Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231027 DOCKET: C69789

Doherty, van Rensburg and Harvison Young JJ.A.

BETWEEN

His Majesty the King Respondent

and

John Seamus Fyfe Appellant

Counsel: Michael Lacy, for the appellant Kerry Benzakein, for the respondent

Heard: April 6, 2023

On appeal from the conviction entered on August 20, 2021, and the sentence imposed on August 31, 2021, by Justice Ronald A. Minard of the Ontario Court of Justice.

van Rensburg J.A.:

A. OVERVIEW

1The appellant was convicted after trial by judge alone of five counts of possession of a controlled substance for the purpose of trafficking, one count of possession of a controlled substance, and two counts of breach of a probation order. He was sentenced to a total of 49 months in prison, less pre-sentence credit of 20 months. He appeals his convictions and seeks to appeal his sentence.

2As his first ground of appeal, the appellant asserts that the trial judge erred by dismissing his pre-trial Charter application and refusing to exclude from evidence at trial the drugs, drug paraphernalia and money that were seized when he was searched on arrest. The appellant’s success on this ground of appeal would affect all of the convictions. As his second ground of appeal, the appellant contends that the trial judge erred in concluding that seized packages containing fentanyl and a fentanyl/cocaine mixture were for the purpose of trafficking. This ground of appeal affects two convictions. If the appellant is successful on this ground of appeal, but not the first, and the remedy would otherwise be a new trial order, the Crown agrees to substitute convictions for simple possession for these convictions and would agree to a reduction in the appellant’s sentence. If the appellant is unsuccessful in his conviction appeal, he seeks to appeal his sentence, requesting a residual sentence of less than two years’ imprisonment.

3For the reasons that follow, I would dismiss the conviction appeal, and while I would grant leave to appeal sentence, I would dismiss the sentence appeal.

4At the hearing of the appeal the panel called on the Crown to address only the first ground of appeal. Although these reasons will focus on that ground, I will briefly address the other grounds of appeal.

B. BACKGROUND FACTS

5The appellant was arrested on October 16, 2018, after a four-month investigation by the Sault Ste. Marie Police. The police had received information about the appellant’s drug trafficking activities from seven confidential informants (“CIs”) who were involved in the city’s drug subculture.

6The CIs’ information was to the effect that the appellant, known to the CIs as Seamus Fyfe, lived at 11 Terrance Avenue (“11 Terrance”) in apartment 1, and was trafficking drugs. The CIs referred variously to his trafficking in cocaine, crystal meth, fentanyl, and heroin. Four CIs had personally purchased drugs from the appellant. Five reported that the appellant carried drugs with him in a bag. CIs indicated that the appellant was selling drugs at his apartment, and that he drove around in his car or a rental vehicle dealing drugs. Some of the CIs identified people the appellant was associated with, including his live-in girlfriend Shayna Nadjiwon, his suppliers of crystal meth and fentanyl, and certain customers. The CIs also provided information about other people who lived at 11 Terrance and were associated with the appellant, including Lisa Dumoulin and Greg Bonnell. The CI information covered a time frame from July 2018 to within 48 hours of the appellant’s arrest and much, but not all, of the CI information was based on direct knowledge.

7Through their inquiries, the officers were able to confirm some of the CI information, including the appellant’s identity and appearance, that he lived at apartment 1, 11 Terrance, the vehicles that were registered to his name, and that he had been observed in a rental vehicle and that a rental truck had been parked at his building. On October 15 and 16, 2018 the police conducted surveillance at 11 Terrance with a view to further corroborating the CI information they had received.

8On October 15, D.C. Roach began drafting an information to obtain (“ITO”) a search warrant for the appellant’s apartment. She completed the work the following afternoon and the search warrant was issued that day. Although the appellant’s apartment was subsequently searched, the Crown ultimately withdrew the counts on the information relating to drugs and other items seized during that search.

9While they waited for the search warrant, the police continued surveillance at 11 Terrance. At approximately 2 p.m. on October 16, the officers saw the appellant come out of 11 Terrance, put a black duffel bag in the trunk of a vehicle and drive off. The vehicle was stopped, and the appellant was arrested.

10In a search of the appellant and the bag from the trunk of the vehicle, the police found approximately 80 grams of cocaine powder, 60.5 grams of crystal methamphetamine, 12 grams of fentanyl, and 16 grams of oxycodone (41 tablets), along with over $3,000 in cash and items consistent with possession for the purpose of trafficking, including plastic baggies, multiple scales, a calculator and what appeared to be a debt list.

11The appellant was charged with numerous offences. He elected trial by judge alone in the Ontario Court of Justice.

