ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CITATION: R. v. Brown COURT FILE NO.: 154110

DATE: 20120704

HER MAJESTY THE QUEEN

) ) )

- and-

DONOVAN BROWN

HOURIGANJ.

I. Introduction

) M. Edward Graham, for the Federal Crown ) ) )

) Deepak B. Paradkar, for Mr. Brown ) ) ) ) HEARD: June 18, 19,20,21 and 22, 2012

REASONS FOR JUDGMENT

[1] The defendant, Donovan Brown, is charged with one count of possession of

heroin for the purpose of trafficking and one count of importation of heroin, contrary to

sections 5(2) and 6 of the Controlled Drugs Qnd Substances Act, respectively.

[2] Mr. Brown pleaded not guilty to the charges . He did not testify at trial.

[3] For the reasons that follow, I find Mr. Brown not guilty on both counts.

II. Facts

Agreed Statement of Facts

[4] The parties filed an agreed statement of facts as follows:

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On September 18,2008 the R.C.M.P. in Milton, Ontario became aware through customs officials in Genmany of a package of fireplace logs which contained suspected heroin. The package was addressed to:

Harold MACDELLA Number 1026 Glendor Avenue Unit 89 Burlington, Ontario L7A4M7 Tel: 14167784200

On September 20, 2008, members ofthe Canadian Border Services Agency attended Pearson Airport in Toronto and met with two Genman customs officials who had carried the package from Genmany. The package was a large DHL Courier box, yellow in colour and wrapped in red DHL tape. The contents ofthe box were examined and contained ceramic logs wrapped in bubble wrap. There were 21 logs, 19 of which were still intact. Pictures of the contents of the box were taken and a test confmned that the material inside was suspect heroin . The contents were placed back into the box and handed over to the RCMP.

On September 21,2008, R.C.M.P. officers substituted the suspected heroin with dry plaster and control samples of heroin. The total weight of the suspect heroin was 3,848 grams.

On September 22, 2008, the DHL box was reassembled and a tracking device and intrusion alanms were installed in preparation for a controlled delivery. A controlled delivery involves the police attempting to deliver a package to its intended destination and if possible, arrest the recipients.

Samples of the suspect heroin were sent to Health Canada for testing. The results of that testing show the substances tested were, in fact, heroin, with varying degrees of purity from 14 to 15%.

On September 24, 2008 at 11:29 a.m. a controlled delivery of the package to Unit 89 was undertaken by an officer acting undercover as a DHL courier. The officer noted that before he got to the door of Unit 89, a man asked him if there were any more packages and he advised that it was just the one package. The officer asked the man if his name was Harold and the man said "yes" and signed the waybill twice in the name of Harold MacDella. The man who signed for the box was in fact Dina Giammarco.

After the delivery of the package a surveillance team watched for suspicious vehicles in the area. At 6:35 p.m. the R.C.M.P. attended at Unit 89 and conducted a search of the premises pursuant to a warrant. The police arrested Mr. Giammarco, who stated that he accepted the package for an individual named "Matt", and expressed concern that he had been "set up" and that he did not know what was in the box.

During the search police inspected a cordless phone and noted, among other entries in the address book, an entry for a "Matteo" with a phone number of 416-889-3174. There was also a call log under the name "Matteo" and the number 416-889-3174, with a time stamp of9:57 p.m. on September 24th.

Helen McAvella was also found in the residence and arrested. Ms McAvella at first denied that the package was in the residence. She then admitted that she had lied and told the officers that they had received the package and it was in the basement. She told the officers that "Matt" had been advised of the delivery ofthe package and she showed the

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officers "Matt's" number of 647-818-1787 on a cell phone. McAvella said that she did not know "Matt's" last name or where he lived, but did advise that he drove a black vehicle.

Police searched the basement. An officer noted an item covered by a blanket. He lifted the blanket off a box whose contents were labeled [sic 1 as a microwave oven. The officer opened the box and located the unopened DHL package.

Police investigation revealed that the "Matt" phone number of 647-818-1787, was a pay­as-you-go phone, registered to a John Brum, of 1223 Dundas Street, Toronto. The phone had been purchased on September 7, 2009. Background checks on the name John Brum were inconclusive.

On September 29, 2008 police retrieved a voicemail which had been left for them by Carlo Giammarco, Dino Giammarco's brother. Carlo Giammarco lived in the unit next door to Number 89. Upon receiving this call, the officers powered up a cell phone that had been seized when Unit 89 was searched. A recent text from "Matteo" of 416-889-3174, stated that he was going to "take care of things very generously".

At 1 :21 p.m., the officer received the next text on the cell phone which indicated: "Nothing happened .. . is everything cool with you? You aren't picking up the phone and I've been by the house but no one answers".

Officers attended near Unit 89 in Burlington at approximately 2: 14 p.m. They parked in a van across the street from the residence. Once they arrived at the scene, several text messages were exchanged with "Matteo"

From their vantage point inside the van no other vehicles were observed between 2: 19 p.m. and 2:45 pm.

At approximately 2:45 p.m., however, a black Pontiac operated by a white male drove by the residence. The car slowed down in front of Unit 89 and the driver observed the garbage while on his cell phone, apparently talking. At 2:52 p.m., another text was received from "Matteo" as follows: "Ok, I am here now, which bag?"

