Her Majesty the Queen v. Buchanan

[Indexed as: R. v. Buchanan]

Ontario Reports Court of Appeal for Ontario Watt, Fairburn and Zarnett JJ.A. April 8, 2020 150 O.R. (3d) 209 | 2020 ONCA 245

Case Summary

Charter of Rights and Freedoms — Arbitrary detention or imprisonment — Police conducting surveillance of house for drug trafficking activity but having application for search warrant denied — Police arresting accused as being suspected of having bought drugs from house — Search incidental to arrest yielded drugs and guns — Trial judge finding unlawful arrest and unreasonable search, but admitting evidence despite Charter breaches and convicting accused — Trial judge did not err in s. 24(2) analysis — Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

Charter of Rights and Freedoms — Remedies — Exclusion of evidence — Police conducting surveillance of house for drug trafficking activity but having application for search warrant denied — Police arresting accused as being suspected of having bought drugs from house — Search incidental to arrest yielded drugs and guns — Trial judge finding unlawful arrest and unreasonable search, but admitting evidence despite Charter breaches and convicting accused — Trial judge did not err in s. 24(2) analysis — Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

Charter of Right and Freedoms — Unreasonable search or seizure — Police conducting surveillance of house for drug trafficking activity but having application for search warrant denied — Police arresting accused as being suspected of having bought drugs from house — Search incidental to arrest yielded drugs and guns — Trial judge finding unlawful arrest and unreasonable search, but admitting evidence despite Charter breaches and convicting accused — Trial judge did not err in s. 24(2) analysis — Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

Criminal law — Appeal — Grounds — Unreasonable verdict — Police conducting surveillance of house for drug trafficking activity — Police arresting accused as being suspected of having bought drugs from house — Search of vehicle incidental to arrest yielded drugs and guns — Trial judge convicting by relying on evidence that accused was driving vehicle and in possession of ownership and insurance and financing documents — Trier of fact, acting judicially, could reasonably be satisfied that accused's guilt was the only reasonable conclusion on the totality of the evidence.

The police set up surveillance on a residence based on a tip that heroin and fentanyl were being trafficked there. The police then applied for a search warrant, which was denied based on an absence of evidence that heroin and fentanyl would be in the residence. With no warrant the police decided to arrest the "next suspected buyers" in the hope of obtaining grounds to advance a second search warrant application. The accused's vehicle was the next one to arrive at the home. He and his passenger stayed for 15 minutes and as they drove from the home the police stopped the vehicle and made arrests. Searches of the vehicle incident to the arrest revealed a stolen, loaded, restricted firearm; four cellphones; a significant amount of cash; and hidden packages of cocaine and heroin. There was also a wallet slip containing ownership and insurance documents for the vehicle in someone else's name, plus financing documents for the vehicle addressed to the accused. [page210] The trial judge accepted that while the police held a subjective belief that the accused purchased drugs in the residence, that belief was not objectively reasonable in the circumstances. As such, she found that the accused's ss. 8 and 9 Charter rights had been infringed, and that the impact of the breach was significant. However, she also found that while the police conduct was negligent, it was not flagrant or abusive. She noted that the charges were serious and that the evidence was reliable and critical to the Crown's case. Balancing all those factors, she dismissed the accused's application to exclude the evidence arising from the search incident to the arrest. The accused was convicted of various drug trafficking and firearm offences. The passenger was acquitted. The accused appealed.

Held, the appeal should be dismissed.

The trial judge did not err in her analysis as to whether to exclude the evidence. First, the police had sufficient grounds to detain the accused for investigation. They had received a confidential tip about drug trafficking at the same residence about which civilians had complained regarding activity that suggested short visits to buy drugs. Surveillance confirmed that activity. Second, the police did not improperly ignore the justice of the peace who refused the search warrant. The denial of the warrant caused the police to pursue alternative means to advance their investigation. There was nothing wrong in doing so. The decision was to arrest not simply the next person to arrive at the residence, but rather the next person the police believed to have done a drug transaction there. Third, not all negligent police conduct pushed toward exclusion. It was open to the trial judge to find as a fact that the police were merely mistaken about whether they had sufficient grounds to arrest and that their conduct was worse than blameless but less serious than conduct that showed a wilful or reckless or blatant disregard for the Charter.

