Court of Appeal for Ontario

Date: 2025-05-23
Docket: COA-22-CR-0298

Coram: Miller, Paciocco and Copeland JJ.A.

Between:
His Majesty the King, Appellant
and
Prince Asante, Respondent

Appearances:
Thomas C. Lemon and Andrew Choat, for the appellant
Mark C. Halfyard and Maxime Bedard, for the respondent

Heard: 2025-02-18

On appeal from the acquittals entered on October 18, 2022 by Justice Michael B.J. Carnegie of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1] The Crown appeals a decision acquitting Prince Asante of three counts of possession of a controlled substance for the purpose of trafficking. Police laid those charges after locating quantities of cocaine, methamphetamine and fentanyl, consistent with trafficking, inside the vehicle that Mr. Asante was driving when they stopped and arrested him on May 5, 2020.

[2] The evidence before the trial judge during the blended Charter voir dire and trial clearly established the charges, but the case against Mr. Asante collapsed when the trial judge excluded the seized narcotics. He did so after finding that the police breached Mr. Asante’s ss. 8 and 9 Charter rights because they lacked reasonable and probable grounds to arrest him and search him incident to the arrest.

[3] I would allow the Crown’s appeal. I am satisfied that the trial judge erred in law in finding that the police lacked reasonable and probable grounds to arrest Mr. Asante. In my view, the police did not breach his Charter rights, and therefore the evidence should not have been excluded. I would give the Crown the remedy it seeks by setting aside the acquittals and ordering a new trial.

MATERIAL FACTS

[4] Between January and April 2020, three independent confidential informants advised members of the Sarnia Police Service that a black male named “CJ”, approximately 5’10’’ in height with short hair, was regularly visiting Sarnia from the Toronto area, and dealing in ounce levels of cocaine, methamphetamine, and powdered fentanyl. All three confidential informants described CJ using the cellphone number 226-937-6133 and driving a black sedan or Ford Fusion, which two of them described as bearing plate number CJCP 052. Two of the confidential informants placed CJ in Sarnia selling narcotics on several occasions between January and March 2020. The third confidential informant, who did not come forward until later in the investigation, placed him there selling narcotics in April 2020.

[5] As a result of this information Det. Dufton, who spearheaded the Sarnia investigation and made the key investigative decisions, consulted vehicle and police records to identify CJ. He discovered that although the vehicle was registered to a woman with an address in Mississauga, Mr. Asante had been stopped driving the vehicle in Sarnia on February 8, 2020, by Constable Urban of the Sarnia Police Service, after the vehicle had parked outside of a known drug-related residence. Det. Dufton then determined that the pieces of personal information from Mr. Asante’s licence, including his appearance and his address listed in Etobicoke, were consistent with the description of CJ that the confidential informants had provided. Det. Dufton also learned that Mr. Asante had a prior narcotic trafficking conviction from approximately five years prior. Based on this information, Det. Dufton formed the belief that Mr. Asante was CJ.

[6] On April 1, 2020, Det. Dufton consulted police records again, discovering two further occasions when Mr. Asante was stopped driving the vehicle. He was identified as the driver on February 13, 2020, during a traffic stop near Sarnia, and again on March 28, 2020, when the vehicle was stopped on the highway between Toronto and Sarnia, in Milton.

[7] On two additional occasions, January 31, 2020 and March 26, 2020, police observed and noted the vehicle in Sarnia parked outside of residences linked to illegal narcotics activity. During the January 31, 2020 occurrence, Det. Dufton saw a female involved in the Sarnia drug culture reaching into the vehicle’s window, causing the experienced officer to believe that a hand-to-hand transaction had occurred. On that occasion, the driver was not identified. During the March 26, 2020 occurrence, Constable Urban made the observations and recognized Mr. Asante as the driver.

[8] Based on the above information, on April 6, 2020, the police obtained tracking and transmission data warrants for the cellphone identified by the confidential informants. Using the transmission data they subsequently obtained, the police identified frequent calls from the cellphone to known drug subculture participants in Sarnia. Using the tracking warrant, police determined that the cellphone user would from time to time attend Sarnia for intervals of 30 minutes to 8 hours, but before doing so would stop at an address on Yvonne Crescent in London, Ontario, that the police came to believe was a stash house. The police also determined that when the cellphone was not in Sarnia, it could be located for long periods of time in Brampton, where they surmised that CJ lived.

[9] The police used the tracking information to conduct surveillance by looking for the vehicle after tracking the location of the cellphone. On April 14, 2020, they observed the vehicle entering Sarnia and stopping at an apartment building known to be an active location for drug trafficking. The driver of the vehicle, a black male, entered the building for 13 minutes, but police did not confirm his identity. After returning to the vehicle, the driver drove to a McDonald’s and then returned to the apartment building parking lot. He remained there, apparently using a cellphone, for approximately an hour before moving and ultimately parking next to another address linked to the drug subculture. At this location, a man leaned into the passenger side of the vehicle for a brief time before he appeared to put something into his pocket, leading a surveillance officer to conclude that a hand-to-hand drug transaction had taken place.

