COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Nguyen, 2015 ONCA 753
DATE: 20151106
DOCKET: C56480
Hoy A.C.J.O., Weiler and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ha Thi Nguyen
Appellant
Kim Schofield, for the appellant
Peter M. Campbell, for the respondent
Heard: October 6, 2015
On appeal from the conviction entered by Justice Roberts of the Superior Court of Justice, dated June 22, 2012.
By the Court:
[1] Based on information provided by a confidential informant, augmented by police surveillance, police arrested the appellant and charged her with various drug-related offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. A search of her Dodge Caravan, incident to arrest, revealed 11.48 kilograms of marijuana in yard waste bags and another plastic bag. Relying in part on information obtained as a result of the arrest, the police then obtained a warrant to search the three residences the appellant visited while under surveillance. They found 13.551 kilograms of marijuana and 732.97 grams of ketamine cut with lidocaine at the appellant’s house on Autumn Hill Boulevard in Maple (the “Autumn Hill residence”).
[2] At trial, the appellant unsuccessfully asserted that her arrest and the subsequent searches violated her s. 8 and 9 Charter rights and the drugs should accordingly be excluded. She was convicted of three counts of possession for the purpose of trafficking and sentenced to a term of imprisonment of two years less three days, followed by three years of probation.
[3] The appellant appeals her conviction. She argues that (1) the trial judge erred in concluding that there were objectively reasonable and probable grounds for her arrest and, (2) even if there were objectively reasonable and probable grounds for her arrest, there was no basis to support the inference that drugs were being stored at the Autumn Hill residence and therefore no basis for the issuance of the warrant to search the house. The appellant also applies for leave to adduce fresh evidence and appeal her sentence.
[4] For the reasons that follow, we dismiss the appeal against conviction, we decline to receive the fresh evidence, and we grant leave to appeal sentence but dismiss the appeal.
The Arrest
[5] An arresting officer must subjectively have reasonable and probable grounds to make an arrest and those grounds must be objectively justifiable: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251.
[6] Here, the validity of the appellant’s arrest depended upon information conveyed to the police by a confidential informant. The appellant does not suggest that the arresting officer did not have an honest, subjective belief that the appellant was in possession of drugs. However, she argues that the trial judge erred in her assessment of whether the officer’s grounds for arrest were objectively justifiable. Specifically, she asserts that the trial judge failed to properly evaluate the factors set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, namely whether the source was credible, whether the tip was compelling, and whether the information was corroborated by police investigation. In particular, she says the source was not credible and the tip was not compelling. She asserts that, in the totality of the circumstances, the officer’s belief was not objectively reasonable.
[7] We disagree. The information provided by the informant, coupled with subsequent police surveillance, provided objectively reasonable and probable grounds for the appellant’s arrest.
[8] We address the appellant’s assertions in turn.
(a) Credible source
[9] The appellant argues that the trial judge wrongly characterized the informant as “a reliable and accurate source of information” for the following reasons: (a) while on two previous occasions the informant had provided information leading to drug-related arrests, there was no evidence that those arrests resulted in convictions; (b) there is no evidence that the informant was told that the consideration promised was contingent upon the information leading to fruitful results and that criminal consequences could result if he or she provided false information; and (c) the information was provided by telephone, which should have heightened the trial judge’s concerns about its reliability.
[10] We reject these submissions.
[11] The informant was not an anonymous tipster or an untested source. The informant was known to and carded by police and had no criminal record. As the appellant acknowledges, on two previous occasions the informant had provided information resulting in drug-related arrests.
[12] Whether or not convictions had yet ensued as a result of those drug-related arrests does not detract from the reliability of the informant. Considerable time often elapses between an arrest and trial and, in any event, an arrest and seizure of drugs may not result in a conviction for any number of reasons unrelated to the reliability of the informant.
[13] The appellant relies on R. v. Ali, 2014 ONSC 1615 to argue that the lack of evidence that the informant was told that his or her compensation was results-based and there could be consequences for the provision of false information is significant. The circumstances in Ali are distinguishable from the current case and, in any event, Ali does not stand for the proposition asserted by the appellant.