The guilty verdicts were reasonable. The trial judge found on the evidence that the accused was the driver of the vehicle in which the firearm and drugs were found, that he was in possession of ownership and insurance documents even though they were in another's name, and that he was in possession of a bank document showing that he owed money for the vehicle. She also drew a reasonable, common sense inference that guns and drugs were valuable items not entrusted to just anyone. The trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion on the totality of the evidence.

Cases Cited:

Statutes Referred To:

Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2)

APPEAL by the accused from the conviction entered by Applegate J., [2017] O.J. No. 5580, 395 C.R.R. (2d) 1 (C.J.).

Counsel: James Foy, for appellant. Sarah Shaikh, for respondent.

The judgment of the court was delivered by

FAIRBURN J.A.: —

Overview

[1] Police officers believed that drug trafficking was taking place within a residence. They watched as the appellant drove up to that residence, parked his car, went inside, emerged a short time later, and drove off. The police then stopped the appellant and arrested him for being in possession of controlled substances. A search incident to arrest revealed a good deal of cash, a loaded firearm, heroin and cocaine.

[2] While the trial judge concluded that the appellant's ss. 8 and 9 Canadian Charter of Rights and Freedoms rights had been breached, she dismissed the appellant's application to exclude the evidence under s. 24(2) of the Charter. Convictions were entered on various drug trafficking and firearm offences. A four-and-a-half-year sentence was imposed.

[3] This is an appeal from conviction on the basis that the trial judge erred in failing to exclude the evidence under s. 24(2). In the alternative, the appellant claims that the verdict was unreasonable.

[4] For the reasons that follow, I would dismiss the appeal.

Context

[5] A confidential informant told the police that an individual by the name of Jason Nacinovich was trafficking heroin and fentanyl out of a specific residential address in Barrie, Ontario. Several civilians had previously made complaints about people coming and going from that home. The police set up surveillance on the address and made observations consistent with what they believed to be drug trafficking in the home. [page212]

[6] Based on the confidential tip and the surveillance on the home, the police applied for a search warrant for the home. The warrant was declined by a justice of the peace on the following basis:

Grounds as presented and when considered in totality, falls short of rpg to believe that items to be searched for will be at the location. No evidence to show that heroin and fentanyl would be in residence.

[7] When the police learned that the search warrant had been denied, they decided to arrest "the next suspected buyers". The team leader, Det. Fitzgerald, explained at trial his understanding as to why the warrant had been denied: that there were insufficient grounds to believe that heroin and fentanyl, as opposed to other controlled substances, were in the residence. Accordingly, he instructed his team to "arrest the next suspected buyers . . . [p]ersons that come and show behaviour similar to what we've observed over the last couple of days". Det. Fitzgerald was hopeful that by proceeding in this way, the police would obtain grounds to advance a second search warrant application for the home:

. . . I believe we have reasonable grounds to make the arrest and then search incident to arrest. Yes, I would hope to locate the drugs that in my mind, they're purchasing from the residence, and they're under arrest for possession of a controlled substance, and then we have the evidence to support that which then I can add to my warrant hopefully meet the threshold to get the warrant for [the address].

[8] The appellant's vehicle was the next one to arrive after the police learned that the search warrant was refused. He and his passenger went inside the home, stayed for about 15 minutes and then left. An officer making the observations believed that there were grounds to arrest the appellant and his passenger for being in possession of a controlled substance. Accordingly, two uniform officers were instructed to pull over the vehicle and make the arrests.

[9] Searches of the vehicle incident to arrest revealed

(a) a case that had been secreted behind a modified glove box, containing a stolen, loaded, restricted firearm;

(b) four cellphones;

(d) 23.56 grams of cocaine and 29.84 grams of heroin packaged in small baggies and secreted in an air vent.

[10] The appellant also had a leather wallet slip in his pocket, one that matched his wallet. That slip contained ownership and insurance documents for the vehicle in someone else's name. The car also contained auto financing documents in relation to [page213] the vehicle, dated only weeks before the offence. They were addressed to the appellant and suggested that he owed a sum of money for the vehicle, as well as costs that had been incurred as a result of non-payment.

