the parking lot, that the vehicle had accelerated away at a high rate of speed. That further drew my suspicion as to what actions the driver was up to.
Q: Okay. Did you observe the licence plate number of the car?
A: Not at this point, no.
Q: Okay. Could you tell us what happened next?
A: I pulled out onto Glennville and I accelerated pretty much as hard as the vehicle would go.
Q: And how fast would you have been able to get your vehicle to go?
A: Over a hundred in the stretch between that and Donville.
Q: And what did you observe?
A: The. . . .
THE COURT: Again, I’m very sorry, but you’re going in what direction, though?
A: Westbound on Glennville, Your Honour.
THE COURT: Westbound?
A: Yes.
MS. KREUK: Q: Perhaps with the Court’s permission, I have a map of the area. I believe this has been disclosed to my friend.
THE COURT: Have you had — disclosed it?
MR. PAIN: Yes. . .
MS. KREUK: Yes.
MR. PAIN: . . .I have it, Your Honour.
THE COURT: Okay. And you have no objection to it being shown to the officers?
MR. PAIN: I don’t, Your Honour.
THE COURT: Okay. Is this just a map without markings on it?
MS. KREUK: It is. The streets are, are labelled.
THE COURT: Okay.
MS. KREUK: And there’s a marker indicating where Systems Technical Institute is located.
THE COURT: Okay. Very well, you can show it to the officer.
A: Thank you.
MS. KREUK: Q: Officer, if I could ask you while you’re describing the path that the car took, if you could mark it on the map. . .
A: Okay.
Q: . . .that would be helpful.
A: Do you have a pen?
Q: Yes, I do.
A: The position on the map here is actually the address of Systems Technical Institute. The parking lot extends quite a bit over, almost to, to Caitlin Avenue.
Q: Okay.
A: Okay.
THE COURT: Say that again.
A: This is the actual address of Systems Technical Institute. The parking lot, the entire — it encompasses this entire block, so we were actually over here when . . . .
THE COURT: That’s a parking lot. That whole place is a parking lot? Well, that looks like half of the block, half.
A: Yeah. It’s, it’s the school and the giant parking lot/field.
THE COURT: Okay.
A: Okay, so we actually — we’re in this parking lot here on Glennville. I – the vehicle came by this way. It slowed right down. I heard the muffler from a distance.
THE COURT: Okay. Maybe you could start marking with arrows, with the arrow. . .
A: Okay.
THE COURT: . . .pointing in the direction the vehicle is going.
A: Okay. Just — it was going in this direction.
THE COURT: Yeah.
A: Yeah. I pulled out. The vehicle continued westbound on Glennville.
THE COURT: Okay.
A: It went northbound on Donville . .
THE COURT: Okay.
A: . . .eastbound on Milkerton. I am just going to have to refer to my notes, your honour.
MS. KREUK: Your Honour, if it would assist, I have another copy of the map that you could use if that would be of any assistance.
THE COURT: Okay. Yeah, that’s fine. Sure. And do you have a map to see Mr. Pain?
MR. PAIN: I do, Your Honour, yes.
THE COURT: I’m still going to follow the officer. . .
MS. KREUK: Yes.
THE COURT: . . .by looking at what he’s doing because that shows me visually what’s going on.
A: Okay, Your Honour.
THE COURT: It’s easier than words, actually, if I just look at the map.
A: Is it easier for you if I brought it up there or. . . .
THE COURT: no, no.
A: Okay.
THE COURT: You can stay where you are.
A: So he went westbound on Glennville. . .
THE COURT: Right.
A: . . .northbound on Donlands, he made the first right onto Milkerton Boulevard. The vehicle went all the way across Milkerton to Graywood, southbound on Graywood, then it went back eastbound onto Glennville.
THE COURT: Okay. So it didn’t go past the school. It went east on. . . .
A: East on Glennville. We weren’t past — we went right past the front of the school. The front of the school runs between Milkerton and. . . .
THE COURT: Oh, so you did go past the front of the school.
A: Oh, no, I’m sorry. No, I did not.
THE COURT: I didn’t think so. You’re one block north.
A: I am one block north, yes.
THE COURT: So then it went. . . .
A: Eastbound back on Glennville Boulevard.
THE COURT: Okay.
A: And it made a hard right onto Linskit Crescent.
THE COURT: Okay.
A: And that’s where it stopped.
THE COURT: Okay. Very well. Thank you.
MS. KREUK: Q: And the route that you just described, did you follow the Acura Integra on that route?
A: I did.
Q: And how fast would you say it was going?
A: I’ve made a note in my book here that I had the accelerator completely pinned to the floor and the Crown Victoria is a very fast car, and at one point I looked down and we had reached over 120 kilometres an hour. These are 40-kilometer an hour zones.
Q: And can you describe that area for us?
A: It’s residential. There’s a few little parks. There’s a church on the east side of Graywood Avenue, just north of where the incident took place; but for the most part, it’s residential.
Q: And were there any pedestrians in the area?
A: Um, not that I was able to see.
Q: Are there any stop signs in the area?
A: There are. There is a — there’s a stop sign at Donville
Q: Okay.
A: Northbound, went across; Milkerton and Graywood, there’s another stop sign.
THE COURT: Okay. Can you put on your drawing, let’s see, maybe just an “S” or something to show the stop signs, and I want you to maybe number them, S1,S2,S3. . .
A: Okay.
THE COURT: . . .so that I can figure out. Is that fair Mr. Pain, just to try to figure out where they are located. . .
MR. PAIN: That’s fine, Your Honour.
THE COURT: . . .in terms of the path of the car, how many, if they are there, how many would be encountered in this entire journey.
MS KREUK: Yes.
MR. PAIN: I’m sorry, Your Honour. Would it be okay for Mr. Miller to sit at counsel table?
THE COURT: Completely.
MR. PAIN: Thank you.
THE COURT: Totally, and especially since he may be giving evidence on this issue. You should show him the diagram. . .
MR. PAIN: Yes.
THE COURT: . . .so he can follow it and then tell you anything he wants you to ask by way of a question that will be eventually testified to. Okay. So the first one would be at Donville and. . . .
A: Glennville.
THE COURT: And Glennville. And we’re talking about a S1 being, that would require the vehicle travelling. . .
A: Westbound.
THE COURT: . . .westbound to stop at Donville, is that right?
A: Yes.
THE COURT: Okay, so that’s S1. Is there another one?
A: Um, I’ve marked S2 as the stop sign eastbound on Milkerton Boulevard at Graywood Avenue.
THE COURT: Okay. S2. Okay. Anything else?
A: Um, I’ll just refer to my notes, Your Honour. There — I don’t have a note of another one, Your Honour. I. . . .
THE COURT: Well, don’t guess.
A: No. I’m not, I just. . . .
THE COURT: I think the significance is just to know if you’re sure, where you’re sure that there was a stop sign, and then your observations.
A: Well, I am sure on S1 and S2.
THE COURT: Yeah. And your observations about the driving at those locations.
A: Okay. At S1, which is Glennville and Donville, the vehicle — like, I was accelerating, trying to catch up to him. He made a hard right, not stopping for the stop sign, and continued north and made a right onto Milkerton. When we were going eastbound on Milkerton and he made the, he completely blew the stop sign onto Graywood, going southbound. . . .
THE COURT: Okay.
MS. KREUK: Q: So that would be S2?
A: S2, um, the brake lights tapped on for a split second as I was behind him, and then, ah, he just rounded the corner. And although I wasn’t directly behind the vehicle at this point, it was still quite obvious that as he went around the corner that he didn’t stop due to the lean of the vehicle and the fact that the brake lights only came on for a second and it would be almost impossible to stop and accelerate southbound again that quick.
Q: So you said that the vehicle completely blew the stop sign at S2?
A: Yes, which, if I might add, too, is Graywood Avenue. All the side streets, there’s a lot of — the houses are very close to the road and there is a lot of large trees that have been growing up over the past probably hundred years or so. Um, the intersections, in order to clearly see to even to proceed through it from the stop sign on a bright sunny day, you have to inch out quite a bit to see it.
Q: And you testified that the vehicle was still travelling at a high rate of speed at that point and. . .
A: Yes.
Q: . . .the brake lights were tapped on once?
A: Yes.
Q: And what happened after the vehicle turned into Graywood?
A: It turned. It went southbound on Graywood and then made a hard left back to eastbound on Glennville Boulevard.
Q: And when you say “hard left,” what do you mean by that?
A: Ah, not a left which you’d normally make a turn at, between 25 and 30 kilometres an hour; like almost like a racing left, cut the corner, take — come wide coming out of it.
Q: Can you estimate the speed at which he was travelling at that time?
A: It — very fast. Well over the speed — at least double the posted speed limit, which is 40. I was — during the time that I was trying to catch up, I was going quite a bit quicker, because I was trying to gain speed on him, but just looking at the way he was driving and I would estimate it to be over 80 kilometres an hour.
Q: So how quickly were you going?
A: I was doing 120 at one point.
Q: And what happened after he took a hard left onto Glennville?
A: Um, we were travelling along Glenville Boulevard. I was gaining enough distance on him now that I activated my roof lights and siren. He made a — as I was pulling up on him, he began to slow down. He made a hard right onto Linskit and he stopped the vehicle.