Based on these observations, the driver, Matthew Burchell, was arrested. A cell phone was seized from the vehicle. Police called the number they had been comm~nicating with and this phone rang, thus confmning that the right person was in custody. It was later determined that this phone was registered to Pat Burchell, his mother.

After Bnrchell was arrested his residence in Oakville was searched by police. In the basement police found 300 pills of the prohibited drug ecstasy. They also found a Nokia Fido cell phone which had been registered to a "John Brum", 647-818-1787.

Both Giammarco and Burchell were held for a bail hearing. On November 182011 they were fonnd guilty of possessing a controlled substance for the purpose of trafficking as a consequence of their involvement in this matter.

The general price for heroin in Toronto in 2008 was as fo llows:

• point, equalling 111 Oth of a gram, $30 to $40; • 1 gram, $250 to $350; • 1 ounce, $3,500 to $4,500; and • 1 kilogram, $80,000 to $110,000.

The value of the heroin seized with the quality of 14 per cent (rounded down to 3,500 grams) is as foll ows:

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• At the point ievel - $1,050,000; • At the gram level at $250 per gram - $875,000; • At the ounce level - $437,500; and • At the kilogram level - $280,000

• It is agreed that the quantity of heroin seized is inconsistent with personal use.

Testimony of Constable Michael Atkinson

[5] Constable Atkinson is a member of the RCMP and was an investigating officer

in this case.

[6] He was assigned in September of 2008 to assist with the controlled delivery to

1026 Glendor Avenue, Burlington, Ontario (the "Unit"). After the controlled delivery he

was involved in the surveillance of the Unit and the arrest ofDino Giammarco.

[7] On September 29, 2008 Officer Atkinson engaged in an exchange of text

messages with Matthew Burchell. After Mr. Burchell's arrest he attended on the scene of

the stopped vehicle and placed a call to the phone that he had been texting. The phone

that was in the possession of Mr. Burchell rang (the "Burchell phone"). The Burchell

phone was marked as Exhibit 2 at trial.

[8] Subsequent to Mr. Burchell's arrest, on September 29, 2008 Officer Atkinson

and Sergeant David Wright conducted two videotaped interviews of Mr. Burchell at the

R.C.M.P. Detachment in Milton.

[9] During the first interview, Mr. Burchell was provided a primary and secondary

caution. He advised the officers repeatedly that he did not wish to make a statement. Mr.

Burchell also indicated that he did not understand the potential consequences of the

charges he was facing. In cross-examination Officer Atkinson agreed that he used the

tactic of stressing with Mr. Burchell that he should not shoulder all the responsibility for

the offence as a tactic to get him to talk. He also agreed that the officers raised with Mr.

Burchell his parents ' reaction to the situation in an effort to get him to talk. Throughout

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the interview Mr. Burchell maintained his refusal to provide a statement.

[10] After that interview, as he was walking Mr. Burchell to the cells area of the

detaclunent, Office Atkinson obtained a copy of the Criminal Code of Canada and

advised Mr. Burchell that he was facing a potential sentence of life imprisonment. He

told Mr. Burchell that it was in his interests to cooperate and that he would get some

consideration if he helped out.

[11] A second interview of Mr. Burchell was conducted approximately 37 minutes

after the first interview was completed. During the course of the second interview the

primary and secondary cautions were not provided to Mr. Burchell, but he was informed

that his rights as explained to him in the first interview continued to apply. Officer

Atkinson testified that Mr. Burchell referred to Mr. Brown as "D" throughout most of the ,

interview and maintained that he did not have any specific information regarding where

"D" lived. He did not refer to Mr. Brown as Donovan until well into the interview and

provided no last name for him in the interview.

[12] The infonnation regarding Donovan was passed on to other investigating

officers and eventually Mr. Brown was identified as a likely suspect.

[13] The next day Officer Atkinson attended at Mr. Burchell's bail hearing.

Subsequently that day, Mr. Burchell went to the detaclunent with his father sometime

before 4:00 p.m. Officer Atkinson did not recall advance notice of him attending, but

suggested that at some point he must have given notice because the officers were

prepared to receive him. Mr. Burchell provided a third statement that day.

[14] In interview number three, Mr. Burchell was read the primary and secondary

cautions. Officer Atkinson testified that he had given Mr. Burchell the impression that he

might get consideration for his cooperation. During interview three, Mr. Burchell

provided the last name Brown for Donovan, but said that he could not be a hundred per

cent sure that that was the correct name. Officer Atkinson said he did not provide this

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information to Mr. Burchell and that Mr. Burchell would not have overheard the name

Brown being used by the officers.

Testimony of Sergeant David Wright

[IS] Sergeant Wright has been an R.C.M.P. officer for 30 years and was an

investigating officer in this case.

[16] He attended at the Unit on September 29, 2008 with Officer Atkinson. He

testified that when they arrived at the Unit, Officer Atkinson was in the rear of the

vehicle using his telephone to text. Sergeant Wright testified that they were looking for

vehicles passing the address and that the silver Honda was a target vehicle. He saw a

black Sunfire, but never saw a silver Honda or any other vehicles drive by that scene. He

made the determination to arrest the driver of the Sunfire after observing a white male

talking on his cell phone and driving by the address twice.

