CITATION: R. v. Whyte, 2011 ONCA 24
DATE: 20110113
DOCKET: C51976
COURT OF APPEAL FOR ONTARIO
Rosenberg, Cronk and Epstein JJ.A.
BETWEEN:
Her Majesty The Queen
Appellant
and
Marc Whyte
Respondent
Jennifer Woollcombe, for the appellant
Michael Dineen, for the respondent
Heard: October 19, 2010
On appeal from acquittal by Justice Leonard Ricchetti of the Superior Court of Justice, dated March 16, 2010.
Rosenberg J.A.:
[1] The Crown appeals from the respondent’s acquittal by Ricchetti J. on various firearms offences. The trial judge found that the respondent’s rights under ss. 8 and 9 of the Charter of Rights and Freedoms had been infringed and he excluded the evidence relating to the firearms under s. 24(2) of the Charter. At the conclusion of oral argument the court indicated that the appeal was allowed for reasons to follow.
THE FACTS
The Tip
[2] At approximately 10:30 p.m. on Saturday, May 31, 2008 a Canada Border Services Agency Officer, Dave Jackson, who was part of the integrated weapons trafficking investigations team, contacted a Windsor police officer, Jason Bellaire, and passed on a tip to him from an informer. The informer was known to Officer Bellaire and had previously provided information that led to significant seizures of firearms and drugs.
[3] The informer had told Officer Jackson that an individual would be coming to Windsor from the Toronto area for a transaction related to firearms and drugs. According to the informer, the individual was a black male, possibly named “Jay”, and would possibly be coming with someone else. The transaction was going to take place in the area of 325 Giles West, in downtown Windsor and was to happen “imminently”. Officer Bellaire testified that 325 Giles was an apartment building with about 5 floors.
[4] Officer Bellaire, who was assigned to the Provincial Weapons Enforcement Unit, testified that in his experience, Windsor is a place where people come to purchase firearms. Inexpensive firearms are available in Windsor because of its proximity to Detroit, where firearms are much more available. According to Officer Bellaire, Windsor has become a nucleus for illegal trafficking in firearms. On the other hand, drugs such as cocaine are cheaper in the Toronto area. Accordingly, there is a trade in firearms and drugs between Toronto and Windsor.
The Windsor Surveillance
[5] As a result of the tip, the police set up surveillance at 325 Giles, beginning at 2:30 a.m. Sunday, June 1, 2008. At about 5:00 a.m. a black Grand Prix automobile arrived at the rear parking lot of the building. Two persons, a black male and a black female, entered the building. About half an hour later, these same two people left the building, returned to their car and headed back to the Toronto area. No other vehicles arrived at 325 Giles before the Grand Prix.
[6] Officer Bellaire contacted Officer Skinner of the Peel Regional Police, who was also assigned to the Provincial Weapons Enforcement Unit. Officer Bellaire provided him with the information from the informer and the surveillance. Officer Skinner checked on the vehicle and determined that it had been rented from a Mississauga branch of National Car Rental. Officer Bellaire explained that the fact this was a rental car was significant because, in his experience, people involved in illegal trafficking in drugs and firearms tend to use rental vehicles to transport their goods for asset forfeiture reasons. Officer Skinner gave similar evidence.
The Peel Surveillance
[7] The Windsor police followed the car until it reached Peel Region at which point they turned the investigation over to the Peel Regional Police. By this time, the Peel police had also been told that the man in the car was wearing a tracksuit. At 7:45 a.m. the Peel police found the car parked in the upper level of a parking lot outside a high rise apartment building. At 7:51, the police saw a black male move the car. About fifteen minutes later, the police found the car parked in the apartment building’s underground parking lot. At 8:14 a.m. the police saw two black males and one black female come out of the apartment building and go into the underground parking lot. They walked directly to the trunk of the car. One of the men, who was wearing a tracksuit, was carrying a shoe box. The man was supporting the bottom of the box with both of his hands. Officer Bellaire testified that “on countless occasions shoe boxes are used as a storage bin for money, drugs and firearms”.
[8] The female entered the vehicle and began tidying it up, while the two men bent over the trunk area and seemed to be moving things around. The man in the tracksuit pulled off the cover where the spare tire would be kept, and removed the spare tire. He placed the shoe box where the spare tire had been. He then replaced the cover and the two men hugged each other. The other man, not the one in the tracksuit, entered the car. He and the female then drove off.