[10] On April 15, 2020, police tracked the vehicle to the suspected London stash house, where they observed it for over an hour.

[11] On April 24, 2020, police identified the cellphone moving westbound on the highway that links Toronto and London, towards London. Subsequently, a London police officer who was called upon to assist the Sarnia police observed the vehicle at the suspected London stash house. She reported to Det. Dufton that a man whom she identified as Mr. Asante met another male outside of the building and shook his hand. Det. Dufton did not ask the London police officer how she had identified the driver as Mr. Asante. Det. Dufton testified: “I would assume because I gave her the information of who I believed it was, and he has dealings in London, if you look at his CPIC. She would’ve pulled up the – the picture of him, I guess. I – I really don’t know.”

[12] On April 28, 2020, the police obtained a general warrant to search the London address within a 30-day window. They developed a takedown plan to arrest “Prince Asante and other occupants of the motor vehicle” after a traffic stop when the vehicle was next in Sarnia. The plan was to execute the search warrant at the London address immediately afterwards.

[13] On May 5, 2020, police learned from the tracking information that the cellphone was again moving westbound towards London. Police arranged to put the takedown plan into effect, but the tracking device showed that the vehicle carrying the cellphone did not stop in London, as expected. After it continued in the direction of Sarnia, the police decided not to execute the search warrant at the suspected stash house but to proceed with the takedown plan when the vehicle neared Sarnia. After locating the vehicle bearing the suspect plate number and effecting the planned traffic stop, a Sarnia police detective immediately arrested Mr. Asante, the lone occupant of the vehicle, without asking him to identify himself. The police then conducted the searches that yielded the narcotics. They also found three cellphones but did not confirm the cellphone numbers.

THE TRIAL AND DECISION BELOW

[14] The trial commenced on June 27, 2022 as a blended voir dire during which Mr. Asante pursued his Charter application. He made extensive factual admissions, and the parties filed an Agreed Statement of Facts capturing the evidence of Det. David, the arresting officer. Det. Dufton testified over the course of two days as the lone viva voce witness.

[15] The parties then made submissions over two days, June 30, 2022 and July 6, 2022. I will reproduce two comments made by the trial judge during submissions that the Crown relies on in support of its appeal.

[16] First, on June 30, 2022, while addressing whether the police had reasonable and probable grounds for the arrest, the trial Crown referred to Det. Dufton’s belief that the London address was a stash house. The trial judge confronted this submission by suggesting that defence counsel “would certainly suggest that there are enumerable other reasons why someone might attend [that address] in the City of London and none of those reasons have been meaningfully rebutted”. The Crown relies on this comment in support of its submission that the trial judge inappropriately disregarded ambiguous but relevant evidence, holding the Crown to too high a standard of proof.

[17] Second, on July 6, 2022, while encouraging the trial judge to consider that Mr. Asante was the only person ever identified driving the vehicle, the Crown conceded that “[t]hat could of course mean that the registered owner never gets pulled over”. The trial judge agreed, saying: “It could mean a lot of things”. The trial judge then continued: “And Villaroman tells me that I have to, you know, consider a lot of other possible inferences if I’m going to consider circumstantial evidence, but I guess – I guess what I’m saying is do I put that in the fold, do I put that in the bowl?” The Crown responded that the trial judge had to “put in the bowl that Prince Asante has been the driver on a number of occasions.” The Crown relies on this colloquy in support of its submission that the trial judge mistakenly disregarded circumstantial evidence that could be consistent with either guilt or innocence by misapplying the rule in R. v. Villaroman, 2016 SCC 33.

[18] On October 18, 2022, after reserving judgment, the trial judge released a single decision that allowed the Charter application based on the absence of reasonable and probable grounds for the arrest, excluded the evidence seized on May 5, 2020, and acquitted Mr. Asante of the three possession for the purpose charges. [1] Notably, the trial judge went on to find that if he was wrong in excluding the evidence, he was satisfied that the charges against Mr. Asante would have been proven beyond a reasonable doubt.

[19] In addressing the Charter motion, the trial judge accurately described the law relating to reasonable and probable grounds. He then accepted that the police had reasonable and probable grounds to conclude that CJ was a drug dealer and that they had reasonable and probable grounds to arrest CJ on May 5, 2020. Specifically, he said:

Given the totality of the evidence provided by the informants, the “CJ” associated vehicle’s presence in proximity of known Sarnia drug houses on February 8 and March 26, 2020 when the defendant was known to be the driver, the tracking of “CJ’s” cell phone and observed patterns of London and Sarnia short duration attendances, the surveillance observations made respecting suspected hand-to-hand drug transactions observed in proximity of the “CJ” associated vehicle on April 14, 2020 all, in totality, satisfy me that police had reasonable and probable grounds to arrest “CJ” for possession of narcotics for the purpose of trafficking on May 5, 2020.

[20] However, the trial judge concluded that the police lacked reasonable and probable grounds to believe that Mr. Asante was CJ, or that he was driving the vehicle on May 5, 2020. After noting that ss. 495(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, allow officers to arrest “‘a person’” when they have grounds to arrest “this person”, he stated: “It is difficult to imagine a more salient issue for resolution than the identity of the target to be arrested.” He also commented that “the primary issue relates to the identity of the drug dealer known as ‘CJ’”.

