Charges: Possession for the purpose of trafficking — Breach of recognizance.

Counsel:

R. Abraham, Agent for the Federal Crown

R. Rusonik, Counsel for Clifford G. Smart

       N.H. EDMONDSON J.:—

¶ 1      CROSS-EXAMINATION BY MR. RUSONIK:

¶ 2      Q. On the subject of your notes, sir -- well, let me ask you this first: If I understand you correctly, you dealt with Mr. Capleton in the past.

¶ 3      A. Dwayne Capleton, yes.

¶ 4      Q. How did you deal with him?

¶ 5      A. How did I deal with him?

¶ 6      Q. Yes.

¶ 7      A. I believe I've arrested him before, and I was involved when he was arrested at the hair salon.

¶ 8      Q. Oh, so you've arrested him once before yourself?

¶ 9      A. That's correct.

¶ 10      Q. Totally separately from the hair salon?

¶ 11      A. Yes.

¶ 12      Q. All right. And then you were involved with his arrest at the hair salon?

¶ 13      A. That's correct.

¶ 14      Q. Oh, okay. Tell us about your arrest of Mr. Capleton.

¶ 15      A. The -- was taken ...

¶ 16      Q. Where was that?

¶ 17      A. ... out by tactical officers down on Wentworth Street, there's a -- the ...

¶ 18      Q. Yes?

¶ 19      A. ... building, and he was handed over to me, put in the back of my cruiser, and that was the extent of my arrest with him.

¶ 20      Q. Well, you paraded him?

¶ 21      A. I brought him in front of a cell sergeant, yes.

¶ 22      Q. All right. And took him up and put him in a cell somewhere?

¶ 23      A. Yes.

¶ 24      Q. All right. And then on the other occasion you were present when he was arrested?

¶ 25      A. Not when he was arrested; I provided the information about where he was.

¶ 26      Q. Right. You saw him being taken under arrest?

¶ 27      A. No, I came after he was arrested.

¶ 28      Q. Did you see him under arrest?

¶ 29      A. Yes.

¶ 30      Q. All right. Did you recognize him from the previous arrest?

¶ 31      A. Yes.

¶ 32      Q. You did?

¶ 33      A. Yes.

¶ 34      Q. So he was a face that stood out in your mind?

¶ 35      A. I would recognize him if I saw him again, yes.

¶ 36      Q. But you said that you believed that this man was Mr. Capleton.

¶ 37      A. That's correct.

¶ 38      Q. Do you say that in your notes?

¶ 39      A. Yes, I believe I do.

¶ 40      Q. You do?

¶ 41      A. I believe.

¶ 42      Q. Show me where you say you believe that you recognized him as Mr. Capleton.

¶ 43      A. I don't think I said I recognized.

¶ 44      Q. No, I don't think so. What do you say?

¶ 45      A. I believe I said he fit a similar description.

¶ 46      Q. And how did you say he fit the description in your notes?

¶ 47      A. Well, he's a tall, thin, black male.

¶ 48      Q. Anything else?

¶ 49      A. No.

¶ 50      Q. He fit because he was a tall, thin, black man?

¶ 51      A. Yes, that's how I recognized Dwayne Capleton.

¶ 52      Q. I see. You recognized Dwayne Capleton because he's a tall, thin, black man?

¶ 53      A. From a distance that's how he stands out to me, yes.

¶ 54      Q. Oh, okay. But as you get closer to tall, thin, black men, you'd see whether or not they looked like Dwayne Capleton from your past experience?

¶ 55      A. That's correct.

¶ 56      Q. But you got closer to Mr. Smart.

¶ 57      A. That's correct.

¶ 58      Q. well, you would've saw that he doesn't look like Dwayne Capleton.

¶ 59      A. No.

¶ 60      Q. No, you wouldn't?

¶ 61      A. Does -- he's not Dwayne Capleton, he doesn't look exactly like him.

¶ 62      Q. Right. But that didn't stop you from going up and -- you and your partner -- did you tell your partner, "Oh, this isn't Dwayne," before you got up to ...

¶ 63      A. No.

¶ 64      Q. ... the car?

¶ 65      A. No.

¶ 66      Q. Why not?

¶ 67      A. We wanted to make sure the vehicle stopped so we could see who was in the vehicle.

¶ 68      Q. Pardon?

¶ 69      A. We wanted to make sure the vehicle wouldn't keep driving, try to leave the parking lot. We didn't know who it was 'til we got up close to it.

¶ 70      Q. But you got up close to the vehicle?

¶ 71      A. That's correct.

¶ 72      Q. You saw that it wasn't Dwayne Capleton. Did you tell your partner this isn't Dwayne Capleton?

¶ 73      A. No.

¶ 74      Q. Why not?

¶ 75      A. I -- I don't know; didn't have time, I guess.

¶ 76      Q. Who was controlling the time, sir? Who was controlling when things happened or didn't happen?