The Decision Appealed From

[11] The appellant claimed that (a) his s. 9 Charter rights had been infringed on the basis that the police lacked sufficient reasonable grounds to arrest him; (b) his s. 8 Charter rights had been infringed as a result of conducting a search incident to an unlawful arrest; and (c) the evidence arising from the search incident to the unlawful arrest should be excluded under s. 24(2) of the Charter.

[12] The trial judge found that the appellant's ss. 8 and 9 Charter rights had been infringed. While she accepted that the police held a subjective belief that the appellant had purchased drugs in the residence, she concluded that this belief was not objectively reasonable in the circumstances. Accordingly, the trial judge found that the arrest breached the appellant's s. 9 Charter rights. The s. 8 breach necessarily flowed from the fact that the search incident to arrest was unreasonable given the unlawful nature of the arrest.

[13] The trial judge then went on to address the three Grant factors for consideration in determining whether to exclude the evidence obtained in a manner that infringed the appellant's Charter rights: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter-protected interests of the accused; and (c) society's interest in an adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, at para. 71.

[14] Under the first branch, the trial judge found that while the police conduct was negligent, it was not flagrant or abusive. She held the view that, while the police did not have adequate grounds to arrest the appellant, they had sufficient grounds to have justified an investigative detention. Even so, the trial judge found that the police failed to consider that option. She also recognized that, on its own, an investigative detention would not have afforded the police the ability to search the vehicle where the drugs and gun were located. Ultimately, she concluded [at para. 44] that the police behaviour, "while serious, [was] not such that requires the court to distance itself from that behaviour, in these particular circumstances".

[15] On the second branch, the trial judge accepted that the impact of the breach on the accused's Charter-protected interests was significant and favoured exclusion. This is not in dispute on appeal. [page214]

[16] On the third branch, the trial judge found that the charges were serious, that the evidence was reliable, and that it was critical to the Crown's case. Overall, she found that these factors favoured inclusion. At the same time, she observed the "equally" important fact that when investigating serious crime, the police should respect Charter rights.

[17] After balancing all three factors, the trial judge dismissed the application for exclusion. She concluded as follows [at para. 47]:

In summary: (a) the police conduct was serious, but not egregious; (b) the impact on the accused's Charter rights was significant, and (c) the value of the evidence is also significant. In weighing all of these factors, the defence have not satisfied me that the admission of the evidence would bring the administration of justice into disrepute. Therefore, the evidence of the drugs and the gun are admissible.

[18] The trial judge then moved on to consider whether she was satisfied beyond a reasonable doubt that the Crown had proven the various possession offences. The parties agreed that the core issue for her determination was whether the appellant had knowledge of the contents of the vehicle, specifically the loaded firearm and drugs. Satisfied that the Crown had proven knowledge beyond a reasonable doubt, the trial judge convicted the appellant. The passenger was acquitted.

Did the Trial Judge Err in Her Section 24(2) Analysis?

The alleged errors and standard of review

[19] The appellant maintains that the trial judge made three specific legal errors in her s. 24(2) analysis, all of which relate to the first prong in the Grant test: the seriousness of the Charter-infringing state conduct. He argues that she erred in

(a) finding that the police had the grounds to conduct an investigative detention;

(b) failing to appreciate that the police arresting the appellant after the search warrant had been denied showed a "cynical disregard" for the judicial process; and

[20] The appellant argues that any one or combination of these errors allow this court to conduct a fresh s. 24(2) analysis, which exercise should result in exclusion.

[21] It is not for this court to substitute its own views respecting the seriousness of state conduct for those of the trial judge: R. v. White (2015), 127 O.R. (3d) 32, 2015 ONCA 508, at para. 63. The three-prong Grant inquiry requires trial judges to find facts and engage in nuanced balancing exercises, ones that call for the weighing of numerous factors and competing interests. Strong deference is owed to determinations that arise from that process. Accordingly, absent an error in principle, palpable and overriding factual error or an unreasonable determination, a s. 24(2) decision is entitled to deference: Grant, at paras. 86, 127; R. v. Mian, 2014 SCC 54, at para. 77; R. v. Côté, 2011 SCC 46, at para. 44.

[22] Applying that standard in this case, I conclude that there is no basis to overturn the trial judge's decision.