Q: you said that you activated the lights and sirens.
A: Yes.
Q: And where was the Acura Integra when you activated the lights and siren?
A: Um. . . .
Q: Had it already turned or was it in the. . .
A: No. It was, it was still coming up to the intersection. Like, from the best that I can recall, it was almost right at Linskit; and as soon as I activated the lights and sirens, he made a hard right and stopped right away.
Q: And what happened next?
A: I approached the vehicle, adviced the driver to step out of the vehicle and I placed him under arrest for careless driving.
Q: did you have an opportunity to make any other observations about the car?
A: I made a note of the licence plate.
Q: And what was the licence plate?
A: It was ATZK667
Q: And were you able to tell the colour of the car when you got closer?
A: Yes, I have a note here that it was a black Acura Integra.
Q: Were there any passengers in the car?
A: No
Q: And do you see the person who was driving the car here in court here today?
A: Yes, I do. It’s the accused.
Q: Thank you. Sorry, just before we go on, all these — this, the path that the car took and the street names you provided, what city are those in?
A: The City of Toronto.
Q: Thank you. So you said you pulled over the car.
A: Yes.
A: And you placed the driver under arrest for careless driving.
A: I did.
Q: What happened next?
A: I took him back to my scout car. I placed him in the rear.
THE COURT: Took back to the scout car and placed him in the rear of the car.
A: In the rear of the scout car, yes.
THE COURT: Okay.
MS. KREUK: Q: did you have an escort with you that night?
A: I did not. I was traffic. I work solo.
Q: Pardon me?
A: I was in the traffic Unit. I work solo.
Q: Thank you. Did any other officers arrive on scene?
A: I did — they did. 5421, I believe, arrived on scene, and it was P.C’s Berry and P.C. Epps.
Q: And at approximately what time did they arrive?
THE COURT: Berry?
A: B-E-R-R-Y
THE COURT: And Epps?
A: Yeah, E-P-P-S.
THE COURT: Thank you.
A: I don’t have a note as to what time. I wasn’t able to check my watch.
MS. KREUK: Q: What time did you place the driver under arrest?
A: At 00:50, or ten minutes to one a.m.
Q: And what happened when P.C’s Berry and Epps arrived?
A: Ah, once I had sufficient units on scene, the — like the other unit on scene there, we were able to start sorting out what happened. I adviced P.C. Berry what had transpired and I also, during this time, too, it was being broadcast over the police radio, and I advised P.C. Berry that I had searched the male and I needed the area immediately around the driver searched and the vehicle.
MR. PAIN: Sorry, Your Honour, I’m having a hard time hearing the evidence. I wonder if the witness could speak up just a little.
A: I, I apolo- — I have bronchitis. I apologize.
THE COURT: One of the things you might do — I know you have your notebook there and I do want you to be able to refer to it, but maybe if you keep it closer to the direction of Mr. Pain. . .
A: I’ll try and speak up. I apologize.
THE COURT: . . .and his client, it might be that your voice can carry better that way.
A: Okay.
THE COURT: The other thing is you are kind of clipping the end of your words, I’m finding, so that I’m hearing the first part of the sentence, or the end of your sentence. So I’m hearing the first part of the sentence totally clearly for me; but then at the very end you kind of cut it off and I’m not catching some of the end.
A: I apologize, Your Honour.
THE COURT: Okay.
A: It’s it’s the cold.
THE COURT: Okay. Would you like some water? Can we offer some water here?
A: Please, if I could.
THE COURT: Yeah.
MS. KREUK: Q. So you said that when P.C. Berry arrived on scene, you told him what had transpired.
A: Yes.
Q: And you told him that you needed the area around the driver and the vehicle to be searched?
A: Yes.
Q: And why did you ask him to do that?
A: Um, part of our teachings in the police college. Um, we search that area that the driver has immediate access to. In the time that it took for me to walk between my scout car and his car, and given what had transpired, um, usually there’s a reason that somebody is running, be it a gun or some other reason, and, um — the — so we’re taught that the area around the driver — I apologize — the area immediately that the driver has access to that we, we search. Also too, the — given what had transpired, we were going to have to tow the vehicle, so the –we, we don’t want to have anything in there that might injure the tow truck driver when he gets in to turn the wheel, or anything.
THE COURT: But I take it this is after the arrest.
A: Yes, it is.
THE COURT: Okay.
MS. KREUK: Q: When you were approaching Mr. Miller’s car, were you able to — did you make any observations of him in the car at that time?
A: He was moving around in the vehicle, too, which drew my suspicions as to what might have been transpiring in the vehicle.
Q: You say he was moving around. Did you see any of his movements specifically?
A: It’s difficult to tell exactly or describe what was going on. It’s, it’s um — as you — as soon as he pulled over and I came around, I had all the lights right on the back, right on his car, and you could just see him sort of — it’s difficult to describe. It wasn’t anything that just draws — maybe it’s police intuition — that something just doesn’t feel right there, like he might be trying to hide something.
THE COURT: I’m still not visualizing though, what you’re describing.
A: Generally when someone. . . .
THE COURT: He’s moving his torso, he’s moving his head, he’s moving his hands?
A: His upper body. I could see like shoulders and what not. He was just moving the upper body which, in the thousands of vehicles I’ve pulled over, over the years, generally people are very, are very stiff and rigid and nervous, about being approached by the police. Given the fact that this vehicle was travelling at such a high rate of speed once he saw police officers and then when I — he took off and it was travelling at a high rate of speed, and then when you do stop him, he’s not rigid like he was just caught speeding or something, he’s moving around in the vehicle, it, it brings the suspicion that he’s trying to hide something or that there’s something more to this. Like, he’s put something under the seat, he’s put something under the steering columns. Just upper body movements. . .
THE COURT: Okay.
A: . . .that are not in the usual norm for someone whose getting pulled over by the police.
THE COURT: Okay, thank you.
MS. KREUK: Q: Are you able to recall any specific direction that his upper body moved in?
A: No, no. Just enough that the suspicion was drawn that something might have been hidden somewhere within his proximity, just like an upper body movement that you would see just the shoulders moving left or right. Um, it’s difficult to elaborate much more. It’s — you’d see the shoulders moving like from the left to the right, not real quick, just there was a movement of some type in the vehicle that just isn’t normal. It was a reach of some sort it appeared.
Q: After you placed Mr. Miller under arrest, did you give him his rights to counsel?
A: I did.
Q: And he indicated he understood?
A: Yes, he did.
Q: What happened next?
A: Um, P.C. Berry advised me that he had found large bag of green leafy substance in the front of the vehicle and I advised the accused, Mr. Miller, ah, that he was also under arrest for possession of marijuana over because at the time we believed it to be marijuana.
THE COURT: The time of that search result and that second arrest, do you have a time?
A: No, I don’t. Just it was — this is completely flowing through. I, I put him in the back of the car as P.C. Berry pulled on scene. I advised him what had happened and then the next thing I know is as I telling him what his, what his rights were, at the same point there, the next line in my book, P.C. Berry would have advised be that he had found that under the seat, so I just told him right then you’re also under arrest for this, and I asked him then if he understood as well.
Q: So you placed him under arrest at ten minutes to one. . .
A: Yes.
Q: And gave him his rights to counsel. . .
A: Mm-hmm.
Q: . . .and then P.C. Berry searched the car and told you what he found?
A: Mm-hmm.
Q: So — and then you advised him he was also under arrest for possession of marijuana, is that correct?
A: Yes. It was all — although it does take up the full two pages on the book, it was continuous event, like all pretty much going at the same time.
Q: And after he was informed of being under arrest for possession of marijuana over, what happened next?
A: Um, he was transported to 54 Division for further investigation by our Criminal Investigation Bureau.
Q: Did Mr. Miller appear to understand the charges he was facing?
A: Absolutely.
Q: and how could you tell?
A: Um, when I asked him if he understood, his exact quote was “Yes.”
Q: Okay.
A. And I have further conversation in my book as well that the two of us had.
MR. PAIN: I’m sorry, I didn’t catch any of that.
A: I apologize. I said, there’s also other conversation in my book that I made note of that Mr. Miller and I had.
MS. KREUK: A brief indulgence, please, Your Honour.
THE COURT: Maybe we could speak to the Philips matter, if you don’t mind.
MS. KREUK: Oh, yes.
THE COURT: Can I interrupt just at this moment? You can look at your notes, but I’m going to, subject to. . . .