[21] The trial judge did accept that Det. Dufton subjectively believed (i) that CJ was Mr. Asante, (ii) that Mr. Asante was driving the vehicle on May 5, 2020, and (iii) that he had reasonable and probable grounds to effect the arrest. But the trial judge was highly critical of the reasonableness of those conclusions. He said that on February 11, 2020, Det. Dufton “jumped … prematurely” to the conclusion that CJ was Mr. Asante, after “insufficient investigative efforts”. He commented, for example, that the police failed to secure subscriber information for the cellphone and did not attempt to connect Mr. Asante to the registered owner of the vehicle.

[22] In coming to this conclusion, the trial judge recognized that it was “fair to acknowledge that the target vehicle driven by [Mr. Asante] was present or in the area of a couple of suspicious drug locations in Sarnia in February and March of 2020”. But he found that the surveillance that the police conducted after February 11, 2020, did not support Det. Dufton’s conclusions. Specifically, the trial judge concluded that the April 14, 2020 observations were “innocuous enough to lose any probative inferential force” because: (1) the police did not know where the driver went when he was in the building during his 13 minute visit; (2) the driver’s prolonged use of the cellphone in the parking lot was “innocuous”; (3) the driver’s subsequent contact with a white male “said to be indicative of a hand-to-hand transaction” was only “one possible interpretation of events amidst a myriad of other potentially innocuous explanations”; and (4) “neither event yielded any information about the identity of the target vehicle’s driver.” He found that the April 15, 2020 surveillance at the suspected stash house “yielded no information” because none of the occupants of the house or the driver were identified. And he said that Det. Dufton’s unquestioning acceptance of the London police officer’s identification of Mr. Asante outside of the stash house on April 24, 2020 was unreliable, and “reeks of the risks of confirmation bias.”

[23] The trial judge also noted that the Crown had not presented evidence of exclusive possession or use of the vehicle by Mr. Asante. He said that he could not consider the fact that the tracking of the cellphone led officers to the exact location of the defendant at the time of the arrest. His reasoning behind this was that by the time this event occurred, “Det. Dufton had already formed his reasonable and probable grounds to arrest him at least four hours before”.

[24] The trial judge also emphasized that the trafficking pattern that Det. Dufton had been relying on, which included regular attendance upon the “London ‘stash house’ before and after sales” in Sarnia, was not followed on May 5, 2020. He said that by “[i]gnoring or minimalizing the import of this obvious behavioural inconsistency, [Det. Dufton] never considered that the defendant may not be involved.” And he again noted further investigative steps that Det. Dufton could have taken but failed to take, including conducting further surveillance or delaying the takedown until the next day to see whether the vehicle went to the suspected stash house on its way back to the Toronto area.

[25] During the trial, Det. Dufton testified that he had reasonable and probable grounds to arrest whoever was found in the target vehicle, and the trial Crown argued that the “identity issue was a red herring”. The trial judge described Det. Dufton’s testimony in this regard as “troubling and inconsistent”; a “late change in his testimony respecting his arrest target” which the officer “adopted only during cross-examination”. And he rejected the trial Crown’s submission, explaining:

I cannot accept this argument. Plainly, a suspect vehicle, whether it is from the Toronto area or the moon, does not impute criminality to its occupants by virtue of selective viewings of it parked in and around known drug houses in the not recent past. Section 495(1) of the Criminal Code identifies that only “a person” is arrestable without warrant who has committed or is found committing an indictable offence. What evidence did Det. Dufton have on May 5, 2020 that an occupant(s) of this vehicle was about to or had committed an indictable offence? All that can be said, in response, is that a prior occupant[s] of this target vehicle, when it had been previously observed by police in Sarnia on four occasions in a four month timeframe may have been engaged in suspect activity on three of those occasions. I have no information, despite the presence of tracking warrant data after April 6th, 2020, respecting how often this vehicle was in Sarnia until May 5, 2020. If I am to believe most of the informants, it would have been on the regular. But, no confirmatory evidence was called. Indeed, acknowledging that the defendant had been operating this vehicle in the Sarnia area on multiple occasions, he not being the registered owner, who’s to say someone else does not have access to it? Or, who’s to say that the defendant might have an innocent reason to drive it to Sarnia, and hence avoid a stop over at the alleged “stash house” on May 5, 2020?

[26] The trial judge concluded that Mr. Asante’s arrest was unlawful:

As such, I am not convinced that, using a totality assessment of the information gathered by Det. Dufton, he had reasonable and probable grounds to believe that the defendant was the driver of the target vehicle on May 5, 2020, let alone that he was engaged at that time in the commission of or with the intention to commit an indictable offence respecting the trafficking of narcotics…. Det. Dufton’s conclusions respecting his target’s identity were built upon an unreasonable foundation. His presumption that the phone’s tracking towards Sarnia on May 5, 2020 implied trafficking, and trafficking alone, was also presumptuous. Having made this finding, the defendant’s arrest was not in keeping with s. 495(1) of the Criminal Code and was therefore unlawful.

