June 7, 2021 By Mike Novakowski
The Ontario Court of Appeal has excluded crucial evidence after police destroyed other evidence they felt was not significant to their case. In R. v. Hillier, 2021 ONCA 180, a uniformed officer approached the accused, Richard Hillier, who was walking on the street, to arrest him on a warrant for driving under suspension. Hillier ran so the officer gave chase and grounded him a pool of water. After a struggle, Hillier was cuffed behind his back and sat upright. He was sopping wet. He said he had something in his sock, which turned out to be a prescription pill bottle containing mixed drugs.
Soon, other officers arrived on scene to assist and Hillier was searched. Police found cell phones, lighters and cash on his person. His shoulder bag contained multiple non-functional cell phones and cigarette packs, but no drugs. After complaining of shoulder pain, Hillier was double-cuffed to take pressure off his shoulder. He was placed in the back of the police car and driven to the police station. At the station, police noticed a bulge in Hillier’s mouth. It turned out to be a larger than golf ball-sized mass of mixed drugs, wrapped in plastic and weighing 28 grams. The back seat of the police car was also searched. A wet, black pouch (containing more drugs and baggies) was found in the rear seat area at the footwell. No photos were taken before the items were seized from the police car.
The drugs were turned over to an exhibit officer, who decided to destroy some of the seized items he felt were biohazardous and not significant. This included the pouch, which had coins inside it, all of the drug packaging material and a vial of suspected cannabis oil. None of these items were tested for fingerprints, nor were photos taken before the items were destroyed.
At his trial in the Ontario Court of Justice on numerous drug offences and breach of probation charges, the two transport officers gave differing evidence about their inspection of the police car before starting their shift. One said both officers inspected the car including its footwell without the aid of a flashlight. This officer also said he examined the footwell just before Hillier entered. The other officer said his practice was to crouch down to check the footwell with a flashlight as part of his daily inspection and that he always looked inside before a person gets in but made no note of doing such a check that day. Both testified that Hillier was the first person in their police car that day. The exhibit officer acknowledged in hindsight that the evidence he destroyed ought to have been retained.
Hillier testified in his own defence. He said he was an addict and admitted havingdrugs in his sock. He also said he was leaning forward in the police car to relieve the pressure on his injured shoulder when he found a bag in a puddle of water at his feet. Curious, he picked it up, unzipped it and a white ball wrapped in white plastic fell out along with other items. In an effort to avoid being caught with it, he said he then attempted to hide it by putting the ball in his mouth.
Hillier sought a stay of proceedings on the basis that his rights under ss. 7 and 11(d) of the Charter were breached because the destroyed evidence was relevant and highly probative. In his view, its loss prejudiced his right to make full answer and defence and impaired his right to a fair trial. In the alternative to a stay, he sought the exclusion of the evidence found in the cruiser. The trial judge rejected Hillier’s submission and convicted him of five counts of possessing drugs for the purpose of trafficking (PPT) and two counts of breach of probation. He was sentenced to eight years in prison.
On appeal, Ontario’s top court concluded that the police failed in their obligation to preserve the evidence. Its destruction, resulted from unacceptable negligence and impairing Hillier’s right to make full answer and defence as protected by ss. 7 and 11(d).
“In this case, the police did not take reasonable steps to preserve the evidence,” said Justice Nordheimer. “To the contrary, the police purposely destroyed the evidence and did so without taking any photographs of it. The officer who destroyed the evidence said that he did so because [he] ‘just didn’t see the significance in keeping them’. But the officer then fairly added, ‘If I could do it again, I would have kept the brown purse’.”
Nordheimer continued, “The fact that the officer considered the items to be a biohazard did not justify their destruction. The police routinely handle all sorts of items that could be considered biohazards, but that fact does not justify their destruction. Drugs themselves are biohazards, but they must be retained in order to prove the offences charged. Indeed, the officer acknowledged that these items could have been saved until the court proceedings concluded.”
In this case, the trial judge did not properly analyze the significance of the items that were destroyed. All three officers provided different descriptions of the pouch, which was the apparent source of the drugs in Hillier’s mouth (and the other items found in the back of the police car). Hillier had also been thoroughly searched at the scene before being placed in the car and was handcuffed to the rear.
“In these circumstances, it is problematic how an item, like this fabric pouch, could have been on the [accused’s] person and yet not be found in the course of the search of the [accused],” said Justice Nordheimer. “It is hard to see how an item, described by at least one of the officers as being like a ‘fanny pack’, could have been missed in such a search, especially when one considers what the [accused] was wearing at the time: fitted jeans, a skin-tight shirt, a loose-fitting button-up shirt over top and a small nylon jacket. It is also difficult to understand how the [accused] could have retrieved this item from where it was apparently so well-hidden on his person, given he was handcuffed to the rear throughout his time in the cruiser…If the physical size of the pouch would lead to a conclusion that it could not realistically have been missed in a search of the [accused] person, then that fact would have to pose a serious question whether the pouch was actually in the possession of the [accused]. It could certainly raise a reasonable doubt regarding that fact.”
Had the judge been able to see the pouch, it would have assisted in him determining the likelihood that it could have been hidden on Hillier, which would have then assisted in evaluating what happened.
As a remedy, the Court of Appeal excluded the evidence found in the cruiser, including the ball of drugs from Hillier’s mouth, under s. 24(2) of the Charter. The convictions related to this evidence were set aside and acquittals were entered. The PPT conviction related to the drugs found on Hillier at the time of his arrest was substituted with a simple possession conviction and he was to be sentenced on this conviction. The breaches of probation convictions were upheld.
Mike Novakowski is Blue Line’s case law columnist.
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