COURT OF APPEAL FOR ONTARIO
Weiler, Blair and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Anang
Appellant
Richard Litkowski and Nate Jackson, for the appellant
Maria Gaspar, for the respondent
Heard: September 23, 2016
On appeal from the conviction entered by Justice Brian P. O’Marra of the Superior Court of Justice on March 20, 2015, and from the sentence imposed on June 17, 2015.
ENDORSEMENT
Overview
1Mr. Anang was convicted of possession of heroin for the purpose of trafficking and sentenced to four years’ imprisonment. He appeals from that conviction. He also seeks leave to appeal and, if leave is granted, appeals from the sentence imposed.
2With respect to his conviction, the appellant submits that the trial judge erred:
(i) by concluding (based on a weak tip from a confidential informant, coupled with two otherwise non-criminalised incidents) that his arrest was lawful and, therefore, that the search incidental to arrest was also lawful and not in breach of his rights under s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms, when the evidence did not support a finding that the police had an objective basis for believing they had reasonable and probable grounds for arrest;
(ii) by failing to exclude the evidence that was seized incidental to the arrest pursuant to s. 24(2) of the Charter; and,
(iii) by applying an uneven level of scrutiny to the evidence of the Crown, in comparison to that of the appellant, and misapprehending the evidence at trial.
3With respect to sentence, the appellant submits that a sentence of four years’ imprisonment was unduly harsh in the circumstances and that the trial judge erred by:
(i) relying too heavily on the dissenting reasons of Charron J.A. in R. v. Zamani (1999), 1999 2521 (ON CA), 125 O.A.C. 358 (C.A.);
(ii) failing to explain why he determined that four years was an appropriate sentence as opposed to some lesser penitentiary period; and,
(iii) placing too much emphasis on the aggravating factors.
4We would not give effect to the foregoing submissions.
Background
5Plainclothes members of the Toronto Police Service arrested the appellant at gunpoint on November 27, 2012. At the time he was driving alone in a Ford Focus in which the police found significant amounts of cash, a black leather shoulder bag containing large amounts of heroin, various drug-related paraphernalia, and some canisters containing heroin secreted in a false bottom. There was a total of 75 grams of heroin with an estimated street value of approximately $18,000.
6The arrest occurred following an investigation that had been triggered some time before by a tip from a confidential informant who provided information to the police that possibly linked the appellant to the selling of heroin. After a search of police data banks, the police connected the appellant with an apartment on Goreway Drive in Mississauga and with two vehicles, a BMW and a grey Ford Focus.
7On November 27, the police were conducting surveillance at the Goreway Drive address when they observed the appellant driving away in the grey Ford Focus. Within a short period of time thereafter they observed two incidents that preceded the arrest.
8The first (the CIBC incident) occurred after the surveillance officers followed the appellant to a CIBC parking lot and witnessed an individual come out of the CIBC building carrying a black bag, approach the front passenger seat and re-enter the CIBC building carrying a black bag. One of the surveillance officers (but not both) observed a red object sticking out of the black bag when the individual exited the bank but did not see a red object sticking out of the bag the individual carried when he returned to the bank. The second incident (the Summerfield Crescent incident) occurred shortly thereafter when the officers followed the appellant to an address on Summerfield Crescent where another exchange occurred in the driveway at those premises. Another individual came out of the residence carrying – according to one officer – a small green object in his hand, entered the car on the passenger side and, a minute or so later, exited the passenger side and re-entered the house.
9The appellant reversed out of the driveway and drove away. His car was stopped a short distance away and he was arrested at gunpoint. The police conducted a search of the vehicle incident to the arrest and discovered, amongst other things, the items referred to above, including the heroin and cash.
10The arrest was ordered by the supervising officer, Detective Kay, who was not present during the surveillance operations but who had been receiving ongoing live reports of the observations of the various surveillance officers. Detective Kay had been a member of the Toronto Police Service for approximately 24 years and, at the time, was a detective in the Major Crime Unit. He had been a member of the drug squad for seven years and estimated that he had been involved in probably a thousand surveillance operations during that time alone.
11On the voir dire Detective Kay acknowledged that, taken in isolation, neither the CIBC incident nor the Summerfield Crescent incident, would have provided grounds for arrest, although he found the former incident “odd” and the latter consistent with a drug transaction in which the dealer was operating from a standard “territory of the drug dealer”, namely the dealer’s car. However, taking the two incidents together with the other information he had through the confidential informant and the officer who obtained the information from the confidential informant about a heroin dealer connected to the Goreway address trafficking from his vehicle, he believed he had reasonable and probable grounds for the arrest he ordered.