THE ISSUES

[27] The Crown argues that the evidence presented during the blended voir dire disclosed reasonable and probable grounds to arrest Mr. Asante on May 5, 2020, and that the trial judge erred in finding otherwise. In support of its appeal the Crown identified several reasoning errors it claimed the trial judge made, including: (1) treating the identity of the suspect as an essential element of the reasonable and probable grounds test; (2) using the “beyond a reasonable doubt” standard in deciding the Charter application; (3) conducting a piecemeal analysis of the evidence; (4) applying the Villaroman standard to the inferences he would use; (5) committing a “Fyfe-error” by restricting his assessment of the objective reasonableness of the arrest to the officer’s articulated grounds, and (6) committing errors in his s. 24(2) analysis.

[28] It is not necessary for me to resolve each of these alleged reasoning errors to resolve this appeal because of the standard of review that applies. A trial judge’s conclusion as to whether “the police had reasonable grounds to arrest an accused is reviewable on a standard of correctness, while the factual findings underpinning any such ruling are entitled to deference”: R. v. Bajich, 2019 ONCA 586, para 10, citing R. v. Shepherd, 2009 SCC 35, para 20; R. v. Fyfe, 2023 ONCA 715, para 41. Absent a palpable and overriding error, an appeal court applying that standard must therefore take the facts as found below and assess whether the judge was correct based upon those facts in coming to the decision they did. If the trial judge was incorrect in concluding that the evidence that he accepted failed to establish reasonable and probable grounds, his decision must be set aside, whether discrete reasoning errors occurred. I am persuaded that the trial judge’s conclusion that the police lacked reasonable and probable grounds was incorrect and I would therefore allow the appeal. I will address only those reasoning errors alleged by the Crown that assist in explaining where I believe the trial judge went wrong, or that I consider warrant mention. I will begin with a review of the basic principles that apply.

THE APPLICABLE LAW

[29] Section 495(1) of the Criminal Code describes the power of peace officers to arrest without warrant. It provides in relevant part:

495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence….

[30] The following principles govern the assessment of whether reasonable grounds to arrest without warrant exist:

• The term “reasonable grounds” in s. 495(1) means “reasonable and probable grounds”: R. v. Loewen, 2011 SCC 21, para 5.
• “In assessing whether there were reasonable and probable grounds for arrest, the court must determine whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest and then whether those grounds were justifiable from an objective point of view”: Fyfe, para 52, citing R. v. Storrey, [1990] 1 S.C.R. 241.
• The Subjective Component – “To fulfill the subjective requirement, the officer must hold an honest belief that the person [they arrested] committed an offence [or was about to commit an indictable offence]. The officer ‘must [also] subjectively believe that there are reasonable grounds to make the arrest’”: R. v. Canary, 2018 ONCA 304, para 21, quoting R. v. Saciragic, 2017 ONCA 91, para 16.
• The Objective Component – “To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of the arrest”: Canary, para 21, citing Storrey, and R. v. Bush, 2010 ONCA 554, para 38; see also R. v. Tim, 2022 SCC 12, para 24, and R. v. Beaver, 2022 SCC 54, para 72.
• “The objective inquiry asks whether ‘a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest’”: Canary, para 21, quoting Storrey.
• “When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer”: Canary, para 22, citing R. v. Chehil, 2013 SCC 49, paras 45-47.
• The objective reasonableness of the grounds for arrest is based on the circumstances known to the officer at the time of the arrest, and not just on “the specific grounds as articulated by the officer”: Fyfe, para 35; Tim, para 24; Beaver, para 72.
• In making this assessment, the reviewing judge should bear in mind that reasonable officers do not “shut their eyes to relevant circumstances, ignore appropriate inquiries or fail to take into consideration exculpatory, neutral or equivocal information”: Fyfe, para 60, citing Chehil, para 33. However, “[t]he issue is not whether the officer could have conducted a more thorough investigation. The issue is whether … [the officer] subjectively and objectively had reasonable and probable grounds”: Bush, para 70.
• The reviewing judge must also consider that reasonable officers will consider all information available to them, and are “entitled to disregard only information which [they have] good reason to believe is unreliable”: Chehil, para 33, quoting R. v. Golub. Having said this, police officers are generally entitled to rely on the authenticity of information received from other officers: R. v. Debot.
• Further Guidance – The reasonable and probable grounds standard “does not require that the police demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. The standard is met at the point where credibly-based probability replaces suspicion”: R. v. Dhillon, 2016 ONCA 308, para 25; Canary, para 23.
• The applicable standard therefore deals with probabilities, unlike the reasonable suspicion standard, which deals with possibilities: see Chehil, paras 27-28. The reasonable and probable grounds standard “requires that the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity”: R. v. Savage, 2011 SKCA 65, para 18.
• “[W]hen considering the objective reasonableness of the subjective grounds for arrest, the court must look to the totality of the circumstances, and not consider each fact in isolation”: Bajich, para 16; see also Canary, para 30.
• “[T]he fact that there may be innocent explanations for certain observations when considered individually does not mean the observations are to be treated as innocuous or ignored”: R. v. Lao, 2013 ONCA 285, para 59; see also Bush, paras 57-58. This is because even equivocal facts consistent with criminal conduct may logically increase the probability that a crime has occurred or is occurring. A constellation of such facts, viewed together, can logically and reasonably support a probable conclusion. To take a trite example, there may be alternative possible explanations for each of several indicia of impairment observed, but the improbability that a non-impaired person would innocently display multiple indicia of impairment simultaneously may nonetheless yield reasonable and probable grounds.