The police had sufficient grounds to detain for investigation

[23] The police may detain an individual for investigation where, in all of the circumstances, there exist reasonable grounds to suspect that the individual is connected to a particular crime and the individual's detention is necessary: R. v. Mann, 2004 SCC 52, at para. 45. Reasonable grounds to suspect is a lower standard than reasonable grounds to believe. The first engages a reasonable possibility, while the latter engages a reasonable probability: R. v. Chehil, 2013 SCC 49, at para. 27. When determining whether those thresholds have been reached, a common sense and practical approach to considering all of the circumstances is called for.

[24] The trial judge concluded that while the police had "mistakenly believed" that they had the grounds to arrest the appellant, she was satisfied that their grounds rose to the level of a reasonable suspicion that the appellant was in possession of a controlled substance, sufficient to justify an investigative detention. The appellant argues that the trial judge erred in arriving at that conclusion. Relying upon R. v. Simpson (1993), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482, the appellant maintains that an individual cannot be stopped and investigated simply on the basis that he or she has attended at a home where drug trafficking is suspected to occur. The appellant says that is exactly what happened in this case. Accordingly, the appellant argues that the police had no grounds to even stop the appellant's vehicle, let alone arrest him. He contends that, had the trial judge appreciated this fact, it would have worked to aggravate the seriousness of the breach. [page216]

[25] I start with the observation that the trial judge's finding that there were sufficient grounds for an investigative detention appears to have been conceded by the appellant at trial. Early in her reasons, the trial judge specifically adverted to that concession. As she noted [at para. 23], while the grounds were not sufficient to support an arrest, "it is conceded that this was sufficient to conduct an investigatory detention of the accused".

[26] The trial judge's view that the matter had been conceded is an understandable one when counsel's closing submissions are considered. By way of example, counsel made the observation, "you don't arrest suspected buyers, you detain them and the police would have been entitled to do that and ask a few questions, make observations". When counsel was asked if the matter was being "concede[d], on the evidence before [the trial judge], that the police officers had sufficient grounds to conduct an investigative detention of [the appellant]", counsel answered " [c]ertainly I think they could have " (emphasis added).

[27] While the appellant argues that other aspects of trial counsel's argument qualify the concession, I do not need to resolve this point. As I will explain, whether the fairly clear concession was later qualified, is neither here nor here because there were ample grounds upon which to detain the appellant for investigation.

[28] I do not accept the appellant's suggestion that this case is similar to Simpson. As the respondent points out, the Simpson case operates against a completely different set of facts. While Ms. Simpson was arrested shortly after she was seen leaving a suspected "crack house", the police information about the house was of unknown age and unknown reliability. Indeed, the officer who detained Ms. Simpson testified that he had simply read an internal police memorandum authored by another officer describing that residence as a suspected "crack house". That information was obtained from an unidentified "street contact". The detaining officer knew nothing about the house and the tip from the "street contact" had not been confirmed.

[29] It was against that factual backdrop that Doherty J.A. said in Simpson, at p. 504:

Attendance at a location believed to be the site of ongoing criminal activity is a factor which may contribute to the existence of "articulable cause". Where that is the sole factor, however, and the information concerning the location is itself of unknown age and reliability, no articulable cause exists. Were it otherwise, the police would have a general warrant to stop anyone who happened to attend at any place which the police had reason to believe could be the site of ongoing criminal activity.

(Emphasis added)

[page217]

[30] Although the term "articulable cause" was replaced with the term "reasonable grounds to detain" in Mann, at para. 33, the law as articulated by Doherty J.A. in Simpson remains good law. Even so, it does not assist the appellant in his argument.

[31] The facts of this case are not analogous to those in Simpson. Here, the police were not dealing with information about the drug house that was of "unknown age and reliability". Rather, while the information initially came to light through a confidential informant tip, the police had amply confirmed that information. For instance, by the time that the decision was made to arrest the appellant, the police knew the following:

(a) a confidential informant tip had been received in May 2016 that heroin and fentanyl trafficking was taking place in the Nacinovich residence at which the appellant attended;

(b) citizens had made "several" complaints to the police about vehicle and pedestrian traffic at that residence;

(d) several experienced drug investigators were involved in interpreting the activity seen at that residence, including:

(i) numerous individuals attending at the residence on foot, by bicycle, and by car;

(ii) some of those individuals were known drug users;

(iii) one person was known to the police as a heroin dealer;

(iv) most of the people stayed in the residence for less than ten minutes and, in a few cases, it was three minutes or less;

(v) in a few cases, people who had entered the residence were seen placing something in their pockets or had something in their hands;

(vi) on one occasion, Mr. Nacinovich drove with two females to another location, entered it and emerged several minutes later. He was seen walking back to the car while putting something in his right pocket;

(vii) while the police awaited the search warrant application, they saw Mr. Nacinovich emerge from his residence, approach a waiting vehicle, reach into the driver's side and then look down at his hand as he walked back toward his home.

