COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bediako, 2015 ONCA 788

DATE: 20151119

DOCKET: C59029

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richmond Bediako

Appellant

Danielle Robitaille and Samuel Walker, for the appellant

Christine Tier, for the respondent

Heard: July 2, 2015

On appeal from the conviction entered on March 5, 2014 and the sentence imposed on March 7, 2014 by Justice Thomas J. Carey of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

A. Overview

[1] The appellant, Richmond Bediako, was convicted of three counts related to his possession of an unauthorized, prohibited firearm and cartridge magazine.

[2] The appellant’s conviction followed the dismissal of his application under s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude at his trial the evidence of the loaded firearm. This firearm was obtained in alleged breach of the appellant’s rights under ss. 7, 8 and 9 of the Charter as a result of the appellant’s arrest and the subsequent warrantless search incident to his arrest that was conducted by the Windsor Police Services on January 29, 2013.

[3] The appellant was sentenced to a global term of imprisonment of four years, less credit for 403 days of pre-trial custody, allowed on a 1.25 times’ basis as 500 days.

[4] The appellant appeals his conviction and seeks leave to appeal his sentence.

B. Conviction appeal

i. The Constitutionality of the Appellant’s Arrest and Search

[5] The main argument on this appeal is that the trial judge erred in finding that the police had reasonable and probable grounds on an objective basis to arrest and without a warrant subsequently search the appellant incident to his arrest. The appellant does not contend that the police lacked the requisite subjective belief that the appellant was in unlawful possession of a firearm.

[6] The appellant and his associate were arrested by the police on January 29, 2013 at around 11:06 p.m., after they left the apartment of a known drug user named William Newbold or “Beard”, entered a taxicab, and travelled a short distance west. During the subsequent roadside search of the appellant, the police discovered that the appellant had a loaded .40 calibre Smith and Wesson handgun tucked into his belt and that he was wearing a bulletproof vest.

[7] In accordance with the provisions of s. 495 of the Criminal Code and the criteria articulated by the Supreme Court of Canada in R. v. Debot, 1989 13 (SCC), [1989] S.C.J. No. 118, at para. 53, the trial judge correctly instructed himself on the proper test to be applied in determining whether the police subjectively believed that they had reasonable and probable grounds to arrest the appellant for possession of a firearm, and that those grounds were objectively reasonable in the totality of the circumstances.

[8] In particular, the trial judge carefully and thoroughly analyzed the strengths and weaknesses of the information provided by the confidential informants and of the confidential informants themselves and, having considered the totality of the circumstances, found the confidential informants and their information to be compelling, credible and corroborated.

[9] The trial judge also determined that the police did not act prematurely in arresting the appellant and his associate: the potential loss of evidence if the appellant and his associate were allowed to leave the contained area of the taxicab and the danger to the public and police because of the likely presence of firearms justified the arrest and the subsequent warrantless search of the appellant incident to his arrest.

[10] We agree with the trial judge’s analysis and conclusions.

[11] We do not agree with the appellant’s submission that the police acted prematurely on dated, generic information or that the police failed to take any steps to corroborate the confidential informants’ information.

[12] The appellant’s arrest followed the receipt by the police of specific and current information from confidential informants concerning the particular location and movements of individuals who turned out to be the appellant and his associate, a detailed physical description of them, and the corroboration by police surveillance on January 29, 2013 of important details of the information provided by the confidential informants.

[13] Further, given the similarity in their information, the police also confirmed that the first two confidential informants were not the same person. Moreover, some of the information provided by the confidential informants was already known to the police from previous investigations and the police also attempted to corroborate the information received through earlier surveillance and a review of police databases.

[14] Specifically, the police learned first-hand and acted upon distinctive, detailed information from a reliable, confirmed confidential informant (“Confidential Informant A”) who was involved in the drug subculture, had no convictions for perjury or misleading police, and had provided assistance to the police in the past that had resulted in the execution of search warrants, arrests and seizures. Confidential Informant A advised that two individuals named “Leo” and “Shane” were selling crack cocaine at “Beard’s place”, the Wyandotte address of William Newbold, a drug user whose name, address and uniquely bullet-ridden door were previously known to the police; “Leo” and “Shane” were always wearing bullet proof vests and carrying guns; they were staying in the west end of Windsor; “Shane” was described as a black male, 25 years of age, 170 pounds, 5 feet, 10 inches tall, with a scruffy beard and short black hair.

[15] The particular information that “Leo” and “Shane” were selling drugs from “Beard’s place”, “Leo” and “Shane” had both been seen with vests and guns, as well as the physical description of “Shane”, was confirmed by a second confidential informant (“Confidential Informant B”) through his handler, an OPP officer. Confidential Informant B knew “Leo” and “Shane” and further provided the description of “Leo” as an Iraqi male, 24 years of age, 6 feet tall, 250 pounds. Confidential Informant B was reliable and confirmed: his handler had known him for a number of years; Confidential Informant B had no convictions for perjury or misleading the police; information provided by this informant had resulted in CDSA warrants, arrests and charges being laid with drugs being seized.