ANALYSIS

A. The Correct Conclusion

[31] In my view, there was ample evidence showing that “the arresting officer had subjective reasonable and probable grounds on which to base the arrest and [that] those grounds were justifiable from an objective point of view”: Fyfe, para 52. I will begin with the officers’ grounds to believe that on May 5, 2020, Mr. Asante was probably driving the vehicle and travelling to Sarnia to traffic in narcotics.

[32] The subjective component of the reasonable and probable grounds test relating to that ground of arrest was not in contention. Det. Dufton, who made the decision to go ahead with the takedown, testified: “On May 5th, 2020, we had reasonable and probable grounds to believe that the accused before the court was en route to Sarnia in possession of cocaine, methamphetamine, and fentanyl for the purposes of trafficking”. He later added that this was his own belief when he directed the arrest. The trial judge found that there was little on the evidentiary record to challenge the subjective bona fides of this belief.

[33] The information known to Det. Dufton at the time of the arrest, as found by the trial judge, would also readily enable a reasonable person, standing in the detective’s shoes, to conclude that there were reasonable and probable grounds to form this same belief.

[34] I will begin with the information provided by the confidential informants relating to the vehicle and cellphone. Since the trial judge found that this information satisfied the Debot standard, Det. Dufton was entitled to rely upon it. [2] That information linked both the vehicle and the cellphone to narcotics trafficking. Indeed, it disclosed that between January and April 2020 the vehicle and the cellphone had traveled on multiple occasions from the Toronto area to Sarnia to traffic in drugs.

[35] Det. Dufton also had meaningful independent information that confirmed the link between the vehicle, the cellphone, and narcotics trafficking in Sarnia via Toronto. First, police records linked both the vehicle and the cellphone to the Toronto area, the vehicle through its owner in Mississauga, and the cellphone through regular tracking for long periods of time in Brampton.

[36] Second, the vehicle was observed by police in Sarnia at locations linked to narcotics activity on four occasions: January 31, February 8, March 26, and April 14, 2020. On April 14, there were two such occasions. Initially, the vehicle stopped at an apartment building linked to the drug subculture, which the lone occupant of the vehicle entered briefly, consistent with narcotics trafficking. Later that day, the occupant appeared to engage in a hand-to-hand drug transaction at another location.

[37] Third, the cellphone was further linked to the drug culture in Sarnia through frequent calls to known drug subculture participants. In his testimony, Det. Dufton named eight such people who had been contacted through the cellphone, based on his first-hand knowledge.

[38] The reasonable and probable link between Mr. Asante and the suspect CJ was also supported by information known to Det. Dufton. First, although the similarities were general, Mr. Asante fit the confidential informants’ physical description of CJ. There was also a reasonable basis, based on the police search of his driver’s licence, to believe that, like CJ, he lived in Toronto.

[39] Second, Mr. Asante was closely linked to the suspect vehicle that the informants associated with CJ. He was behind the wheel – while in the Sarnia area – more than once during the period when the confidential informants reported the vehicle’s use in Sarnia by CJ in narcotics trafficking. He was either stopped or observed driving the vehicle in or near Sarnia on February 8, February 13, and March 26, 2020, and he was stopped in the vehicle on the highway between the Toronto area and Sarnia on March 28, 2020.

[40] Third, Mr. Asante was linked to known drug houses in Sarnia. When the vehicle stopped at locations linked to the Sarnia drug culture on February 8 and March 26, 2020, it was Mr. Asante who was driving.

[41] Fourth, Mr. Asante had a prior conviction for narcotics trafficking, an appropriate factor for consideration by police in judging reasonable and probable grounds: R. v. Pasian, 2017 ONCA 451, para 6; R. v. James, 2019 ONCA 288, para 57, per Nordheimer J.A. (dissenting), rev’d 2019 SCC 52.

[42] In my view, given this information and the information provided by the confidential informants, it was entirely reasonable for Det. Dufton to conclude: (1) that CJ was a regular user of the suspect vehicle and of the cellphone, and (2) that Mr. Asante was CJ.

[43] It was against this background that the May 5, 2020 events leading to the arrest unfolded. Police tracked the suspect cellphone moving from the direction of Toronto (where they reasonably believed the cellphone and vehicle to be based) towards Sarnia, where both the cellphone and vehicle had repeatedly been associated with drug activity. The belief that the cellphone was moving to Sarnia was confirmed as it arrived in the Sarnia area. The belief that the cellphone would be inside the suspect vehicle was confirmed when the cellphone’s tracking data led police to the vehicle’s exact location, just before the arrest. In my view, given the cumulative effect of all the information known to the officers at the time of arrest, it was entirely reasonable for the police to believe that the driver of the vehicle was probably (a) Mr. Asante, and (b) in Sarnia to engage in drug trafficking. It was therefore incorrect for the trial judge to conclude that the police lacked reasonable and probable grounds for the arrest.