C. THE CHARTER APPLICATION

12The appellant brought a pre-trial application alleging that his warrantless arrest and the subsequent search of his person and vehicle violated his ss. 8 and 9 Charter rights and seeking to exclude the drugs and other items from the evidence at trial, pursuant to s. 24(2).

13The evidence on the blended voir dire consisted of the ITO, which had been heavily redacted by the Crown to remove information that might identify the CIs, two judicial summaries of the redactions prepared at the request of the defence, and the testimony of five officers: Sgt. Crema (who was assigned to monitor the investigation and arrested the appellant), D.C. Roach (who was the handler of five of the CIs, the affiant of the ITO and participated in surveillance), P.C. Boyle (the handler of two of the CIs, who helped to prepare the ITO, participated in surveillance and conducted the seizure on the appellant’s arrest), P.C. O’Dell (who was part of the surveillance team on October 15 and 16), and P.C. Rosso (who participated in surveillance from a live feed of a surveillance camera on October 16).

14The appellant argued that he was arrested without reasonable and probable grounds while the police were waiting for a search warrant to be issued. He asserted that the decision to arrest him had been made prematurely and without objectively reasonable grounds. He submitted that the police surveillance did not confirm the CI information, and because the surveillance did not observe the appellant engaging in drug trafficking and suggested that there were others engaged in drug activities associated with 11 Terrance, the grounds for arrest were not objectively reasonable.

15The trial judge dismissed the application, with lengthy and thorough written reasons. Aspects of the trial judge’s reasons will be addressed in more detail in the analysis of the issues on appeal. It is sufficient at this stage to provide only a summary of the main points of the trial judge’s decision.

16With respect to the officers’ subjective grounds for arrest, the trial judge accepted the evidence of D.C. Roach about when and on what basis the decision to arrest the appellant was made. During the police surveillance on October 16 at approximately 11:46 a.m., the appellant was seen entering 11 Terrance carrying a black duffle bag that appeared heavy. D.C. Roach, Sgt. Crema and P.C. Boyle discussed this observation in connection with the surveillance of October 15 and the CI information. They believed that the appellant had controlled substances in the duffel bag, and accordingly they decided to arrest the appellant if he left the residence with a black duffel bag.

17Next, the trial judge identified the “crux of the matter” as whether the police had reasonable and probable grounds to believe that the appellant had possession of illicit controlled substances in the black duffle bag that he put in the trunk of the vehicle.

18The trial judge concluded that there were such grounds. First, he referred to “general factors”, explaining how the CI information in the redacted ITO as supplemented in the judicial summaries clearly established reasonable grounds to conclude the appellant was deeply involved at a substantial level in the illicit drug trade. He noted the considerable information in the ITO about 11 Terrance, the fact the appellant lived there, the location of other apartments in the building and who resided in them, as well as the use of the northwest door of the building to access the appellant’s apartment. The trial judge observed that, as set out in the redacted ITO, much of this information was confirmed through police observations or from police inquiries.

19Second, the trial judge turned to the evidence that informed the officers’ subjective belief that if the appellant left 11 Terrance in a vehicle after putting a bag in the vehicle, they would have reasonable and probable grounds to believe there were illicit drugs and related items in the bag. He referred to the police surveillance on October 15 – where the appellant was seen putting a silver case and black computer style bag in the rear of a Nissan Juke motor vehicle and then entering the vehicle that was driven by Lisa Dumoulin, and Ms. Dumoulin was observed later returning to the building alone in the Juke. He also referred to the surveillance of October 16 where the appellant arrived in a grey Pontiac, removed a black duffel bag and was seen carrying the bag in a manner suggesting there was some weight to its contents, and later left 11 Terrance carrying a black duffle bag and what appeared to be a white gift bag. The trial judge noted that the officers relied on these observations together with their extensive review of the CI information, and he reviewed the information from five CIs with respect to the appellant’s use of various bags in effecting drug transactions.

20The trial judge noted that the police surveillance of October 15 and 16 was also probative of the evidence of the appellant using various types of bags in the course of his drug dealing. While different types of bags or cases were described by the CIs, this evidence was probative of the appellant’s modus operandi in trafficking drugs, using different types of bags to secure the drugs and related paraphernalia.