REPORTER’S NOTE: At this time, other cases were addressed.

THE COURT: Okay. Now, any other thing from your notes?
MS. KREUK: Q: Just a couple more questions. . .
THE COURT: Yes.
MS. KREUK: Q: . . . .Officer Dubois. How long did , how long did you follow Mr. Miller’s car for in terms of distance?
A: I don’t have an actual note as to the exact distance.
Q: and are you able to give us an estimate of time?
A: Time? Not very long. It, it — the entire event transpired in less than two minutes, I would say. . .
Q: Okay.
A: . . .from the time when I first spotted him until where he was placed under arrest at Linskit and Glennville. I’d probably estimate it maybe around a minute.
THE COURT: So it’s between one and two?
A: At the very most?
THE COURT: Okay.
MS. KREUK: Thank you, officer. Those are my questions.

THE COURT: Cross-examination?
MR. PAIN: Yes. Thank you, Your Honour.

CROSS – EXAMINATION BY MR. PAIN:

Q: Officer, I just want to ask you a couple of questions about your notes first. You said you had made them at and after the incident, at the time of the incident and after the incident?
A: Yes.
Q: Okay. So you obviously weren’t making them while you were driving.
A: No.
Q: where would you have made them?
A: Um, back at the police station.
Q: Back at the police station.
A: The note there where it says 00:45, on scene rear of Systems Tech, that would be made as I pulled up on scene. It’s just there to say I’m on scene, because we have to keep a chronological order of what we do.
Q: Okay.
A: That would have been written there; and normally if this, if the event after this hadn’t transpired, it would say something to the effect of 5421 to handle, all’s in order, not required. But this took off, so. . .
Q: The rest you make at the station once?
A: Yes.
Q: . . .get back there. And did you make those notes independently or did you consult with anyone when you made those notes?
A: Ah, they are an independent recollection of what I remember, but we make them in the Criminal Investigation Bureau and there are other officers present and I do have to advise a detective as I’m going as to what happened and he’ll ask me some questions and. . .
Q: Okay.
A: . . .there are other officers present.
Q: And I take it, the notes were not made in a rush back at the station. You have time to make the notes.
A: Um, I don’t remember exactly how busy the night was last night. I know there were a few severe calls afterwards. It’s not unusual for the staff sergeant, our sergeant, to come in and say “Can you get back out there as soon as you can.” But, I mean, there are a couple of times where I’ve had to — I did notice a spot on here where I wrote down the wrong time or it was just illegible because writing is far from perfect, and I made a note, crossed it out, put 1:07
Q: Okay. Would it be fair to characterize your notes as accurate and complete, more or less?
A: More or less.
Q: Okay. Now, you said — first of all I wanted to ask you, approximately what time were you at the Systems Tech?
A: 00:45
Q: Okay. And at that time you pull in, you notice another police officer there investigating some youths
A: I, I had gone there for that purpose.
Q: Okay. So you pull into the driveway.
THE COURT: To assist another officer?
A: Yes.
MR. PAIN: Okay.
Q: And how many other police officers were there?
A: Two.
Q: Okay. And what were they doing?
A: They were investigating two males.
Q: Okay. And what were you doing at that time?
A: Just sitting in my car.
Q: Okay. And you were watching them?
A: Yes.
Q: so now this Acura comes up on Glennville, it’s approaching Danforth, it’s driving by Systems Tech, correct?
A: Yes.
Q: And it slows down.
A: Yes.
Q: And you notice the driver look over?
A: Ah, I notice the vehicle slow down as if the occupants at the vehicle were taking an interest in what was transpiring in the parking lot with us.
Q: Okay. And as you’re driving on Glennville and the parking lot is on — it would be on your left-hand side if you’re driving. . . .
A: If you were driving westbound, the parking lot would be on your left-hand side, yes, the south side.
Q: Right. And right there as well there’s a street called Caitlin. . .
A: Yeah.
Q: . . .correct? And there’s a stop sign there, right?
A: Yes, there is.
Q: Okay. And this Acura stopped at. . . .
THE COURT: I’m sorry, right there, there’s a street called Caitlin. I’m just — just in order to follow this all, I’m looking. . . .
MR. PAIN: Unfortunately, Your Honour. . . .
THE COURT: It’s not on the map, though, is it. . .
MR. PAIN: Well. . .
THE COURT: . . .or is it?
MR. PAIN: . . . the street is on the map; it’s not labelled.
THE COURT: Oh, it is. Okay, so where is it?
A: I could point it out for you.
THE COURT: Okay, ’cause maybe you didn’t — do you have your map.
A: I could point it out for you.
THE COURT: Okay, ’cause maybe you didn’t — do you have your map . . .
A: I do.
THE COURT: . . .just so that I can see what is being referred to.
A: Um, this here is Caitlin. It starts at the Danforth. It ends at Strathmere and it continues a short block right here on the other side of this little field here. This is a dead end.
THE COURT: Oh.
A: Okay.
THE COURT: So that little nub that comes out. . .
A: Yeah.
THE COURT: . . .into the lock or into the lot is Caitlin?
A: Yes.
MR. PAIN: And actually, Your Honour, it extends right across. You can see it. It extends from Glennville across to Milkerton, I believe that’s Caitlin. . .
A: Yes.
MR. PAIN: . . .as well. Right.
Q: Okay. So there’s a stop sign there.
THE COURT: Where is the stop sign, though? I’m sorry?
MR. PAIN: I’m sorry. Right at Cait- — right at Glennville at Caitlin.
THE COURT: Okay. So there’s a stop – oh, okay, so in other words the westbound driving on Glenville would also have to stop at Caitlin.
MR. PAIN: Yes.
THE COURT: Okay.
MR. PAIN: Q: And I’m suggesting to you, officer, that’s where the Acura stopped.
A: No. Impossible. Oh, he never, he never. . . .
Q: He didn’t stop at the stop sign?
A: Okay, just. . .
THE COURT: Both of you have to slow down because I want a question and then I want an answer. The question was, I take it that’s where he stopped. And then the answer was “No. Impossible.”
A: Yes.
THE COURT: Do you have anything else to add to that?
A: Ah, I’d like to just clarify my answer so as not to be, not to mislead the Court.
THE COURT: Okay.
A: Um, I believe you’re referring to that’s where he stopped, and I said he was looking at what we were doing. Is that. . . .
MR. PAIN: Go ahead and clarify the answer.
A: Is that what you’re asking me?
Q: Um, actually, I was asking you if — I didn’t say it clearly. Did he stop at the stop sign at Caitlin?
A: I don’t know.
Q: Okay. You don’t recall.
A: No.
Q: And you don’t have any notation in your notes suggesting that he didn’t.
A: No.
Q: Right. And this is a careless driving investigation, correct?
A: Yes.
Q: Okay. So then the car proceeds. By the way what — just to go back for a minute, so someone slows down. And what does that mean to you? What’s going through your head at that point because the car is slowing down?
A: What went through my head was this car has an extremely loud muffler which I heard coming from before it was in my view. Then it slowed down as we were investigating people, okay, which gives me the idea that — I apologize — the occupant’s of the vehicle are taking an interest in what we were doing. I was assigned to the Traffic Response Unit. My sole job, other than backing up other officers was to write tickets. If he had — with the muffler that I heard, I was gonna pull him over and just investigate the equipment infraction.
Q: But would you agree with me officer, that when most people see police cars, they’re curious, they like to look over just to see what’s going on?
A: Don’t know.
Q: From your experience, you have no idea?
A: I — I’m not other people. I — if I’m dealing with a situation. . .
Q: Okay.
A: . . .um, I’m — I don’t have eyes, you know, that I can see everything, counsel.
Q: Okay. And so basically what caught your attention is the muffler then.
A: Originally.
Q: Okay. And can you describe — I mean, the vehicle is going slow at this point. So what does the muffler sound like?
A: Well, the muffler was quiet once the vehicle slowed down/
Q: Okay.
A: It was initially — like, I’ve made a note here, I believe, that it said the vehicle had a loud muffler.
Q: Yes.
A: Loud muffler. And um, that was one of the things that I would stop people and issue them tickets for in Traffic. . .
Q: Okay.
A: . . .because they are illegal.
Q: So you don’t hear the muffler when it’s going slow. Once he takes off, then you hear the muffler.
A: No. I heard the muffler ahead of time. I heard it coming from up the street, so, I — but I didn’t see the vehicle.
Q: Okay. So then the car proceeds westbound on Glennville. . .
A: Yes.
Q: . . .and goes to Donville.
A: Yes.
Q: You pull out of the parking lot and you follow it.
A: I was pulling out of the parking lot as he was still on Glenville.
Q: Okay. Yes.
A: Yeah.
Q: Okay. But he’s proceeded past Caitlin.
A: Oh, yeah, he’s passed me.
Q: Okay. And did you stop at Caitlin?
A: Did I stop for Caitlin? We have to stop.
Q: Okay. So you stopped and he’s driving on, correct?
A: Yeah.
Q: Okay. Now he gets to Donville, going on west on Glenville, correct?
A: Yeah.
Q: And there’s a stop sign there.
A: Yes.
Q: And I suggest to you, officer, that his vehicle stopped at that stop sign. Would you agree with that?
A: No.
Q: Okay. You said in your testimony in-chief that he did not stop for it, correct?
A: Right.
Q: And could you point me to where in your notes it says that he drove through that stop sign or did not stop for it properly?
A: I don’t have that in my notes, counsel.
Q: And you’d agree with me that when you’re investigating a careless driving charge, that would be an important point that someone has not stopped for a stop sign? In the overall driving pattern, if someone hasn’t stopped at a stop sign, that’s an important point, correct?
A: True. But like I said, there are just — these are to refresh my memory. I do have independent recollection, and although ideally I would love to be able to take everything that with regards to the incident and put it in paper, there are times not everything is transcribed.
Q: Okay. So the car turns right, or northbound, on Donville?
A: Yes.
Q: And you didn’t hear any squealing of tires or spinning of tires. . .
A: No.
Q: . . .or anything of that nature?
A: No.
Q: It turns and then makes another turn at Milkerton.
A: Yes.
Q: Now, the distance from Glennville to Milkerton along Don — sorry, along Donville, would you agree that that’s maybe a hundred feet?
A: Roughly, maybe, yeah. It’s a very short distance.
Q: A very short distance. And of course there’s no stop sign on Donville. . .
A: No.
Q: . . .Milkerton. You just — so he turns.
A: Mm-hmm.
Q: Then he proceeds down Milkerton. And I guess you must have seen him turn on Milkerton, because otherwise you’d have no idea where he’d gone to.
A: I did not see him turn onto Milkerton.
Q: So how did you know he was on Milkerton?
A: Um, just people who are running from the police will. . . .
Q: I’m sorry?
A: People who run from the police will always make a right. It’s the path of least resistance. You do not have to cut across traffic.
Q: Okay. So you turned onto Donville. You didn’t see him.
A: I saw him go north. And as soon as I turned into Donville, the street was empty. He had to have made the first right. I turned onto Milkerton. Again, I saw the Acura Integra tail lights travelling at a high rate of speed and heard the muffler which indicated to me. . .
Q: Okay.
A: . . .to me that this is the same vehicle.
Q: Okay. And, again, I take when he turned onto Milkerton, you didn’t note any squealing of tires or spinning of tires or anything of that nature.
A: No.
Q: Okay. And now what’s going through your mind in terms of what he’s doing?
A: What’s going through my mind at this point?
Q: Yeah.
A: Is it’s a stolen vehicle.
Q: It’s a stolen vehicle. And he’s running from you?
A: Yeah:
Q: Okay. So you turn onto Milkerton. And at this point your testimony in-chief was that you had the pedal to the metal, so to speak, is that correct?
A: Yes.
Q: Okay. And you’re going as fast as you possibly can down Milkerton?
A: Um not as fast, but I was moving.
Q: Okay. And you think he’s in a stolen vehicle and he’s running from you?
A: Ah, I thought he was trying to evade me. I didn’t have my roof lights or siren on yet, so he couldn’t have been running from me, but I thought he was just trying to distance himself from me.
Q: Okay. So you didn’t have your roof lights on and you didn’t radio for any assistance at that point.
A: Yes. I put it over that there’s a vehicle travelling at a high rate of speed.
Q: Okay. And you show me where it says that in your notes?
A: It doesn’t, counsel. I can’t transcribe everything that’s put in, put over the radio into my notes. Um, there is a — I mean it all — it is all stored. I don’t know if we have a copy of the tape, but it was put over the air.
Q: Okay. Well, I’m going to suggest to you, officer, in fact, you didn’t radio anyone until you were on Glenville and you had him pulled over at Linskit and that’s the first time you radioed in. . .
A: No.
Q: . . .that you had him pulled over. You disagree with that?
A: Ah, I, I can’t tell you when I talked over the radio. It is our procedure if you’re going after a vehicle that you have to radio it over. You don’t have a choice. The vehicles are all equipped with GPS. They know exactly where you are. It was put over the radio and that’s why the other unit, 5421, quickly wrapped it up and were trying to catch up to me, but it took them a couple of minutes because we had gone in a circle, so they had started hearing where I was going, and then I was going north — pardon me — and so they were basically trying to catch up to me. They didn’t realize I would have gone back the same way that they almost were already there.
THE COURT: I’m getting a little lost, but I’m trying to follow a couple of things you’ve said, officer, so I’m going to interrupt. I apologize.
MR. PAIN: That’s okay.
THE COURT: This question about radio dispatch and GPS. There’s two separate things there.
A: Mm-hmm.
THE COURT: Radio dispatch is you calling and saying,” I’m now going to wherever. I’m going westbound on Glennville, I’m going northbound on Donville approaching Milkerton, I’m in pursuit of someone,” or something like that. That would be what you would say.
A: Yes.
THE COURT: I’m not saying you said those words but something like that.
A: No. I understand.
THE COURT: But you also have a GPS system. . .
A: In the vehicle.
THE COURT: Is that being monitored by dispatch?
A: They have ability, they have the ability to view it on their screen. I, I’m not a dispatcher. It’s a different system than we use up there. I, I can’t really give testimony, Your Honour, as to. . .
THE COURT: Okay.
A: . . .exactly how it works.
THE COURT: So you don’t know what if anything, they knew from your GPS system.
A: No.
THE COURT: And you’re attributing the arrival of these other officers, Berry and his partner. . .
A: Epps.
THE COURT: . . .Epps, Berry and Epps at roughly just shortly after 00:50. You’re attributing that on your call that you made. . .