[17] Sergeant Wright was involved in the initial interview with Mr. Burchell. In

cross-examination, he agreed that the reference to Mr. Burchell's parents is something he

has used in the past as a play to the emotions of the person being interviewed. He also

agreed that he did not explain the consequences of what was happening to Mr. Burchell,

but he testified that he wanted Mr. Burchell to understand the severity of the situation and

give him an opportunity to let him know if there was anyone else involved.

[18] After the interview, he spoke briefly with Mr. Burchell, going into detail

regarding the court proceedings and making sure that he understood what Wl;lS going on.

Outside in the hallway or in the cells he told him he wanted to hear his side and told him

that it was serious. He does not recall precisely what was said to Mr. Burchell, but he

does not recall having any kind of conversation with him regarding consideration for

cooperation. He told him that it was a serious situation and he would listen if he talked.

Sergeant Wright described this as a very brief conversation, a matter of minutes.

ll9 J Sergeant Wright returned to his desk on the third floor and, after a very brief

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period, he was advised that Mr. Burchell wanted to speak with him. He immediately

went to the cell area. He asked Mr. Burchell if he would like to talk and he said yes and

motioned Sergeant Wright to sit down. There was a discussion regarding Mr. Burchell's

involvement with the package. He testified that it was not a long discussion and once he

knew that there was important information forthcoming he told Mr. Burchell he wanted

to go somewhere where they could record the interview. Sergeant Wright testified that he

does not recall ever saying that if Mr. Burchell cooperated he would receive

consideration.

[20] The second interview was started at 18:47 and terminated at 19:15. Sergeant

Wright agreed that in the second interview, the officers did not provide the primary and

secondary cautions. He also agreed that for most of the interview, Mr. Burchell was

referring to "D" and not providing a name and declined to provide an address for "D".

He then returned Mr. Burchell to his cell and told him that bail court would be in the ,

morning and that he would advise his parents.

[21] On September 30, 2008 at 16:00, :\fr. Burchell and his father arrived at the

detaclunent. At 16:07 Sergeant Wright and Officer Atkinson entered the interview room.

He testified there was no set time and arrangements, but Mr. Burchell's father wanted to

bring him in to talk. The third interview ended at 16:56.

Testimony of Sergeant Gordon Cobey

[22] On September 30, 2008 R.C.M.P. Sergeant Cobey conducted the arrest of Mr.

Brown at 6095 Duford Drive, Mississauga, Ontario.

[23] He testified that nothing was seized of relevance incident to the arrest. He met

Mr. Brown at the door and informed him what was going on and then turned him over to

another officer.

Testimony of Carlo Giammarco

[24] Carlo Giammarco is the brother of Dino Giammarco. In September of 2008 he

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was residing at 1026 Glendor Avenue in Burlington, Unit 88 . His brother was living with

his parents at the time in Niagara Falls, but his brother's girlfriend lived next door to

Carlo Giammarco and his brother visited there frequently.

[25] He testified that his brother was arrested earlier in the week and that there was a

bail hearing on a Friday. On the Sunday following the bail hearing at approximately

10:00 a.m., he was approached by an individual named Matt as he was getting ready for a

baseball game. Matt walked into his garage and asked him if Dino and Helen were

around. He described Matt as being a white male, six foot two, with dark hair and clean

cut.

[26] He told Matt that Dino was likely at church and would be back later. He knew

that this information was not true, but given the circumstances that his brother was in, he

wanted to find out information to help his brother. He stated that he asked Matt probing

questions. Specifically he asked if he could give his brother a message. He suspected

that Matt was involved in the matter and wanted to find out more so he could provide

details to the police. He testified the conversation was three to five minutes long.

[27] After the conversation, Matt walked down the roadway to the visitors' parking

area toward a waiting car. It had started to pull forward and Matt followed the car and

got in the vehicle.

[28] Carlo Giammarco waited in the garage to get a glimpse of the driver. The

vehicle passed by his garage approximately 20 to 30 feet away. He saw a black

individual driving the car. He testified that the driver had a brush cut and a slight beard

and was wearing a black sweater with red striping or writing. He testified that the driver

was slightly taller than Matt and his head was further above the headrest. He testified

that his view of the driver was brief, as he was only in his field of vision for a matter of

seconds. He had not seen the car before. It was a silver compact-type car, which he

described as a small Toyota or Honda.

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[29] Carlo Giammarco was returning from playing baseball at 4:50 or 5:00 p.m. that

day. As he approached the driveway into the complex, he noticed a car waiting to exit.

He started to make the tum into the driveway and thought he saw the same two people in

the vehicle as he had seen earlier in the day. He identified Matt as he had seen him

before. The other person looked similar to the person he had seen before and he assumed

he was the same person. It was a brief encounter of 10 to 15 seconds. He testified that he

slowed down to get some of the licence plate number. He took a quick look as he passed

by and then looked in the rear view mirror to get the balance of the licence plate.

[30] Carlo Giammarco left two voicemails with the R.C.M.P. that day. The first was

after his initial observation of Matt and the silver car and driver. In the second call he

also provided the licence plate number he had recorded.

Testimony of Matthew Burchell in Examination in-Chief

[31] In his examination-in-chiefMr. Burchell testified as follows.

