Court of Appeal for Ontario

Date: July 12, 2017 Docket: C62287

Judges: Weiler, Hourigan and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Orlando Dunkley Appellant

Counsel

Cate Martell, for the appellant Christopher Walsh, for the respondent

Heard: July 7, 2017

On appeal from the conviction entered on May 27, 2016 by Justice Peter B. Hockin of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

A. Introduction

1The appellant was convicted of possession of cocaine for the purpose of trafficking, and related offences, as well as firearms-related offences. The charges arose out of his arrest March 19, 2014 and evidence found in his car pursuant to a search incident to arrest.

2He appeals his convictions, submitting that the trial judge erred in holding that his arrest was based on reasonable and probable grounds. He says that, in the absence of a valid arrest, the evidence seized incident to arrest should be excluded under s. 24(2) of the Charter.

3For the reasons that follow, we dismiss the appeal.

B. Background

4On March 19, the police were conducting surveillance in London, Ontario at a house that was the residence of a suspected cocaine dealer. At 9:05 p.m., D.C. Bullick observed a silver Honda Accord park on the street near the house. The appellant was the driver, and he was let into the house. Bullick observed the driver to be a slim black male, about six feet tall, with a dark jacket on. He ran the vehicle's license plate and determined that it was registered to a Michelle Rhooms at a Brampton address.

5Bullick then recalled information that he received from D.C. Bourdeau earlier in March. Bourdeau was the handler for a confidential informant who had provided information that the male driver of a silver Honda Accord with the same license plate number was a high-level cocaine supplier in London. The informant had described the male as thin, black, in his thirties and from out of town. Boudreau had told Bullick that the informant was proven reliable and that the information was first-hand.

6Bullick shared this information with the other members of the surveillance team. Around 9:33 p.m., the police saw the suspected cocaine dealer showing the appellant out of the house. The appellant drove away from the house. Bullick and D.C. Garwood formed the belief that the appellant was the suspect described by the informant and determined that they had grounds to arrest the appellant for possession of cocaine for the purpose of trafficking.

7The appellant drove to a nearby McDonald's drive-through. At around 9:47 p.m., Bullick, Garwood, D.C. Brown and D.C. Pavoni followed the appellant, stopped him and arrested him.

8Brown performed a pat-down search incident to arrest and searched the car. He found a total of six cellphones in the appellant's pants pockets and the centre console of the appellant's vehicle. Some of the messages on these phones were later used as evidence to support the trafficking charges at trial. In addition, $1,200 cash was found in a backpack in the back seat of the appellant's car, along with a handwritten list of names and phone numbers and a large, empty Ziplock bag.

9The appellant's vehicle was moved to the London Police headquarters where Brown and Bullick conducted a more extensive search that they regarded as a continuation of the roadside search incident to arrest. They removed several plastic panels that concealed "natural voids" within the vehicle. Behind the plastic panel on the rear driver's side arm rest, they found U.S. currency totalling approximately $440,000 and a loaded handgun wrapped in saran wrap. Behind the rear passenger-side panel, they found approximately 5.5 kilograms of cocaine, packaged in various quantities.

10At trial, the appellant argued that his arrest was unlawful and that the evidence the police found pursuant to a search incident to arrest should be excluded. The trial judge held that the arrest was lawful and admitted the evidence.

C. Trial Judge's Decision

11The trial judge noted that the warrantless arrest power in s. 495(1)(a) of the Criminal Code requires the arresting officer to have reasonable and probable grounds to believe that the accused committed an indictable offence. He reviewed the evidence and concluded that the police did have the requisite grounds for three reasons:

1. The house being watched was the residence of a suspected cocaine dealer
2. The appellant entered the residence and left with the suspected cocaine dealer about half an hour later.
3. The appearance of the appellant and his vehicle completely matched the information provided by the confidential informant. There was no innocent coincidence. The presence of the appellant at the address corroborated the informant's tip. That information could be acted upon.

12The trial judge held that the searches of the appellant's person and vehicle were incident to a valid arrest and their purpose was to discover and preserve evidence with respect to possession for the purpose of trafficking. He did not consider the delay involved in moving the vehicle to the police station as precluding the subsequent search of the vehicle from being a reasonable exercise of the search incident to arrest power.