A: I . . . .
THE COURT: . . .sometime prior to that,
A: I radioed out over the air.
THE COURT: But you’re telling me that you don’t know exactly when you did that.
A: No. I mean, I was in constant — I mean, you don’t. . . .
THE COURT: You realize there’s a number of possibilities here. One would be that you did it while you were driving. . .
A: I did.
THE COURT: . . .initially or shortly thereafter you commenced driving. The other possibility would be you’re making an arrest and you’re advising the dispatch that you’re now making an arrest and you need officers to assist in that. But you’re pretty sure it happened before the arrest.
A: Oh I could say with 100 per cent certainty that I talked on the radio while I was driving.
THE COURT: Okay.
MR. PAIN: Q: And, I’m sorry, was — can you be a little more accurate? Can you say that was on Milkerton?
A: No. I — counsel, understand that when you’re travelling at a high rate of speed at night in a vehicle, um, and not just driving, you’re trying , you’ve got — you’re goal-driven trying to catch another person.
Q: Okay.
A: Um, I know the streets because of muscle memory. I wasn’t really stopped — I wasn’t reading the street signs out. I know the streets because of the years I’ve worked in the division, okay.
Q: Okay.
A: As for the exact point where I was talking on the radio, um, there’s no way to — like which — it I was at in front of 123 Milkerton Boulevard, I have no way of telling you, counsel, but I was — I radioed the dispatcher, I believe. I started my communication shortly after it began. I couldn’t tell you what street that was.
Q: Okay. But just for the record, I’m going to suggest to you that you did not radio for any assistance until you were back on Glennville almost at Linskit, and I take it you disagree with that. Is that your position?
A: I don’t know where I was when I radioed for assistance. I — you see, I tell them I’m in — I’m trying to catch up to a vehicle that’s travelling at a high rate of speed, something to that effect. Those are my words.
Q: Okay.
A: Um, there’s also a delay between when I say that and the dispatcher types it into the system which would be able to be printed out. Okay. So I don’t know exactly when I said it. It was before I had stopped him because I had put over that I was trying to catch him.
Q: So are you saying if you’re in an emergency situation and you call on the radio, you have to wait for someone to type something into a system and that has to be printed out before. . . .
A: That’s not what I said at all.
Q: Okay.
A: What I said was, when I tell the dispatcher something, she types everything into the call. So from me saying it, two months down the road and we print out the call, it will be — there’s going to be a bit of a time delay because you can’t type as fast as I can talk.
Q: Okay.
THE COURT: But this is a system that would permit other officers to be dispatched before the typing is done.
A: Um, when you dial 9-1-1-, from my understanding, like when I get dispatched to a call in the car, there’s text in the call already, so at some point someone has had to type that in while you dialled 9-1-1. I don’t know, I don’t work up there. I don’t know how it works. I can’t really testify counsel. . .
MR. PAIN: Q: Okay.
A: . . .to that effect.
Q: So you’re chasing this car down Milkerton.
A: I was just trying to catch up to him.
Q: But you did believe he was trying to evade you.
A: Yes.
Q: And his going well over the speed limit on that street.
A: Oh, yeah.
Q: And you’re, you’re going pretty fast.
A: Oh, yeah.
Q: But you don’t activate your, your roof lights and siren.
A: No.
Q: And why is that?
A: Um, because if this have had gone any further, it was going to be shut down. There’s — I wasn’t going to continue it any further. I was just trying to catch up to him because, um, to give him the reasonable, the — sorry the word has escaped me — the benefit of the doubt. There are people that go zipping past police cars at high rates of speed and don’t see them. So if I couldn’t catch up — I was just going to try and catch up to him, get the plate and then put on the lights and siren. If he didn’t stop, I wasn’t going to chase him.
Q: But could you not give him the benefit of the doubt by putting on your sirens and roof lights and assuming that he would stop for a police officer?
A: No. I wasn’t, I wasn’t close enough for it to be effective. I wasn’t until I got back onto Glennville Boulevard that I gained enough speed on him that I put my lights and siren on, and he immediately pulled over. Like, there’s no question once the light went on the he pulled over.
Q: But you’d agree with me the lights, the roof lights on a police cruiser and the siren — the siren is very loud, correct?
A: Ah, yeah.
Q: And the roof lights are very bright and they spin to catch people’s attention. There’s no mistaking when a police car is going down the street and the lights are going and the sirens are going, too, correct?
A: Yeah.
Q: So it’s not a situation where he wouldn’t have seen or heard the sirens and the roof lights, correct? He’s still on the same street. It’s a straight-away.
A: No, it wasn’t. It was one, two. Three. . . .
Q: I’m talking about Milkerton now.
A: Milkerton.
Q: Milkerton is a straight street, correct?
A: Yeah.
Q: So he would have heard the sirens and seen the roof lights.
A: Possibly, if he was travelling a little slower.
THE COURT: Now, which — maybe I’m — I just have to be really sure I’m understanding the question and the premise of the question. You’re talking about while the Acura is travelling westbound on Glennville or eastbound on Milkerton or where?
MR. PAIN: East — I’m sorry, Your Honour, eastbound on Milkerton.
THE COURT: Eastbound on Milkerton. Okay.
MR. PAIN: Q: So now we’ve gone up to Donville, turned right there and then right on Milkerton and we’re driving down Milkerton towards Graywood.
THE COURT: So your question is, why didn’t you turn on the lights and the siren while on Milkerton?
MR. PAIN: Yes.
THE COURT: Okay.
MR. PAIN: And I guess that’s been answered, so. . . .
Q: Now, you — just to go back for a moment, officer, you said in your examination in-chief that when you had turned out of Systems Tech onto Glennville, you accelerated — the words I have written down is “I accelerated as fast as I could go, over a hundred kilometres per hour.” Is that correct?
A: At what page do you see that on, counsel?
Q. No. I’m going by what you said in your testimony in-chief.
A. Oh, okay.
Q. So is that what you did, you pulled out of Systems Tech and then you went down Glennville a hundred kilometres an hour?
A. I don’t know if it was exactly a hundred but I was going, I was going pretty quick.
Q. Was it close to a hundred?
A. Probably. Those cars are very fast.
Q. And it says you accelerated as fast as you could. That was your testimony, correct?
A. Yeah.
Q. And you’d agree with me that that’s nowhere in your notes, that you, you accelerated as fast as you could down Glennville to try to catch this car as it was approaching Donville?
A. No, that’s not in my notes.
Q. Okay. And so now we’re back on Milkerton. You’re going down Milkerton and you see the car get to Graywood and you see the brake lights go on, and, and then it turns right, and again you didn’t hear any squealing of tires or spinning of tires or anything of that nature.
A. No
Q. Okay. And even at your estimate of 80 kilometres an hour going down that street, you’d agree with me that without applying the brakes, that turn would be almost impossible to take at that speed, a 90-degree turn?
THE COURT: This is Milkerton onto…
MR. PAIN: Graywood?
THE COURT: …Graywood.
MR. PAIN: Q. A right-hand turn, yeah.
A. I don’t know.
MR. PAIN: Q. You don’t know if it would be impossible to take?
A. I couldn’t tell you if it was impossible.
Q. Okay. Well, would you agree with me that it would be a very difficult turn to take without at least spinning out or skidding out?
A. Well, I would disagree with that. I, I don’t know the exact speed he went around the corner. An Acura Integra is a very fast car.
Q. Okay. Now, so the Integra is going -now we’re on Graywood. We’re going which direction? I’m sorry, which direction are we going now?
A. Southbound.
Q. Southbound. And then you see it turn left on Glenville again.
A. Yes.
Q. So how did you know it went left on Glennville?
A. Because I was catching up to him at that point.
Q. Okay. And then once you get on Glennville, you activate your sirens and lights.
A. Yep.
Q. And pretty much he pulls over at the first stop sign, or thereabouts…
A. Um…
Q. …which is Linskit.
A. Yes.
Q. Okay.
A. He makes a right and then stops.
Q. Okay. So pretty much, very close to the intersection…
A. Yes.
Q. …of Linskit and Graywood
A. Right at the intersection. He had made a right, on southbound, on Linskit and stopped immediately.
Q. Okay. Now, the muffler, you had commented about the noise from the muffler. Was that a -did you happen to notice, was that a stock muffler, or was that some sort of fancy muffler that young people tend to put in their cars?
A. Counsel, by the time I had arrested your client and I was advised regarding the marijuana, the equipment, the Highway Traffic Act charge, was far from my mind.
Q. Okay.
A. It wasn’t — I didn’t climb under the vehicle and start looking at what type of muffler it was.
Q. Okay. Well, I’m going to suggest to you, officer, that there was no loud muffler, that there was nothing exceptional about the noise that was coming out of that muffler, and I take it you’d disagree with that?
A. I would disagree with that.
Q. Okay.
THE COURT: So just again, once again the street on which the car stopped is Linskit?
A. Yes.
THE COURT: L-I-N-S-K-I-T. And that is off of Glennville, about two blocks from Graywood — two short blocks because they’re — okay — maybe — I have to be clear on something. Can you tell me all of the charges that you arrested Mr. Miller for?
A. I placed Mr. Miller under arrest for careless driving and I advised him of the further charge of possession of marijuana over.
THE COURT: Okay. And that’s all that you were involved in, those two charges? In other words, there never was a further charge of muffler or…
A. No.
THE COURT: …improper — under the Highway Traffic Act?
A. No.
THE COURT: Okay.
MR. PAIN: Q. So, officer, he pulls over at Glennville near Linskit and that’s when you note his plate…
A. Yeah.
Q. …his license plate then? Okay. And, again, I’m going to suggest that’s when you radioed for backup, but you’re saying it may have been before that.
A. No. I radioed while I was driving after him.
Q. Okay. And you approach the car. And I’d suggest to you that he was polite and cooperative.
A. He was cooperative, yeah.
Q. Okay. He didn’t offer you any resistance?
A. No.
Q. No sort of talk back or disrespect in any regard?
A. No.
Q. And he identified himself with his driver’s licence?
A. He did.
Q. Okay. And you put him in your cruiser.
A. Yes.
Q. And you don’t handcuff him.
A. No.
Q. Okay. And I’m going to suggest to you, in fact, officer that you didn’t tell him that he was under arrest for anything at that point. Do you agree or disagree with that?
A. Disagree.
Q. Okay. And I’m going to suggest to you, officer, that at that point you started questioning him about marijuana being in his car. Do you agree or disagree with that?
A. Ah, after he was placed under arrest, I advised him of the further charge of possession of marijuana.
Q. Okay. But I’m saying, before you get to that, you’ve taken him back to your car, he’s sitting in the back of your car.
A. Yes, he’s under arrest.
Q. Okay. Your testimony is that you told him he’s under arrest for careless driving.
A. Yeah.
Q. I’m suggesting to you that you did not put him under arrest for careless driving but instead started to ask him about where the marijuana was.
A. No.
THE COURT: But now this question is premised again on the proposition this happens before Berry and Epps have arrived.
MR. PAIN: Yes.
THE COURT: So the real question is, before Berry and Epps arrived, did you question him about marijuana? Would that be a fair way of…
MR. PAIN: Yes, Your Honour.
THE COURT: …of stating the question? Right. And the answer is you didn’t at that stage?
A. No, not that I can recall. I — the marijuana was not found until after P.C. Berry found it.
THE COURT: Okay.
MR. PAIN: Q. Okay. And, officer, you didn’t smell any alcohol on his breath…
A. No.
Q. …correct?
A. I don’t believe so. I haven’t made note of it, but I would have been arresting him for impaired driving as well.
Q. Okay. And so, again, why did you search his car or why did you want his car searched?
A. Because he was moving around in it.
Q. Okay. And you’d agree with me that there’s nothing about that in your notes, that you noticed him moving around?
A. No. I agree.
Q. Okay. Now, so he’s arrested and that gives you a right to search his car?
A. No.
Q. Okay. So under what circumstances are you entitled to search his car?
A. We’re searching the immediate area the driver has access to.
Q. Okay. Are there any….
THE COURT: Well, by the way — okay, you’re totally able to ask him on what basis he did the search, but there’s usual a factual basis, like some things that he was looking for, or whatever.
MR. PAIN: Okay.
THE COURT: But I think you asked him more or less a legal question, but anyway. Do you realize what I mean by a “legal question”?
MR. PAIN: Yeah. I, I know. I know what you’re saying, Your Honour.
THE COURT: You asked him what….
MR. PAIN: I guess I’m trying to ask….
THE COURT: You can ask him the factual basis for the search, that’s for sure.
MR. PAIN: Q. Okay. If I can put it this way, at the time you’re searching his car, um, what, if anything are you looking for?
A. I never searched his vehicle.
Q. Okay. Well, you had someone come and search his vehicle.
A. They were already on scene.
Q. You told the other officers this man has been arrested, we’re doing a search incident to arrest, correct?
A: Mm-hmm.
Q: So what are they searching for at this point?
A: I’m not sure what they’re looking for.
Q: Why are they searching the vehicle?
A: I’m, I’m not sure what the actual section or case law is. We are taught that in the police college and whatnot. Based on his movements when I pulled him over, I was under the impression that he was probably trying to conceal something. He was placed under arrest; and based on the events that led up to that, the whole fact that he was trying to conceal something, it could have been the very reason that he was driving that fast to try and get away from me.
Q. Okay. So when you direct the other officers to search — I’m just trying to understand why you’re telling them to search the vehicle.
THE COURT: Well, another question is, what did you tell the officers when they arrived?
A. What did I tell the officers when they arrived?
THE COURT: Right.
A. Well, they already heard what was going on over the radio. They were on scene I believe within seconds. Like I hadn’t even got him into the back seat of the car yet when they arrived on scene. And I say he’s been placed under arrest. Like, check the car for me. He was reach- — he looked like he was reaching for something, or something to those words.

