Court of Appeal for Ontario

CITATION: R. v. Dezainde, 2015 ONCA 474

DATE: 20150625

DOCKET: C59374

MacPherson, Simmons and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Dezainde

Appellant

Counsel:

Andrew Furgiuele, for the appellant

Kathleen Healey, for the respondent

Heard: June 23, 2015

On appeal from the conviction entered on April 23, 2014 by Justice Joseph W. Quinn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals from his conviction for possession of heroin for the purpose of trafficking.

[2] The police received a tip from a confidential source that the appellant was trafficking in heroin from a particular vehicle with a particular licence plate number. Three police officers subsequently conducted surveillance of the appellant as he drove or rode in the vehicle described in the tip and made various stops and had various interactions over a period of two days.

[3] In their evidence[^1], one or more of the police officers described observing the appellant as he engaged in what the relevant officer viewed as a hand-to-hand transaction at the address of a known heroin user; as other individuals entered the vehicle and then got out shortly after entering; and as the appellant approached the entrances of other residences and then soon walked away. At the end of the surveillance period, police arrested the appellant. A search incident to arrest revealed he was in possession of 7.3 grams of heroin in 10 individually wrapped pieces along with $1,215 in cash and a digital scale.

[4] In reasons on a pre-trial Charter application, the trial judge was not satisfied that police had established that the appellant attended the residence of a known heroin user or that they observed a hand-to-hand transaction at that address. Nonetheless, in the trial judge’s view, the appellant’s attendance at the residence formed part of a pattern of conduct that removed the possibility of innocent coincidence. Accordingly, the trial judge found the police officers subjectively believed they had reasonable grounds to arrest the appellant without a warrant and those grounds were objectively reasonable. He therefore declined to exclude the evidence discovered on the search incident to arrest.

[5] On appeal, the appellant argues that, in the light of his findings of fact concerning the police evidence, the trial judge erred in finding that the police had objectively reasonable grounds for arrest and further erred in failing to exclude the evidence discovered on the search incident to arrest under s. 24(2) of the Charter.

[6] We do not accept these submissions. The trial judge acknowledged that the tip received by police was “bare bones” and that it required robust corroboration. He carefully catalogued the police observations of the appellant's movements and stops over the two-day period. The trial judge recognized that some of these observations could not reasonably be said to corroborate the information received from the tipster. After eliminating those observations from his list, he was left with a series of eight “stops” by the appellant during which either someone was seen briefly entering the vehicle in which the appellant was riding or driving (which was the subject of the tip), or the appellant was seen approaching a residence for a brief period.

[7] The trial judge said, “If the evidence on this application involved the tip and only one of the stops by the [appellant], reasonable grounds [for arrest] would not exist.” Further, “[i]f the evidence consisted of the tip and two of the stops, reasonable grounds still would not exist.” He concluded, “However, at some point (and I need not determine where) in the eight stops … any thought of innocent coincidence disappears. A pattern of conduct emerges.” He therefore found the police had objectively reasonable grounds for arrest. We agree with this conclusion. Viewed in combination, the eight stops as described by the trial judge, together with the tip, gave rise to a credibly based probability that the appellant was engaging in drug trafficking.

[8] In light of this conclusion, it is unnecessary that we deal with the appellant’s argument concerning s. 24(2) of the Charter.

[9] The appeal is therefore dismissed.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“H.S. LaForme J.A.”

[^1]: For the purposes of the pre-trial Charter motion, the parties relied on evidence given at the preliminary inquiry.