[44] In my view, several of the features of the trial judge’s reasoning likely account for the erroneous finding that reasonable and probable grounds were lacking. I will address them in turn.

B. The Problems in the Trial Judge’s Reasoning

(1) The Trial Judge Wrongly Excluded Information from Consideration

[45] The trial judge said that in assessing the reasonableness of the takedown decision he could not consider the fact that the tracking data from May 5, 2020 confirmed that the cellphone was moving between the Toronto area and Sarnia, consistent with the trafficking pattern. He concluded this because Det. Dufton had already concluded that he had reasonable and probable grounds for the arrest before May 5, 2020. The Crown argues that this was a “Fyfe error” because the objective reasonableness of the grounds is based on the circumstances known to the officer at the time of the arrest, not “the specific grounds as articulated by the officers”: Fyfe, paras 35, 62. This characterization is fair, but in my view the error can be characterized more simply. As Fairburn J.A. (as she then was) described in Canary, para 21, the objective reasonableness of an officer’s belief is to be judged based on “the circumstances known to the officer at the time of the arrest”. It is not to be judged at the time the grounds are formed. This is sensible given that circumstances evolve, and it is entirely possible that an officer’s grounds will become stronger, or even weaker, as events progress. The trial judge was wrong in finding that he could not consider this information.

(2) The Trial Judge Gave Undue Weight to the May 5, 2020 “Stash House” Deviation

[46] The trial judge found that it would not be reasonable to conclude that the driver of the vehicle was about to commit an indictable offence when entering Sarnia on May 5, 2020, because the vehicle did not stop in London as it invariably did during prior suspicious trips to Sarnia. In my view, the trial judge gave undue weight to this deviation from the pattern, which Det. Dufton believed he had identified. As Det. Dufton explained, the key information he had came from the confidential informants. They never suggested a stash house stop in London. They spoke instead of what happened on an ongoing basis after this vehicle and this cellphone arrived in Sarnia from Toronto. And other evidence confirmed at least two additional trips to Sarnia, on February 8 and March 26, 2020, where the vehicle was linked to drug-associated locations, and it is unknown whether it stopped on route from Toronto in London.

[47] I would add that Det. Dufton’s theory was that the trafficker was moving drugs from the Toronto area to Sarnia and would deposit excess drugs at the stash house beforehand. His theory was not that if there was no stop in London there could be no reasonable expectation of drugs in the vehicle. Therefore, even on Det. Dufton’s theory, the failure of the vehicle to stop in London was not a logistical impediment to narcotics trafficking.

[48] In my view, even without the stop in London, the information known was sufficient to permit an arrest on May 5, 2020, when the same vehicle and cellphone were again in Sarnia, where they had been repeatedly linked to drug trafficking.

(3) The Trial Judge Gave Undue Focus to Competing, Innocent Inferences Arising from Individual Items of Evidence, and Imposed Too High a Standard of Proof

[49] In examining the contribution that evidence makes to reasonable and probable grounds, a reviewing court must look at the information in the totality of the circumstances: Bajich, para 16. It is not to be looked at piecemeal: R. v. Harvey, 2024 ONCA 47, para 25. So long as observations support guilty inferences when viewed in totality, they cannot be ignored or treated as innocuous because there may also be innocent explanations for those events: Lao, para 59. Those events may still contribute to reasonable grounds.

[50] The direction in Villaroman, para 30, that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”, has no application to reasonable and probable ground determinations. The Villaroman principle operates to ensure that triers of fact eliminate reasonable doubt before convicting in cases that depend on circumstantial evidence. But it is immaterial to reasonable and probable ground inquiries, which turn on probabilities, not proof. To provide an objective basis for reasonable and probable grounds, the information, taken together, need not remove all reasonable possibility that the person to be arrested could be innocent. It is sufficient if “the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity”: Savage, para 18.

[51] I reaffirm these principles because it appears that the trial judge gave undue focus to competing inferences arising from individual items of evidence after considering them in isolation, and that relatedly, he imposed too high a standard of proof on the Crown. The comments he made during the colloquy with counsel reproduced in paras. 16 and 17 above raise these concerns, but more significantly, so does his reasoning in the decision. Not infrequently, and notwithstanding that he admonished himself to consider the evidence in its totality, the trial judge raised concerns about the equivocality of information viewed in isolation and discounted or chose to discard it.

[52] For example, he described the events of April 14, 2020 at the first location as “innocuous enough to lose any probative inferential force”. At that location the driver of the vehicle entered an apartment building linked to a known drug dealer, where he then remained for 13 minutes, a period that an experienced drug officer said was consistent in duration with a drug deal.

[53] The trial judge also said that the subsequent visit of the driver on April 14, 2020 to another known drug house, where an officer observed what he believed to be a “hand-to-hand” transaction, was “equally equivocal”. He said, apparently of the entire April 14, 2020 evidence, “[t]he best that can be said is that the driver likely had ‘CJ’s’ phone with him on April 14th given the tracking warrant data being used.”