21The trial judge rejected the defence submission that the surveillance on October 15 was a “bust” because the police did not observe the appellant engaged in active trafficking. He listed what he described as “objectively probative evidence” from the surveillance that day: observations that confirmed where the appellant and Ms. Dumoulin lived, their vehicles, and Ms. Dumoulin’s implication in the drug activity; Mr. Bonnell engaging in activity consistent with moving out, which confirmed CI information he had received an eviction notice; and Ms. Nadjiwon and Mr. Bonnell seen leaving and returning to the building through the northwest door. There were also observations of other people entering and exiting through the northwest door after remaining inside for a relatively brief time, that was conceded by the defence to be consistent with drug activity. According to the trial judge, these observations suggested that there was a relationship of some substance between each of Ms. Dumoulin, Ms. Nadjiwon, Mr. Bonnell and the appellant, consistent with the appellant having others selling for him, and providing drugs to them.

22The trial judge considered that the cumulative weight of all the information and observations the police officers had and on which they relied, inevitably led to the conclusion that they had reasonable and probable grounds for the arrest.

23The trial judge went on to conduct a s. 24(2) analysis, concluding that, even if he were wrong in finding there was no Charter breach, he would not have excluded the evidence.

D. THE TRIAL

24Following the ruling on the Charter application, the appellant admitted that the evidence established his guilt on counts 10, 11, 13, 15, 16 and 17 of the indictment: the charges of possession of cocaine, methamphetamine, and oxycodone for the purpose of trafficking, possession of oxycodone, as well as two counts of violating a court order. He disputed his guilt on counts 12 and 14. Count 12 related to 11.68 grams of powder seized from the main compartment of the black duffel bag, which tested as fentanyl, while count 14 related to a small baggie containing 0.6 grams of a fentanyl and cocaine mixture which was seized from another bag inside the black duffel bag. The trial continued on the issue of whether the Crown had proven possession for the purpose of trafficking in relation to counts 12 and 14.

25In his brief reasons for judgment, the trial judge stated (incorrectly) that the defence had conceded the appellant’s guilt on count 14, and he went on to determine whether the Crown established that the appellant, while possessing the fentanyl, did so for the purpose of trafficking in it.

26The Crown relied on the expert evidence of D.S. Miller, who testified about how fentanyl is typically sold and its pricing, the quantities typically purchased by street users, and in particular that an average repeat fentanyl user would commonly ingest three to four doses a day. He was of the opinion, after examining the recovered contraband and the circumstances of the recovery, that the appellant possessed the fentanyl for the purpose of trafficking. The trial judge set out a number of factors identified by D.S. Miller, including the quantity of fentanyl, how it was packaged and where it was located, and the seizure of numerous small plastic baggies, digital scales and a digital calculator, weights, purported debt lists, bundles of cash, a flick knife and bear mace spray. The trial judge stated that the constellation of circumstances outlined in D.S. Miller’s evidence presented a compelling case that the appellant possessed the drug contraband, including the fentanyl, for the purpose of trafficking.

27The trial judge addressed the defence argument that the fentanyl was for personal use by the appellant who was an addict. In this regard the trial judge noted the expert evidence that it would be “extremely rare” for a fentanyl user to have such a quantity on them for personal use, and that there was no evidence that the appellant was a drug addict, let alone a fentanyl addict.

28The trial judge concluded that the case against the appellant on the possession for the purpose of trafficking in fentanyl as well as the other drugs at issue was simply overwhelming.

E. THE CONVICTION APPEAL

Reasonable and Probable Grounds for Arrest: Alleged Errors in the Charter Decision

29The appellant challenges the trial judge’s finding that his arrest was objectively reasonable.

30First, the appellant contends that the trial judge erred in relying on the evidence of the police surveillance on October 15 as supporting the objective reasonableness of his arrest in the face of the officers’ evidence that the surveillance did not in fact corroborate their grounds for arrest. The appellant also asserts that the surveillance evidence was not in any event confirmatory of the critical information provided by the CIs, that the appellant was the person who was trafficking drugs from 11 Terrance.

31Second, the appellant submits that the trial judge erred in failing to assess the officers’ evidence that, in forming their subjective grounds for arrest, they relied on information from the CIs that could not be publicly disclosed.

32I will deal with each argument in turn.

I. Did the trial judge err in relying on the October 15 surveillance as supporting the objective reasonableness of the appellant’s arrest?

33The appellant submits that the trial judge erred in concluding the officers’ grounds for arrest were objectively reasonable based in part on the results of the October 15 surveillance because the officers confirmed that the surveillance that day did not in fact corroborate the information of the CIs. He points to the officers’ evidence that they did not observe the appellant engaged in any drug trafficking activity and the evidence of one officer that the surveillance that day was “a bit of a bust”. In these circumstances, according to the appellant, it was wrong for the trial judge, at para. 101 of his reasons, to conclude that the October 15 surveillance provided objectively probative evidence that he then relied on in support of the conclusion that the grounds for arrest were objectively reasonable. The appellant submits that the trial judge erred when he looked at reasonable and probable grounds as a “free-standing inquiry divorced from the grounds relied upon by the officers”, and that, as a matter of law, the grounds for arrest that must be objectively reasonable are the grounds as articulated by the arresting officers.