¶ 77      A. We were.

¶ 78      Q. The police?

¶ 79      A. That's correct.

¶ 80      Q. So did you say, "We've got to let this guy go; he hasn't done anything wrong; he's not Dwayne Capleton; he's not who we're looking for?"

¶ 81      A. I don't -- I didn't know who he was.

¶ 82      Q. Right.

¶ 83      A. That's why we identified him.

¶ 84      Q. Why? I walk along the streets all the time and no police officer stops me to ask me who I am. Why was he stopped?

¶ 85      A. He looked like Dwayne Capleton and I decided to investigate and see if it was him.

¶ 86      Q. No, no, no. You said when you got close enough you realized it wasn't Dwayne Capleton because when you get close to tall, thin, black men you realize that they' re not Dwayne Capleton 'cause you know what he looks like, right?

¶ 87      A. Okay.

¶ 88      Q. So that's what happened here. So why was, this man stopped? Why was his liberty to move about impinged by the police? Why?

¶ 89      A. Why was he stopped?

¶ 90      Q. Yes.

¶ 91      A. To identify him.

¶ 92      Q. Why? Why did he have to identify himself ...

¶ 93      A. I don't know -- I didn't know who he was.

¶ 94      Q. ... once you realized he wasn't Capleton? Why did he have to do that?

¶ 95      A. I didn't know 100 percent sure that he's not Dwayne Capleton. He doesn't look like Dwayne Capleton when I got close. We went up, I thought it was Dwayne from a distance, so I approached and identified him, and it wasn't Dwayne Capleton.

¶ 96      Q. Tell me, when he produced a licence to your partner ...

¶ 97      A. Yeah.

¶ 98      Q. ... with the name Clifford Smart on it ...

¶ 99      A. Mm-hmm.

¶ 100      Q. ... that must have made it -- if it wasn't already crystal clear in your mind, it must have made it crystal clear that that wasn't Capleton.

¶ 101      A. Yes, at that time it did.

¶ 102      Q. But you go ahead and run him anyways on CPIC?

¶ 103      A. That's correct.

¶ 104      Q. Why?

¶ 105      A. Well, his actions were pretty suspicious when he's hiding things in the motor vehicle.

¶ 106      Q. I see.

¶ 107      A. Kind of was ...

¶ 108      Q. Reaching towards the passenger side of the vehicle?

¶ 109      A. That's correct.

¶ 110      Q. Yeah. The direction of a glove box?

¶ 111      A. He had already provided his identification.

¶ 112      Q. What did he provide?

¶ 113      A. I don't know; you'll have to ask my partner.

¶ 114      Q. I see.

¶ 115      A. I know that he provided the driver's licence.

¶ 116      Q. Well, sir, do you think there's anything wrong in -- from your training as a police officer -- from your teaching, you know, by the teaching that you've received from other officers when you're out on the road learning to be a police officer after your formal training, have you ever been told that it's wrong when you don't have a reason to stop a person to stop them and demand that they provide identification?

¶ 117      A. Have I ever been told that's wrong ...

¶ 118      Q. Yes.

¶ 119      A. ... to do that?

¶ 120      Q. Yes, when you don't have any reason to believe that they've committed an offence.

¶ 121      A. Well, we probably wouldn't waste our time stopping somebody who hasn't done anything, unless we have a suspicion or a reason to stop them.

¶ 122      Q. You regard that as a waste of your time

¶ 123      A. To just stop a random person?

¶ 124      Q. Yes.

¶ 125      A. Yes.

¶ 126      Q. Hmm. But have you been told that it's wrong?

¶ 127      A. No.

¶ 128      MR. RUSONIK: Thanks.

¶ 129      THE COURT: Miss Abraham?

¶ 130      MS. ABRAHAM: No questions, Your Honour.

¶ 131      THE COURT: Thank you. You may stand down.

¶ 132      MS. ABRAHAM: Your Honour, based on the evidence which has come forward today, at this point the Crown will be asking that all charges be marked withdrawn against ...

¶ 133      THE COURT: The accused is in charge of the Court at this stage.

¶ 134      MS. ABRAHAM: We would ask that the charge be ...

¶ 135      THE COURT: The Charter application will be allowed.

¶ 136      MS. ABRAHAM: Yes, thank you.

¶ 137      THE COURT: This was an arbitrary action on the part of the police and if such a statement requires to be made in an unqualified way, it was clear to the officers upon the close approach of the accused and his vehicle that they knew he was not the man who he was suspected to be. Their actions thereafter continued to be an arbitrary course of conduct and to violate the accused's rights. I have no hesitation whatever in saying that this was such a situation, and I will not perform any s. 24 analysis because it was so outrageous. Did you need to be heard, Mr. Rusonik?

¶ 138      MR. RUSONIK: No, thank you, sir.

QL UPDATE:  20060824
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