The Toronto Arrest and Search
[9] Based on the information from the Windsor police and the observations of the Peel officers, Officer Skinner concluded that he had reasonable grounds to arrest the occupants of the car. Accordingly, the vehicle was followed to downtown Toronto where it was stopped by a police tactical team. The occupants of the vehicle, the appellant and the woman, were arrested. The police searched the vehicle and found three handguns wrapped in a pillowcase inside the shoe box in the spare tire compartment. One of the handguns was loaded. The police found another loaded handgun in the centre console. They also found a backpack with some ammunition.
THE TRIAL JUDGE’S RULING
[10] The appellant admitted all the elements of the offence but argued that the evidence should be excluded under s. 24(2) of the Charter, because he had been unlawfully arrested and searched, thus violating his rights under ss. 9 and 8 of the Charter. Resolution of the Charter violation issue depended on whether the Peel police had reasonable grounds to arrest the appellant. If the arrest was lawful, the search was a lawful incident of the arrest.
[11] In his lengthy and comprehensive reasons, the trial judge first dealt with the issue of standing. He held that the appellant had standing to raise a s. 8 violation as it related to the shoe box and its contents, but not the gun found in the console. Nothing turns on the standing issue for the purpose of this appeal. The trial judge also found that Officer Skinner had the requisite subjective belief that there were grounds for an arrest. However, he found that the officer lacked objective grounds. Accordingly, he concluded that the arrest was unlawful as was the subsequent search.
[12] While the trial judge recognized that it was necessary to look at the totality of the information available to the police, he considered four categories of information separately, starting with the informer’s tip and the Windsor surveillance. The test to be applied for considering whether an informer’s tip provides reasonable grounds for an arrest or search is whether the tip is compelling, whether it is credible and whether the tip was confirmed by independent investigation. The trial judge noted that the defence conceded that the source was credible. He held, however, that the tip was not compelling, indeed, that it was extremely weak because the source of the information was unknown, the actual information provided by the informer was not known and the tip was very vague. He was of the view that the opportunity for innocent coincidence was too high.
[13] The trial judge also held that it was possible the vehicle referred to by the informer had arrived and left before the surveillance was established at 325 Giles. Accordingly, “there was effectively no possibility of the Windsor police independently corroborating this tip”. In any event, he found that the Windsor police surveillance, which showed the arrival of a vehicle at 5:00 a.m., did not provide any independent confirmation of the tip. Again, he found the probability of innocent coincidence would be very high even though the 5:00 a.m. arrival was unusual.
[14] The trial judge next considered the significance of the fact that the police learned that the suspected vehicle was rented. He found it difficult to accept that the fact that the vehicle was a rental car added to the grounds for arrest. The trial judge relied upon this court’s decision in R. v. Calderon (2004), 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 as holding that the fact a person was driving a rental vehicle was “neutral”. He was of the view that the evidence from the officers in this case was no more than “an impressionistic conclusion that rental cars are some indication of criminal activity because criminals don’t want their cars seized” and could not therefore contribute to the objective part of the test. The officers’ opinions were not based on “any evidence, survey, statistics or any other basis” that would allow a court to determine the validity of the inference or the weight to be given to that inference.
[15] The trial judge then turned to the shoe box. He dealt with the question of the shoe box separately from the manner in which it was placed in the trunk. He considered that there was no basis for the inference that the use of the shoe box indicated that the contents were contraband.
[16] The trial judge finally turned to the surveillance by the Peel police. He considered that there were difficulties with the surveillance including that the location of the vehicle was lost for a period of time and that it was uncertain whether the people seen near the vehicle in the garage and getting into the vehicle were the same ones who travelled to Windsor. The trial judge’s most significant finding concerned the secreting of the shoe box is set out at paras. 84 and 85 of his reasons:
The Peel police observed that the two males carefully carried a shoe box to the trunk, removed the spare tire and put the shoe box in the spare tire area or wheel well. I accept that this activity would have been suspicious to the police. While many people put things in the trunk of a vehicle for safe keeping, it is unusual to remove the spare tire to put something in the wheel well, cover it with the cardboard cover and leave the spare tire in the trunk. However, it does not assist as to what was being secreted in the trunk. Clearly, what was being secreted was from one of the apartments. Was it firearms, drugs, money, or other valuables? If the firearms were picked up in Windsor, why take them upstairs and bring them down a short time later? There isn't even a connection between the shoe box or its contents and the alleged transaction in Windsor.
While the activity of hiding the shoe box is suspicious, does it meaningfully contribute to the existence of probable grounds? Considering the very little probative value of all the other evidence relied on by Officer Skinner (for the reasons set out above), this additional evidence of hiding the shoe box in the trunk is not so probative as to make Officer Skinner's subjective belief objectively demonstrable. [Emphasis added.]
