Court of Appeal for Ontario

CITATION: R. v. Williams, 2014 ONCA 908

DATE: 20141217

DOCKET: C58787

Cronk, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rayon Williams

Appellant

David E. Harris, for the appellant

Christopher G. Walsh, for the respondent

Heard: December 11, 2014

On appeal from the conviction entered on March 5, 2014 by Justice Richard A. Humphrey of the Ontario Court of Justice.

ENDORSEMENT

[1] On January 2, 2014, just after 4 p.m., the police received a tip from a known confidential informant that a black male in his early twenties was dealing cocaine from his car – a black four-door Mazda. The informant said that the car was parked outside a residence in Sudbury and provided the address of the residence. The residence was known to the police as one frequented by drug users and traffickers.

[2] Acting on this information, the police went to the address. They maintained surveillance and at around 4:50 p.m., a young black male driving a black four-door Mazda, arrived. This man was the appellant. He went into the residence, stayed for about one minute and returned to his car.

[3] Shortly thereafter, the police arrested the appellant and searched him and his car, incident to the arrest. As a result of the search, the police charged the appellant with possession of cocaine, oxycodone and heroin for the purpose of trafficking and possession of the proceeds of crime exceeding $5,000. The appellant was convicted of all the charges except for the heroin charge, which was reduced to simple possession.

[4] The case against the appellant turned on the admissibility of the drugs and money the police discovered in their search of the appellant’s car. The admissibility of this evidence, in turn, depended on whether the police had reasonable and probable grounds for arrest.

[5] The appellant appeals his conviction on the basis that the trial judge erred in finding that the police had reasonable and probable grounds to arrest him.

[6] The trial judge set out the test for arrest without a warrant as articulated by the Supreme Court in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51. He noted that in cases where the arrest is made based on information from a confidential informant, the criteria identified in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168, apply to determine if the grounds for arrest are objectively reasonable.

[7] The trial judge also reviewed the law pertaining to unreasonable search and seizure. He noted that a search without a warrant is prima facie unreasonable and that the Crown has the burden of showing, on the balance of probabilities, that the search was reasonable. He indicated that a search can be conducted incident to a lawful arrest, if there are subjective reasons for the arrest and those reasons are objectively reasonable.

[8] The trial judge accepted the officers’ testimony that, at the time of the arrest, they subjectively believed that they had grounds to arrest the appellant. With respect to whether the basis of their belief was objectively reasonable, the trial judge found the informant credible, the information he provided, compelling, and that the information was corroborated. The trial judge therefore concluded that there were reasonable and probable grounds for arrest.

[9] With respect to the subjective belief part of the test, the appellant submits that the trial judge erred in failing to take into account the police evidence that on the basis of the information the informant provided they did not believe they had sufficient grounds to obtain a warrant to search the residence at the given address. He argues that the police used the arrest and search incident to arrest to circumvent the higher requirement for a search warrant.

[10] We do not agree.

[11] First, the test for a search warrant is inapplicable here. In any event, it is different than the test for reasonable and probable grounds for arrest. Second, the police evidence about whether they believed they had grounds to obtain a warrant to search the residence related to the information they obtained from the informant. The officers did not say that they did not believe they had grounds to arrest the appellant at the time of arrest, by which time the informant’s information had been corroborated and the police had observed the appellant go in and out of the residence in short order.

[12] The appellant further submits that the trial judge erred in concluding that the officers’ subjective belief that they had grounds to arrest the appellant was objectively reasonable. The appellant contends that: 1) the informant’s information was not compelling as it lacked meaningful detail, 2) the informant’s credibility was suspect as it was not proven at trial that his criminal record did not include dishonesty offences, and 3) the information the informant provided was not sufficiently corroborated.

[13] Again, we disagree.

[14] The objective reasonableness of the arrest must be viewed through the lens of the arresting officers. They were experienced drug enforcement officers. The information the informant provided contained details relating to a description of the suspect and his car and a specific address where he would be at a specific time. Significantly, the address was one known to the police to be associated with the drug trade. These details elevated the information to more than mere rumour or gossip. Furthermore, the information came from an informant with considerable credibility given the reliability of information he had previously provided the police on many occasions. While the informant’s entire criminal record was not put into evidence, he or she nonetheless could only be described as a “gold standard informant”.

[15] Finally, the information the informant provided was corroborated by the arrival of a young black man driving a four-door black Mazda at the address the informant gave the police. Of additional corroborative significance was the appellant’s brief trip inside the residence – conduct the experienced police officers identified as indicative of a drug transaction in a residence they knew was used for such a purpose.

[16] As the trial judge properly recognized, Debot makes it clear that the factors of compelling information from a credible informant that are corroborated, are to be considered in their totality. Weakness in one area may be compensated by strengths in the other two. As observed by the trial judge, the information the informant provided to the police could have been more detailed. However, the trial judge considered all the relevant factors in their totality and concluded that, at the time of arrest, the police officers had reasonable and probable grounds to arrest the appellant.

[17] As the majority of the Supreme Court made clear in R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 30, the finding by the trial judge of whether, objectively, reasonable and probable grounds for arrest existed has a significant factual element and thus is owed some deference by an appellate court.

[18] We see no reason to interfere.

[19] The conviction appeal is therefore dismissed. We note the appeal as to sentence has been abandoned.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“Gloria Epstein J.A.”