34The Crown submits that, contrary to the appellant’s assertion, the officers did not testify that the October 15 surveillance was irrelevant to their grounds to arrest, or that the goal of the surveillance was to confirm the appellant’s drug trafficking out of 11 Terrance. The evidence was that the officers, relying on the CI information and observations on both October 15 and 16, decided, after they saw the appellant entering 11 Terrance with what appeared to be a weighted bag, that they believed he was carrying drugs and that they would arrest him if he left carrying a bag. The “throughline”, according to the Crown, was the information about the appellant’s use of bags to transport drugs for sale. The Crown contends that, in any event, the assessment of the objective reasonableness of an arrest is based on a review of all of the circumstances, and not just an officer’s articulated reasons for arrest.

35As I will explain, I agree with the Crown’s position on this ground of appeal. First, the appellant’s contention that the October 15 surveillance was not relied on as part of the grounds for arrest is at odds with the officers’ evidence, and the trial judge’s findings of fact. Second, the suggestion that, as a matter of law, the court is required to assess the objective reasonableness of grounds for arrest based only on the specific grounds as articulated by the officers is inconsistent with the relevant authorities from this court and the Supreme Court of Canada about the assessment of the objective reasonableness of grounds for arrest.

(i) The evidence and the trial judge’s findings do not support the appellant’s argument about the grounds relied on by the arresting officers

36The appellant contends that the arresting officers disclaimed reliance on the October 15 surveillance. He points to the fact that officers were asked, and confirmed, that they did not observe the appellant engaged in any activities consistent with drug trafficking during their surveillance of 11 Terrance, and that P.C. O’Dell acknowledged that the surveillance was a “bit of a bust”. The appellant contends that in light of this evidence, the trial judge was wrong, at para. 101 of his reasons, to conclude that the October 15 surveillance provided “objectively probative evidence”, that he then relied on in support of his conclusion that the grounds for arrest were objectively reasonable.

37I disagree with the contention that the officers disclaimed reliance on the October 15 surveillance, and that, accordingly, such surveillance did not inform their decision to arrest the appellant. All of the officers involved in the arrest decision were asked to explain their grounds for the appellant’s arrest in their testimony at the voir dire. Each testified that, based on the corroborated information from the CIs and the surveillance of both October 15 and 16, they believed that the appellant had drugs with him in the bag he was carrying when he was arrested. The witnesses testified that what they saw was confirmatory of the CI information. Contrary to the appellant’s submission, they did not disclaim reliance on any specific part of the October 15 surveillance, including the observations of drug trafficking activities when the appellant was absent.

38The appellant is correct to point out that the surveillance on October 15 (and indeed on October 16) did not observe the appellant engaged in any active drug trafficking. This was acknowledged by P.C. Boyle and D.C. Roach under cross-examination, and it was in this context that P.C. O’Dell, who testified that he was watching for evidence of the appellant dealing drugs, agreed with the suggestion that the surveillance on October 15 was “a bit of a bust”. The goal of the surveillance however was, according to the officers, to corroborate information provided by the CIs.

39The thrust of the officers’ testimony was that the decision to arrest the appellant was based on the CI information and the surveillance from both October 15 and 16. The CI information was of course critical to the investigation, and the extent to which it could be confirmed was important in assessing its reliability. The surveillance of October 15 was helpful in confirming much of the CI information. This was the focus of the trial judge’s comments at para. 101 of his reasons where he explained why he rejected the defence submission that the surveillance information of October 15 was a “bust”.

40The evidence that was accepted by the trial judge was that the officers did in fact consider the October 15 surveillance in arriving at their decision on October 16 to make the arrest. As noted earlier, he reviewed the evidence, noting that there were inconsistencies between the accounts, and he accepted the evidence of D.C. Roach, who had made detailed notes. After the appellant was seen at 11:46 a.m. arriving at 11 Terrance, removing a bag that appeared heavy from the trunk of his vehicle and carrying it into the residence, the officers discussed this observation in connection with the observations of October 15 and the CI information. They believed that the appellant had controlled substances in the duffel bag, and accordingly made the decision to arrest the appellant if he left the residence with a black duffel bag. It was at this stage that the grounds “crystallized”.

41Although the ultimate question as to whether there are reasonable grounds to arrest involves the application of a legal standard to a set of facts, reviewable on a standard of correctness, the trial judge's factual findings are owed deference: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. In this case the trial judge accepted the evidence that the October 15 surveillance played a role in the officers’ decision to arrest the appellant. The evidence fully supports this conclusion.

