Court of Appeal for Ontario

Date: 2018-12-03 Docket: C62111

Judges: Rouleau, Watt and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Andre Palmer Appellant

Counsel

Catriona Verner, for the appellant

Katie Doherty, for the respondent

Heard and Released

Heard and released orally: November 27, 2018

On appeal from the conviction entered on January 11, 2016 and the sentence imposed on January 18, 2016 by Justice Julie A. Thorburn of the Superior Court of Justice, without a jury.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was convicted of two counts of each of three offences: robbery; aggravated assault; and discharge firearm with intent to wound.

[2] The offences arise out of a robbery of a Toronto bank during which a bank employee and a customer, who confronted the robbers inside the bank and pursued them as they fled, were shot and wounded.

[3] The appellant, who has served his sentence, appeals his convictions on the ground that his initial arrest on unrelated charges was constitutionally flawed, and that evidence linking him to the bank robbery should have been excluded because it was the product of constitutional infringement.

[4] The relevant facts may be briefly stated.

The Factual Background

The Bank Robbery

[5] On April 21, 2013, two men entered a Toronto bank to commit a robbery. One man, Lenroy Jackson, was armed with a gun. He held customers and staff at gunpoint. The second man, said to be the appellant, vaulted the counter. He looked for money in the tellers' drawers. The manager directed this man to the decoy bags of Canadian currency. The robber then took them and vaulted back over the counter.

[6] A customer confronted the man with the decoy bags. The confrontation occurred, it would appear, on the customers' side of the counter. Jackson jumped off the counter and fired a shot at the customer. The bullet missed the customer and struck a bank employee seated on the floor behind the counter.

[7] The robbers fled the bank pursued by the customer who had confronted the unarmed robber inside. Jackson shot the customer. Both robbers fled in a stolen vehicle found later the same day. Forensic identification officers located the appellant's fingerprint on the exterior of the rear driver's side window.

The Tip

[8] The following day, a police officer from Peel Regional Police received a tip from an informant that "Sean" would be leaving a specific Brampton address. Sean had crack to sell. The crack was concealed in Sean's rectum. He would likely leave the residence on foot.

[9] The officer who received the tip knew only one drug dealer who used the name "Sean". He also knew the address from which Sean was to leave as a "crack house". Sean was the appellant.

The Arrest and Searches

[10] Police proceeded to the area of the address provided by the informant. About ten minutes later, Sean walked out. He headed down the street on foot. The officers arrested him and patted him down. They found a two and one-half inch folding knife. He was charged with carrying a concealed weapon and taken to the police station. There, officers seized a cellphone from his backpack and money, including three bills with dye on them from the bait money taken during the robbery. The appellant was also strip-searched. Police found no drugs.

The Toronto Police Service Contact

[11] Before releasing the appellant on a promise to appear on the weapons charge, the arresting officer checked CPIC. He learned that the appellant was a person of interest to Toronto Police Service. Contact with the Toronto Police Service confirmed this interest. Toronto officers subsequently attended and arrested the appellant on charges relating to the bank robbery as he was being released on the Peel charges. Prior to his release on the Peel charge, the appellant was asked to provide his address and a telephone number, apparently to complete the release form. He did so. Although a Promise to Appear in Form 10 requires an address, it does not require a telephone number.

The Grounds of Appeal

[12] In this court, the appellant contends that the trial judge erred in deciding that the initial arrest of the appellant was lawful in the sense that the arresting officer had reasonable grounds to believe that the appellant had committed or was about to commit an indictable offence. In the event that this ground of appeal succeeds, the appellant then says that certain evidence, including but not only, the bait money taken from the bank and found in the appellant's possession on arrest, should have been excluded, rather than admitted at his trial.

The Arrest Issue

[13] The appellant acknowledges, as did counsel at trial, that the arresting officer had the necessary subjective grounds to arrest the appellant. Thus, what remains for us to determine is whether the evidence adduced at trial disclosed objectively reasonable grounds for the appellant's arrest.

[14] The trial judge was satisfied that the arresting officer had the essential objective grounds to arrest the appellant. She expressed and applied the proper legal standard. She did not misapprehend any evidence material to her conclusion. We agree with her decision.

[15] We approach this decision mindful that the trial judge need only have been satisfied that the grounds for arrest were objectively reasonable in the circumstances known to the officer at that time. The benchmark is a reasonable person standing in the shoes of the officer at the time of arrest with the officer's knowledge, the officer's experience and the officer's training. It is that person who must be able to conclude that the grounds existed. And this conclusion must take into account all the circumstances known to the officer, a determination that eschews piecemeal analysis and microscopic scrutiny of individual items shorn of their context.

[16] In our assessment, we are mindful of the fact that little is known about the informant's background or reliability. That said, the information provided was current and specific about place; about type; about storage of drug; and about method of transportation. In addition, this appellant was known as a drug dealer. The only one who used the name "Sean". And the place described from which he was leaving was a known crack house. While the officer could not supply information about the antecedents and reliability of the confidential informer, it is commonplace that the Debot factors are not mandatory conditions precedent to permit reliance on confidential informer information in support of search or arrest authority. Further, deficiencies in one factor may be compensated by strengths in others.

[17] In the end, we are satisfied, as was the trial judge, that the appellant's arrest was not constitutionally infirm. It was based on reasonable grounds, thus not arbitrary. In light of our conclusion on this issue of constitutional infringement, we do not reach the admissibility question framed by s. 24(2) of the Charter.

[18] The appeal from conviction is dismissed. The appellant, having served his sentence, did not pursue that appeal. Leave to appeal sentence is refused.

"Paul Rouleau J.A."

"David Watt J.A."

"Grant Huscroft J.A."