[32] He had known Mr. Brown a couple of years as of September of 2008. They met

through mutual friends in 2006 or 2007. He would see Mr. Brown now and again and

they would stay in touch. They played poker together and played basketball a couple of

times a month. He did not know about Mr. Brown's particular circumstances and it was

only after he was arrested that he learned his last name.

[33] Mr. Brown suggested the idea to him that he obtain a residence for the delivery

of a package and that he pick up the package from the house and send it along. He was

told by Mr. Brown not to use his own address. Mr. Burchell did not recall when or where

this meeting took place, but he did recall that it was an in-person meeting. He was told

by Mr. Brown that the package contained ingredients for steroids, something you could

not get in Canada. He was told that he would be paid.

[34] Not long after he was told about the plan, Mr. Burchell asked Dino Giammarco

if he was interested in receiving the package. He could not recall precisely when he

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spoke to Dino Giammarco. As of September 2008, he had known Dino Giammarco for a

short period of time. He also knew Mr. Giammarco's girlfriend, Helen. Relatively soon

after Dina Giammarco agreed, he relayed to Mr. Brown that he had a person who would

be okay with a package being delivered.

[35] A delivery did not happen right away. Over the course of the next year the idea

of a delivery was discussed with Mr. Brown from time to time when he and Mr. Brown

would see each other.

[36] His dealings with Mr. Brown were sometimes in person and sometimes over the

phone. Initially he used the Burchell phone to contact Mr. Brown, but closer to

September of 2008 he was given a phone to use by Mr. Brown on one of the occasions

when they met up together (the "Operation phone"). He was told by Mr. Brown to just

use that phone for communications with he and Dina Giammarco.

[37] There was a number programmed in the Operation phone to contact Mr .. Brown.

He believes it was a different number than the number he had called him at before. It

was listed under the contact "Bro". He believes that Mr. Brown had the same type of cell

phone.

[38] After he got the Operation phone, in or about the first week of September or the

last week of August 2008, he received a contact from Mr. Brown and was told a package

was going to Dino Giammarco's address, which was the address that he had given to Mr.

Brown previously. He was told to keep in touch with Dino Giammarco to retrieve the

package.

[39] He knew the first package was to contain ingredients for steroids, but he did not

know the origin of the package. Mr. Burchell picked up the package from Dino

Giammarco. He took it to his address in Oakville where he resided with his parents. Mr.

Brown asked him to open the package and he told him there was nothing in it. He

opened it and determined that it contained a decorative log. He sealed the box back up

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and notified Mr. Brown by text and Mr. Brown came to his house to pick up the package.

After receipt of the first package, he paid Dino Giammarco.

[40] Not long after the first package was delivered, he was told by Mr. Brown that

another package was coming and to retrieve and deliver it to him. A few days prior to

Mr. Burchell's arrest, Dino Giammarco contacted him and advised that the package was

at his house. Mr. Burchell did not go to get it that day. He let Mr. Brown know that

Dino Giammarco had messaged him and said the package was at the house. Mr. Brown

asked ifhe could pick it up and he said he would not be able to do it that day.

[41] In the days leading up to September 29, 2008, he went back to the Unit a few

times. He came by himself a couple of times in his own vehicle. He also came by a

couple of times with Mr. Brown in a silver vehicle that Mr. Brown was driving.

[42] He recalled that he notified Mr. Brown to say that Dino Giammarco was still not

responding. Mr. Brown picked him up from his residence and they went to Burlington.

He did not recall the day they went, but he believed they went in the afternoon. He saw

no car at the Unit, got out of the vehicle, rang the bell and there was no response. He

does not believe that Mr. Brown got out of the car.

[43] Mr. Burchell testified that on the other occasion when he went to the Unit with

Mr. Brown was on a different day. It was the same scenario. They drove by the

residence and did not see a vehicle. He got out of the vehicle and rang the bell and no

one was home. He spoke to a neighbour who was in his driveway and asked if he had

seen Dino and was told that Dino was at church. On that occasion, Mr. Burchell arrived

in the silver car and it was parked against the curb next to the residence. The

conversation with the neighbour was very brief. The neighbour asked if he wanted to

leave a message and he told the neighbour to tell Dino that he had dropped by and to get

in touch with him. Mr. Brown was still in the car and did not get out.

[44] After he and Mr. Brown parted ways that day, Mr. Brown texted him to ask if

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Dina Giammarco had contacted him and he said no. Mr. Brown also telephoned him to

ask him about Dina Giammarco and he told him that there was still no reply.

[45] The next day, September 29, 2008, he received a message from Dina

Giammarco that the package was now available. He texted Mr. Brown to pass on this

information. He drove by himself to the Unit. He let Mr. Brown know that he had left

his residence and Mr. Brown said he would come to Burlington to meet him. They had

texting exchanges while he was driving to Burlington.

[46] The day of the arrest, he was using the Burchell phone. The Operation phone

was in his residence. Mr. Burchell identified Exhibit 2 as the Burchell phone that he had

with him at the time of his arrest. He also identified as Exhibit 7 the Operation phone

given to him to use by Mr. Brown prior to the first package being delivered.

[47] When he got to the complex, he drove past the Unit. He had received a message

that the box was in a bag at the end of the driveway. He did not see it and proceeded to

leave the area. Within five minutes, an unmarked vehicle pulled him over and he was

asked to get out and told he was under arrest for conspiracy to import heroin.