42The appellant’s next argument is that the October 15 surveillance was not capable of supporting the objective reasonableness of his arrest because it showed other people, and not the appellant, engaged in drug trafficking activities from the 11 Terrance address. This argument was made before the trial judge and properly rejected. He stated at para. 101(6):

I agree with [the Crown] that the fact that [the appellant] is not at 11 Terrance at the time does not make these observations irrelevant. The totality of the CIs’ information is to the effect of the accused being a high level drug dealer of multiple street drugs in Sault Ste. Marie. No CI alleges that [the appellant] alone sells all the drugs he is in control of. This is contrary to the gist of the CIs’ information and common sense that high level dealers often engage others to sell for them. The submission that since [the appellant] wasn’t there, the activity that was observed after he left that is consistent with drug activity (a point conceded by the defence) is irrelevant to him is one I disagree with. In my view it has objective probative value on the Charter issues raised.

43The issue was whether there were reasonable and probable grounds for the officers to believe that the appellant possessed illegal drugs for the purpose of trafficking, not, as the appellant’s counsel asserted in the Charter application, whether he was observed actively trafficking or for that matter whether he was trafficking from his apartment at 11 Terrance. The fact that the officers did not observe evidence of trafficking did not mean that the surveillance had no confirmatory value. As this court observed in R. v. Bajich, 2019 ONCA 586, at para. 16, “the police need not corroborate every detail, nor do they need to confirm a tip to the extent of having observed the commission of the offence”. See also R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 22-23.

44The CI information was that the appellant was trafficking drugs from his home and vehicle and that he carried his drugs in a bag. I agree with the Crown that this was the “throughline”. Although the police were working to obtain a search warrant for the appellant’s residence, the officers decided to arrest him when he left his apartment carrying a bag that they believed contained drugs. Their belief was based on the whole of the information provided by the CIs, including that the appellant kept his drugs in a bag and sold drugs from his vehicle, as well as the observations that were made preceding the arrest.

45The trial judge noted that the CI information that the appellant kept the drugs in a bag when dealing either from his apartment or on the streets and the surveillance on October 15 and 16 where the appellant was seen putting bags in a vehicle, were probative of the appellant’s modus operandi in trafficking drugs, which was using different types of bags to secure the drugs and related paraphernalia.

46The question was whether the officers had reasonable and probable grounds to believe that the appellant was transporting drugs in a bag at the time he was arrested. The decision to arrest him was made in the context of the information provided by the CIs (which included information from five informants that the appellant stored the drugs he had for sale in various bags), the surveillance on October 15 where he was seen putting a silver case and black computer style bag in the rear of a Juke motor vehicle that he boarded and leaving with Lisa Dumoulin driving, and then the surveillance on October 16, when the appellant was seen returning to the premises with a bag that appeared to be heavy. It was decided that he would be arrested if he left the premises carrying the bag.

47The appellant’s counsel submits that the determination of whether objectively reasonable and probable grounds exist must focus on the grounds articulated by the arresting officers, and that anything that the officers failed to mention or said they had not considered should not be taken into consideration in determining the objective reasonableness of the grounds. While in the next section I will explain why I do not agree with this submission as a legal principle, in this case, on a proper consideration of the evidence and findings of the judge, the officers did not disclaim reliance on any particular and relevant piece of evidence, with all of them testifying that they relied at least in part on the October 15 surveillance. In his reasons the trial judge repeatedly stated, which is borne out by the officers’ evidence, that he considered all of the circumstances, including the extent to which the CI information had been confirmed by the surveillance.

(ii) The appellant’s proposed restriction of the assessment of the objective reasonableness of the grounds for arrest is inconsistent with prevailing law

48I turn to address the merits of the appellant’s contention that, as a matter of law, a trial judge’s assessment of the objective reasonableness of the grounds for arrest must be based on the subjective grounds articulated by the arresting officer.

49The appellant asserts that the evaluation of the objective reasonableness of the grounds for arrest must be based on those grounds that were specifically articulated by the arresting officer, and that any factor or circumstance the officer fails to mention, or says that they did not take into consideration, cannot be considered in determining the objective reasonableness of the grounds. The appellant acknowledges that there is no case authority that expressly endorses such a limitation, but says this meaning can be inferred from the formulation of the test set out in certain cases. For example, in R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 24, Jamal J. states: “The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint” (emphasis added). The appellant says that “those grounds” must refer to the actual grounds articulated by the arresting officer. Since, as the appellant contends, the officers did not rely on the October 15 surveillance, the trial judge erred in relying on this evidence to support the objective reasonableness of his arrest.