[17] The trial judge concluded that, considering the totality of circumstances, the police only had a hunch or suspicion that the vehicle contained firearms; the tip was too vague to be compelling and it was not confirmed since there was no further information gathered during the investigation that could give the police more than a suspicion. Thus, the police did not have reasonable grounds to arrest the occupants of the vehicle. The trial judge went on to conclude that the evidence should be excluded under s. 24(2) of the Charter. Since, in my view, the trial judge erred in finding a Charter violation, I need not set out the trial judge’s reasons concerning s. 24(2).
ANALYSIS
The Standard of Review
[18] The standard of review of the trial judge’s decision is set out in the Supreme Court of Canada’s decision in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at para. 30:
The finding by a trial judge of whether, objectively speaking, reasonable and probable grounds for arrest existed clearly has a significant factual element and thus is owed some deference by an appellate court. In the present case, in arriving at his conclusion that objective grounds for arrest existed, in my view the trial judge committed two errors in principle that invite review of his finding. [Emphasis added.]
[19] This case turns solely on whether the police had objectively reasonable grounds to arrest the occupants of the car. The trial judge found that the police had the requisite subjective belief that there were firearms in the vehicle and the respondent did not challenge that finding. In my view, the trial judge made two important errors in principle in finding that the police did not have the requisite objective grounds:
- He failed to give any weight to the defence concession that the police informer was credible.
- He failed to consider the totality of the information available to the arresting officers and, in particular, erred in failing to consider the impact of the unfolding events as seen in the police surveillance.
Credibility of the Informer
[20] As the trial judge properly recognized, in determining whether there are reasonable grounds for a warrantless search that is based on an informer’s tip, the test to be applied is that set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 and in particular by Wilson J., speaking for all members of the court on this issue, at p. 1168:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[21] The trial judge’s sole reference to the credibility of the informer was to note that the defence had conceded that the source was a credible source. But that reference was not sufficient in this case. The credibility of the informer was not simply a factor; it served to allay one of the three principal concerns that Wilson J. addressed in Debot. The credibility, in the sense of reliability, of the informer was an important factor that could compensate for weaknesses in the other two areas, especially whether the information predicting the commission of an offence was compelling.
[22] In this case, the credibility of the tip and its content were inextricably bound together. The informer was not just credible in the general sense of having provided reliable information to the police in the past; he had provided information in the past concerning firearms and drugs. His tip on this occasion also related to firearms and drugs.
Independent Confirmation
[23] The trial judge’s most significant error, in my view, concerned his treatment of the weight to be attached to the police surveillance. He compartmentalized the information from the surveillance and unreasonably discounted its value. I begin with the Windsor surveillance. As indicated, that surveillance confirmed elements of the tip, most importantly the attendance at the address provided by the reliable informer. The length of the attendance was itself capable of providing some confirmation that the people were in Windsor for a criminal purpose. To drive all the way from Toronto in a rental car for a 30 minute stay is highly suspicious. These facts, on their own, may not have been sufficient to provide the police with reasonable grounds for arrest, and the police themselves recognized this fact. However, these facts were beginning to build a compelling picture of criminal activity as predicted by the informer.
[24] The trial judge also erred in his treatment of the significance of the fact that the car was rented. As indicated, the trial judge relied upon this court’s decision in Calderon as standing for the proposition that a rental car was a neutral factor. He went on to find that since the officer’s opinion was not based on any evidence, survey or other basis that could be independently verified, it had little if any weight.
[25] I begin with this court’s decision in Calderon. First, it is important to point out that Calderon was not an informer tip case. That case turned on whether the officers had grounds for detaining the accused and searching the car without a warrant based on the officers’ own observations. The only information on the record to justify the detention was supposed “indicators” that the occupants of the car were drug couriers, based on training the officers had received at a drug interdiction course. Those indicators, such as possession of a map, cell phone, fast food containers and so on were conceded by the officers to be “neutral”. As Laskin J.A. said at para. 72, the admission that the factors were neutral was not surprising since those items “form part of many peoples’ lives”. Justice Laskin was also concerned that the officers attached weight to the fact that the accused was driving an expensive car. He considered this to be impermissible stereotyping at para. 73. As in this case, the officers had also testified that drug couriers use rental cars in case of vehicle seizures; Laskin J.A. made no comment about the fact that the vehicle was rented. Finally, Laskin J.A. noted that the two officers involved had stopped fifty to one hundred vehicles based on these indicators and had failed to ever have their suspicions verified.