MR. PAIN: Q. Okay. But at this point you’ve taken him out of the car.
A. Mm-hmm.
Q. Are you saying you had concerns regarding weapons?
A. I’m not sure what I had concerns of. It’s just — he was, he was trying to conceal something and which was the whole reason for him running.
Q. Okay, but….
A. The vehicle has to be towed, just for example, and if a tow driver were to get in and sit on a gun, I would be responsible for that, so — or a hypodermic needle and stick himself. I’m just using that as an example, counsel. I’m just saying, like there was concerns that something was stashed and that based on the events leading up to the situation where I asked them to search the vehicle, there was concern that whatever was in – whatever the driver was sitting there with was the reason that he ran from me or was trying to get away from me.
Q. Okay. Now, you said earlier that you saw some movement when you pulled over, when you pulled him over.
A. Yes.
Q. And of course there’s only so much you can see through a car window. You’d agree with me on that?
A. Yes.
Q. I mean, you’ve got the car seat there. You can’t see much more than that, possibly part of the head and some of the shoulders, correct?
A. I can’t remember exa- I know with the Acura Integra, it is a very long back window, because it is like a hatch back.
Q. Okay. So what are you saying that you saw that night?
A. I saw him moving around in the vehicle. It looked unnatural for someone who just gets pulled over.
It drew — it gave me a reasonable suspicion to believe that he was trying to conceal something.
Q. Okay. And sometimes people will reach for their licences or their registration or ownership, correct?
A. Yep.
Q. Because they know that’s what typically police ask for.
A. Yes.
Q. And if you had some concerns about him stashing something, certainly you could have tried to get a search warrant, couldn’t you?
A. Even somebody my size, if they’re reaching for their licence, ownership and insurance from the glove box, it is a very elongated reach to the glove box. I can’t just reach over and open a glove box. Okay. When you’re moving around in the front seat and it looks like you’re trying to stash something around where you’re sitting, that drew my suspicion.
Q. Okay. So let’s follow that. Let’s assume that you are suspicious about something being stashed. Certainly it wasn’t an urgent situation. You had taken him out of the car, correct?
A. Yes.
Q. So there was no way he was getting access to that car again.
A. Ah, no.
Q. He was under arrest.
A. Yes.
Q. So it wasn’t urgent in the sense that whatever was there was going anywhere.
A. No.
Q. So you could have applied to get a search warrant to search the vehicle.
A. If a tow truck driver who comes to tow the vehicle kneels in that car to lower the emergency brake so that he may tow it, and if he were to kneel on the trigger of a gun and shoot himself, I would be responsible. I’m just using this as an example, okay.
Q. But of course it doesn’t have to be towed until you’ve had a chance to get your search warrant and search the vehicle, correct?
A. No. It would have had to be taken off the road to be searched with a search warrant. We wouldn’t be able to do it on the side of the road.
Q. Okay. And you have police people who do that or do you just get regular tow truck drivers all the time? If you have a concern about a vehicle, there’s no special procedure to get it off the road with someone who’s trained?
A. Oh, we, we also have police tows, but they’re civilians as well. They’re not police officers. But it was a — the search immediately around the driver’s area was a search incident to arrest.
Q. Okay. So a search incident to arrest. Are you saying your understanding is when you search incident to an arrest, you’re entitled as of right to search around the immediate area of the driver?
MS. KREUK: I think that’s more of a legal question, Your Honour.
MR. PAIN: Well, I’m asking this officer what his understanding of his powers are, Your Honour, and I don’t expect him to come up with anything more than what he believes.
THE COURT: Yeah. I — maybe I better — I think I kind of put this into everyone’s mind, but I guess I don’t mind the question. The ultimate submission on this, and it will obviously be from the Crown as the prosecutor, if it gets there, his understanding of the law could factor could factor into a 24(2) analysis. So I don’t really mind, but I’m trying to make it — I guess I was just trying to make sense. At the end of the day, it’s not for him to tell me the law. It’s for the Crown to tell me or you to tell me the law, the lawyers to tell me the law, that’s all, I guess.
MR. PAIN: Yes. I, I agree with that, Your Honour, but the point is that ultimately it could be argued on 24(2).
THE COURT: But you’re really asking him about what it was in his mind that he. observed at the time that caused him to do what he did or to instruct other officers to do what they did. You don’t….
MR. PAIN: Yes.
THE COURT: It’s a legal conclusion to start saying search incident to arrest. I don’t really mind that. He can say, “I felt because he was under arrest he had to search the vehicle,” if that’s what he thinks, or he could say that he — you know, whatever he says is a factual foundation for an argument that will later be made either for or against what he did.
MR. PAIN: Okay.
Q. Well, let me try to narrow it down this way. When you’re searching the vehicle incident to the arrest, at this point he’s under arrest for careless driving, right? You’re not searching in relation to any evidence in relation to the careless driving charge, are you?
A. No.
Q. Okay. You’ve got him in the back of your car. He’s not wearing handcuffs, correct? So you’re not concerned that he’s gonna do something to you.
A. No
Q. Okay. When you were following Mr. Miller in his car, you didn’t see him lose control of his car in any way, did you?
A. No.
Q. Okay. And when you were travelling as fast as you could at certain points, you didn’t feel like you were losing control of your car, did you?
A. My wheels spun.
Q. Your wheels spun?
A. Yes.
Q. Okay.
A. More an acceleration.
Q. And when you pulled over Mr. Miller, his car appeared to be in good driving condition?
A. I don’t have any notes as to the vehicle other than the licence plates, counsel.
Q. The roads that you traveled while you were following Mr. Miller, they were lit?
A. Poorly.
Q. But they were lit?
A. Yeah.
Q. Streetlights?
A. Obscured severely by, by trees and whatnot.
Q. Okay. So you arrested Mr. Miller for careless driving.
A. Yes.
Q. So why is he here on a charge of dangerous driving?
A. That’s what the detective — the charge that the detective laid.
Q. Okay.
A. I don’t lay the charges. I assume he felt it was more appropriate.
THE COURT: By the “detective,” do you know who that was?
A. Um, I gave him — I passed off all the information to a Detective Rowe
THE COURT: “Rowe,” do you know how to spell that?
A. R-O-W-E, badge 1111, 54 Division.
MR. PAIN: Q. So — and so when he’s at the station and his charges are upgraded to dangerous driving, you didn’t re-advise him of his rights to counsel?
A. I was back on the road at 03:26 hours. I have no idea when the charges were changed.
Q. 03:26?
A. That’s what time I have that I’m 10-8, meaning back in service, from this call. Let me just
THE COURT: Three?
A. Three twenty-six I was clear of the station. What — when I was back out on the road.
Q. Okay.
A. Generally we’re back out on the road and, um, the accused are still in the station, the paperwork is being processed ’cause they’re being held for a show cause. But even on a Form 10, they’re still in the station before I’m — or after I’m gone, just because the volume of prisoners.
Q. So you, officer, were not involved in the signing of the documentation?
A. No. I’m, I’m, I’m sorry. Before I – I don’t want to mislead the Court. Which documentation?
Q. The undertaking and the promises to appear?
A. No, no.
MR. PAIN: Okay. Just a brief indulgence, please, Your Honour? Those are my questions, Your Honour.
THE COURT: Re-examination?
MS. KREUK: Just briefly, Your Honour. I neglected to ask that the map be marked as Exhibit 1.
THE COURT: Oh, right, exactly. Good point. Okay, so Exhibit 1 will be the map.
A. My copy?
THE COURT: I think it should be your copy, yeah…
A. Okay.
THE COURT: …if you don’t mind, the map of the intersection of Graywood, Glennville, et cetera, Milkerton.
A. Does Your Honour wish that I initial it or anything to say it’s my writing?
THE COURT: Yeah, you could, and then give it to the Clerk.
EXHIBIT NUMBER I: Map – Produced and marked.
THE COURT: So any questions?
MS. KREUK: No, nothing further, Your Honour.
THE COURT: Okay, thanks very much.
MS. KREUK: Thank you.
A. Thanks, Your Honour.
THE COURT: Okay, I note the time. Should we take ten minutes now? You have one more witness, do you, or how many?
MS. KREUK: Yes.
THE COURT: You have one more witness.
MS. KREUK: Yes, Officer Berry.
THE COURT: How long do you think that will be?
MS. KREUK: He’s the officer who searched the vehicle and seized the items. I think he’ll be a bit longer from the Crown’s perspective than Officer Dubois. I’m not sure how long he’ll be in cross-examination.
THE COURT: What I’m just getting at, is it sounds to me like we’re going to need more time.
MR. PAIN: As in another date…
THE COURT: Yes.
MR. PAIN: …Your Honour? Okay.
THE COURT: So maybe this would be the time to attend at the — it’s very close, just down and to the left. We could attend at the trial coordinator’s and get a date.
MS. KREUK: Yes, Your Honour.
THE COURT: That would be okay?
MS. KREUK: Yes.
THE COURT: So I’m going to take my — I’ll take my calendar and I can go with you, if you wish.
CLERK OF THE COURT: How long are we breaking?
THE COURT: Only ten minutes. I really want to do this thing in ten minutes…
MS. KREUK: Yes.
THE COURT: …and not waste any more time, if you don’t mind.

