COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Amare, 2015 ONCA 673

DATE: 20151006

DOCKET: C59440

Strathy C.J.O., MacPherson J.A. and Speyer J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Dawit Amare

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Sarah Shaikh, for the respondent

Heard: September 28, 2015

On appeal from the conviction entered on July 10, 2014 and the sentence imposed on October 15, 2014, by Justice S. Casey Hill of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of possession of the drug MDMA (commonly referred to as Ecstasy) for the purposes of trafficking. He was sentenced to a term of four years imprisonment.

[2] On the afternoon of May 21, 2010, the appellant was arrested at gunpoint after his Pathfinder motor vehicle was stopped by police on Dixon Road in the northwest area of Toronto. The appellant was the driver and sole occupant of the Pathfinder.

[3] A search of the rear storage area of the vehicle resulted in the finding of a large red suitcase. The suitcase contained nearly 100,000 Ecstasy tabs sealed in plastic bags. The suitcase also contained several sealed vacuum bags of a white powder. It was originally thought by the police to be cocaine. Analysis of the powder determined the powder was MDMA, which is the constituent element of Ecstasy. The powder weighed 1.9 kilos. Evidence at trial indicated the value of the drugs exceeded $300,000.

[4] At trial, the appellant sought the exclusion of the seized drugs asserting that his s. 8 and s. 9 Charter rights were contravened. The appellant's trial counsel argued:

(i) there were no reasonable and probable grounds for his arrest; and

(ii) because his arrest was arbitrary, the warrantless search incident to arrest was unlawful and in breach of his right to be secure against unreasonable search and seizure.

[5] In addition to the Charter issue, the appellant's defence was that he had no knowledge or control of the drugs seized.

ANALYSIS:

THE CHARTER ISSUE

[6] The validity of the appellant's arrest depended upon information conveyed to the police by a confidential informant. It was conceded that, based on the information disclosed to police by the confidential informant, the arresting officers had an honest, subjective belief that the appellant had committed a criminal offence. The contentious and pivotal issue at trial, as it is in this appeal, was whether the police had an objective basis to believe the appellant committed a criminal offence.

[7] The trial judge extensively summarized the governing principles with respect to the existence of reasonable and probable grounds for the appellant's arrest. As the underpinning for the grounds to arrest the appellant depended on the information given to the authorities by the confidential informant, the trial judge identified the Debot factors (how compelling was the tip, how credible the source, how much was the tip corroborated) and determined that, on a totality of circumstances approach, the arrest of the appellant was objectively reasonable. The trial judge ruled that, on a subjective and objective basis, reasonable grounds existed justifying the appellant's arrest. He further ruled that the police did not act unreasonably in carrying out the gunpoint arrest and immediately moving to a valid warrantless search for the presence of illegal drugs. In the result, he found there was no breach of the appellant's s.8 and s.9 Charter rights.

[8] On appeal, the appellant submits the trial judge erred in his determination that objectively discernable facts existed to support his finding that there were reasonable and probable grounds for the appellant’s arrest. Counsel argues that the information coming from the confidential informant had a “thin” or “sparse” evidentiary basis in respect to each of the three Debot factors. She contends that the trial judge’s analysis lowered the requisite standard from reasonable and probable grounds to arrest to one of reasonable suspicion to detain.

[9] We do not agree. First, the information from the confidential informant was compelling. As a result of this information, the police were alerted to expect a drug deal on May 21, 2010. In accordance with this tip, the police had precise details of the target vehicle carrying the drugs including the make of the vehicle and its license number. In addition, as a result of the tip the police expected the Pathfinder to be travelling in the geographic area of Kipling Avenue and Dixon Road in Toronto in tandem with a gold Maxima vehicle. We note that the colour discrepancy – gold and not silver – was minor and was taken into account by the trial judge. Moreover, as found by the trial judge, the incremental updating of information to the police by the confidential informant supported the inference that the informant was “speaking from a position of real time and direct sourcing not rumour or gossip or fabrication”.

[10] Second, with respect to the credibility of the confidential informant, it is of importance to note that the confidential informant was neither an anonymous tipster nor an untested source. The confidential informant worked with his police handler for about a year. While the information he provided to the police did not lead to any charges or arrest, the confidential informant provided authorities with the names of persons involved in organized drug trafficking. Significantly, the confidential informant had established a track record for providing accurate information that was unique, and without error or exaggeration. Finally, the trial judge found it was in the interest of the informant to provide accurate information in order to receive compensation and avoid potential prosecution for misleading the police.

[11] Third, there existed corroboration to support the confidential informant’s information. The police surveillance located the target vehicle with the reported license number in the same northwest area of Toronto identified by the confidential informant. The driver of the Pathfinder, as reported, was black. As well, the target vehicle was travelling in tandem with a Maxima vehicle.

[12] In his analysis, the trial judge recognized that greater informational detail with respect to the identity of the participants in the drug trafficking enterprise, as well as the type of narcotic involved, might have been helpful. He also took into account that the anticipated drug deal did not take place because the police exercised their discretion to affect an arrest in order to avoid the risk of losing the target vehicle.

[13] In summary, the trial judge correctly recognized that the Debot factors do not each form a separate test. He grounded his decision on a totality of circumstances approach. We see no error in his findings. We would not interfere with the trial judge’s holding that reasonable and probable grounds existed for the appellant’s arrest.

THE FINDING OF GUILT

[14] As previously noted, the drugs were found in the rear compartment of the appellant’s vehicle. He was the driver and the sole occupant. The appellant testified on his own behalf, denying he had any knowledge or control over the illegal drugs. The trial judge gave detailed reasons for rejecting the appellant’s evidence as entirely unworthy of belief. He found the appellant’s testimony included “confusion, improbabilities and inconsistencies” and went on to itemize twelve specific problematic areas of his testimony. A review of the appellant’s testimony entirely supports the trial judge’s finding. There is no merit to this ground of appeal.

APPEAL AGAINST SENTENCE

[15] As noted, the appellant had in his possession a very large quantity of ecstasy with a projected street value of $300,000. Based on the amount of MDMA involved, a finding that this was a large scale drug operation is warranted. The trial judge accurately noted that the most pressing factors relating to sentence in cases involving the commercial distribution of illicit drugs are the protection of the public, general deterrence and denunciation. Taking into consideration the harmful characteristics of the drug, the fact that it was destined for sale within the community, and the size and value of the drugs, we are of the view that the sentence of four years imprisonment was neither harsh nor excessive.

[16] In the result, the appeal against conviction and sentence is dismissed.

“G.R. Strathy C.J.O.”

J.C. MacPherson J.A.”

“C.M. Speyer J. (Ad Hoc)