50As I will explain, the rule the appellant invites this court to endorse for reasonable and probable grounds to arrest is inconsistent with the authorities, risks conflating the first and second stages of the test, and would undermine the goal of the objective stage, which is to safeguard against arbitrary arrest.

51I begin with first principles. Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, authorizes the arrest without warrant of a person who has committed an indictable offence, or who on reasonable grounds the arresting officer believes has committed or is about to commit such an offence. “Reasonable grounds” in s. 495(1)(a) requires reasonable and probable grounds: R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 5.

52In assessing whether there were reasonable and probable grounds for arrest, the court must determine whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest and then whether those grounds were justifiable from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51.

53The focus for the subjective part of the test is on the bona fides of the arrest – whether the arresting officer “honestly believe[s] that the suspect committed the offence”: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72 (2). Typically, this involves a determination of the arresting officer’s credibility. That said, the evidence of subjective grounds for an arrest does not necessarily come from a single officer. An arrest may involve multiple officers, and occur in a dynamic situation as new information rapidly comes to light. The evidence of various officers may, as in this case, be contradictory in certain respects. As such, evidence about the subjective grounds for arrest may come from one or more officers and other sources, including the surrounding circumstances: see e.g., R. v. R.M.J.T., 2014 MBCA 36, 303 Man. R. (2d) 292, at paras. 60-63; R. v. Dill, 2009 ABCA 332, 464 A.R. 92, at paras. 6-7; R. v. Messina, 2013 BCCA 499, 346 B.C.A.C. 179, at paras. 25-26.

54How an officer specifically articulates the grounds, that is the officer’s explanation of the grounds for the arrest, while relevant to their credibility, is not determinative. The question for determination at the first stage is whether the officer or officers at the time the arrest was made had an honest belief that the person committed (or was about to commit) an offence: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38. To paraphrase the Supreme Court in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 48, Charter breaches are determined not on the basis of what police officers intend to do or think they can do, but on what they actually do at the time the arrest takes place.

55At the second step – the evaluation of whether the arrest was justified, and whether there were objectively reasonable and probable grounds – it must be objectively established that the reasonable and probable grounds did in fact exist: that “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at p. 250.

56While there are reported cases from our court that speak of an assessment of “[t]he totality of the circumstances relied upon by the arresting officer” at the second, or objective, stage (see e.g., R. v. Lawes, 2007 ONCA 10, at para. 4 (emphasis added); see also R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 27, citing Lawes), other authorities cast the net more broadly to move away from the arresting officer’s subjective belief and reasons for the arrest, and to require the court to consider all of the circumstances reasonably known to the arresting officer.

57In Canary, Fairburn J.A. (as she then was) did not tether the review for objective reasonableness to the officer’s articulated grounds for arrest. Rather, she referred to the court’s consideration of “the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer”. She stated at para. 22:

When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.

58In R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481, at para. 14, this court stated that “there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer’s belief”, and explained that otherwise, “the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances”.

59The focus is not on the officer’s subjective perception, but on what a reasonable person standing in the shoes of the officer would have perceived. As this court stated simply in Bush, at para. 38, the officer’s belief must be supported by “objective facts”.

60To restrict the evaluation of the circumstances to an assessment of the reasonableness of only the officer’s articulated grounds and not all of the circumstances known to the officer would have the obtuse result of rewarding an officer’s tunnel vision. Officers are expected not to shut their eyes to relevant circumstances, ignore appropriate inquiries or fail to take into consideration exculpatory, neutral or equivocal information: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 33. They must take account of all available information and disregard only information reasonably believed to be unreliable: R. v. Golub (1997), 34 O.R. (3d) 743, at p. 751, leave to appeal refused, [1997] S.C.C.A. No. 571.

61In challenging the objective reasonableness of an arrest, it is not unusual for an accused to point to some fact or circumstance that was known to the officer that would undermine the objective reasonableness of the arrest: see e.g., Canary, at paras. 28-29; R. v. Henareh, 2017 BCCA 7, at para. 52; R. v. Chang, 2019 ONCA 924, at paras. 4-6. Focusing on the officer’s articulated grounds and not considering the broader circumstances would undermine the objective part of the review of reasonable and probable grounds.

62Finally, the appellant’s contention that the objective component of reasonable and probable grounds must focus only on an officer’s articulated grounds is inconsistent with the exhortations in the authorities to consider “the totality of the circumstances” (Shepherd, at para. 21); “the cumulative effect of the totality of the circumstances, bearing in mind any exigent circumstances” (R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at para. 58); “[t]he totality of the circumstances known to police” (R. v. Orr, 2021 BCCA 42, 399 C.C.C. (3d) 441, at para. 78); and “the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer” (Canary, at para. 30). Returning to Tim and the passage relied on by the appellant to suggest that it is the officer’s articulated grounds that must be objectively justifiable, that passage must be read in the context of what follows. Jamal J. states at para. 24:

The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. [Emphasis added.]

