COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Italiano, 2015 ONCA 179

DATE: 20150316

DOCKET: C56934

Tulloch, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Italiano and Mohamed Abdul-Hamid

Appellant

Counsel:

Daniel C. Santoro, for the appellant

Brian Puddington, for the respondent

Heard and released orally: February 26, 2015

On appeal from the convictions entered by Justice Brian P. O’Marra of the Superior Court of Justice, sitting without a jury, on January 22, 2013.

ENDORSEMENT

[1] The appellants, Christopher Italiano and Mohamed Abdul-Hamid, appeal their convictions on charges of trafficking and possession of cocaine for the purposes of trafficking, respectively, contrary to ss. 5(1) and 5(2) of the Controlled Drugs and Substances Act.

[2] Abdul-Hamid’s appeal is dismissed as abandoned, as he has not surrendered into custody. Counsel confirms that Italiano’s appeal is based on the allegation that the police did not have reasonable and probable grounds to arrest Abdul-Hamid and thus the evidence against Italiano should have been excluded. Given our finding on the merits of the appeal, it is not necessary for us to decide the issue of whether Italiano has standing to challenge the constitutionality of the arrest of Abdul-Hamid.

[3] Both appellants were arrested following police observations of what they perceived to be a drug transaction between the two. On the day of the arrest several plain clothes officers were watching a house located at 36 Celt Avenue in Toronto. One of the officers, Sergeant Mancuso, had previously received information through two confidential informants that a man named Michele Santonato was a large scale drug dealer, They believed he operated out of that location.

[4] While watching the location, the police observed the appellant, Italiano, entering the house and emerging a few minutes later with a shoebox in his hands. He then entered his car and drove away. The police followed. About 15 minutes later, Italiano stopped his car. The other appellant, Abdul-Hamid, entered Italiano’s car and then got out two minutes later, holding the same shoebox. Abdul-Hamid got into his own car and drove away. The police followed him, stopped him and arrested him at gunpoint. Following the arrest, his vehicle was searched and the shoebox was located. It contained one kilogram of cocaine.

[5] Both appellants were subsequently convicted on the charges as stated above. At trial, they both challenged the arrest and subsequent search on the basis that the arresting officer, Detective Asselin, lacked reasonable and probable grounds to make the arrest. They argued that as a result the search incident to arrest was unlawful and the evidence should be excluded pursuant to s. 24(2) of the Charter. The trial judge dismissed the Charter motion, finding that the officers had sufficient reasonable and probable grounds to make the arrest based on the information that they received, as well as their observations and surveillance. He concluded the search was validly conducted incident to arrest.

[6] The trial judge found that during the investigations the officers involved in the arrest, including the arresting officer and the officer who had the tip from the confidential informants, were part of an investigative team conducting surveillance and they kept in contact by radio. He concluded that based on the information regarding Santonato and the officers’ observations, the arresting officer was entitled to order the arrest of Abdul-Hamid. We agree.

[7] In our view, the arresting officer had the requisite reasonable and probable grounds to conduct the arrest. In this case, Det. Asselin ordered the appellant Abdul-Hamid’s arrest. At the time, this officer had received confidential information communicated through Sgt. Mancuso, that Santonato was a significant drug-dealer. Det. Asselin could rely on a summary of the information given to him by Sgt. Mancuso in deciding whether he had grounds to make the arrest. Santonato was observed at 36 Celt Avenue. The appellant Italiano went into 36 Celt Avenue and emerged a few minutes later with a shoebox. The shoebox was later seen in the appellant Abdul-Hamid’s possession. He took it in his car and then left. Det. Asselin, who ordered Abdul-Hamid’s arrest, made most of these observations in person, and was informed of the rest by his fellow investigating officers.

[8] The Court must consider the totality of the circumstances to determine whether the constellation of factors taken together supports the officer’s reasonable and probable grounds. We are satisfied that the evidence established the requisite reasonable and probable grounds relied on by Det. Asselin to make the arrest.

[9] Accordingly, we see no error in the trial judge’s decision. The appeal is dismissed.

“M. Tulloch J.A.”

“G. Pardu J.A.”

"M.L. Benotto J.A."