Discussion
Was the Arrest Unlawful?
12The appellant submits that the trial judge erred in finding that there was sufficient evidence that the arrest was objectively reasonable (he does not contest that the police had a subjective belief that they had reasonable and probable grounds for the arrest).
13The existence of reasonable and probable grounds is anchored in the factual findings of the trial judge and entitled to deference. Whether those facts amount at law to reasonable and probable grounds is a question of law and reviewable on a correctness standard: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.
14The trial judge accurately summarized the law relating to the arrest of a person without a warrant in accordance with s. 495(1)(a) of the Criminal Code. He was alive to the requirement that an arresting officer must not only subjectively believe that he or she has reasonable and probable grounds for the arrest, but that those grounds must also be justified on an objective basis, as seen from the perspective of a reasonable person standing in the shoes of a police officer with comparable experience to that of the arresting officer. See R. v. Storrey, [1990] 1 S.C.R. 241, at p. 249-50; R. v. Tran, 2007 BCCA 491, 247 B.C.A.C. 109, at para. 12. He also recognized that police officers may form the grounds for arrest based on information received from other sources, and, importantly, that in assessing the objective grounds for the arrest, the court must take into account the totality of the circumstances relied upon by the arresting officer. See R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Lawes, 2007 ONCA 10, at para. 4.
15In assessing the totality of the circumstances that Detective Kay – an officer whose prior investigations had involved over a thousand drug surveillance operations, including the surveillance of drug dealing from a car rather than a specific premise – had formed his grounds for arrest based on, the trial judge noted (reasons, para. 35):
The arrest in this case was based on the following information received by Sergeant Kay:
Unspecific information received indirectly from a confidential source that the applicant was possibly trafficking in heroin from a car. The respondent conceded that this information is close to the level of an anonymous tip.
The activity observed in the C.I.B.C. parking lot. The applicant remained in his car while another man, carrying a black bag, exited the bank and approached the passenger side of the car. Surveillance officers saw the man place the bag inside the applicant’s car and very shortly thereafter walk away from the car with a black bag. Sergeant Kay viewed this as an “odd” incident but not grounds to arrest the applicant.
The second incident shortly thereafter at the residence on Summerfield Crescent. The applicant parked his vehicle in the driveway. A man came out of the house with something small and green in his hand. He entered the car by the front passenger door. One or two minutes later, the man exited the car and walked back to the house.
16After reviewing all of this evidence, the trial judge found that, having regard to “[t]he totality of circumstances”, there were objective grounds to believe that the applicant was involved in a drug transaction.
17In submitting that the trial judge had erred in coming to this conclusion, Mr. Litkowski focused his careful submissions on the weaknesses relating to the information obtained by the police from the confidential informant. He argued that the tip was a pivotal part of the police officer’s decision to arrest and that the trial judge erred in failing to address the questions that need to be considered in weighing such evidence, namely (i) whether the information received was compelling; (ii) whether the source was credible; and (iii) whether the information was corroborated in other respects by the police: Debot, at p. 1168 and 1172. He submits that there was little, if any, evidence to respond to these issues. The tip itself was lacking in detail. The tipster was untested and unproven. The information emanating from him or her was not reliable or compelling. For that reason, Mr. Litkowski argues, the trial judge had an obligation to assess the evidence surrounding the CIBC and Summerfield Crescent incidents with enhanced scrutiny – seeking “robust corroboration” – which he failed to do.
18We would not give effect to this ground of appeal.
19The Crown conceded, and the trial judge proceeded on the basis that the information emanating from the confidential informant was weak and that the “tip” was more or less equivalent to an anonymous tip. It was accepted, therefore, that the tip did not provide a compelling source of information.
20That said, we accept the Crown’s submission that, although the confidential source information was not compelling or credible enough on its own to justify an arrest, it was sufficiently persuasive to warrant further investigation. Taken with the information then obtained by the police tying the appellant to the Goreway address and the grey Ford Focus he was driving, it provided at least an initial tableau of information against which the surveillance officer’s observations of the CIBC incident and the Summerfield Crescent incident could be assessed, based on the arresting officer’s experience.