[26] This case is different. First, whether or not there were reasonable grounds did not stand or fall on the opinion of officers as to the weight to be attached to mundane items that could be found in any vehicle, rented or otherwise. The police in this case were relying on a tip from an informer who had proved reliable in the past – the opposite of the facts in Calderon, where the indicators had been proven unreliable as often as a hundred times before. Second, the inference to be drawn from the use of a rented car was simply one piece of information to be considered along with all the other information. It was entitled to some weight based on the officers’ training and experience. On its own, it could not provide objective grounds for a search. However, it could not be wholly discounted, since there was no evidence to undermine the value of the officers’ training and experience, unlike the case in Calderon. Finally, the fact of the use of a rented car had to be placed into context. The car had been rented in the Toronto area, which confirmed the aspect of the tip that the suspects were coming from Toronto.
[27] The trial judge also erred in his treatment of the surveillance by the Peel police. He was concerned that the police lost sight of the vehicle for a brief period and were unable to verify that the people who travelled to Windsor were the same ones who returned to the car with the shoe box. In my view, those difficulties did not undermine the value of the Peel police surveillance. In Windsor, a black male wearing a track suit and a black female were associated with the vehicle. In Toronto, a black male wearing a track suit and a black female were again associated with the vehicle, along with another black male. The police could not say for certain that they were the same people associated with the vehicle in Windsor, but it was an interesting coincidence.
[28] Finally the Peel police observed the highly suspicious handling of the shoe box. On its own, this observation was powerful evidence that the vehicle was being used to carry contraband. It is true that, viewed in isolation, it was not possible to say that the shoe box contained firearms as opposed to drugs or some other contraband. But, this was the trial judge’s principal error. He held that the suspicious shoe box could not “meaningfully contribute to the existence of probable grounds” given the “very little probative value of all the other evidence”.
[29] What the trial judge failed to appreciate was that what was needed was independent confirmation of the informer’s tip. The surveillance did not stand on its own, as in Calderon. To summarize, by the time the police decided to stop the vehicle they had the following information to confirm the tip from the reliable informer:
- The vehicle arrived at the Windsor apartment building address as predicted in the tip;
- Windsor was known to be a location for firearm/drug transactions;
- The suspects were driving a rental vehicle;
- The suspects arrived in Windsor at 5:00 a.m. and remained for only 30 minutes;
- A black man wearing a track suit and a black woman were involved in both Windsor and Peel;
- The vehicle was parked in Peel for only 30 minutes before the occupants of the car were on the move again, this time with a shoebox secreted in the space where the spare tire had been.
[30] Taken together, this information was sufficient to confirm the tip from the reliable informer and provide the police with the necessary objectively reasonable grounds to arrest the occupants of the vehicle and search the vehicle. To return to Debot, Wilson J.’s observation at p. 1172 is applicable to this situation:
In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater. Having regard to the quality of the information and the reliability of the informant in this case, I am satisfied that the police surveillance yielded sufficient corroborative evidence to warrant the belief that a drug transaction had occurred. [Emphasis added.]
[31] In this case, the sequence of events, from the 30 minute stay at the specified address in Windsor to the secreting of the shoe box after the 30 minute stay in Peel, sufficiently conformed to the anticipated pattern to remove the possibility of innocent coincidence. This sequence of events had to be measured against the knowledge and experience that the police officers brought to the investigation in informing the inferences to be drawn from the observations. That experience included knowledge of the trafficking in firearms in the Windsor area and the use of rental cars in illegal trafficking of drugs and firearms. As Levine J.A. said in R. v. Tran, 2007 BCCA 491 at para. 12, the objective reasonableness of the arresting officer’s grounds “must be assessed from the standpoint of the reasonable person ‘standing in the shoes of the police officer’”.
[32] Since the police had reasonable grounds, subjective and objective, to believe that the occupants of the vehicle were in possession of illegal firearms, the arrest of the occupants of the vehicle and search as an incident of the arrest were lawful. There was no violation of the respondent’s rights under ss. 8 and 9 of the Charter and the evidence should not have been excluded.
DISPOSITION
[33] At the hearing of the appeal, counsel for the respondent conceded that if the trial judge’s ruling on the admissibility of the evidence was overturned, the proper result was to allow the appeal, enter convictions on counts 2, 3, 6, 9, 12 and 13 of the indictment, conditionally stay the conviction on count 2, and remit the matter of sentencing to the trial judge. As I have indicated, we made that order at the conclusion of the oral hearing.
Signed: “M. Rosenberg J.A.”
“I agree E. A. Cronk J.A.”
“I agree G. J. Epstein J.A.
RELEASED: “EAC” JANUARY 13, 2011