COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhillon, 2016 ONCA 308

DATE: 20160428

DOCKET: C59630

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Beant Dhillon

Respondent

Rick Visca, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent

Heard: January 8, 2016

On appeal from the acquittals entered on October 27, 2014 by Justice Clayton J. Conlan of the Superior Court of Justice, sitting without a jury, with reasons reported at 2014 ONSC 6287.

Tulloch J.A.:

A. Introduction

[1] The respondent was acquitted of three counts of possession of heroin and methamphetamine for the purpose of trafficking. The Crown invited acquittals after the respondent successfully applied to have evidence excluded on the basis that his right to not be arbitrarily detained or imprisoned under s. 9 of the Charter of Rights and Freedoms was infringed. The Crown now appeals the acquittals, on the basis that the trial judge erred in his Charter ruling.

[2] Beginning in April 2011, police received information from three confidential informants that the respondent was trafficking heroin and crystal methamphetamine. The police investigated and began surveillance of the respondent in May.

[3] At the time of the investigation Constable Whitlock was working in the drug unit with Peel Regional Police, where he had several years’ experience in drug investigations. On October 19, 2011, Constable Whitlock and several other police officers set up surveillance outside the respondent’s Brampton residence. Constable Whitlock testified at the voir dire that he saw three encounters that day that he believed were drug transactions. In all three, the respondent left his home and entered the front passenger seat of a vehicle that had pulled up in front of his house or into his driveway. The first car, a Nissan SUV, was stopped by police shortly after leaving the respondent’s residence. The driver fled the car on foot, and was arrested by police. He was carrying approximately $3,000 in cash.

[4] At 1:53 p.m., while the respondent was in the passenger seat of a silver Ford in his driveway, police intervened and arrested him. Police found 9.3 grams of heroin near his feet in the car. They then entered the home believing exigent circumstances required them to secure the residence to preserve evidence and ensure officer safety. There were five adult women and one young child in the home. A search warrant was issued and executed later that day. Police found 46.8 grams of heroin and approximately 300 grams of methamphetamine in a bedroom.

[5] The trial judge found that Constable Whitlock, subjectively, had reasonable and probable grounds to arrest the respondent. However, these grounds were not objectively reasonable. The judge held that the tipster information was not credible, it was not compelling, and there was little material corroboration of the trafficking allegations. After finding a s. 9 violation, he excluded the evidence found in the silver Ford and the respondent’s home under s. 24(2) of the Charter.

[6] The Crown appeals the trial judge’s decision on the following grounds:

1. The trial judge erred in considering the alleged violations of a third party’s rights under the Charter;

2. The trial judge erred in finding that there were insufficient reasonable grounds to arrest the respondent; and

3. The trial judge erred in excluding evidence seized from the vehicle and the residence.

[7] The only issue I will address is whether there were reasonable grounds to arrest the respondent. As the respondent acknowledges, if the Crown succeeds on this issue, it is dispositive of this appeal. I conclude that, even without the information related to the arrest of the Nissan driver, the police had reasonable and probable grounds to arrest the respondent. On this ground alone, I would allow the appeal. I therefore do not find it necessary to address the Crown’s other grounds of appeal.

B. Background

(1) The Confidential Informant Information

[8] The information provided to police by three confidential informants is central to this case. Constable Whitlock testified about when and from whom he received this information. The Information to Obtain (ITO) the warrant to search the respondent’s residence also describes the confidential sources and the information they gave to police. Constable Barbara swore the ITO.

[9] Constable Barbara received information from the first confidential informant (C.I. 1) in April 2011. Both he and Constable Stafford informed Constable Whitlock about this informant on May 10, 2011. C.I. 1 told police that a man by the name of Beant Dhillon trafficked in moderate amounts of drugs, namely heroin, from his residence at 21 Alfonso Dr. in Brampton. The informant told police that the man was known as “Bunt”, is of South Asian descent, and is associated with a larger group of South Asian men who are involved in organized criminal activity. C.I. 1 also alleged that the respondent was involved in stealing tractor trailer loads. The ITO stated that C.I. 1 knew the respondent and had knowledge of his actions, but the length of time during which C.I. 1 was familiar with the respondent was redacted.

