Court of Appeal for Ontario

Date: 2017-01-13 Docket: C59003

Judges: Weiler, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Adrian Richards Appellant

Counsel

Mark Halfyard, for the appellant

Brian G. Puddington, for the respondent

Heard

January 10, 2017

Appeal

On appeal from the conviction entered by Justice Scott K. Campbell of the Superior Court of Justice on May 2, 2014.

Endorsement

[1] The appellant appeals from his convictions for possession of cocaine and crack cocaine for the purpose of trafficking. The appellant submits that the police had insufficient grounds to effect his warrantless arrest and subsequent search that resulted in the discovery of 18.82 grams of powder cocaine and 18.8 grams of crack cocaine.

[2] The police arrested the appellant after receiving a tip from a confidential informant. The appellant maintains that there was an absence of information on the confidential informant's source of knowledge, a higher degree of corroboration was required, and the trial judge subtly shifted the burden of proof from the Crown to the defence on the s. 8 Charter voir dire.

[3] We disagree.

[4] The trial judge described and applied the applicable law as set out in R. v. Debot, [1989] 2 S.C.R. 1140. He considered the totality of the circumstances and was satisfied that the police had reasonable and probable grounds to arrest the appellant and that the officers' belief was subjectively and objectively reasonable.

[5] The evidence supported that conclusion.

[6] In Debot, at p. 1168, Lamer J. stated that "there are at least three concerns to be addressed in weighing the evidence relied on by the police to justify a warrantless search."

First: Compelling Information Predicting the Offence

[7] First, was the information predicting the commission of the offence compelling? The appellant does not take direct issue with this element of the test. The information predicting the commission of the offence was compelling. The appellant was in possession of a large amount of cocaine and crack cocaine. The confidential informant provided specifics on the anticipated commission of an offence including detailed information about the amount of drugs, based on the informant's interaction with the appellant.

Second: Credibility of the Confidential Informant

[8] Second, was the confidential informant credible? The informant was very well known to the police and had a significant positive track record. He had provided reliable and consistently accurate information. He had never provided information that resulted in no drugs being seized or no warrant being issued. He had provided information to the police on ten prior occasions.

Third: Corroboration of Information

[9] Third, was the information corroborated? The police corroborated the information provided by the confidential informant in that:

• the description of the driver matched that given by the confidential informant. He was black, in his mid-20s, and approximately 6 feet tall with short black hair;
• the car was a Toyota Camry;
• its license number was BNEK 485;
• he drove to the precise residential address provided by the confidential informant; and
• he went there within the window of time described by the confidential informant.

[10] Lastly, the driver's behaviour was consistent with drug dealing. He was at the residence for a short time, then took an indirect route and picked up a passenger in front of a closed business.

Holistic Application of the Debot Test

[11] Each of the Debot factors does not form a separate test. As Lamer J. stated, at p. 1168, "weaknesses in one area may, to some extent, be compensated by strengths in the other two."

[12] The totality of the circumstances supported the trial judge's findings and conclusion, and there was no need for any additional corroboration.

[13] Lastly, the trial judge properly described the Crown's burden and we reject the submission that he subtly required the defence to disprove the Debot factors.

Disposition

[14] For these reasons, the appeal is dismissed.

K.M. Weiler J.A.

S.E. Pepall J.A.

Gary Trotter J.A.