Court File and Parties

Court of Appeal for Ontario Date: 20210414 Docket: C67433

Before: Hourigan, Zarnett and Coroza JJ.A.

Between: Her Majesty the Queen Respondent

And: Tyrone Dawkins Appellant

Counsel: Mark C. Halfyard, for the appellant Andrew Hotke, for the respondent

Heard: In writing

On appeal from the convictions entered on October 26, 2018, by Justice Richard E. Jennis of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] An officer of the Hamilton Police Service stopped the vehicle Tyrone Dawkins was driving and arrested him for driving while his licence was suspended. A search of the vehicle produced a loaded handgun under the driver’s seat. Mr. Dawkins was re-arrested for possession of an unauthorized firearm.

[2] Defence counsel argued that the traffic stop was unconstitutional because it breached ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Two weeks before the trial, Mr. Dawkins received updated disclosure that the stop was motivated, in part, by information from a confidential informant. The arresting officer, P.C. Cercone, had deliberately omitted this information from his notes, original will-say, and synopsis.

[3] The matter proceeded as a single day Charter application and turned largely on the credibility of P.C. Cercone. Defence counsel at trial (not Mr. Halfyard) initially argued that the officer’s deliberate omission subverted the trial process, and that the trial judge should exercise his residual discretion to grant a stay of proceedings. However, after the parties had filed written submissions and the trial judge requested further oral submissions, defence counsel clarified that he was solely seeking a stay on the basis of a s. 9 Charter breach and not in relation to the late disclosure or another reason related to trial fairness.

[4] The trial judge ruled that the officer was credible and dismissed the defence application. He dedicated only one paragraph of his reasons to his credibility assessment of the officer. The defence subsequently conceded the Crown's case, and Mr. Dawkins was convicted of multiple firearms offences. The parties agreed on a joint sentencing submission, which the trial judge accepted. Mr. Dawkins was sentenced to 7.5 years in custody, less 1.5 years pre-sentence credit.

[5] On appeal, Mr. Dawkins argues that the trial judge provided insufficient reasons for finding that P.C. Cercone was credible. These reasons explain why we are not persuaded by that argument and accordingly dismiss the appeal.

Facts

[6] On February 25, 2018, at approximately 11:49 p.m., P.C. Cercone was conducting what he described as “routine patrol” of a location known to police as an illegal gambling establishment in Hamilton. He ran CPIC checks on the licence plates of some of the cars in the parking lot, including a grey Ford Escape.

[7] At approximately 12:30 a.m. on February 26, 2018, P.C. Cercone observed a male and a female exiting the establishment. The officer recognized the male as the appellant, Mr. Dawkins, from a police database photo. P.C. Cercone observed Mr. Dawkins and the woman enter the grey Ford Escape, which turned out to be registered to a different individual.

[8] The delayed disclosure revealed that P.C. Cercone had information from a confidential source that Mr. Dawkins “may be in possession of contraband.” At trial, P.C. Cercone testified that he also had information that Mr. Dawkins was driving a “silver SUV.” P.C. Cercone ran a CPIC check on Mr. Dawkins before pulling him over and was aware that he was a suspended driver.

[9] P.C. Cercone followed the vehicle after it exited the parking lot. Two minutes later, he stopped it and radioed for backup. P.C. Cercone told Mr. Dawkins that he stopped the vehicle because it was swerving. The officer later acknowledged that he lied to Mr. Dawkins about the reason for the stop to buy time for other officers to arrive at the scene. He thought that advising Mr. Dawkins of the real reason for the stop – i.e., that P.C. Cercone suspected that Mr. Dawkins was driving while suspended – would heighten his fear level and jeopardize officer safety. P.C. Cercone testified that he was aware that Mr. Dawkins had prior firearms-related convictions and was subject to a weapons prohibition order.

[10] After a second officer arrived on the scene, P.C. Cercone arrested Mr. Dawkins for driving while his licence was suspended. P.C. Cercone testified that he searched the vehicle, starting with the driver’s seat, for documents related to the suspended licence and for public safety reasons. He noticed that the backseat was “messy” and that there was “loose paperwork on the rear seat behind the driver and on the floor”. As P.C. Cercone searched the backseat area, he located the handgun under the driver’s seat.