[48] He was taken to the R.C .M.P. detachment in Milton and was allowed to make a

telephone call to duty counsel and then was asked to go into the interview room. Inside

the interview room, he was interviewed by Sergeant Wright and Constable Atkinson.

The interview lasted five to ten minutes.

[49] He was then taken to his cell. Sergeant Wright came to see him and sat down

and they had a conversation. Mr. Burchell testified that he was curious to know what was

going on and he was asking questions because he was not familiar with the law. He

asked about his father's car and how serious the charges were and what would happen to

him. Sergeant Wright answered his questions. He told him that it was a very serious

charge and that he could receive a lengthy prison sentence, possibly life. He told him that

if hc had anything to say, now was thc time to tell him. He testified it was a brief

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conversation, approximately 10 minutes . Sergeant Wright said that they should go back

to the interview room and they did so.

[50] When he went into the interview room for the second time, he was in the

company of Sergeant Wright and Constable Atkinson. After the interview ended, the

officers told him he would probably go before a judge the next day for bail. They also

told him that they would search his house and asked if he wanted to call his parents and

he said no.

[51] The next day he was granted bail. Subsequently he went back to theR.C.M.P.

detachment to get his personal items with his father and mother. When he got there,

Sergeant Wright and Constable Atkinson greeted him at the front and said they had more

questions. He testified that they took his father in first to speak to him and then after he

came out Mr. Burchell went inside and they asked him some questions.

[52] With respect to Exhibit 4, being a list with names and numbers seized at his

parents' home, he testified that the writing is his on both pages, except on the bottom. He

does not recall what the names and numbers signified. The reference to "Helen" was

Dino Giammarco's girlfriend, but he does not know why he wrote her name. He testified

that part of the document lists seafood orders for a store where his mother was working as

a clerk at the time.

Testimony of Matthew Burchell on Cross-Examination

[53] Mr. Burchell testified in cross-examination that the idea of the scheme was first

raised about a year prior to the second delivery. He could not recall the circumstances of

the conversation or where it took place. He testified that he contacted Dino Giammarco

one or two months after that initial conversation. He is not sure of the exact number of

months, but it was not long after the initial conversation. He agreed that a discussion

with Dino Giammarco in October or November of 2007 would accord with his

recollection. However, at the preliminary hearing he testified that he got the address for

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the Unit after the second time it was raised by Mr. Brown with him, being in early 2008.

At trial, he said he could not recall a second meeting with Mr. Brown.

[54 J He gave Mr. Brown the address for the Unit. He testified that he was told by

Mr. Brown not to use his own address. However, during the preliminary hearing he

testified that the reason he did not want the package coming to his residence was because

he did not want the responsibility for it and he did not say that Mr. Brown told him to use

another address. He testified that he only knew Dina Giammarco for a short time prior to

September 2008, but said a short time would be a year.

[55J He testified that from the time he gave Mr. Brown the address, the first shipment

was more than a few months later and that Mr. Brown never re-confinned the address

before the fust shipment.

[56J With respect to the fust package, he testified that he believes it came in early

September. He told the police during the second interview that he opened the box and it

included ripped newspaper and a fake log inside. However, at the preliminary hearing he

testified that he was never told by Mr. Brown to look inside. He testified at trial that

what he said in the police statement is correct and that he lied at the preliminary hearing.

[57J With respect to the second package, Dina Giammarco texted him on the

Operation phone to confinn that it had arrived. He then texted Mr. Brown on the same

phone to say that it had showed up. He drove by the residence and noticed that Dina

Giammarco's car was not there and that he was not responding. He texted Mr. Brown

that Dina Giammarco was not responding.

[58J He testified that he was at the Unit on Saturday September 27 by himself in his

own car. He initially told the police he was there Saturday but not Sunday. Eventually,

one of the officers told him that they had a witness who saw him there on Sunday and he

agreed that he was at the Unit on the Sunday.

[59J At trial he testified that he was at the Unit twice on Sunday September 28 and

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did not stop the first time. He said that he parted ways with Mr. Brown and kept in

contact with him through texts.

[60] On Monday September 29 he texted Mr. Brown when he received a message to

pick up the package. Mr. Brown said he would come to meet him and they kept in touch

through texts. He testified that on that day he used the Burchell phone. However, there

was no record of any texts sent or received on that phone to either the number for the

Donovan B. contact or the Bro contact.

[61] With respect to the Operation phone, he admitted that there is only one text on

September 26 from the Bro contact. The last call to the Bro contact was September 25 at

6:22 p.m. He agreed there is nothing unusual about him contacting Mr. Brown for social

reasons.

[62] After being arrested he was scared and felt pressure because he knew his parents

would be upset. He did not know the extent of trouble he was in at the time or the

potential penalty. He knew the police wanted to hear from him that other people were

involved.

[63] After the first interview, in the hallway, Officer Atkinson told him that he could

be facing life in prison. This shocked and scared him. Sergeant Wright came into the cell

and sat beside him and he felt more comfortable. He knew he was not obliged to say

anything. They talked about the consequences of the charge. He thought that in order to

avoid life in prison or a long prison term he should cooperate with the police. He testified

that he would not tell the police anything just to help himself but would tell them what he

knew. He agreed that it could be fair to say that he decided to implicate Mr. Brown to

deflect the blame from him. He also testified that before the second statement to the

police, one of the officers had let him know that it would be better for his case if he

cooperated.