[14] In Ali, the Crown conceded that the evidence supporting the informant’s credibility was weak. The informant had no track record and was induced by the promise of a monetary reward and consideration on outstanding charges. The Crown acknowledged that the fact the informant was induced could have an effect on his credibility, but asserted that such effects would be minimized by the fact that the informant was advised that he or she would receive consideration only if the information led to fruitful results and that criminal consequences could result if the information were false. The trial judge did not specifically adopt this assertion. She simply concluded that the weakness in the informant’s credibility was compensated for by the strength of the other Debot factors. In the current case, there are factors supporting the informant’s credibility that were not present in Ali – namely that the informant was known to and carded by the police and previously provided information leading to drug-related arrests.
[15] Nor are we persuaded that, because the police spoke to the informant by telephone and were therefore unable to observe the informant’s demeanour as he or she spoke, the credibility of the tip is diminished. As we have said, the informant was a known and tested source.
(b) Compelling
[16] The appellant argues that the trial judge failed to consider whether the information provided by the informant was compelling and, further, that it was not. She says the description of the target was not sufficiently detailed and it was unclear whether the informant’s information was recent.
[17] We do not agree.
[18] While the trial judge did not use the word “compelling”, she described the information provided:
[The target] referenced by a nickname, was a female Asian, who had told the confidential informant that she had an amount of marijuana for sale and then the female Asian drove her silver Dodge Caravan with the licence plate BBTT 163 to … [a home on] Epson Downs [Road], in Toronto, where she keyed her way into the front door, went into the house and returned promptly with marijuana, green in colour. The female Asian told the confidential informant that she had lots more marijuana if the confidential informant was interested. The confidential informant left [the home on] Epson Downs Road [the “Epson Downs residence”].
[19] In the context of her reasons, it is clear that the trial judge found this information compelling. And, in our view, it was. The information was derived from the informant’s direct interaction with the appellant. It was far from bald conclusory statements or mere rumour or gossip: Debot, at para. 62. The combination of the vehicle description, complete with licence plate, the specific address where the target sold the informant marijuana and the physical description of the target was highly compelling.
[20] While the date the police received the tip and the date the informant met with the target were redacted from the Information to Obtain Search Warrant (“ITO”), the compelling nature of the information that was disclosed, coupled with the subsequent police surveillance, addressed any concerns arising from the absence of this information.
(c) Corroboration
[21] The appellant challenges the sufficiency of the police surveillance in connection with the subsequent issuance of a warrant to search the Autumn Hill residence, and not her arrest. We agree with the trial judge that the informant’s tip was materially corroborated by subsequent police surveillance before the appellant’s arrest. That surveillance – triggered by the compelling particulars provided by the informant – also dispels any concerns about the currency of the tip. We recount the surveillance in some detail here to demonstrate this, and to provide context for the analysis of the appellant’s argument below that there was no basis for the subsequent issuance of the warrant to search the Autumn Hill residence.
[22] On October 2, 2008, the police conducted surveillance on a person they described as female, Vietnamese, 5 feet 5 inches, of a slim build, wearing a black jacket, and whom they saw leave the Epson Downs residence and get into a silver Dodge Caravan with the licence plate BBTT 163.
[23] The police followed her to a home on Clair Road in Toronto (the “Clair Road residence”), where they saw her exit her van, enter the residence carrying a yellow shopping bag, and momentarily exit, empty-handed.
[24] The police then followed her to the Autumn Hill residence. They observed her drive into the driveway and touch something on the visor of her car and saw the garage door open automatically. They watched her get out of the Dodge Caravan, retrieve a recycling bin, which she placed in the garage, open the back hatch of the Dodge Caravan, retrieve a black gym bag and take it into the garage. They saw her exit the Autumn Hill residence shortly thereafter, get back into the Dodge Caravan and drive off.
[25] The officers then saw her drive back to the Clair Road residence, park in the driveway and wait on the porch of the house while speaking on a cell phone. A short time later, they observed a Honda Accord pull into the driveway and an unknown Asian female exit the car and meet with the appellant. Shortly thereafter, they saw a small Suzuki car pull into the driveway and a second unknown female exit that car, open its rear hatch, and remove two large yard waste paper bags that seemed full. The appellant then placed these bags in the rear of the Dodge Caravan. The appellant then drove off.
[26] With this information, the police stopped the van. The arresting officer smelled a strong odour of marijuana. He arrested the appellant.