[16] Further confirmation of some of the information provided by Confidential Informants A and B came from a third confidential informant (“Confidential Informant C”) who described “Leo”, also known as “Abdul”, as being of Iraqi background, of youthful appearance, namely, about 19 years of age, and 6 feet tall, and advised that “Leo” was selling cocaine from “Beard’s place”. Confidential Informant C also related the unusual, specific detail that “Leo” took a taxicab to and from Mr. Newbold’s residence on Wyandotte from his residence on Peter Street, west of Wyandotte.

[17] The police did not arbitrarily or precipitately arrest the appellant and his associate but waited until police surveillance on January 29, 2013 confirmed important identifying details provided by the three confidential informants.

[18] During the surveillance conducted between 8:30 and 11:06 p.m., the police observed various individuals coming and going in the area of “Beard’s place” but did not move to arrest any of them. The police waited until they noted a taxicab pull into the alley behind Mr. Newbold’s building at 11:04 p.m. and saw a black male (the appellant) and a white male (the appellant’s associate), roughly matching the descriptions provided by the confidential informants, enter and then leave Mr. Newbold’s building. The police then conducted additional surveillance to confirm whether the taxicab would travel west of Wyandotte, which it did, confirming the information that “Leo” and “Shane” resided in the west part of Windsor. It was at this point that the police arrested the appellant and his associate in a high risk takedown at the intersection of Peter Street and Rosedale Avenue.

[19] The trial judge properly viewed the evidence of the grounds for arrest in the context of the dynamics of an urgent situation likely involving firearms. He correctly concluded that in these circumstances, based on the information that the police had received and the surveillance which confirmed some material details about the appellant, his associate, and their activities, the police had objectively reasonable and probable grounds to arrest the appellant and his associate and then to search the appellant incident to his arrest.

ii. The s. 24(2) Charter Analysis

[20] Even though the trial judge found no Charter breach, he went on to conduct the s. 24(2) Charter analysis. The trial judge recognized that if there had been a breach, it would have had a significant impact on the appellant’s privacy rights. However, he concluded that any such breach was at the lower end of the spectrum and was neither flagrant nor deliberate. He determined that excluding the real evidence of the firearm and ammunition would have a negative impact on the long term reputation of the administration of justice, and that the concerns for public safety and the public interest in a trial on the merits of the very serious charges against the appellant outweighed the appellant’s privacy rights in the circumstances of this case.

[21] The appellant contends that the trial judge erred in his s. 24(2) Charter analysis and that the evidence discovered as a result of the police search of the appellant should have been excluded from the evidence at the appellant’s trial.

[22] We find that the trial judge properly balanced all of the well-known elements of the analytical framework set out in R. v. Grant, 2009 SCC 32,and, for the reasons that he expressed with which we agree, correctly determined that the loaded firearm found tucked into the appellant’s belt should not be excluded.

[23] For these reasons, we agree with and find no basis to interfere with the trial judge’s decision.

C. Sentence appeal

[24] The trial judge gave the appellant credit of 500 days on a 1.25 times’ basis for the 402 days that he had spent in pre-trial custody. The parties agree that the appellant should have received credit of 603 days for the 402 days of his pre-trial custody on a 1.5 times’ basis, in accordance with R. v. Summers, 2014 SCC 26, that was released following the imposition of the sentence in this case.

[25] We agree that the appellant should be given the enhanced credit on a 1.5 times’ basis, which amounts to a reduction in his sentence of 103 additional days.

[26] The appellant further argues that notwithstanding the enhanced credit for pre-trial custody, the sentence imposed is still demonstrably unfit and should be reduced.

[27] We disagree. The trial judge properly considered that the principles of denunciation and deterrence must be given substantial weight in sentencing the appellant for his gun-related offences, especially in light of the appellant’s aggravating prior gun-related convictions. The trial judge also expressly took into account the appellant’s mitigating factors of youth, family support, and his potential for rehabilitation.

[28] The sentence imposed reflects the trial judge’s proper balancing of all the relevant sentencing principles and is well within the range for these offences. The sentence reached by the trial judge is reasonable, attracts considerable deference, and should not be varied, other than to incorporate the enhanced credit for pre-trial custody of an additional 103 days.

D. Disposition

[29] For these reasons, the appeal from conviction is dismissed. Leave to appeal the sentence is granted, the appeal from sentence is allowed on consent to increase the credit allowed to the appellant for pre-trial custody on a 1.5 times’ basis from 500 to 603 days, but is otherwise dismissed.

“David Watt J.A.”

“David Brown J.A.”

“L.B. Roberts J.A.”