[64J With respect to the second statement, he agreed that he spoke to the police

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because he was fearful of the infonnation provided by the police and he wanted to help

himself out. He told the police that he was asked to find an address within the last three

weeks for a package and that the package was ingredients to make steroids.

[65] During the time of the second statement he did not know Mr. Brown's last name.

Originally he referred to him as "D". He told the police that they had been to poker

games, gone to the casino and played basketball together, but that he did not know where

"D" lived. In fact, prior to September 2009, he had been to Mr. Brown's residence on a

couple of occasions. He knew he lived in a condo and he knew the address well enough

to drive there. Mr. Burchell admitted that he lied to the police when he said that he did

not know where he lived.

[66] In the third statement he told the police that Donovan's last name was Brown,

but he could not be a hundred per cent sure. He agreed that it is possible that he heard the

name Brown from the police prior to the third statement.

[67] At trial he testified that he has known Mr. Brown for two years and has always

known him to be bald. He has never seen him with a brush cut. He denied that he was

with another black male, not Mr. Brown at the Unit. He testified that he did not know

Donovan's last name at the time he was first interviewed. The reference to Donovan B.

in his contacts was just a random letter. His practice would be to assign a random letter

to a contact if he did not know their last name.

[68] After the second interview, he went to Maplehurst. Detention Centre. He was

scared and concerned for his liberty. At the bail hearing, Constable Atkinson was in

court. He approached Mr. Burchell, and l'vIr. Burchell told him he wanted to get his

property back, including his father's car and other items. They made arrangements to

pick up the car at the police station.

[69] He knew the police had searched his parents' residence and that they would find

ecstasy that belonged to him. He was charged with possession for the purpose of

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trafficking of the ecstasy.

[70] Initially he testified that he was not sure of the price of ecstasy, but then

admitted that it might be true that at the time of his arrest he knew the price. He testified

that he did not recall whether he was dealing ecstasy at the time and does not recall if he

was a drug dealer in 2008, although it was possible. Later he testified that it was not

possible that he was dealing drugs in 2008.

[71] He did not recall where he got the ecstasy from or where he got the money to

purchase the drug. When asked whether he had the pills in his possession for a few

months, he answered that he did not know, but at the preliminary inquiry he said that he

had the pills for at least six months.

[72] He did not recall a weigh scale being found at this home, but in the preliminary

inquiry there was reference to a weigh scale being seized. He testified that he does not

agree or disagree that he was a drug dealer and that he used the scale to weigh drugs.

[73] Mr. Burchell disagreed that Exhibit 4 was a drug debt list. He denied selling

Helen drugs. He testified that he does not recall the list and why he wrote numbers

beside the names. He neither agreed nor disagreed that it was a drug debt list, but he did

not believe it was a drug debt list. In his third statement to the police, he told the police

that the reference to five hundred dollars and Helen would be to signifY the fact that he

owed her money.

[74] At the time of the preliminary hearing, his charges were pending and he testified

to help himself. When it was suggested that he was testifYing in the present case because

he would have to remain consistent with the preliminary hearing, he agreed that the

suggestion was fair. He testified that he knew that if he said something at trial that is

inconsistent with the preliminary transcript, he could be charged for perjury and that

could impact on his parole eligibility.

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Additional Agreed Facts

[75] The following additional facts were agreed to by the parties:

(i) The number of 647-818-1 931 is a pre-paid phone subscribed to Mike

Jones of 1268 Dufferin Street Toronto. The additional contact number for

that name was 416-725-5544 and that was registered to Salman Hashmey

of 5809 Sidmouth St., Mississauga. This phone was purchased on

September 7, 2009.

(ii) During September 2008 the number 647-206-4792 was registered to

Mr. Tom Williams of 1490 Stillriver Crescent, Mississauga, Ontario, L5M

3V5.

III. Positions of the Parties

[76] The Crown concedes that there were demonstrated weaknesses in Mr. Burchell's

evidence, but submits that he was unshaken as to his identification of Mr. Brown as a

directing mind of the scheme to import the heroin. The Crown places particular reliance

on the inferences he submits should be drawn from the two seized phones, as well as the

evidence of Carlo Giammarco and argues that this evidence is independent and material.

[77] The defence submits that the Crown's case rests entirely on Mr. Burchell, who is

not credible and whose evidence is wholly unreliable. It is submitted that Mr. Burchell

had a motive to lie, that he lied to the police and that there were inconsistencies within

the statements provided to the police, and that he admitted lying under oath at the

preliminary hearing. The defence also relies upon the fact that there are no text messages

that support Mr. Burchell's evidence that he texted Mr. Brown in connection with this

offence on numerous occasions. In short, it is the position of the defence that Mr.

Burchell's evidence is incapable of supporting a conviction.

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IV. Analysis

Case Law

[78] The Supreme Court of Canada reviewed the general Vetrovec principles that

apply when dealing with an unsavoury witness in R v. Khela [2009]1 S.C.R. 104:

[2] The evidence of a single witness is nonetheless sufficient in Canada to support a conviction for any offence other than treason, perjury or procuring a feigned marriage. Many serious crimes might otherwise go unpunished. But where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute.