[10] The date on which Constable Mullinder received information from a second informant (C.I. 2) is unknown. C.I. 2 told Constable Mullinder that an East Indian man known as “Bunt” deals heroin and crystal methamphetamine from his residence at 21 Alfonso Crescent in Brampton. “Bunt” is approximately 30 years of age and drives a white BMW. The informant purchased heroin from “Bunt”. The informant also told police that “Bunt” usually sells from inside his garage or from locations near his residence, and retrieves the heroin from his residence. Other information, including the price the informant paid for the brown heroin and for how long C.I. 2 had been purchasing heroin from “Bunt”, was redacted from the ITO.

[11] At some point before October 19, 2011, Constable Whitlock was approached and provided information from a third confidential informant (C.I. 3). The informant told him that an East Indian male named “Bunt” Dhillon is an active heroin and crystal methamphetamine dealer. “Bunt” lived on Alfonso Crescent in Brampton with his family. He said that “Bunt” is the man’s nickname and that his real name was something similar. He also described “Bunt” as having a large, muscular build, and being in his early 30s. He said that “Bunt” drives an older style white BMW with an unknown license plate. C.I. 3 said that “Bunt” sold heroin for certain amount per gram that was redacted in the ITO. The informant had purchased heroin from “Bunt” at the Alfonso Crescent residence. The informant said that “Bunt” would usually come out of his residence and get into the informant’s vehicle in the driveway to complete the transaction.

[12] Notably, none of the three confidential informants had been used by police in the past. The first was said to be reliable and accurate in the ITO, but there is no reason given to support this assessment. Confidential informants 2 and 3 were both described as being deeply entrenched in the drug sub-culture. No assertion was made about their reliability or credibility. However, both were said to understand that if they lied or embellished, they would not receive consideration and could face criminal charges.

[13] During the voir dire, counsel for the respondent attacked the independence of the informants. Constable Whitlock testified that he was sure C.I. 1 and C.I. 3 were different people and that C.I. 2 and C.I. 3 were also different people. The trial judge determined that it was unknown whether these three tipsters were independent of one another as their information could have been parroting of what they all had heard together.

(2) The Police Investigation

[14] The police initially searched the respondent on various databases. They discovered that Beant Dhillon resided at 21 Alfonso Crescent in Brampton. He was in his late 30s in 2011. He had no prior convictions but was arrested and eventually acquitted in relation to stolen property and firearms charges.

[15] The police began surveillance on the respondent. In May 2011, they observed the respondent driving a white BMW. A database check revealed that it was a 2001 BMW registered to another person who resided at the respondent’s home. The respondent was seen driving the white BMW on other occasions.

[16] The ITO describes numerous days of surveillance. On May 10, 2011, the affiant, Constable Barbara, observes two encounters between the respondent and two other men, that he believed were drug transactions. There was no testimony about this surveillance at the voir dire, and there is little information supporting the affiant’s opinion.

[17] Constable Whitlock testified that he observed the respondent during the afternoon on May 10, 2011 and August 8, 2011. He saw nothing suspicious on May 10. On August 8, he saw the respondent drive from his home to a nearby plaza. He got into the front seat of another vehicle that was parked at the plaza and remained there for 13 minutes. He then returned to his car and left. Constable Whitlock described this incident as strange and suspicious, but due to the length of time that the respondent spent inside the other car, it was probably not a drug transaction.

[18] The police set up surveillance at the respondent’s residence on October 19, 2011, commencing at 10:55 a.m. A Nissan SUV arrived at the residence at 1:02 p.m. The respondent entered the passenger seat and the vehicle pulled away.

[19] One minute later, a black Ford truck stopped at the bottom of the driveway at the residence. The driver went to the front door of 21 Alfonso Crescent and waited. At 1:06 p.m., the respondent was observed walking back towards his home. He spoke with the black Ford driver and then entered his residence. Four minutes later, he exited his house and Constable Whitlock believed he was holding something small “cupped” in his left hand. He entered the passenger seat of the black Ford and returned to his house empty-handed two minutes later. The trial judge viewed the surveillance video from this meeting and was unable to conclude whether or not the respondent was carrying something in his left hand when he entered the black Ford.