D. Issues

Three issues are raised on this appeal:

1. Was the arrest unlawful, thereby making the search a violation of the appellant's s. 8 Charter rights?

2. If the arrest was not lawful, should the evidence be excluded pursuant to s. 24(2) of the Charter?

3. Did the trial judge misapprehend the evidence regarding the seizure of the appellant's cell phone?

E. Analysis

(1) Section 8 of the Charter

13The appellant submits that the trial judge erred in assessing the reliability of the information provided by the confidential informant. Bourdeau did not testify. Bullick had no personal dealings with the informant, but believed from information provided to him by Boudreau that the informant was reliable. Therefore, according to the appellant, there was no evidence capable of providing an objectively reasonable basis for the trial judge's conclusion that Bullick's reliance on Bourdeau's statement about the informant's reliability was warranted. Further, the appellant submits that the trial judge should not have ruled out an innocent coincidence. The police were required to confirm the accuracy of the tip through independent investigation before acting on it.

14We would not give effect to this ground of appeal. The trial judge properly recognized and applied the factors set out by Wilson J. in R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168, for determining whether reasonable grounds to arrest arise from an informer's tip. The tip was compelling: it contained sufficient detail to ensure that it was based on more than a mere rumour or gossip. The tip was credible. The tip was corroborated: the surveillance team independently observed a vehicle completely matching the description given by the informant arrive at the very residence they were staking out for drug trafficking.

15Contrary to the appellant's submission, the police are not required to corroborate the very criminality of the information given by the informant through their independent investigation, and it is not necessary to confirm each detail in a tip: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 22. The police must only be satisfied that the possibility of innocent coincidence is removed based on the conformity of the events actually observed to the pattern anticipated by the tip: Debot, at p. 1172.

16The trial judge correctly found that this possibility was removed in this case. He correctly held that the attendance of a man fitting the description provided by the informant, in the same car identified by the informant and at the house of a known cocaine supplier, was clear corroboration of the tip that rendered it sufficiently reliable to be acted upon, despite the absence of evidence from the informant's handler. The supplier let the appellant into his house and escorted him back to his car. The high degree of suspicion attached to these non-criminal acts was sufficient to remove the possibility of innocent coincidence.

17We conclude, therefore, that the arrest was lawful and there is no s. 8 violation.

(2) Section 24(2) of the Charter

18The trial judge did not conduct a s. 24(2) analysis. In light of our conclusion that he did not err in finding that there was no s. 8 breach, it is also unnecessary for us to do so.

(3) Misapprehension of the Evidence

19The appellant raises a discrete ground of appeal unrelated to the issue of whether the police violated his Charter rights. At trial during D.C. Brown's testimony, it was revealed that he did not have any independent recollection of whether a Blackberry Q10 phone he seized from the appellant incident to the arrest was taken from the appellant's pocket, rather than the centre console of his vehicle. According to the appellant, there was no other evidence establishing that a Blackberry Q10 was seized from the appellant's pocket. The text messages on the Q10 (as well as text messages found on other phones seized from the appellant's person or vehicle incident to arrest) revealed that the sender of the messages was referred to as "Stun" and that "Stun" had sent incriminating communications about the handling and packaging of cocaine. The trial judge inferred that "Stun" was the appellant and concluded that the cocaine and cash found in his vehicle were his. The appellant submits that the trial judge misapprehended the evidence by relying on the fact that the Q10 was seized from his pocket in finding that he was "Stun."

20We would not give effect to this submission. In our view, there was sufficient evidence for the trial judge to conclude that the Q10 was found in the appellant's pocket. In particular, the phones were entered into evidence as exhibits in an order corresponding to where they were found, and the Q10 was entered alongside other phones found in the appellant's pockets.

21In any event, any error regarding the location of where the Q10 was found would not have amounted to a palpable and overriding error. The fact is that all of the cell phones were located either on the appellant's person or in the vehicle in which he was the sole occupant. It would be a reasonable inference that he was using the Q10 and any incriminating messages sent from that phone were his even if the phone was seized from the centre console of the appellant's vehicle.

22The appeal is dismissed.