The Search of the House
[27] After arresting the appellant and finding 11.48 kilograms of marijuana in yard waste bags and another plastic bag in her Dodge Caravan, the police conducted a CPIC check. The check revealed that the appellant’s criminal record included a conviction on April 28, 2008 – just six months before – for possession of 6.882 kilograms of marijuana. The affiant then completed the ITO with respect to the three residences the appellant had visited while under surveillance. He relied on the information obtained from the informant, the surveillance, the arrest and the CPIC search to support his belief that, by entering these residences, he would locate quantities of marijuana. The justice of the peace issued the warrant.
[28] In assessing whether a search warrant was validly issued, a reviewing judge does not substitute her view for that of the authorizing justice. The reviewing judge instead determines whether the justice of the peace issuing the search warrant could have granted the authorization, based on the reliable information contained in the record, as amplified on review. She does not set aside the authorization unless she is satisfied on the whole of the material presented that there was no basis for it: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1452 and 1454; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251.
[29] The trial judge noted that the affiant should not have described the appellant as having “quickly” removed the black gym bag from the Dodge Caravan when she arrived at the Autumn Hill residence. That information had not been relayed to him over the radio. However, given the other substantial, corroborated information contained in the ITO, it was “not reasonable to infer that it could have had any serious influence on the justice who issued the search warrant”.
[30] The trial judge concluded that, based on the confidential information and the surveillance, it “was credibly probable that [the appellant] was storing marijuana in one or more of the three places where she was seen to have a connection, in particular, in one or both of the addresses, Epson Downs and Autumn Hill, where she was known to and seen to have direct access.”
[31] The appellant argues that this conclusion was not enough to support the issuance of a warrant to search the Autumn Hill residence. She says that the ITO needed to support the affiant’s belief that drugs would be found at that residence. She says that, while there was a nexus between the drugs and the Clair Road and Epson Downs residences, there was no nexus between the drugs and the Autumn Hill residence. She further submits that the evidence that drugs were stored at the Epson Downs residence made an inference that drugs were stored at the Autumn Hill residence unavailable. The appellant says that the police needed to have done more surveillance before arresting her in order to obtain a warrant to search the Autumn Hill residence.
[32] We reject this argument.
[33] The appellant was engaged in transactions involving large quantities of marijuana. She was observed leaving a yellow shopping bag at the Clair Road residence. She was later observed at the same residence picking up two large yard waste bags of what was confirmed to be marijuana. Another plastic bag containing marijuana was also found in the Dodge Caravan when she was arrested. In between her trips to the Clair Road residence, she was observed removing a black gym bag from the Dodge Caravan and taking it into the Autumn Hill residence, which appeared (and proved) to be her home.
[34] It was a reasonable inference that drugs would be found at the Autumn Hill residence. That inference arises from the deposit of the gym bag at the Autumn Hill residence (whether or not it was done “quickly”); the large quantities of marijuana involved, which necessitated the storage of the drugs; and the evidence that the appellant had access to that residence. The information from the informant that there had been drugs at the Epson Downs residence does not make the inference that there were drugs at the Autumn Hill residence unreasonable. Drugs can be stored at more than one location.
Fresh Evidence and Sentence Appeal
[35] The appellant does not argue that her sentence was unfit when imposed. Counsel for the appellant advises that the appellant has been on bail pending appeal for two and one half years, without incident. The appellant submits that this speaks directly to the trial judge’s finding that she had a strong risk of re-offending. She says that her conduct while on bail, together with the proposed fresh evidence that she has been employed at a friend’s salon and cared for her now eighteen-year-old autistic son during this time, renders the sentence imposed by the trial judge unfit. Counsel for the appellant urges that this court substitute a conditional sentence that would permit the appellant to continue to work and care for her son.
[36] We do not see fit to receive the proposed fresh evidence. In imposing the sentence that she did, the trial judge specifically considered both that the appellant would soon be employed full-time in her friend’s salon and that the appellant’s autistic son was a significant responsibility – the very matters addressed by the proposed fresh evidence.
[37] The sentence imposed by the trial judge, as counsel for the appellant concedes, was fit. The fact that the appellant has complied with the terms of her bail pending appeal is not a basis to interfere.
Disposition
[38] We dismiss the appeal against conviction, we decline to receive the fresh evidence, and we grant leave to appeal sentence but dismiss the appeal.
Released: “AH” “NOV 06 2015”
“Alexandra Hoy A.C.J.O.”
“K.M. Weiler J.A.”
“G. Pardu J.A.”