[20] Meanwhile, police pursued the Nissan SUV. Their attempt to arrest the driver resulted in a foot chase. On arrest, the driver was found in possession of approximately $3,000 in cash and a cell phone. Constable Whitlock was informed of the circumstances of the arrest shortly after 1:12 p.m. He was concerned that the driver may have had a chance to contact the respondent.

[21] Constable Whitlock continued to observe 21 Alfonso Crescent. He requested backup. At about 1:40 p.m., a silver Ford vehicle entered the driveway of the home. The respondent exited the residence and entered the passenger seat of the silver Ford. Constable Whitlock ordered his arrest, believing he had reasonable grounds to do so.

C. Discussion

(1) The Standard of Review

[22] The trial judge’s factual findings are entitled to deference. Whether the factual findings of the trial judge amount at law to reasonable and probable grounds is a question of law and is reviewed on a standard of correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

(2) The Sufficiency of the Grounds to Arrest the Respondent

[23] Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, allows a peace officer to make an arrest without a warrant when he or she believes, on reasonable grounds, that the person has committed or is about to commit an indictable offence.

[24] The trial judge accurately summarized the general understanding of reasonable and probable grounds as articulated in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251. An arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Further, those grounds must be objectively justifiable to a reasonable person placed in the position of the officer.

[25] The standard does not require that the police demonstrate anything more than reasonable and probable grounds. They are not required to establish a prima facie case for conviction before making the arrest. The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.

[26] Although the trial judge correctly articulated the law, he erred in his consideration of the totality of the circumstances. In my view, he considered the confidential informant information and the observations of the police in isolation and improperly discounted the informants’ information due to their weak credibility. When viewed with the police investigation and surveillance, the information provided by the informants was sufficiently compelling and corroborated to overcome the credibility concerns.

Constable Whitlock had Subjective Reasonable and Probable Grounds to Arrest

[27] With respect to the subjective grounds to arrest, Constable Whitlock testified that his decision was based on a combination of the confidential informant information and the observations on October 19, 2011. The suspicious circumstances from that day included: the drivers of the vehicles did not enter the residence, the brief nature of the meetings, that the meetings occurred in cars and not in public view, there were several within less than an hour, the large amount of currency found on the Nissan driver, and the respondent’s hand being “cupped” as he approached the black Ford truck.

[28] Constable Whitlock testified that he made his decision to arrest the respondent after learning about the Nissan driver’s arrest. But he later said that he had grounds to arrest the respondent even without the information about the police pursuit of the Nissan driver. The trial judge accepted the latter evidence but noted the inconsistency. I agree that Constable Whitlock subjectively had reasonable and probable grounds to arrest the respondent.

The Grounds to Arrest were Objectively Reasonable

[29] The main issue is whether these grounds were objectively reasonable. In my opinion, even without the information about the arrest of the Nissan driver, they were.

[30] In circumstances where confidential informant information is at issue, the Supreme Court of Canada’s comments in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, apply. One must weigh whether the informant was credible, whether the information predicting the commission of a criminal offence was compelling, and whether the information was corroborated by police investigation: Debot, at p.1168. The totality of the circumstances must meet the standard of reasonableness.

[31] First, the credibility of the three informants was obviously weak. They were all untested. C.I. 1 was said to be reliable and accurate, but no support was given for this assessment. There was no claim that the other two informants were credible or reliable. There was no information about whether they had criminal records, though C.I. 2 and C.I. 3 were described as being deeply entrenched in the criminal sub-culture.

[32] I would note though that the information was not derived from anonymous tips. Police knew the informants, and the second and third informants were informed of potential criminal consequences if they lied or embellished the information they provided.

[33] The lack of indicators of credibility and reliability does not mean that the confidential informant information has no evidentiary value. It can still contribute to the reasonable grounds to arrest if it is compelling and corroborated. As Wilson J. explained in Debot at pp. 1170-1171, where the police rely on an untried informant, “the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source.”