* * * * *
RECESS

UPON RESUMING:
REPORTER’S NOTE: At this time, a continuation date was discussedTHE COURT: Okay. So could you come forward, please. We are going to start today. I’d like to start today if we possibly can.

LUKE BERRY: SWORN
EXAMINATION IN-CHIEF BY MS. KREUK:

Q. Good afternoon, Officer Berry. I understand you’re a member of the Toronto Police Service.
A. I am.
Q. And how long have you been a member?
A. Since October 16th, 2002
Q. I understand you are now with 43 Division?
A. I am, that’s correct.
Q. And at the time of this incident, you were attached to 54 Division.
A. I was.
Q. And I understand on Ap- — on — sorry — August 25th, 2005, you became involved with the matter before the Court.
A. I did.
Q. And did you make notes of that matter?
A. I did.
Q. And when did you make those notes?
A. I made them during and immediately after the offences.
Q. And have you made any additions, alterations or deletions to those notes?
A. I have not.
Q. Would it — would referring to your notes today assist you in refreshing your memory?
A. It would.
MS. KOZAK: I seek the Court’s permission for Officer Berry to use his notes.
THE COURT: Any objection?
MR. PAIN: No objection.
THE COURT: You may use your notes.
MS. KREUK: Thank you.
A. Thank you, Your Honour.
MS. KREUK: Q. What shift were you working on August 25th, 2005?
A. I was working the midnight shift. It’s from 11:00 p.m. ’til seven in the morning.
Q. And were you in uniform?
A. I was in a uniform capacity
Q. And were you driving a scout car that night?
A. I was. It was a marked police cruiser and it was emblazoned with the Toronto Police logo. It had working lights and a working siren and the fleet number was car 5421.
Q. And did you have an escort?
A. I did.
Q. And who is that?
A. His name was P.C. Martin Epps, badge 9810, of 54 Division.
Q. And when did you first become involved with the incident before the Court today?
A. I was — at the time of the incident, I was at – the exact address is Systems Tech. It’s a high school. I was in the north parking lot. I believe it’s 80 Graywood Avenue. I was in the north parking lot off of Glennville. I was investigating disorderlies at the time of the incident when….
Q. I’m sorry, you were investigating?
A. Um, it was a complaint of disorderlies, just kids hanging out in the parking lot on school property.
Q. Okay.
A. I was initially on the scene there at 12:33 a.m.
Q. And that’s at Systems Tech?
A. That’s correct. Information was broadcast at 12:48 a.m. by P.C. Dubois
Q. Sorry, what was that that time again?
THE COURT: Twelve-forty?
A. 12:48 a.m.
THE COURT: Okay.
MS. KREUK: Q. And who, who broadcast that information?
A. Ah, P.C. Dubois, badge 9910
Q. And what was the nature of the call? A. Ah, he advised that he had a vehicle
refusing to stop, that he was travelling eastbound Glennville, approaching Linskit and that he was following a black Acura with Ontario licence plates ATZU227.
Q. And what did you do next?
A. At this time, we, myself and my escort, we got in the police car. We drove to that location he broadcast where he now had the vehicle stopped.
Q. I’m sorry, you said the vehicle was stopped?
A. At the time we got there, yes, at that time the driver was being — or in the process of being arrested.
Q. And what did you do next?
A. At that time P.C. Dubois was on scene with the vehicle at the intersection of Glennville and Linskit. He was removing the male from the vehicle and handcuffing him. He advised me that the vehicle was to be searched incident to arrest.
Q. And what did you do next?
A. At that time I searched the vehicle.
Q. And why did you search the vehicle?
A. I searched the vehicle incident to arrest under common law, checking the area within the driver’s reach, checking it for possible means of escape or injury to any party involved and checking for evidence.
Q. Checking for — sorry?
A. Evidence.
Q. When you arrived on scene, did you have an opportunity to observe the party that was being arrested?
A. I did.
Q. And do you see that individual here today?
A. I do.
Q. Okay. And could you point him out, please?
A. It’s the male there.
MS. KREUK: Indicating the accused for the record.
Q. Can you describe observations? Did you search the vehicle?
A. I did.
Q. And what area of the vehicle did you search?
A. I checked the area that was in reach of the driver, the driver had access to.
Q. And what observations did you make, if any, when you approached the vehicle to search it?
A. Oh, when I approached the vehicle, I observed that the driver door was open and that it was a black Acura. I believe it was an Acura Integra, although I did not make note of that. And the plate was ATZU227 Ontario licence plate.
Q. And upon approaching the vehicle, what did you observe?
A. Upon approaching it?
Q. Yes, as you got closer.
A. When I got closer, when I actually got to the vehicle?
Q. Yes.
A. When I stuck my head into the vehicle, I smelled the smell of marijuana.
Q. And how would you characterize the strength of the smell?
A. Ah, it was a very strong smell. I mean, there’s no mistaking that, that that was what the smell was.
Q. And how did you know it was marijuana?
A. I’ve — I smelled it in the past. I participated in a controlled burn at the Ontario Police College in my training, as well as I have arrested parties and seized quantities of marijuana within the past and had some experience.
Q. And once you had stuck your head into the vehicle, what did you do?
A. I then began a search within the area of the driver’s reach. I searched the front of the vehicle, entering from the driver’s side. I looked under, first, the area of the driver’s seat, then the area of the passenger’s seat. When I looked under the passenger’s seat, that is when I observed a bag of a green substance of what appeared to be marijuana tucked under the seat.
THE COURT: A bag of what substance did you say?
A. A green substance.
THE COURT: Oh, green.
A. Yes. It appeared to be marijuana.
MS. KREUK: Q. And when you say you searched the areas within reach of the driver, can you be more specific as to what those areas include?
A. Um, the car in question, which is, which was an Acura, it’s not a very large car, the driver would have access to the front seat area, the glove compartment, underneath the seats, as well as the front and the back seat of the vehicle and possibly something thrown onto the back seat.
Q. So you said you looked under the passenger seat and you observed a bag of a green substance that you believed to be marijuana.
A. That’s correct.
Q. And what did you do next?
A. At that time I, I removed the bag of marijuana and the smaller bag of marijuana that was underneath it.
Q. So there were two bags?
A. That’s correct.
Q. And the smaller bag, it appeared to contain the same green substance?
A. It did, yes.
Q. And what did you do next?
A. I removed the two bags of marijuana from underneath the seat. That’s when I located objects that were beneath the bags of marijuana, what appeared to be 25 marijuana. At that time, I located a knife and a silver scale.
Q. I understand you brought those items with you today.
A. I did.
Q. We’ll start with the knife, please.
A. Okay.
Q. Could you describe the knife for us?
A. Yes. It’s a, it’s a stainless steel flick-style knife.
Q. When you say “flick style,” what do you mean by that?
A. When I mean “flick,” I mean it’s able to open by a simple flicking motion. It does not have to be opened up with two hands. It can be opened up with one hand easily.
Q. And once it’s opened, how does it close?
A. Ah, it closed by depressing a lever, then it shuts.
THE COURT: But it takes two hands to close it.
A. Well, I’m not a knife expert. I’m guessing it takes two hands to close it. It can be easily opened with one hand.
THE COURT: Well, you’re pushing a button and then you’re….
A. There’s no button. Oh, when you’re closing it?
THE COURT: Yeah.
A. Pressing a lever, so I believe….
THE COURT: Oh, a lever.
A. If you went like this, you could shut it like that. I haven’t tried to close it with one hand.
THE COURT: Okay.
MS. KREUK: Q. And you said it flicks open?
A. It does, yes.
Q. And when it flicks open, does the blade stay open until the lever is pushed to close it?
A. It does.
Q. Could you hold up the knife for us, please?
A. I could.
Q. And can you take it out of the bag, please.
A. I can.
Q. Thank you. And you’re opening a sealed property bag.
A. I am. It’s still sealed.
Q. Could you tell us the seal number, please?
A. I can. The seal number is “B” — as in “Bravo” — 701612, and I’ve signed that I — there’s my signature that it was sealed, at 2:00 a.m. on the 25th of August, 2005.
Q. Thank you. And could you open it for us, please.
A. Would you like me to open it with one hand?
Q. Yes, please. And just for the record, the officer has just done a flick of his wrist and the blade of the knife opened. Were you able to see?
MR. PAIN: Yes.
THE COURT : Okay. Okay, I watched it. A. I shut it with one hand.
THE COURT: So the lever that you’re talking about is right under the blade in the front, in the front; and by pushing that, it then becomes — it unlocks, I guess, from the locked position and can be closed
A. That’s correct, yes.
THE COURT: Okay.
MS. KREUK: I would ask that the knife be marked as Exhibit 2, please, Your Honour.
THE COURT: Okay. Thank you. Exhibit 2.
EXHIBIT NUMBER 2: Flick knife – Produced and marked.
MS. KREUK: Q. And with respect to — you mentioned you found a scale.
A. That’s correct.
Q. And do you have that here with you today?
A. I do, yes.
Q. Is that . . .
A. It’s here.
Q. Is that in a sealed property bag?
A. It is.
Q. And what is the seal number, please?
A. It’s in “B” — as in “Bravo” — 701611. It is signed by P.C. Epps that he sealed it at 2:57 a.m. on the 25th of August, 2005.
Q. Okay. And can you describe that object for us, please?
A. I can. It’s a, it’s a small silver -I’m looking at the brand name. I can’t read it. It’s a digital scale.
Q. And do you know what those kind of scales are typically used for?
A. Well, in my experience, when I see them in my line of work, they’re usually used for small quantities of drugs.
Q. Thank you. If — and where did you say you found that scale?
A. I found this beside the knife, and they were underneath where the two bags of marijuana were.
Q. And so that would be under the front passenger seat?
A. That’s correct, yes.
MS. KREUK: If this scale could be marked as Exhibit 3, please, Your Honour.
THE COURT: Exhibit 3.

EXHIBIT NUMBER 3: Digital scale – Produced and marked.