[page218]

[32] The appellant suggests that Simpson stands for the proposition that mere attendance at a drug house cannot furnish the grounds to an investigative detention. There is no such blanket rule arising from Simpson. While reasonable grounds to suspect may not exist where the "sole factor" informing the grounds is attendance at a drug house where [at para. 69] "the information concerning the location is itself of unknown age and reliability", this does not mean that attendance at a drug house in other circumstances cannot furnish the grounds for an investigative detention. Indeed, there are times where, based upon the totality of circumstances, a person's attendance at a drug house may even form sufficient grounds for arrest: R. v. Rover (2018), 145 O.R. (3d) 135, 2018 ONCA 745, at paras. 11-13.

[33] When considering the sufficiency of grounds to detain and arrest, it is essential to take into account all of the circumstances known to the police at the time that the investigative step is taken. The factual matrix of this case is fundamentally different than the one that drove the result in Simpson. This case involved experienced police officers, some of whom had deep experience in investigating drug-related crime. They were permitted to bring their practical, everyday experience to the interpretation of what they were seeing: Chehil, at para. 29.

[34] Unlike Simpson, this is not a case where the age or reliability of the information about what was believed to be going on in the home was wanting. There was a confidential tip about drug trafficking at the exact residence where civilians had made complaints about activity that suggested short visits to buy drugs. Police surveillance confirmed that activity, revealing numerous people, some of whom were known to the police from the local drug community, attending at the residence for very short periods of time. The police even observed what they believed to be a hand-to-hand drug transaction through the window of a vehicle out front of the residence, just prior to the appellant's attendance at the home. He was only in the home for fifteen minutes. Again, the police testified that this was consistent with a drug transaction.

[35] There was an ample factual foundation upon which the trial judge could conclude that the police had sufficient grounds to detain the appellant for investigation. Indeed, so plentiful were the grounds that this may well have been a case where the s. 9 issue could have resolved differently.

The police did not improperly ignore the justice of the peace's refusal

[page219]

[36] The trial judge concluded [at para. 44] that the police were "genuinely trying to respond to the concerns raised by the Justice of the Peace in order to satisfy her of the grounds to enter [the] residence".

[37] The appellant maintains that this was an unsupportable view of the evidence because the justice of the peace was not seeking additional information or raising concerns. Rather, she denied the search warrant because there were insufficient grounds to believe that the items to be searched for -- heroin and fentanyl -- would be found in the residence.

[38] The appellant argues that the police misinterpreted the warrant denial as an "invitation" to arrest the next suspected buyer. By doing so, the appellant contends that the police essentially flouted the justice of the peace's decision, one that clearly conveyed to the police that they did not have reasonable grounds to believe there were controlled substances in the apartment. The appellant argues that the denial of the warrant to search the residence clearly telegraphed to the police that they did not have the grounds for arrest, seeing as the arrest was predicated on the fact that the appellant had bought drugs in that location. The appellant maintains that the failure to respect the justice of the peace's decision should have aggravated the seriousness of the police conduct.

[39] I do not agree that the police saw the denial of the search warrant as an "invitation" to arrest the next person who came to the residence. Rather, the denial of the search warrant caused the police to pursue alternative means to advance their investigation. There was nothing wrong with doing so. Indeed, the appellant appropriately acknowledges that there is nothing inherently wrong with the police using a lawful arrest to advance an investigation, even where that arrest is to assist with furnishing the grounds upon which a search warrant application may rest.

[40] Moreover, the police did not simply arrest the next person to arrive at the residence. Rather, they set out to arrest the next person who they believed to have done a drug transaction in the home. In other words, they set out to arrest the next person they had reasonable grounds to arrest. Given the short time that the appellant attended at the residence, the police believed that he fit the same pattern as the people who they had been previously seen coming and going from the residence.