[11] On the Charter application, P.C. Cercone’s evidence was that he engaged in a “dual-purpose” stop and search: the first purpose was pursuant to the Highway Traffic Act, R.S.O. 1990, c. H 8, for the offence of driving while suspended; and the second purpose was based on the confidential informant’s tip regarding potential contraband.

[12] P.C. Cercone did not mention the confidential informant in his notes, original will-say, or synopsis. He explained that at the time of the arrest, he had only been a police officer for two years and had never dealt with a confidential informant. P.C. Cercone stated that he was concerned that any hint of involvement of a confidential informant could jeopardize the source’s identity.

[13] The officer also testified that he had several conversations about his non-disclosure with his superiors, beginning sometime in February or March. On his superiors' advice, P.C. Cercone did not disclose anything further and decided to wait for instructions from the Crown's office. The Crown met with the officer in August 2018 and was advised for the first time about the non-disclosure. P.C. Cercone subsequently amended his will-say on or around August 10, 2018, to reference the confidential informant. The revised will-say was disclosed to the defence on or around August 15, 2018, approximately two weeks before trial.

[14] The trial judge heard the evidence of P.C. Cercone on August 29, 2018. He adjourned the matter to October 26, 2018, and requested written submissions. Then, on October 26, 2018, the trial judge invited further oral submissions on issues arising from the written submissions. Defence counsel clarified in oral submissions that he was only seeking a stay for the alleged breach of Mr. Dawkins’ s. 9 Charter rights and had abandoned his request for a stay based on late disclosure or any other reason related to trial fairness.

[15] The defence's position was that P.C. Cercone's evidence was a fictional account of what happened and that the officer had concocted the reasons for the late disclosure because there were not sufficient grounds to stop Mr. Dawkins' motor vehicle and detain him. In contrast, Crown counsel argued that the traffic stop was justified by the Highway Traffic Act and P.C. Cercone’s objectively reasonable belief that Mr. Dawkins had committed the offence of driving while suspended. The Crown noted that it was not relying upon the confidential informant’s tip as a justification for the stop or arrest.

[16] Counsel agreed about the central importance of P.C. Cercone’s credibility. The defence conceded that if he were found to be credible, then its Charter application would fail. Similarly, the Crown acknowledged that it could not make out its case if P.C. Cercone were found to be prevaricating.

[17] The trial judge dismissed Mr. Dawkins’ Charter application. He summarized his reasons for accepting P.C. Cercone’s evidence in one paragraph as follows: Albeit unusual, it accords with common sense and logic given his lack of experience as a police officer at the time and especially given his lack of experience with a confidential informant, it makes sense that given a mistake in disclosure could have grave if not fatal consequences. His testimony was uncontradicted and was not shaken or weakened in cross-examination. In my view, he was forthright and direct in his answers to questions and did not attempt to embellish.

[18] The trial judge noted that, although the delay in disclosure was "somewhat concerning," defence counsel did not point to any prejudice occasioned to Mr. Dawkins, and did not request an adjournment. Moreover, the trial judge found that P.C. Cercone did not act in bad faith; his actions were coloured by a perceived risk to his safety. As well, the trial judge reasoned that the evidence was not exculpatory, nor could the Crown rely upon it due to its invocation of informant privilege. Ultimately, the trial judge found no basis for a stay of proceedings and dismissed the application.

Analysis

[19] Mr. Dawkins raises a single issue on appeal: whether the trial judge’s reasons were sufficient regarding P.C. Cercone’s credibility, which was the central issue on the Charter application and was dispositive of the case. Mr. Dawkins submits that the trial judge should have more thoroughly examined the officer’s credibility with respect to his explanations for the failure to mention the confidential informant in the initial disclosure, for the lateness of the amended disclosure, and for the circumstances of Mr. Dawkins’ stop and search.