63For these reasons, I would not give effect to the appellant’s argument that the trial judge erred in considering the October 15 surveillance. As a matter of evidence, each of the officers testified that they had in fact relied on the surveillance that day as part of the grounds for making the arrest. And, as a matter of law, the trial judge was entitled, and in fact required, to consider all of the circumstances known to the officers in determining whether there were objectively reasonable and probable grounds for the appellant’s arrest.

II. Did the trial judge fail to take into account the fact that the arresting officers considered confidential information that could not be disclosed in formulating their grounds for arrest?

64The appellant’s second submission on the first ground of appeal is that the court could not determine that the arresting officers’ grounds for arrest were objectively reasonable because the officers relied on information from CIs that was not disclosed. The appellant points to the cross-examinations of D.C. Roach, P.C. Boyle and P.C. O’Dell where each admitted that, in explaining their grounds for arrest it was difficult or impossible to separate out the confidential information obtained from the CIs from what could be publicly disclosed. The appellant’s counsel acknowledges that the success of this submission depends on the court’s acceptance of the first submission – that the focus at the objective stage is on an officer’s articulated grounds for arrest: if part of an officer’s grounds could not be disclosed, then how could those grounds be objectively evaluated?

65Since I do not accept the appellant’s argument that the focus at the objective stage must be restricted to the arresting officer’s articulated grounds for arrest, this argument falls away. I note however that the appellant did not suggest what the trial judge should have done with such evidence if his underlying premise were correct; instead he said simply that the trial judge “failed to grapple” with this issue.

66The trial judge here adopted the correct approach. He properly instructed himself that, in assessing the objective reasonableness of an officer’s subjective grounds the court can only rely on the public record of evidence, that is to say on the non-redacted portions of the ITO, the judicial summaries of the redacted CI information and the viva voce testimony of those who testified.

67As the Crown pointed out, there are obvious and practical problems with this submission by the appellant. How could a trial judge ever assess the objective reasonableness of an officer’s grounds where as a practical matter an officer would not be able to honestly disabuse themself of confidential information? An officer at the time of the arrest would not know what information might subsequently be considered confidential.

68The manifest problems with this approach further underscore the weaknesses in the appellant’s earlier argument that the objective reasonableness of the arrest engages a consideration only of the specific grounds articulated by the officer.

69That said, if an officer testifies that they made an arrest based only on information that they cannot disclose, it would be difficult to assess their credibility and likely the Crown would be unable to establish that the officer had subjective reasonable and probable grounds.

70Here the problem simply does not arise. While the officers acknowledged that they had difficulty separating CI information that could be disclosed from the information they received that could not be disclosed, their explanations of why they decided to make the arrest adverted to disclosed CI information and the surveillance – essentially that the appellant was an active known drug trafficker who lived and sold drugs from 11 Terrance and from vehicles that he drove, and that he carried drugs in bags. After he had entered 11 Terrance with what appeared to be a weighted bag, it was believed that he was carrying drugs when he left the apartment and put the bag in the trunk of his vehicle. This is the account that the officers provided, and this is the account that the trial judge tested by reference to all of the publicly available information.

F. COUNTS 12 AND 14

71The appellant appeals his convictions on counts 12 (possession of 11.68 grams of fentanyl for the purpose of trafficking) and 14 (possession of 0.6 grams of a cocaine/fentanyl mixture for the purpose of trafficking). He points to an error in the trial judge’s reasons in which he stated that the appellant had conceded that he was guilty of count 14, and that the only remaining contested count was count 12.

72The appellant also contends that the trial judge misapprehended whether the Crown’s expert evidence was uncontested. While the Crown’s expert witness, D.S. Miller, was accepted as an expert, his evidence was subject to significant challenge. The appellant submits that, having regard to various weaknesses in the expert evidence, the trial judge ought not to have accepted that his possession for the purpose of trafficking was proven beyond a reasonable doubt. He points to: (1) the officer’s admission that, while potency was an important consideration, he did not know the particular concentrations of the fentanyl that was seized, but used an average concentration, possibly calling into question his conclusion that the quantity of fentanyl seized was not for personal use; (2) the officer’s reliance on certain internal documents that he would not disclose, in support of his opinion that the word “down” on the debt lists that were seized with the drugs referred to fentanyl or a fentanyl/heroin mix; (3) the absence of fentanyl on the scales and weights that were seized; and (4) the officer’s acknowledgment that many traffickers sell drugs to feed their own drug habits. The appellant also contends that a number of the other factors referred to while supporting the conclusion that the appellant was trafficking other drugs that were seized, did not support the inference that he possessed the fentanyl for anything other than personal use.