21Mr. Litkowski drew our attention particularly to R. v. Dezainde, 2014 ONSC 1420, a decision of the Superior Court that is the source (at para. 143) of his “robust corroboration” submission. That case involved a similar “bare-bones” tip that the accused was trafficking in heroin from his vehicle together with surveillance information over two days involving the observations of about eight brief encounters similar to those in the present case. The trial judge in Dezainde concluded that the sheer number of incidents formed a pattern of conduct that in its totality provided an objective basis for the arrest. He commented, however, that if there had only been the tip and one stop or even two stops, reasonable grounds would not have existed (para. 144). Mr. Litkowski argues that Dezainde demonstrates the kind of case – whereas the case at bar does not – where the surveillance information “[bridged] the gap between a mere hunch or suspicion, and reasonable grounds to believe that the Appellant was trafficking in heroin” (FAP, para 43).
22Each case falls to be determined on its own facts, however. In our view, determining whether there were objective grounds for an arrest is not a mathematical exercise involving the counting of the number of surveillance incidents (although more presumably makes the case stronger). Rather it is the nature of the information derived from the surveillance, taken in the context of the totality of the circumstances and weighed through the perspective of the experience of the arresting officer that informs the decision. The trial judge in Dezainde himself noted that “at some point (and I need not determine where) in the eight stops found in the truncated summary, any thought of innocent coincidence disappears. A pattern of conduct emerges.” (para. 144).
23The fact that the trial judge here made a similar finding based on a smaller number of surveillance incidents is not fatal to his determination that, on the totality of the circumstances, objective grounds for the appellant’s arrest existed. In our view, the record supports his determination and we see no error in his finding that Detective Kay had an objective basis, having regard to the totality of the circumstances, sufficient to ground the arrest.
Section 24(2)
24In any event, even if the trial judge did err and the arrest was unlawful because it violated the appellant’s Charter rights, we would not interfere with the trial judge’s finding that the evidence seized as a result of the search incidental to the arrest should not be excluded pursuant to s. 24(2) of the Charter.
25A trial judge’s decision whether to exclude or not to exclude evidence obtained as a result of a Charter breach is discretionary and entitled to considerable deference: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86.
26Here, the trial judge properly approached his assessment of the evidence in accordance with the instructions of the Supreme Court of Canada in Grant, at para. 71. A court is to assess and balance the effect of admitting the evidence on society’s confidence in the administration of justice having regard to (i) the seriousness of the Charter breach, (ii) the impact of the breach on the appellant’s Charter-protected interests, and (iii) society’s interest in the adjudication of criminal charges on their merits. As the Supreme Court concluded, “[t]he court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.”
27That is precisely the exercise the trial judge conducted.
28With respect to the first inquiry, he found that the police had acted on the basis of an honest belief and that their conduct could not be characterized as either deliberate or egregious even if it had violated the appellant’s s. 8 Charter rights. Admitting the evidence would not undermine public confidence in the administration of justice. This factor favoured admission.
29The impact of the breach, if there were one, was serious however. The appellant had been arrested at gunpoint in public. The second inquiry favoured exclusion.
30In examining the third factor – society’s interest in an adjudication on the merits – the trial judge concluded that the evidence (the heroin and cash seized in the vehicle) was both reliable and essential to the Crown’s case. In view of these considerations and the seriousness of the crime, there was a significant interest in an adjudication on the merits. The third factor favoured admission.
31Having conducted these inquiries, the trial judge then conducted the required balancing exercise and concluded, after weighing all factors, that the admission of the evidence would not, on balance, bring the administration of justice into disrepute. He ruled it admissible.
32The appellant raises a number of arguments against this finding. Mr. Litkowski argues that the violation was serious given the frailties of the tip and the tipster, and that courts must be careful not to associate themselves with police conduct that is the result of negligence, recklessness, wilful blindness or bad faith. He highlights the trial judge’s finding that the breach had a serious impact on his Charter rights, and argues that the trial judge placed a disproportionate emphasis on the importance of the evidence and the seriousness of the crime without giving sufficient consideration to the public’s interest in a system of justice that is “beyond reproach”.
33Essentially the appellant’s submissions on this issue invite us to re-weigh and re-assess the factors playing into the Grant inquiry in a manner that supports his view of the evidence. He raises arguments that no doubt were raised before the trial judge and which could, perhaps, have been accepted by him. But the trial judge came to another conclusion based on his assessment of the Grant factors and after having conducted the very type of balancing exercise mandated in Grant. We see no error in law or principle in his determination that the evidence should not be excluded under s. 24(2), nor do we see any palpable and overriding error of fact.
34Accordingly, even if the police had lacked an objective basis for arresting the appellant and the arrest was therefore unlawful, we would not interfere with the trial judge’s conclusion that the evidence seized should not be excluded.