[54] With respect, by approaching the events in isolation and demanding more decisive proof than was being offered, the trial judge failed to observe the unlikelihood of coincidence that someone unconnected to the drug trade would innocently: (i) be driving a vehicle known to be used by a drug trafficker; (ii) in possession of a cellphone known to be used by a drug trafficker; (iii) in short order, stop at two locations associated with drug dealing; and (iv) on both occasions, engage in suspicious behaviour suggestive of drug-trafficking. I accept that the events of April 14, 2020 do not prove decisively that the vehicle and cellphone were being used for drug-trafficking that day, but that possibility does not denude the April 14 information entirely of its probative value.

[55] When addressing a visit by the vehicle on April 15, 2022 to the suspected stash house in London, the trial judge commented negatively, referring to the absence of evidence about the owner of the residence or the identity of the driver. He identified no utility in this evidence, despite the fact that it was one of several such stops and part of a larger pattern of behaviour that an experienced drug investigator concluded was consistent with drug trafficking.

[56] Most concerning are the trial judge’s observations made in his concluding remarks where he said:

[A]cknowledging that the defendant had been operating this vehicle in the Sarnia area on multiple occasions, he not being the registered owner, who’s to say someone else does not have access to it? Or, who’s to say that the defendant might have an innocent reason to drive it to Sarnia, and hence avoid a stop over at the alleged “stash house” on May 5, 2020?

And he commented: “[Det Dufton’s] presumption that the phone’s tracking towards Sarnia on May 5, 2020 implied trafficking, and trafficking alone, was also presumptuous” (emphasis added).

[57] With respect, the police were not required to conclude that trafficking was the only inference supported by the evidence to make an arrest, and the possibility that this trip may have been an innocent one does not preclude reasonable and probable grounds. Judges must remember that the reasonable and probable grounds standard depends upon probabilities, not certainties. It does not require proof beyond a reasonable doubt, nor even proof on a balance of probabilities: Beaver, para 72. Reasonable probabilities can co-exist with competing reasonable probabilities. If they could not do so, there would be no distinction between reasonable and probable grounds and the balance of probabilities standard. With respect, it appears that the trial judge expected too much.

(4) The Emphasis on the Quality of the Investigation

[58] The trial judge was highly critical of the quality of the investigation. The extent and regularity of his criticisms are concerning. I need not determine whether the trial judge erred in law by focusing unduly on the evidence the police could have obtained, or did not have, instead of focusing, as he should have, on whether the information they did have reasonably supported Det. Dufton’s subjective conclusions. I simply raise the point to reinforce the material inquiry. As Durno J. (ad hoc) said in Bush, para 70, “[t]he issue is not whether the officer could have done a more thorough investigation. The issue is whether … [the officer] subjectively and objectively had reasonable and probable grounds”.

(5) There Was No Need for Reasonable and Probable Grounds Identifying the Target of the Arrest

[59] I have expressed my view that there were objective grounds to believe that Mr. Asante was driving the vehicle on May 5, 2020, when it entered Sarnia. That being so, the Crown does not need to rely in this appeal on its alternative position that even if the police lacked reasonable and probable grounds to believe that Mr. Asante was driving, his arrest was nonetheless lawful because there were reasonable and probable grounds to believe that whoever was driving the vehicle was about to engage in drug trafficking. I will nonetheless address this alternative basis. I agree with the Crown that the trial judge erred both in his findings relating to the subjective component of this alternative basis, and in rejecting its viability by requiring the police to have reasonable and probable grounds identifying Mr. Asante as the driver on May 5, 2020. In my view, both errors require discussion.

(a) The Trial Judge Misapprehended the Evidence in Rejecting Det. Dufton’s Alternative Theory

[60] At trial, Det. Dufton testified that although he could not be certain that Mr. Asante was the driver of the vehicle on May 5, 2020, he believed that he had reasonable and probable grounds to arrest whoever was driving. The trial judge found Det. Dufton’s testimony that he had he believed at the time of arrest that he could arrest whoever was driving to be “disingenuous”. He described this testimony as “troubling and inconsistent”; a “late change in his testimony respecting his arrest target … adopted only during cross-examination”.

[61] In my view, the trial judge made a material factual error in coming to these conclusions. First, as the trial judge noted, the take-down plan itself, as described in Det. Dufton’s evidence in-chief, contemplated the arrest of anyone who was in the vehicle even before the May 5, 2020 arrest. Second, Det. Dufton made clear in his evidence in-chief that he believed he had reasonable and probable grounds to conduct an arrest even if Mr. Asante was not in the vehicle. After expressing his view that Mr. Asante was “arrestable” he continued:

I believe that, you know, we had corroborated enough evidence to suggest that the vehicle is going to have drugs within it. The occupant of that vehicle will have that phone. The occupant of that vehicle is going to make drug sales within the city. That phone has been seen – has made – had conversations with people involved in the drug trade. ….