[41] The denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the information to obtain the warrant to furnish grounds for other purposes. It is important to distinguish between the role of a justice in determining whether to issue a [page220] search warrant and the role of the police in determining whether they have sufficient grounds to arrest. These are two fundamentally different acts.

[42] When considering whether to issue a search warrant, a justice of the peace has a specific and discrete job to do: consider whether there are sufficient reasonable grounds to support the statutory prerequisites to issuance. Justices are not required to give reasons for granting or dismissing search warrant applications. Accordingly, it will not always be possible to know why a search warrant has been denied. There may be any number of reasons for the dismissal of an application, including insufficient grounds about the alleged offence, about the location to be searched, whether the items to be seized are in the location to be searched and so on.

[43] On the other hand, the grounds for arrest involve an assessment of all of the circumstances known to the police at the time of the arrest. In this case, those circumstances involved information that was included in the information to obtain the search warrant, but also included what the police observed while the warrant was being considered: what appeared to be a hand-to-hand drug transaction outside of the home. Determining whether the police had sufficient grounds to justify an arrest is a matter that falls within the exclusive domain of the trial judge.

[44] While I accept that it would be wise for the police to pause and consider the strength of their grounds in the face of a search warrant denial, particularly where their grounds to arrest overlap with the grounds for the search warrant, there is nothing inherently wrong with the police pursuing other investigative options based upon their own view of the facts. In other words, the police are not required to alter what they believe (or suspect) to be true, simply because a search warrant has been denied: R. v. Bacon, 2010 BCCA 135, at paras. 20-21.

[45] This is particularly true in a case like this, where the police have direct insight into why the search warrant was denied because the justice of the peace gave short reasons for the denial. She said it was because she was not satisfied that the specific drugs -- heroin and fentanyl -- would be found in the place to be searched.

[46] Accordingly, there was nothing about the police conduct in this case that aggravates the seriousness of the breach. The police were not, as the appellant suggests, flouting the justice of the peace's decision. Indeed, to the contrary, they showed respect for that decision and worked toward obtaining further grounds to fill what the justice of the peace perceived as the gap in the warrant [page221] application: evidence respecting the actual drugs of heroin and fentanyl.

Negligent police conduct does not always pull toward exclusion

[47] The appellant emphasizes that the trial judge concluded that the police behaviour was "more towards negligent conduct". In light of that finding, he argues that the trial judge erred when she concluded [at para. 47] that the "police conduct was serious, but not egregious" (emphasis added). He says that by finding the conduct was not egregious, the trial judge treated the negligent conduct as almost a neutral factor in the s. 24(2) analysis. He maintains that the finding that the conduct was negligent necessarily made it of such a quality that it had to pull toward exclusion.

[48] It is important to start with what the trial judge actually concluded. She found that the police were mistaken in their belief that they had reasonable grounds to arrest. While she rejected that the police conduct was [at para. 44] "inadvertent or a minor violation of the accused's Charter rights", she found that "on the spectrum, their conduct falls more towards negligent conduct, which is higher than blameless conduct (at the lower end), and lower than blatant, wilful or reckless conduct (at the higher end)". She then concluded that, while serious, the conduct was not such that it required the court to distance itself from the police behaviour.

[49] I see no error in that approach. The trial judge was cognizant of the fact that not every Charter breach is made equal. She properly adverted to the "spectrum" on which the seriousness of breaches must be placed. As noted by Doherty J.A. in R. v. Kitaitchik, 2002 ONCA 45000, at para. 41, and adopted many times since:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights. . .. What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.

[50] The placement of the police conduct on the spectrum requires an exercise of discretion that the trial judge is uniquely positioned to undertake from her or his chair in the courtroom. It was open to the trial judge to find, as a fact, that the police were merely "mistaken" about whether they had sufficient grounds to arrest and that their conduct was worse than "blameless" but less serious than conduct that shows a "wilful" or "reckless" or "blatant" disregard for the Charter. Rather, it was negligent conduct. [page222]

[51] It is not for this court to consider these matters afresh. They are findings that are owed deference by this court. I would show that deference.

[52] As well, I do not agree with the suggestion that all negligent police conduct must push toward exclusion. While negligence cannot be equated with good faith (see Grant, at para. 75), neither can it necessarily be equated with bad faith. The key determining factor is not the name given to the conduct, but the underlying findings about the conduct.

