Court of Appeal for Ontario

Date: 2019-05-10 Docket: C64836

Judges: Hourigan, Paciocco and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

George Chioros Appellant

Counsel

Mark C. Halfyard, for the appellant

Jen Conroy, for the respondent

Heard: May 8, 2019

On appeal from the conviction entered on November 14, 2017 by Justice Kelly A. Gorman of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] In September 2015, the Saint Thomas police received an anonymous Crime Stoppers tip that the appellant was trafficking large amounts of cocaine in St. Thomas. The police conducted surveillance of the appellant over a two-month period and he was eventually arrested in London. On a search incident to arrest, the police discovered cocaine on his person and in his vehicle. As a result of this discovery, the police obtained a warrant to search the appellant's home. That search revealed more cocaine and marijuana. The appellant was charged with possession of cocaine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, and possession of oxycodone.

[2] The appellant's trial consisted primarily of a Charter application alleging breaches of his ss. 8 and 9 rights. The appellant submitted that the police had insufficient grounds to make an arrest and that the subsequent searches of the appellant's person, car, and home were also unconstitutional. That application was dismissed and he was convicted on all counts.

[3] The appellant makes two submissions on appeal: (i) the trial judge erred in finding that the Debot factors objectively supported the police officers' subjective belief that he was dealing narcotics and would be in possession of narcotics; and (ii) the evidence obtained in the impugned searches should be excluded pursuant to s. 24(2) of the Charter.

[4] These reasons explain why we are allowing the appeal. We find that the appellant's Charter rights were breached, that the evidence should be excluded under s. 24(2), and that the convictions should be set aside and acquittals entered in their place.

Analysis

(i) Debot Factors

[5] The Crime Stoppers tip was received by Cst. Spicer on September 3, 2015 and included the appellant's name and address. It also referenced the fact that he drove a silver Audi and the licence plate number of that vehicle. In addition, the tipster advised that there was a Harley Davidson motorcycle and a Ford Mustang in the driveway of the appellant's residence. Cst. Spicer was able to confirm that day that the appellant resided at the address provided and that the silver Audi was registered to him.

[6] The police commenced surveillance of the appellant's residence on September 17, 2015. On that date, Cst. Spicer saw the appellant driving the Audi. The other two vehicles mentioned in the tip were never seen at the appellant's residence, nor was the appellant ever seen driving either vehicle.

[7] On September 23, 2015, Cst. Spicer observed the appellant driving with Jason Daniels. Cst. Spicer knew Mr. Daniels from high school. He believed that Mr. Daniels was a drug dealer when they were at school. In addition, he had been told by several sources, including credible informants, that Mr. Daniels was a drug dealer. Cst. Spicer testified that at the time Mr. Daniels was the subject of a drug investigation. However, Cst. Spicer did not know if Mr. Daniels had ever been convicted of drug related offences or arrested for same.

[8] The police followed the appellant and Mr. Daniels to an apartment on Ross Street, where they entered unit 11. Cst. Spicer believed that this unit was occupied by Mr. Daniels. Cst. Spicer and Sgt. Johnstone saw a blue Sunfire arrive on the scene and a young man exit the vehicle. The young man went to same floor as unit 11, but was not observed entering the apartment or interacting with the appellant or Mr. Daniels. He left the building a short time later. The police ran the licence plate for the Sunfire and determined that it was registered to Jordan Blackman. Cst. Spicer testified that Mr. Blackman had been involved in a prior altercation with a known petty drug dealer.

[9] The following day, September 24, 2015, the police observed the appellant pull his vehicle over and lift the hood. He examined the vehicle for a few minutes and then drove off. The officers saw him cut through a parking lot, do a U turn, and then continue down the street. Both Cst. Spicer and Sgt. Johnstone described these actions as counter-surveillance techniques.

[10] Later that day, the officers observed the appellant arrive in the driveway of a group of high-rise apartment buildings on Windermere Drive in London. Each building had approximately 150 units. The appellant entered 655 Windermere Drive, but the officers did not see which apartment he visited. He was there for over an hour and was observed exiting the building carrying a bag that appeared to be weighted. Sgt. Johnstone obtained information from London Police that they had received an anonymous tip that a major drug dealer lived at 655 Windermere Drive and that his apartment was being used as a stash house.

[11] On October 27, 2015, Cst. Spicer observed the appellant drive to the Ross Street building. Sgt. Spicer was subsequently informed by another officer that he saw the appellant, Mr. Daniels, and an unknown male outside of unit 11.

[12] Cst. Spicer conducted surveillance of the appellant's residence on November 2, 2015. He spotted a Ford pick-up truck in the driveway registered to Dwayne Bennett. Cst. Spicer testified that Mr. Bennett was a known drug dealer in the area. Neither Mr. Bennett nor the appellant were seen at the residence that day. The appellant's father was observed to be there.