[3] It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find an accused guilty on the unsupported evidence of witnesses who are "unsavoury", "untrustworthy", "unreliable", or "tainted". For present purposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth - even when they have expressly undertaken by oath or affmnation to do so.

* * * [35] Speaking for himself and Justices Iacobucci and Arbour, Major J. also cited with approval (at para. 79) this passage from a commentary by Marc Rosenberg (now Rosenberg lA.) on Vetrovec and its progeny:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness's evidence. Factors might include involvement in criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness's story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown's case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At

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some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues.

("Developments in the Law of Evidence: The 1992093 Term - Applying the Rules" (1994), 5 S.CL.R. (2d) 421, at p. 463)

[36] Though he arrived at a different result, Binnie J. agreed in Brooks (at para. 130) that what matters, in determining the need for a clear. and sharp warning, is not the judge's personal opinion as to the trustworthiness of the witness, but whether there are factors which experience shows us as requiring "that the witness's story be approached with caution".

[79] The Court went on to consider the nature of confirmatory evidence:

[39] Common sense dictates that not all evidence presented at trial is capable of conftrming the testimony of an impugned witness. The attribute of independence deftnes the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. Where evidence is "tainted" by connection to the Vetrovec witness it can not serve to conftrm his or her testimony (N. Harris, "Vetrovec Cautions and Conftrmatory Evidence: A Necessarily Complex Relationship" (2005), 31 C.R. (6th) 216, at p. 225; R. v. Sanderson, 2003 MBCA 109 (CanLII), 2003 MBCA 109,180 C.C.C. (3d) 53, at para. 61).

[40] Materiality is a more difftcult concept. In Vetrovec, the CoUrt did away with the requirement that corroborating evidence implicate the accused. As Dickson J. noted, such evidence is not the only type capable of convincing a jury that a witness is telling the truth. In Kehler, the Court conflITlled that evidence, to be considered conflITllatory, does not have to implicate the accused. We maintain that position here.

[41] Individual items of confirmatory evidence need not implicate the accused. As Dickson J. explained in Vetrovec:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. [po 826]

[42] However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assetiion that the accused is the person who committed the offence. Again in Vetrovec, Dickson J. thus noted, with respect to evidence capable of being conftrmatory:

Page: 21

All of this incriminating evidence; when considered together, strongly strengthens the belief that Langvand was telling the truth regarding the participation of Vetrovec and Gaj a. It rebuts any suggestion that he is falsely implicating innocent individuals. [Emphasis added; p. 833.)

[43) This passage was cited with approval in this Court's unanimous judgment in Kehler, where the Court concluded that confi=atory evidence must be capable of restoring the trier's faith in relevant aspects of the witness' account (para. 15). As a matter of logic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness's testimony.

[80] The first question for determination is whether Mr. Burchell is an unsavoury or

unreliable witness. I have no hesitation in answering that question in the afftrmative.

Mr. Burchell's testimony is tainted by several factors that suggest that his evidence must

be approached with caution. Specifically, he was convicted of possession for the purpose

of trafftcking in connection with the very scheme in issue on this case, he has a motive to

lie, has provided differing accounts of the facts in issue and has admitted to lying under

oath. The latter three factors will be reviewed in detail below.

Motive to Lie

[81] I find that Mr. Burchell was in a position where he perceived that his cooperation

with police would assist him in reducing his potential period of incarceration. I wish to

make clear that I find no fault in the conduct of the police in conducting the interviews.

[82] I accept that his motivation to lie at trial was lessened somewhat by the fact that

he has now been convicted and is now only appealing his sentence and not the

conviction. However, it was clear to me that even at trial Mr. Burchell felt that it was in

his interest to implicate Mr. Brown.

[83J Accordingly, this is a fact that causes me to be concerned regarding the

reliability of his evidence.

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Differing Accounts

[84J The statements to the police are replete with instances where Mr. Burchell either

lied to the police or provided incomplete or inconsistent information. Highlighted below

are just some examples.

[85J Mr. Burchell admitted that he lied to the police repeatedly during the course of

the second interview when he stated that he did not know where Mr. Brown lived. This

is a lie of some significance. Mr. Burchell told the police and testified at trial that he was

not fearful of Mr. Brown. Why then, having decided to implicate Mr. Brown, would he

lie to the police about not knowing his address?

[86J Initially, during his second interview, he denied that he was at the Unit on

Sunday but did admit to being there on his own on Saturday. When the police confronted

him with the fact that they had evidence that he was there on Sunday, he admitted that he

was there that day.

[87J He told the police that he was asked to find an address within the last three

weeks for a package. However, at the preliminary hearing he testified that he got the

address for the Unit after the second time it was raised by Mr. Brown with him, being in

early 2008. At trial, but said he could not recall a second meeting with Mr. Brown and

said that he first was asked about an address about a year before.

[88J Perhaps the most incredible aspect of Mr. Burchell 's story is in regard to what he

did with the first package. Mr. Burchell told the police that he picked up the first

package and was instructed to look inside it by Mr. Brown and proceeded to do so.

However, at the preliminary inquiry, he testified that he did not look into the first

package and that he lied to the police when he told them that he had looked inside. At

trial he reverted back to his original statement to the police and testified .that when the

first package arrived, he opened it and looked inside on instructions from Mr. Brown. He

further testified that he lied at the preliminary inquiry when he was questioned on this

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subject. I note as well that at trial he testified that he texted Mr. Brown regarding this

shipment. There are no text messages to corroborate this evidence.