The Trial Proper
35The appellant makes two submissions regarding the trial judge’s reasons on conviction. He says, first, that there was “a significant disparity in the level of scrutiny applied [by the trial judge] to defence and Crown evidence”. Secondly, he argues that the trial judge misapprehended his evidence with respect to the location of the black bag containing the heroin in his vehicle when he first became aware of the bag.
36We would not give effect to either of these submissions.
37There is no basis for concluding that the trial judge engaged in an uneven scrutiny of the evidence. He carefully considered the evidence of the appellant as he was required to do, and demonstrated in his equally careful review of the Crown’s case that he was alive to any inconsistencies in the police evidence (particularly the difference in the officers’ recollections with respect to the “red object” seen in the black bag in the hands of the individual exiting the CIBC branch and the fact that only one of the surveillance officers reported seeing the “green object” in the hand of the individual involved in the Summerfield Crescent incident).
38As Doherty J.A. observed in R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, the argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the Crown “is a difficult argument to make successfully”:
To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the [Crown witnesses].
39There is nothing in the trial judge’s approach to his assessment of the evidence here that would meet that high threshold for reversible error.
40Nor are we persuaded that the trial judge misapprehended the evidence regarding the location of the black bag in the vehicle when the appellant found it, or that, if the trial judge did, it would have made any material difference in his assessment of the appellant’s evidence.
41In his evidence in chief, the appellant said that the bag was located on the floor in the back seat of the car when he first found it. In cross-examination, he suggested that the bag was on the back seat. The trial judge said that he did not accept the appellant’s evidence that the bag was on the floor of the car when he drove away on the morning of the arrest. The trial judge found, based on the evidence of the officers, that it was sitting, open, on the front seat when he was stopped and arrested by the police.
42To the extent that the trial judge may have been mistaken about the appellant’s evidence regarding the initial location of the bag, however, we are satisfied that any such mistake was not material to his ultimate finding that the appellant had knowledge of the drugs contained in the bag because the bag was found, opened, beside him on the front passenger seat. The trial judge’s ultimate reasoning for his finding was that it was unlikely someone else with knowledge of the valuable contents of the bag would have left it lying around, open in the back seat area of the car. This was an inference he was entitled to draw.
Sentence
43In arguing that the appellant’s sentence of four years’ imprisonment is overly harsh, Mr. Jackson makes three points in particular. First, he submits that the trial judge erred by relying solely on the dissenting reasons of Charron J.A. in Zamani, whereas the majority in that case upheld a reformatory sentence of two years less a day in circumstances similar to the present case. Secondly, although he concedes that a four year sentence is not outside the applicable range, he argues that it was incumbent on the trial judge to explain why he chose a sentence of four years as opposed, say, to one of two years, and that he failed to do so. Finally, he contends that the trial judge overly emphasized the aggravating factors in the circumstances without sufficient regard to the mitigating factors operating in the appellant’s favour.
44We are not persuaded there is any basis for interfering with the sentence imposed. A trial judge’s sentencing decision reflects a distinctly individualized exercise and is subject to a highly deferential standard on review. “[A]bsent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors” an appellate court will not intervene unless the sentence is demonstrably unfit or clearly unreasonable: R. v. L.M., 2008 SCC 31, [2008] S.C.R. 163, at para. 14; R v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. In our view, the trial judge made none of the proscribed errors and the sentence is neither demonstrably unfit nor clearly wrong. Indeed, it is well within the range.
45It is the case that the trial judge placed some emphasis on the four year sentence that Charron J.A. would have imposed in dissent in Zamani whereas, on the particular facts of that case, the majority refused to interfere with a sentence of two years less a day. However, the majority in Zamani was quite clear in stating its view that the offence of trafficking in heroin “almost always attracts a significant jail term and usually calls for a penitentiary term” and that it would have been open to the judge to impose a sentence of three or four years on the facts.
46Nor do we accept that a trial judge is required to give a detailed explanation of why he or she arrived at one number (say, 3 ½ years), as opposed to another (say, 2 or 2 ½ years), apart from justifying why the sentence is fit in the circumstances of the case, having regard to all the principles of sentencing.
47Finally, the appellant submitted that the trial judge over-emphasized the aggravating factors in the case – particularly the quantity and value of the heroin – in determining the sentence. We disagree. The trial judge carefully outlined both the mitigating and aggravating factors and balanced them in arriving at his conclusion that four years’ imprisonment was an appropriate sentence. He did not err in this regard.
Disposition
48For the reasons above, we dismiss the appeal as to conviction. Leave to appeal sentence is granted, but the sentence appeal is dismissed as well.
“K.M. Weiler J.A.”
“R.A. Blair J.A.”
“K. van Rensburg J.A.”