[20] Mr. Dawkins argues that, despite the central importance of the officer's credibility to the disposition of his Charter application and the case, the trial judge's reasons on the issue are limited to a single paragraph that was largely boilerplate. He notes that beyond the trial judge's finding that the officer was inexperienced, the trial judge simply observed that the witness was uncontradicted, direct, and did not embellish his testimony. Mr. Dawkins submits that the trial judge was obliged to analyze the problems with the officer's evidence to satisfy the parties and this court that he correctly understood the credibility concerns.

[21] In considering these submissions, it is helpful to have regard to several well-established principles that arise from the jurisprudence regarding the sufficiency of a trial judge’s reasons:

(i) Reasons serve various functions, including explaining to the parties, the public and the appeal court why the trial judge decided a case in a particular way: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at paras. 43-46.

(ii) Appellate courts take a functional approach when considering appeals grounded on claims of insufficient reasons. The sufficiency of reasons must be assessed having regard to the evidence, the submissions, and the live issues before the trial judge: R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at para. 16; Victoria, at para. 44.

(iii) A ground of appeal asserting insufficient reasons will fail unless the reasons are so deficient that they foreclose meaningful appellate review: Victoria, at para. 44; R. v. T.C., 2020 ONCA 469, at para. 24.

(iv) A trial judge's credibility findings are entitled to significant deference unless they cannot be supported on a reasonable view of the evidence. Appellate courts must be mindful that it is often difficult to express such findings with precision: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 274; and R. v. Slatter, 2018 ONCA 962, 369 C.C.C. (3d) 112, at para. 102.

[22] Context is essential in considering the sufficiency of the trial judge's reasons. As a result of the defence counsel's abandonment of the request for a stay based on the late disclosure, the only issue before the trial judge was whether the defence established, on a balance of probabilities, that the traffic stop was arbitrary. Given that the defence called no evidence, the trial judge was not obliged to resolve conflicting testimony. Instead, the trial judge’s task was limited to an assessment of whether P.C. Cercone’s testimony was credible.

[23] The trial judge articulated reasons supporting his credibility finding, including that P.C. Cercone was not shaken on cross-examination and did not embellish his evidence. The trial judge also found that his explanation regarding the late disclosure was consistent with common sense and logic. Those reasons support the credibility finding made by the trial judge. While Mr. Dawkins argues that further elaboration was required, trial judges are not required to articulate credibility findings with scientific precision. This is especially true in situations, as in this case, where a trial judge is not analyzing conflicting evidence.

[24] The defence theory proffered an alternative version of events that was wholly incompatible with P.C. Cercone’s testimony. There was no evidence adduced to support that theory. Instead, the theory was put to P.C. Cercone through a general attack on his credibility in cross-examination, and all insinuations about fabrication were denied by the officer. In finding P.C. Cercone credible, the trial judge rejected the defence theory.

[25] The Crown concedes, and we agree, that the trial judge could have said more about why he rejected the defence theory. However, it is also important to note that there is evidence that contradicts the defence theory. For example, while P.C. Cercone’s notes do not mention the confidential informant, they did include information that he said came from the source regarding the fact that Mr. Dawkins was driving a silver SUV. This information's inclusion is inconsistent with the defence theory that the confidential informant was created later to defeat the Charter application, which was asserted after the officer's notes were originally disclosed. Thus, when the reasons are viewed in the context of the evidentiary record, it becomes apparent why the trial judge rejected the defence theory.

[26] Mr. Dawkins also offers several criticisms of P.C. Cercone's testimony, including submissions that his evidence regarding why he made the traffic stop and why he did not disclose the information about the confidential informant earlier do not make sense. In our view, these alleged problems with the officer’s testimony, when considered in the evidentiary record context, do not detract from the officer’s credibility. For example, the officer offered logical explanations regarding why he lied to Mr. Dawkins about the reason for the traffic stop and why he did not reference the confidential informant in his notes, original will-say, or synopsis. The trial judge then adequately explained why he accepted those explanations.

Disposition

[27] For the foregoing reasons, the appeal is dismissed. We note in closing that the issues of the propriety of the initial failure to disclose the existence of the confidential informant and the falsification of the original disclosure were not before us on this appeal. Nothing in these reasons should be considered an endorsement of the Hamilton Police Service’s conduct in that regard.

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”