CITATION: R. v. Smith, 2011 ONCA 748
DATE: 20111129
DOCKET: C51325
COURT OF APPEAL FOR ONTARIO
Doherty, Rosenberg and Juriansz JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Philip Smith
Respondent
Robin Flumerfelt, for the appellant
Frank Addario, for the respondent
Heard and released orally: November 25, 2011
On appeal from the acquittal entered by Justice R.E. Jennis of the Ontario Court of Justice dated October 29, 2009.
ENDORSEMENT
[1] The trial judge determined that the combination of a tip from an untested informant that lacked any information as to the source of the tipster’s alleged assertion that the respondent was a drug dealer, combined with the very brief observation of the respondent meeting with an unidentified person in the respondent’s vehicle, did not provide a reasonable basis upon which the police could arrest the respondent. The trial judge’s analysis reveals no legal error and, in our view, does not reveal any material misapprehension of the evidence.
[2] We agree with the trial judge’s characterization of the tip provided by the informant and the surveillance observations made by the police officer. The very short duration of the meeting between the respondent and the unidentified person in the respondent’s car, the only fact relied on by the police to support the inference that the meeting involved a drug transaction, was, on any reasonable view, a neutral fact.
[3] It follows from the finding that the arrest was illegal that the subsequent search of the respondent and his vehicle were unconstitutional. The search of the residence based upon a warrant founded on information flowing from the unconstitutional arrest and searches of the respondent and the vehicle was also unconstitutional. These violations were compounded by the officer’s admitted and, in our view, serious breach of the respondent’s right to counsel at the time of his arrest.
[4] We also reject the submission that the trial judge erred in excluding the evidence under s. 24(2). The trial judge conducted a s. 24(2) analysis that tracked closely the template in R. v. Grant. We defer to that analysis.
[5] The appeal is dismissed.
“Doherty J.A.”
“M. Rosenberg J.A.”
“R.G. Juriansz J.A.”