So, even if Mr. Asante’s not in that vehicle because I – you know, I’m positive and I – I could fully concede that we do not – we weren’t able to positively identity Mr. Asante, but I still believe that vehicle coming into town has the drugs. And that the person driving it and having that phone is here to make the sales.

[62] I would also note that there is nothing inconsistent in believing that Mr. Asante would probably be the driver of the vehicle but also concluding that even if he was not, there were reasonable and probable ground to arrest whoever was in the vehicle.

(b) The Trial Judge Erred in Requiring Reasonable and Probable Grounds about the Identity of the Driver of the Suspect Vehicle

[63] In my view, the trial judge also erred in concluding that Det. Dufton’s alternative theory could not objectively support reasonable and probable grounds. Specifically, the trial judge proceeded under the mistaken belief that either as a matter of law, or factually in this case, reasonable and probable grounds could not exist absent reasonable and probable grounds relating to the identity of the perpetrator.

[64] As Mr. Asante’s appeal counsel conceded before us, the law does not require reasonable grounds about the identity of a suspect before their arrest. The issue when reviewing the lawfulness of an arrest under s. 495(1)(a) is whether the police subjectively and reasonably believed that the person who was arrested had committed or was about to commit an indictable offence. So long as such grounds exist, the police need not know or be correct about the identity of the person they intend to arrest before they form grounds to arrest them: R. v. Whitfield, 2023 ONCA 479, para 21.

[65] To be clear, there are cases where factually the identity of the suspect is indeed crucial to the existence of reasonable and probable grounds, such as where police arrest a person based on credible information that a particular individual committed an offence. Without an objective basis for believing the person to be arrested is that individual, the arrest would be unlawful.

[66] But this is not such a case. For the reasons outlined in paragraphs 34 to 41 above, I am satisfied that when a Toronto-based vehicle linked to frequent drug trafficking in Sarnia was located entering Sarnia from the direction of Toronto, carrying a cellphone linked to regular drug trafficking in Sarnia, police could reasonably conclude that it was probable that the occupant or occupants, whoever they happened to be, were about to traffic in narcotics. This inference logically arises because of the unlikelihood that an innocent person would happen to (i) drive a suspect Toronto-based vehicle to a distant location where it had recently and frequently been associated with drug trafficking, while (ii) bringing a cellphone that had repeatedly been linked to drug trafficking in that location.

[67] The trial judge foreclosed this alternative basis for arrest either because of the erroneous belief that as a matter of law, reasonable and probable grounds to arrest a person require reasonable and probable grounds as to their identity, or because he mistakenly concluded that such a belief was factually required in this case. I find this to be so for the following reasons:

• In his reasons for judgment, while stressing the importance of evidence of identity, the trial judge repeatedly noted the fact that ss. 495(1)(a) and (b) permit the arrest of “a person”, and he stated that the police must have reasonable and probable grounds to arrest “this person”.
• He also said that the “the primary issue relates to the identity of the drug dealer known as ‘CJ’” and he commented, using general language, that “[i]t is difficult to imagine a more salient issue for resolution than the identity of a target to be arrested.”
• The trial judge acknowledged that the police had reasonable and probable grounds to arrest CJ on May 5, 2020 based on the prior movements of the vehicle and surveillance observations, but then expressed the caveat, “did the police have reasonable and probable grounds to believe that ‘CJ’ was the defendant on that date?”
• Finally, in his concluding comment on the lawfulness of the arrest he said that “Det. Dufton’s conclusions respecting his target’s identity were built upon an unreasonable […] foundation”, and then held that “the defendant’s arrest was not in keeping with s. 495(1)”.

[68] For the reasons I have described the trial judge’s demand for evidence relating to the identity of the driver on May 5, 2020 was mistaken.

CONCLUSION

[69] For the foregoing reasons, I would allow the appeal and set aside the acquittals. Given the trial judge’s alternative finding that he would have found Mr. Asante guilty had he admitted the excluded evidence, this may have been an appropriate case for us to simply substitute a conviction. However, the Crown abandoned that request and therefore the issue was not argued fully before us. I would therefore order a new trial, as the Crown requested.

Released: 2025-05-23

“David M. Paciocco J.A.”
“I agree. B.W. Miller J.A.”
“I agree. J. Copeland J.A.”

[1] On September 19, 2022, the trial judge also released reasons on a pretrial Charter motion, dismissing Mr. Asante’s attempt to exclude evidence obtained as the result of the tracking warrant and the transmission data warrant. No cross-appeal has been initiated relating to that decision.

[2] To be more precise, the trial judge found that it “marginally satisfies the Debot standard.” I would make two points. First, it is reasonable for an officer to rely on informant information that satisfies the Debot standard, whether it does so marginally or manifestly. I therefore reject Mr. Asante’s attempt before us to diminish the contribution that the informant information should make to a reasonable and probable grounds assessment because of the trial judge’s unenthusiastic evaluation of how compelling, credible, and corroborated this evidence was. Second, although it does not affect the outcome of the appeal, I share my surprise with the trial judge’s guarded assessment of the evidence. The uncontradicted independent first-hand information that three tested and known informants provided was detailed and strikingly similar, and the pattern they each described was confirmed by the surveillance evidence.