MS. KREUK: Q. And what did you do upon finding these items under the seat?
A. At that time I se- — once I located all four and looked at what all four were, I seized them at 12:52 a.m.
Q. Sorry, the time again, please?
A. 12:52 a.m.
Q. Thank you. Did you advise P.C. Dubois of what you had found?
A. I did, yes.
Q. And what did you do next?
A. At that time, the male was in the back of the scout car of P.C. Dubois.
Q. Yes.
A. P.C. Dubois was a solo officer. It’s a policy that two officers usually parade the prisoner. So we, for officer safety reasons, we followed him to the station where I attended the station for weighing and submitting the evidence.
Q. Upon arrival at the station, what did you do?
A. Ah, when arriving at the station….
Q. What time did you arrive?
A. I have noted here at 1:15 a.m. I was on scene at 54 Division.
THE COURT: One-fifteen…
A. Yes, 1:15, Your Honour.
THE COURT: …you were at 54 Division.
MS. KREUK: Q. And upon your arrival?
A. Upon my arrival, I made no immediate note of what was happening. I believe my escort was parading the prisoner with Hayden Dubois. At 1:30 I attended the staff sergeant’s office, Staff Sergeant Bing, badge 7200– he was the officer in charge of the station that evening — for the purpose of weighing the drugs.
THE COURT: Bing is spelled?
A. B-I-N-G, Your Honour.
THE COURT: Badge?
A. 7200.
THE COURT: Okay. And what did you do there?
A. I attended there for the purpose of weighing the drugs and sealing it.
MS. KREUK: Q. And can you describe the process you went through to weigh the drugs, please?
A. Ah, yes. First I, I had the smaller bag of what appeared to be marijuana. I opened the bag, removed a green substance from the baggy and I placed it in a drug baggy after I had already scaled down the scale to zero, meaning that I had taken the plastic baggy, placed it on top of the scale and re-set it so that the plastic envelope would not add to the weight.
THE COURT: And this is the police envelope that you’re going to put the, the exhibit in?
A. Yes. It was not this envelope. It’s the — it’s a plastic baggy that contains it. It’s for the purpose of containing marijuana.
THE COURT: But it’s your bag; it’s not the bag that you found it in.
A. No, no. It’s a Toronto Police bag, yes.
THE COURT: Okay.
MS. KREUK: Q. And why do you use the Toronto Police bag?
A. Just so there’s a standard bag for weighing.
Q. So you said you placed the — you opened the smaller bag, removed the green substance, placed it into a Toronto Police issued drug baggy and before placing it back on the scale you scaled the scale down to zero.
A. That’s correct, yes.
Q. And what was the total weight of the contents of the first bag of marijuana?
A. I got a reading of 5.62 grams.
Q. And what did you do with that bag?
A. I took the baggy. I put it into drug
envelope number “T” — as in “Tango” — 12398. It was then sealed by myself. I put a piece of tape over top of it, initialed it, I put my badge number on it.
Q. Okay. And what did you do next?
A. Ah, the next, I took the larger bag of what appeared to be marijuana with the green substance in it. I again zeroed down the scale, then put the second sample onto the scale and obtained a reading of 30.3 grams.
Q. 30.3 grams?
THE COURT: .30 or .03? .30?
A. Yes.
THE COURT: So 30.30 really?
A. 30.30, yes.
MS. KREUK: Q. And what did you do after you weighed the bag?
A. At this time, it — because it was over 10 grams, I was required to take a sample and a bulk weight of each for the — the bulk was sent for destruction after the sample….
Q. I’m sorry, I couldn’t hear you.
THE COURT: I couldn’t hear that.
MS. KREUK: Q. You said that because it was over 10 grams, you had to take a sample.
A. Yes, I had to take a sample for it to be sent off for, for analyzing, and the rest was to be submitted as bulk.
Q. And….
THE COURT: So let me just review this, or rewind this. The first small bag you’re going to place the entire contents in an exhibit bag and submit it.
A. That’s correct, yes.
THE COURT: The second, because it’s over 10 grams, you’re only submitting a portion of it.
A. That is correct, yes, Your Honour.
THE COURT: Okay.
A. I then divided the contents of the 30.30 grams of what was in the larger bag. I took a sample, which I re-weighed in the plastic baggy, and obtained a….
Q. Sorry, what did, what did the sample weigh?
A. The sample weighed 9.90 grams.
Q. And what did you do with that sample?
A. I sealed that in drug envelope number “T” — as in “Tango” — 10601, which I sealed, then placed tape over with my badge and my initials.
Q. Okay. And what did you do with the remainder of that second larger baggy?
A. The bulk portion with the weight of 20.40 grams was sealed in evidence bag “B” — as in “Bravo” –745195, with property receipt “N” — as in “November” -286680.
Q. And after you had weighed the smaller bag and the larger bag and divided the larger bag into two samples, a sample and the bulk remainder of that bag, what did you do with the, with the samples that you had sectioned off?
A. At that time the samples were all sealed. I then returned to our Criminal Investigations Bureau office where I completed the paperwork for all the property that was seized.
Q. Did you send these samples to Health Canada?
A. I did, yes.
Q. And what day did you send the samples to Health Canada on?
A. I submitted them to property that morning on the 25th of August, 2005. At 4:06 a.m.
submitted it to the 54 Divisional locker management system, Locker No. 16, for a courier….
Q. What exactly did you submit to that locker?
A. To that locker, I submitted all the property that I submitted: all three drug – the two drug envelopes, the one bulk drug bag as well as the two bags here with the knife and the scale.
Q. So the bulk drug sample, the two — the samples weighing 5.62 grams and the sample weighing 9.90 grams, the knife and the scale all went into property D.L.M.S. Locker No. 16?
A. Yes, that’s correct.
Q. And do you have property report numbers for the knife and the scale?
THE COURT: Is continuity of this storage procedures in issue?
MR. PAIN: Yes, it is, Your Honour.
THE COURT: Okay.
A. Um, the drug report that was completed for the seizure of the marijuana was Toronto Police Occurrence Number 775594.
MS. KREUK: Q. And did you complete that on that same night?
A. Yes, I did before submitting the evidence. I then completed the property report for the night, which is Tag No. “N” — as in “November” — 286681.
Q. And the scale?
A. The scale was submitted on property receipt N286683.
Q. And I understand you said you sent off what you believed to be marijuana to Health Canada. A. I did, yes.
Q. And did you receive those goods back from Health Canada?
A. No. No, I did not. There was….
Q. Did you receive a report back from Health Canada?
A. The report was sent to the officer in charge of the case, at that time being Detective Constable John Perry, badge 8200.
Q. I’m showing you a document. Can you tell us what this document is?
A. Yes, it’s a Notice of Intention to enter the Certificates of Analysis of the drugs into court as evidence.
Q. Okay. And is the document signed?
A. It is.
Q. And whose signature appears on the document?
A. It is signed by myself, Luke Berry as well as R. Miller.
Q. And what is the date on that document, please?
A. The 20th of December, 2005, at 3:52 p.m.
Q. And there are two pages attached to that. Can you tell us what those contain?
A. I guess they’re Certificates of Analysis.
Q. Thank you.
A. If that could be marked as the next exhibit, please.
THE COURT: Okay, any objection?
MR. PAIN: No objection.
THE COURT: Okay. So the next exhibit, that should be Exhibit 4…
MS. KREUK: Yes.
THE COURT: …is the Notice plus two Certificates of Analysis.

EXHIBIT NUMBER 4: Notice of Intention and two Certificates of Analysis – Produced and marked.

MS. KREUK: Q. And for the record, the Certificates of an Analyst indicate that the property was submitted by P.C. Berry, badge number 3280 of the Toronto Police Service, in a sealed and unopened package which bore the following identification mark, initials or numbers, T0001398, and that the analyst took possession of the sealed and unopened package on the 4th day of November, 2005, that “I did open the said package and removed there from plant material from which I obtained a sample of the substance that I duly analyzed and examined the said substance and found it to contain a controlled substance within the meaning of the Controlled Drugs and Substances Act, to wit, cannabis marijuana,” and that’s by Sue Cleo, who is on the staff of the Department of Health, duly designated under the Controlled –as an analyst under the Controlled Drugs and Substances Act, and also duly designated as an analyst under the Food and Drugs Act.
The second certificate is from the same analyst and certifies that Health Canada laboratory in Toronto in the Province of Ontario on the 1st day of September, 2005, there was delivered by depository box from Police Constable Berry, 3280, a member of the Toronto Police Service, a sealed and unopened package which bore the following identification marks, initials or numbers T0010601, and that “I did take possession of the sealed and unopened package on the 4th day of November, 2005, that I did open the said package and did remove therefrom plant material from which I obtained a sample of a substance that duly analyzed and examined and I found it to contain a controlled substance within the meaning of the Controlled Drugs and Substances Act, to wit, cannabis marijuana. And both documents are dated and signed on November 8th, 2005, by Sue Cleo.
THE COURT: Thank you.
MS. KREUK: Q. And I understand you brought the marijuana with you today.
A. Yes, I did.
Q. And what format do you have it in today?
A. I’m sorry?
Q. What is it packaged in?
A. It’s packaged in the drug envelopes that I completed.
Q. And are those the drug envelopes you completed or are those as received from Health Canada?
A. They’re the ones I completed as received by Health Canada and that they’ve been sealed….
THE COURT: You received them back.
A. I received them back. They have Health Canada seals.
THE COURT: Okay. So do you require him to open and show us the product or…
MR. PAIN: No.
THE COURT: …are you satisfied that, subject to legal argument about the paper trial, the paper trial is all that we need.
MR. PAIN: I’m satisfied, Your Honour.
THE COURT: Okay.
MS. KREUK: And….
THE COURT: Very well.
MS. KREUK: Q. Sorry. And can you describe those envelopes for me?
A. Yes They are as I completed them, and now they have a Health Canada seal, sealing it from both sides, with the initial on both sides from the analyst.
Q. Okay.
A. Both drug envelopes containing the identifiers D1398 and T10601.
Q. Sorry, can I have those numbers again, please?
A. It’s T0001398, T0010601.
Q. Thank you. And did you have any further involvement in this case?
A. I did not. No.
MS. KREUK: Thank you, officer. Those are my questions.
THE COURT: Okay. Now, I hesitate to ask, but how long do you think you’ll be?
MR. PAIN: I could be about half an hour, Your Honour.
THE COURT: Because we might be able to finish the officer if we just did it now while it’s fresh in everyone’s mind. That’s all I’m thinking.
MR. PAIN: We might be able to do that, yeah.
THE COURT: Do the staff mind if we finish? That’s fine. Is that good for you, Toni? Let me just ask the Clerk. If it is fresh in everyone’s mind, it allows you to cross-examine while you’re fresh and while the witness can recall the answers just given.

CLERK OF THE COURT: Sorry, Your Honour.

THE COURT: Is it okay if we work…

CLERK OF THE COURT: Absolutely.

THE COURT: …until five, roughly, to try to finish this witness? Yeah, you can do the photocopying now if you like, and we’ll just have cross-examination. Okay, please.
THE WITNESS: Your Honour…
THE COURT: Yes.
THE WITNESS: …can I just get a glass of water, please? Thank you.
THE COURT: Oh, some water, sure.
THE WITNESS: Thank you very much.
THE COURT: Okay, cross-examination.
MR. PAIN: Thank you, Your Honour.