[13] On November 5, 2015, the police observed the appellant return to 655 Windermere Drive. The appellant went inside the building. He did not appear to be carrying anything. He came out about an hour later carrying a bag. Again, the officers did not know which unit the appellant entered.

[14] The police arrested the appellant shortly after he left the building. They searched him incident to arrest and found no drugs on his person. A small amount of marijuana and multiple cellphones were found in his vehicle at that time. A search at the police detachment located approximately 249 grams of cocaine in the appellant's boxer shorts. A subsequent search of his home turned up 20 grams of cocaine and 214 grams of marijuana.

[15] The trial judge concluded that that the Crime Stoppers tip was compelling, credible, and corroborated by the surveillance. She found no breach of ss. 8 or 9 of the Charter.

[16] In our view, the trial judge erred in finding that the police had the requisite grounds to arrest the appellant and carry out the searches.

[17] Pursuant to s. 9 of the Charter, the police must have reasonable and probable grounds to believe that they have sufficient evidence of a crime to facilitate an arrest. When the grounds to arrest stem, at least in part, from a confidential informant, the court must conduct a Debot analysis and look at the totality of the circumstances to determine if the confidential information is sufficiently credible, compelling, and corroborated to support the arrest. Weaknesses in one area may be compensated by strengths in the other two: R. v. Debot, [1989] 2 S.C.R. 1140, at p.1168.

[18] Given that this was an anonymous tip, there was no evidence regarding the tipster's credibility. Nor was there evidence regarding his reliability or motivation in providing the information. It was an error, therefore, for the trial judge to find the tip to be credible.

[19] The tip was also not compelling. It consisted of a bald assertion that the appellant was engaged in drug dealing without any information regarding the details of his alleged activities, whether the tipster had firsthand knowledge of the alleged activities, or the currency of the information. It included readily available public information regarding the appellant's address and car, along with information about some, but not all, of the vehicles that were sometimes parked in his driveway.

[20] The trial judge further erred in finding that the tip was corroborated. There was no meaningful corroboration. At no time did the police observe the appellant engage in any drug activity. Nor did they witness him enter the apartment of the alleged major drug dealer. The counter-surveillance evidence might be considered to a modicum of corroboration. However, its significance is diminished by the fact that there were no alleged counter-surveillance moves on the second trip to 655 Windermere Drive. The evidence regarding Mr. Daniels was uncorroborated by objective evidence, such as a police record. At its highest, it amounted to an assertion that the appellant associated with a suspected drug dealer.

[21] In addition, we note that the trial judge made two factual errors in her corroboration analysis. First, she relied on evidence of surveillance of the appellant on November 4, 2015 that disclosed surveillance conscious driving by the appellant. It is not contested by the Crown that no such evidence was adduced at trial. Second, she relied on the fact that a Honda vehicle referred to in the tip was spotted in the appellant's driveway. It is also undisputed that there was no reference to the Honda in the tip.

[22] A proper balancing of the Debot factors leads inexorably to the conclusion that the police lacked sufficient grounds to effect an arrest. The arrest amounted to a violation of the appellant's s. 9 rights and the searches that flowed from the arrest breached his s. 8 rights.

(ii) Section 24(2) Analysis

[23] The Grant test regarding the exclusion of evidence under s. 24(2) requires the court to consider and balance: (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the Charter-protected interests of the accused, and (iii) society's interest in adjudicating the case on the merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[24] With respect to the seriousness of the state conduct, this was not a close call. It should have been clear to the police that they had, at most, unconfirmed suspicions about the appellant's possible involvement in drug dealing. Throughout their investigation, the police failed to undertake even the most rudimentary steps to verify information, including the extent of Mr. Daniels's prior drug involvement, the source of the information about the apartment at 655 Windermere Drive being used as a stash house, and confirmation of whether the appellant ever visited that unit. The investigation was not time-sensitive and there was no reason why the police could not have investigated further in an effort to gather truly corroborative evidence. It is serious state misconduct when the police make a choice not to conduct a proper investigation, but instead choose to effect an arrest on a member of the public based on unconfirmed and unreliable information. This factor pushes in favour of exclusion of the evidence.

[25] The impact of the breaches on the appellant's Charter-protected rights was profound. He was detained against his will following a dynamic public takedown by the police. Searches were then undertaken of his person, his vehicle, and his residence. This factor also militates in favour of exclusion of the evidence.

[26] It is conceded by the appellant that the drugs seized are reliable evidence and central to the Crown's case. Thus, the third factor favours the admission of the evidence.

[27] In our view, a balancing of the Grant factors results in the conclusion that the inclusion of this evidence would bring the administration of justice into disrepute. The court cannot be seen to endorse the type of misconduct engaged in by the police in this case.

Disposition

[28] The appeal is allowed, the convictions are set aside, and in their place acquittals will be entered on all counts.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"A. Harvison Young J.A."