73The Crown acknowledges that the trial judge erred in stating that only count 12 was at issue, but asserts that this error was not important, and did not influence the trial judge’s reasoning. Rather, the trial judge concluded that all of the drugs at issue were for the purpose of trafficking, based on his acceptance of the expert evidence. The Crown relies on s. 686(1)(b)(iii) of the Criminal Code (the curative proviso) to uphold the convictions.

74I would not give effect to this ground of appeal. While the appellant’s submissions highlight some of the challenges to D.S. Miller’s evidence that were made at trial, and although the trial judge incorrectly stated that count 14 was the only contested count, I am satisfied that he reasonably concluded that the evidentiary record, including the expert evidence, fully supported the conclusion that the appellant possessed all of the drug contraband, including the fentanyl, for the purpose of trafficking. As noted by the trial judge, D.S. Miller relied not only on the cumulative evidence suggesting that the appellant possessed the drugs that were seized for trafficking, and the quantity of fentanyl seized (referring to the 11.68 grams), but also how all of the fentanyl was packaged and where it was located. He noted that fentanyl was in two separate packages, with the bulk in one and 0.6 grams in a separate baggie, observing that, if the fentanyl was solely for personal use, there was no need to separate it. He also referred to the fact that the 0.6-gram baggie was in the same compartment as three plastic bags each containing small quantities of cocaine made ready for street distribution, suggesting that the 0.6 grams of fentanyl was also prepared and stored for the same purpose. The expert’s opinion was that the various drugs and their packaging were consistent with their being held for the purpose of trafficking for a profit.

75The trial judge reasonably concluded that the evidence of possession for the purpose of trafficking all of the drug contraband, including the fentanyl, was compelling and overwhelming. As for the suggestion that the appellant, as a fentanyl addict, might have possessed the fentanyl for personal use, he accurately observed that there was no “air of reality” to the submission when one considered the whole of the evidentiary record, including the absence of evidence the appellant was a drug addict, let alone a fentanyl addict.

76I accept that the trial judge erred when he stated that count 14 was not at issue. In the circumstances however that error was harmless and had no impact on his ultimate findings. I am satisfied that there is no reasonable possibility that the verdict would have been different had the error not been made: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. Accordingly, I would apply the curative proviso, and uphold the appellant’s convictions on counts 12 and 14.

G. THE SENTENCE APPEAL

77The appellant received a sentence of 49 months’ imprisonment, less credit of 20 months for pre-trial custody and Downes and Duncan credits. [1] He was on bail for a significant period of time after his arrest, and he has been on bail pending appeal. With the dismissal of his conviction appeal, there will be 29 months left in the appellant’s custodial sentence. Although the appellant’s factum suggests that there were reversible errors in the trial judge’s sentencing that could warrant a reduction in the sentence and the imposition of a conditional sentence, in oral argument the appellant’s counsel did not pursue any of the alleged errors and instead asked that the appellant’s sentence be reduced to less than a penitentiary sentence, applying the principle of restraint, based on the appellant’s status as a first offender, the evidence at sentencing that he was an addict and had gone into treatment, and the lengthy period of time he had spent on bail.

78I see no justification for a reduction in the appellant’s sentence. The trial judge considered all of the relevant factors, including those that the appellant asks this court to consider on appeal. There is no demonstrated error in sentencing that would warrant intervention, nor is there any other reason to interfere with the sentence that was imposed. As the trial judge noted, although the appellant was not previously convicted of an offence, he had received a conditional discharge and the subject offences occurred in violation of the terms of his probation, including that he not consume or possess unlawful drugs or substances. As for the evidence that the appellant was a recovering drug addict, the trial judge took into consideration his rehabilitative efforts in mitigation of sentence, but also observed that although the appellant’s trafficking in one sense supported his addiction, he operated a criminal enterprise of some complexity, with people working for him, and that was engaged in largely for profit. This was an aggravating factor.

79Although I would grant leave to appeal sentence, I would dismiss the sentence appeal.

H. DISPOSITION

80For these reasons I would dismiss the conviction and sentence appeals.

Released: October 27, 2023 “D.D”

“K. van Rensburg J.A.”

“I agree Doherty J.A.”

“I agree Harvison Young J.A.”

1See R. v. Downes (2006), 79 O.R. (3d) 321, and R. v. Duncan, 2016 ONCA 754.