CROSS_EXAMINATION BY MR. PAIN

Q. Officer Berry, on the night in question, you indicated that you were at Systems Tech?
A. Yes, that’s correct.
Q. And you were investigating some what you’ve written down as disorders.
A. Yes, disorderlies.
Q. Could you explain exactly what this is?
A. Um, disorderlies, it’s a broad term that I use to classify calls, as something would be called a theft or an assault. It generally just means people’ causing a nuisance or…
Q. Okay.
A. …including trespassers or cause disturbance.
Q. Okay. And you were there with your partner?
A. I was, yes.
Q. And was there anyone else there that evening, any other police officers?
A. At that location?
Q. Yes.
A. No, I do not believe so.
Q. There were no other police officers at all that evening with you?
A. Where I was?
Q. Yes, other than Epps?
A. Ah, no, I do not believe so.
Q. Okay. And you indicated that you received a call from Officer Dubois around 12:48.
A. Ah, it was, it was broad- — it was a transmission over the radio, not a call.
Q. Okay. And for those of us who don’t know, can you explain what the difference is?
A. Oh, a call would be specifically to us, I assume, or a phone call.
Q. Oh.
A. This was just broadcast, him broadcasting to the dispatcher over our radio band that this was happening. We just happened to be very close by him.
Q. Okay. And he was indicating that. he was at Glenville approaching Linskit?
A. Yes.
Q. Okay. And at that time he also gave you the marker of the vehicle that he was investigating, so to speak?
A. Yes, he did.
Q. As the same time as that that general broadcast came in, that he’s at Glennville and Linskit and this is the marker of the vehicle.
A. I believe so. I mean, I don’t have — I haven’t heard the tape, but within a certain amount of seconds, this information was broadcast when a vehicle failed to stop and they’re required to give as much information as possible.
Q. Okay.
THE COURT: But can I just follow that? You’re saying that you’re then essentially overhearing a call by Hayden Dubois to dispatch?
A. Sorry?
THE COURT: You’re overhearing a call or are you seeing the result of a call? What are you doing when you….
A. At that time?
THE COURT: Yeah.
A. I, I heard him broadcast that he was following a vehicle that wasn’t stopping.
THE COURT: So you’re literally hearing his voice?
A. Yes.
THE COURT: Okay.
MR. PAIN: Q. So it’s not someone rebroadcasting what he has said, you’re actually hearing him over the radio?
A. Yes.
Q. Okay. Okay. And you said in-chief that upon arriving at the scene, being Glennville and Linskit you see Officer Dubois with Mr. Miller.
A. I do, yes.
Q. He’s arrested.
A. At that time, yes.
Q. And I’m going to suggest to you, officer, you mentioned in your evidence in-chief that he was cuffing Mr. Miller.
A. At that I’m, I do not recall handcuffs are being put on.
Q. Okay. And you have nothing in your notes suggesting that he was being handcuffed.
A. I made, I made no note of the process of arrest…
Q. Okay.
A. …assuming that before he made it into the back of the car, he would have been cuffed and searched, or searched and cuffed.
Q. Okay. So that’s just an assumption and not necessarily something you specifically remember, that he was being cuffed?
A. I don’t remember him being cuffed, no.
Q. Okay. So you know he’s being arrested and you’re told to search the vehicle incident to arrest?
A. Yes.
Q. Okay. And you have — and what’s he being arrested for?
A. At that time?
Q. Yeah.
A. Flight from the police.
Q. Flight from the police.
A. Careless driving.
Q. I’m sorry?
A. Flight from the police and careless driving
Q. Okay. And you have no notation of that, do you?
A. Ah, no, I didn’t.
Q. You’re — the only notation you have is that he’s being arrested.
A. Yes.
Q. Okay. And you said in your testimony in-chief that you’re asked to do a search of the vehicle and then you gave an explanation about that search which I didn’t quite catch. Would you mind repeating? I heard something about the common law and then evidence, and I didn’t quite catch all of it.
A. Okay. We were, we were searching the vehicle within the driver’s reach as he had been arrested.
Q. Yes.
A. As we’re instructed through training that this is a search that is legal…
Q. To search.
A. …and reasonable.
Q. To search the driver’s area?
A. To search within the area of the driver’s reach.
Q. Okay. And you had mentioned certain things that you’re searching for.
A. Yes.
Q. And what were those things?
A. Um, search, probably was looking for things that are paramount to the safety of ourselves as well as anyone else around, being weapons, being any kind of drugs that could be ingested. At this time he might have been released at the scene, we did not know. As well, we were looking for evidence.
Q. Okay. And so were you looking — well — okay, at this point Mr. Miller is under arrest with P.C. Dubois.
A. Yes.
Q. And I take it P.C. Dubois hadn’t specifically told you that he has a safety concern concerning Mr. Miller.
A. He never expressed that to me; however, when a person flees the police at a dangerous speed, not stopping for stop signs which was broadcast, I believe that the safety risk is inherent.
Q. Okay. And you said not stopping for a stop sign. But you don’t have anything to that effect in your notes, correct?
A. No, but the information was broadcast that the vehicle wasn’t stopping.
Q. Okay, wasn’t stopping, but not stopping and not stopping for a stop sign are different things, right?
A. Yes. He did broadcast what was a small pursuit, I believe.
THE COURT: Okay. You realize — I guess there is a distinction here. I just want to understand. Your knowledge or your recollection was that it was a pursuit and a not stopping. It’s not more specific than that at this point.
A. Ah, yes, that was my knowledge; yes.
THE COURT: Right. Okay.
MR. PAIN: Q. Okay. So in general when you’re conducting this search pursuant to arrest, in general, you’re looking for weapons, drugs, evidence, that type of thing.
A. Or anything that the accused could use, you know, to injure us or injure themselves.
Q. And that applies even when the person is arrested in the police cruiser?
A. Ah, yes, it is. It’s an officer safety factor. If he is — let’s say it’s a releasable — you know, he meets the terms and conditions to be released at the scene, he’ll be going back in that car at which point….
Q. And it’s your understanding that he was specifically arrested for fleeing from the police?
A. That was my understanding.
Q. Okay. You said you smelled marijuana in the car.
A. Yes.
Q. And can you tell from the smell whether it’s smoked marijuana, recently smoked, or whether it’s marijuana that hasn’t been smoked?
A. Um, I can’t tell from the smell, no.
Q. I’m sorry?
A. No, I cannot.
Q. You cannot?
A. No. I’m not an expert…
Q. Okay.
A. …in marijuana.
Q. So it’s quite possible there was no marijuana in the car?
A. It’s quite possible. Before I searched it?
Q. Yes.
A. It is — it was quite possible there was no marijuana, yes.
Q. Yeah, after the fact, we know there was. A. I mean, it has a habit of staying around, the smell.
THE COURT: And I’m not actually understanding that part of the question. You’re saying because a smell….
MR. PAIN: Well, I guess my point is, Your Honour, if you can’t tell the difference between smoked marijuana and unsmoked marijuana, there’s a possibility you’re smelling something that is already been smoked and is no longer in the car.
THE COURT: It already had been consumed, sort of thing?
MR. PAIN: Yes.
THE COURT: Could be consumed, smell; therefore, could be nothing in car now, or recent presence in the car, but not current?
MR. PAIN: Yes.
THE COURT: Oh, I see. Okay. I think I see.
MR. PAIN: Q. And is there any reason you couldn’t have got a search warrant to search the car once you smelled the marijuana?
A. Once I smelled the marijuana?
Q. Yes.
A. I didn’t know if there was marijuana in the car for a search warrant. At that time, I was in the legally and I did the search that I was entitled to do. If there was a further search required as of the trunk or other areas of the driver’s reach….
Q. I’m sorry, officer. I’m going to stop you and ask you to go back a bit.
A. Okay.
Q. I, I followed you up until the point you said “I wasn’t sure if there was marijuana in the car,” and then your voice trailed off a bit. I didn’t quite catch what you were saying.
THE COURT: And that’s in response…
A. Yes.
THE COURT: …and in answer to the question, Could you have gotten a search warrant?
MR. PAIN: Yes.
THE COURT: Okay.
A. For a search warrant, I would have to, you know, convince a justice of the peace that there was indeed marijuana in the vehicle. At that time, I only had the smell of marijuana.
Q. Okay. And that, in your mind, would not be enough to convince a justice for a search warrant? Just your opinion, officer.
A. In my opinion?
Q. Yeah.
A. It could go either way.
Q. Okay. Okay. And there was no urgency to the station? I mean, he wasn’t — he was arrested at that point, correct?
A. He was arrested, yes.
MR. PAIN: Sorry, just a brief indulgence, please, Your Honour? Those are my questions. Thank you.
THE COURT: Okay. Any re-examination?
MS. KREUK: Just that I believe I forgot to mark the two envelopes containing the marijuana as exhibits.
THE COURT: We’ve done it again, except that do you need them to be exhibits because they are drugs and…
MS. KREUK: Yes.
THE COURT: …I know the Federal Crowns often don’t file the exhibits. They keep them….
CLERK OF THE COURT: We can mark them as an exhibit.
THE COURT: You mark them and then return it. Oh, is that how it’s done? I forget. CLERK OF THE COURT: Yes.
THE COURT: That’s right.
MS. KREUK: Okay.
THE COURT: So it’s marked, but then you keep it in your possession. The officer keeps it in his possession. So that’s the way to do it, because we do want to be able to refer to them by their exhibit number. That’s right. Okay.
MS. KREUK: If this one with the Exhibit Number T0001398 can be marked as Exhibit 5, and the envelope with Exhibit Number T0010601 can be marked as Exhibit 6.

EXHIBIT NUMBER 5: Exhibit Envelope No. T0001398 – Produced and marked.

EXHIBIT NUMBER 6: Exhibit Envelope No. T0010601 – Produced and marked.

CLERK OF THE COURT: Officer, I’m just going to have you sign for them and I’ll give them back to you.
A. Thank you.
THE COURT: Okay. That’s right. That is the way. I forgot. Okay. So that’s it. Great. So thank you very much. That means you won’t be needed. You don’t need to consult with the Crown. Is that the case for the Crown or do you have any other witnesses you intend to call, or do you want to reserve on that?
MS. KREUK: I’d like to reserve on that, if I could, Your Honour.
THE COURT: You can.
MS. KREUK: I will inform my friend if there are any in advance of the next date.
THE COURT: But I want you to be ready to go first thing, that’s all.
MR. PAIN: Yeah. I suppose I should — I know I sort of barraged the Court and my friend with papers and it may have been sort of lost in there, but there is an affidavit from Mr. Miller on this application, so I guess my friend should keep that in mind as well when she….
THE COURT: Just — okay. I’m sorry. You’re all right, of course, and we did talk about a blended, a blended hearing, so all I’m really asking now of the Crown is, is that all the evidence you wish to call either on your own case or on the Charter application, which would leave open to her a consideration on adjournment of whether or not she wishes to call any evidence on either the case, the prosecution’s case, or on the defence application.
MR. PAIN: Yes.
THE COURT: Either is available to her in a blended hearing.
MS. KREUK: I would like to reserve until the next date, if I could, Your Honour.
THE COURT: Of course, I just — but you’re right, and you’re clarifying. On anything, on all points does she have any evidence to call.
MR. PAIN: Well, I guess I’m sort of pointing it out so in case we’re thinking in terms of how much time is required. I just wanted to remind everyone that there is that affidavit there and she may choose to cross-examine on it.
THE COURT: But that’s part of your case.
MR. PAIN: Yes.
THE COURT: That’s not the same as calling evidence on it.
MR. PAIN: No. It’s part of my….
THE COURT: It could — a question could arise…
MR. PAIN: Yeah.
THE COURT: …that would, by virtue of Brown and Dunn, preview a Charter point that should be, evidence should be called on if you’re going to ask the question. And because it’s a blended hearing, it really should be done, that evidence should probably be called right up front.
MR. PAIN: To be frank, your Honour, I’m not quite sure I understand the point you’re making.
THE COURT: Okay, you ask a question…
MR. PAIN: Yes.
THE COURT: …on any point…
MR. PAIN: Yes.
THE COURT: …that is not already proven…
MR. PAIN: Yeah.
THE COURT: …to a witness, you — as in costs, it is generally thought that that is something that you can prove. If you’re saying well you actually killed your mother that day.
MR. PAIN: Yeah.
THE COURT: …and you were escaping not from the police for the reason of the marijuana, you’re escaping because you’ve just committed a murder of your mother…
MR. PAIN: Okay.
THE COURT: …that’s something that so far has not come up in the Crown’s evidence, but she shouldn’t ask that question unless she could prove it.
MR. PAIN: Right.
THE COURT: And in this case, because it’s a blended trial, my own view is that you should be calling that right up front rather than splitting your case. That’s the trouble with a blended trial, because she’s actually challenging the bona fides of another application but we’re not going to have her call her evidence after your application.
MR. PAIN: Right. I understand what you’re saying.
THE COURT: So, in theory, she should call — if there’s Charter points that she’s going to raise, Charter facts that she’s going to raise that aren’t patent on the face of the case, then they should be — that evidence should be called by the Crown.
MR. PAIN: I agree.
THE COURT: Okay. That’s all. In any event, that’s it for today.

REPORTER’S NOTE: At this time, the case was adjourned to October 6th, 2006, 111 court at 10 a.m. to be traversed for further evidence.

Now, click to read the Court’s decision following this cross-examination.

Click to read R.M.’s testimonial
* * * * * * * * * *