[89] Mr. Burchell testified that Mr. Brown had suggested that he obtain another

address other than his own for the delivery, but when he was asked about why the

package was not delivered to his own address at the preliminary hearing, he made no

mention of any instruction from Mr. Brown and testified that he did not want to take

responsibility for something being delivered to his parents' home.

[90] In short, Mr. Burchell has provided varying accounts at various times about

essential elements in his story. This has included circumstances where he has admittedly

lied under oath.

Confirmatory Evidence

[9 1] Considering the objective factors referred to by the Supreme Court of Canada in

Khela, Mr. Burchell is a wholly unreliable witness. He is obviously the critical witness in

support of the Crown's case. Consistent with the case law, it is imperative that I

determine if there is confirmatory evidence that is capable of restoring my faith in the

relevant aspects of his testimony. There are two areas of evidence that the Crown

submits are confirmatory of Mr. Burchell's testimony.

[92] The first area of evidence that is said to be confirmatory is the cell phone records

produced at trial. The Crown submits that the phone records show a 1t:vd of contact

between Mr. Brown and Mr. Burchell that is confirmatory of Mr. Burchell 's evidence

that Mr. Brown was involved in the scheme to import the heroin. I reject this argument

for the following reasons.

[93] There is no doubt that the records show a number of calls and missed calls

among Mr. Burchell as one party and either the Bro contact or the Donovan B. contact as

the other party. However, the phones are registered under different names that mayor

may not be fictitious. There is no documentary evidence that ties Mr. Brown to either

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phone.

[94] More importantly, at various points in his testimony Mr. Burchell gave evidence

regarding communicating via text with Mr. Brown. He testified that he was in text

communication with Mr. Brown on September 24, 28 and 29. However, the records

reveal that the only text message to or from Mr. Burchell from a phone allegedly

connected to Mr. Brown took place on September 26. There was no explanation given as

to why there are no records of the alleged texts.

[95] This evidence is arguably not even independent of Mr. Burchell. It is true that

the records themselves are independent, but in order for them to be considered to be

relevant we must accept Mr. Burchell's testimony that both the Donovan B. and Bro

contacts relate to Mr. Brown.

[96] The other area of evidence that the Crown submits is confirmatory of the

testimony of Mr. Burchell is the testimony of Carlo Giammarco. Specifically, the Crown

relies upon his testimony regarding the sighting of Mr. Burchell at the Unit, his

observation of a black male with Mr. Burchell and the fact that he recorded a licence

plate number that he immediately relayed to the RCMP. The police confirmed that the

car was a 2006 silver Honda. It was registered to a Maxine Brown of 6095 Duford Drive,

Mississauga. Sergeant Cobey testified that Mr. Brown was arrested at 6095 Duford

Drive in Mississauga.

[97] I accept that this evidence could be considered confirmatory. However, the

confirmatory nature of the evidence is eroded when it is recalled that the description of

the black male said to be with Mr. Burchell included a reference to the fact that he had a

brush cut. Mr. Burchell testified that he has always known Mr. Brown to be bald.

[98] I find that while some of the evidence relied upon by the Crown could be

considered marginally confmnatory in nature, it is not compelling and does not restore

my faith in any relevant aspect of Mr. Burchell's testimony.

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[99] Mr. Burchell is a mendacious and wholly umeliable witness who has admitted to

lying under oath. It would be dangerous to convict Mr. Brown on the basis of his

unconfim1ed evidence. I concluded that his evidence has not been confi=ed and that it

is unsafe and umeliable.

Trial Testimony

[100] Even if Mr. Burchell was a reliable witness, I could not convict on the basis of

his testimony at trial as I found that evidence to be incredible and unworthy of belief. On

hearing his testimony, I concluded that Mr. Burchell was prepared to lie under oath if it

suited his purposes.

[101] For example, Mr. Burchell's testimony regarding the 300 ecstasy pills seized

from his parents' home and whether he was at the time of his arrest a drug dealer was

incredible. He initially denied knowing the value of the drugs seized, but he changed his

position when he was presented with his preliminary inquiry testimony wherein he

provided a range of values for the drugs. At trial he testified that he could not recall

where he bought the pills and where he obtained the money for the purchase. At various

points he testified that he could not agree or disagree that he was a drug dealer or that he

used the scale found in his parents' home to weigh drugs.

[102] Further, Mr. Burchell's testimony that prior to the delivery of the first package

Mr. Brown never confi=ed whether the address that was given to him months earlier

was still valid for the delivery also struck me as being rather incredible and not consistent

with a shipment of a very valuable quantity of heroin.

V. Disposition

[103] The Crown's case stand or falls with the evidence of Mr. Burchell. For the

reasons sated above, it would be unsafe to base a conviction on his unconfi=ed evidence

and, in any event, I did not find him to be a credible witness. Accordingly, I am left with

reasonable doubt about Mr. Brown's involvement in the heroin importing scheme.

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Therefore, I must acquit Mr. Brown and I so order.

Released: July 4, 2012

Released: July 4. 2012

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CITATION: R. v. Brown COURT FILE NO.: 154110

DATE: 20120704

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

DONOVAN BROWN

REASONS FOR JUDGMENT

HOURIGAN J.