[34] The trial judge found the confidential informant information to not be compelling. I disagree. The information was fairly detailed and specific. It described various personal characteristics of the respondent, the types of drugs being trafficked, where the transactions occurred, and how they were carried out. All the informants identified the respondent’s Alfonso Crescent residence as the hub. Two of the confidential informants identified the precise address.

[35] C.I. 1 was said to know the respondent personally, though no details were provided. C.I. 2 and C.I. 3 were described as customers of the respondent. They had first-hand knowledge of the trafficking. This relationship helps to alleviate the concern that they were just perpetuating rumours or gossip.

[36] The second and third informants described the manner in which the transactions occurred in slightly different ways. C.I. 2 said “Bunt” usually retrieved the drugs from his residence and sold them from inside his garage or locations near his residence. C.I. 3 said “Bunt” would usually come out of his residence and enter the informant’s vehicle in the driveway. A common thread is that the purchasers would not enter the residence, and the transaction would occur near the residence – either in the garage, locations near the residence, or the informant’s car while parked outside.

[37] On the other hand, with the exception of C.I. 1, who spoke to Constable Barbara in April 2011, the currency of the information is unknown.

[38] In these circumstances, I would describe the informant information predicting the trafficking of heroin and crystal methamphetamine by the respondent from 21 Alfonso Crescent as moderately compelling.

[39] With respect to corroboration, the consistency of the information from the three informants should be given some weight. There was significant overlap in their description of the respondent’s nickname and name, approximate age, ethnicity, residence, vehicle, types of drugs in which he trafficked, location at which the transactions occurred, and, as described above, certain similarities in the manner in which the transactions would occur. These consistencies increase the significance and reliability of the informant information and distinguish this case from circumstances in which there is only one anonymous or untried informant.

[40] The trial judge found little corroborative value in the police investigation. Again, I disagree. Police confirmed the accuracy of specific information during their investigation. This included: the respondent’s name, though not his nickname; the colour, make, and age of the respondent’s vehicle; the respondent’s ethnicity; the respondent’s address; his approximate age; and that he had been arrested but not convicted in relation to the possession of stolen property. Police confirmation of these details, as in R. v. Caissey, 2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25, aff’d 2008 SCC 65, [2008] 3 S.C.R. 451, tends to substantiate the reliability of the informants’ information.

[41] Not only was there corroboration of personal characteristics, there was some indication that the criminal activity alleged was indeed occurring. As this court stated in R. v. Lewis (1998), 1998 7116 (ON CA), 38 O.R. (3d) 540, at pp. 547-548, there is no need to confirm the very criminality of the information given by the tipster, but there must be more than corroboration of innocent or commonplace conduct when the police are relying on an untested informant.

[42] Here, there were three brief meetings within one hour, all of which occurred outside the respondent’s residence in various cars. This behaviour must be considered in light of the knowledge and experience that Constable Whitlock brought to the investigation. Constable Whitlock’s experience and conclusions about these meetings helps inform the inferences that can be drawn when assessing the objective reasonableness of the grounds to arrest.

[43] He testified that these meetings were consistent with drug transactions in that they were very brief, took place outside of public view but not inside a residence, and were numerous and within quick succession of each other. His observation of the respondent’s hand being cupped as he left his residence and entered the black Ford increased his suspicion and the inference that a drug transaction ensued in the vehicle.

[44] Further, the sequence of events conformed sufficiently to the pattern predicted by C.I. 2 and C.I. 3 as to remove the possibility of innocent coincidences: see Debot, at p. 1172; R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, at paras. 30-31. Again, three brief meetings took place in the cars of those who showed up at the respondent’s residence while the vehicles were either parked in the driveway or directly outside the residence, or within a brief time, drove away. This corroborated the confidential informant information of C.I. 3, in particular on the manner in which the respondent engaged in drug transactions.

[45] In the totality of the circumstances, regardless of the information about the arrest of the third party Nissan driver, the police had subjectively and objectively justifiable reasonable and probable grounds to arrest the respondent. Accordingly, there was no violation of the respondent’s rights under s. 9 of the Charter.

D. Conclusion

[46] I would therefore allow the appeal and set aside the acquittals.

Released: “EAC” APR 28 2016

“M. Tulloch J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. K. van Rensburg J.A.”