[53] Negligent police conduct itself may fall on a spectrum. Clear violations of well-established rules governing state conduct may exist at one end of a negligence spectrum, while less clear violations of less clear rules may be at the other.

[54] Here, the law surrounding the grounds for arrest has been clear for some time: R. v. Storrey, 1990 SCC 125, at pp. 250-251 S.CR. But it is a test that is applied using the best judgment of police officers, engaged in real time, on the ground policing. There is a difference between a police officer miscalculating whether she had sufficient grounds to arrest, when on the trial judge's view she only had sufficient grounds to detain for investigation, and other more serious forms of police miscalculation. As found by the trial judge, there was nothing cavalier or flagrant about the police conduct. Nor was there any pattern of Charter breaches. In my view, if the police were short on reasonable grounds to arrest, it was by a short distance only. The fact is that the trial judge did not find that the level of negligence, a simple, unintentional miscalculation as to the strength of the grounds to arrest, rose to the level that would aggravate the seriousness of the state-infringing conduct. She is owed deference on that point.

Conclusion

[55] There is no error in the trial judge's s. 24(2) analysis.

The Verdict was Reasonable

[56] Once the application to exclude the drugs and gun was dismissed, the trial judge turned her mind to what all agreed was the real triable issue in the case: whether the appellant knew that the drugs and gun were in the vehicle he was driving.

[57] The appellant contends that the trial judge erred in concluding beyond a reasonable doubt that he knew about the presence of the guns and drugs. He contends that the convictions represent unreasonable verdicts because, in this circumstantial case, guilt was not the only reasonable inference that the totality [page223] of the evidence supported: R. v. Villaroman, 2016 SCC 33, at para. 30.

[58] The question of knowledge depended upon circumstantial evidence. Accordingly, the question on an unreasonable verdict ground of appeal is whether the trier of fact, acting judicially, could reasonably be satisfied that the "accused's guilt was the only reasonable conclusion available on the totality of the evidence": Villaroman, at para. 55.

[59] I start by noting that the trial judge set out an accurate review of the law. She well understood that this case turned on whether the appellant knew about the contraband. She also quoted directly from Villaroman, noting that she had to be satisfied that the accused's guilt is the only reasonable conclusion that she could reach on the totality of the evidence, before she could find him guilty. She specifically noted that she was aware that not everyone who drives or rides in a car containing concealed objects will know of their existence.

[60] Having regard to the correct legal principles, she turned to the evidence and found that certain factors satisfied her beyond a reasonable doubt that the appellant knew of the existence of the firearm and drugs, including

(a) the appellant was the driver of the vehicle;

(b) while the ownership and insurance documents were in another person's name, those documents were found inside of his pocket, inside of a wallet slip that matched his wallet;

[61] In addition, the trial judge concluded that the gun and drugs were valuable items that would not have been entrusted to just anyone. This was a reasonable, common sense inference available to the trial judge: R. v. DaCosta, 2017 ONCA 588, at para. 21; R. v. Pannu (2015), 127 O.R. (3d) 545, 2015 ONCA 677, at para 173, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 478.

[62] In these circumstances, the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence.

Conclusion

[63] I would dismiss the appeal.

Appeal dismissed.

End of Document

R. v. Buchanan, 2020 ONCA 245

Case Summary

Her Majesty the Queen v. Buchanan

Case Summary

Overview

Context

The Decision Appealed From

Did the Trial Judge Err in Her Section 24(2) Analysis?

The alleged errors and standard of review

The police had sufficient grounds to detain for investigation

The police did not improperly ignore the justice of the peace's refusal

Negligent police conduct does not always pull toward exclusion

Conclusion

The Verdict was Reasonable

Conclusion

Cited By (8 cases)

R. v. Ismail, 2024 ONCA 945

R. v. Nsiah, 2024 ONSC 3867

R. v. Thomas, 2024 ONSC 4316

R. v. Bhatti, 2024 ONSC 2068

R. v. Griffith, 2023 ONCA 822

R. v. Mare, 2023 ONCA 640

R. v. Hamouth, 2023 ONCA 518

R. v. Whitfield, 2023 ONCA 479

Judges

Counsel

Parties

Areas of Law