Court of Appeal for Ontario

Date: 2018-03-27 Docket: C60708

Judges: Feldman, Brown and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Bruce Canary Appellant

Counsel

Paul Alexander, for the appellant

Ian Bell, for the respondent

Heard

February 5, 2018

On Appeal

On appeal from the convictions entered on February 20, 2015 by Justice John R. McCarthy of the Superior Court of Justice, sitting without a jury.

Fairburn J.A.

OVERVIEW

[1] On June 11, 2012, in a parking lot in Vaughan, Ontario, an experienced drug investigator saw the appellant and another man move several bins from the trunk of one vehicle to another. This was followed by what appeared to be an exchange of cash. Arrests were made and seizures followed. The appellant was convicted of possession of a controlled substance for the purposes of trafficking and possession of the proceeds of crime.

[2] The appellant appeals from these convictions. He maintains that the trial judge erred by dismissing his ss. 8 and 9 Charter claims. He raises the following arguments:

(a) the arrest was unlawful and, therefore, the search incident to arrest was unlawful;

(b) even if the arrest and search were lawful, the police were required to return the items seized when they decided to unconditionally release him from the scene;

(c) the failure by the police to file a s. 489.1 Criminal Code report to a justice as soon as practicable resulted in a s. 8 Charter breach; and

(d) the verdict was unreasonable.

[3] For the reasons that follow, I would dismiss the appeal.

GENERAL BACKGROUND

[4] The police were conducting surveillance in an unrelated investigation on June 11, 2012. Sgt. Fuhrman was the commanding officer. He was making observations in a parking lot when he saw what he described as an "unusual event" unfold before him. At about 11:30 a.m., he watched as two men moved cylindrical bins from the trunk of one vehicle to another.

[5] Sgt. Fuhrman was a highly experienced drug investigator. He had seen these types of bins in the past while investigating clandestine chemical drug labs. Sgt. Fuhrman testified that, in his experience, these types of bins could contain Class A precursors under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA). Accordingly, the officer positioned himself so that he could take a closer look. He was able to see that the labels on the bins were torn. He then watched as both men entered the vehicle into which the bins had been placed. While the men were in the vehicle, the licence plates of both vehicles were checked on CPIC and the checks returned clear.

[6] When the appellant emerged from the passenger's side of the vehicle, he was holding a brick shaped object contained in a translucent plastic bag. Based on Sgt. Fuhrman's past experience, including undercover drug deals he had been personally involved in, he believed that the bag contained cash. When he got closer, the officer was able to see a $20 bill through the translucent bag.

[7] After a total of fifteen to twenty minutes of observation, Sgt. Fuhrman formed the belief that the men were trafficking in drugs. He decided to make arrests and asked Cst. Philp, who was positioned elsewhere in the parking lot, to provide backup. Both males were placed under arrest for possession for the purpose of trafficking and a search incident to arrest followed. Four bins and a box were found in the back of the vehicle in which the cash exchange had occurred. Large plastic bags were used to line the inside of the bins and box. They were full of pills. Zip ties were used to close the bags. It was later discovered that the pills – all 220,000 of them – weighed over one hundred kilograms in total. The translucent plastic bag in the appellant's hand at the time of arrest contained $14,000 in $20 bills.

[8] Even though Sgt. Fuhrman did not recognize the pills as a substance he had previously been exposed to, he testified that he continued to believe that he had just witnessed a drug trafficking offence. Although he was not "a hundred percent for certain, based on [his] experience, that they were drugs", Sgt. Fuhrman testified that he believed that the pills were a prohibited chemical substance under the CDSA.

[9] Sgt. Fuhrman decided only to seize the pills and cash at the time of arrest. As he did not recognize the pills, he decided that the next step was to submit them for analysis and determine their contents. He told the men that he was going to have the pills analyzed and, if they contained a controlled substance, the men would be summonsed to court. If the pills turned out to be an inert substance, the men were told that their property would be returned. The men were then released and permitted to go on their way.

[10] The officers immediately proceeded to label and seal the seized property, after which they returned to their initial unrelated investigation. As noted by Sgt. Fuhrman, he was consumed at that time by the other investigation, but he felt that he had to deal with this situation because it happened right in front of him and was "so blatant".

[11] A sample of the pills were forwarded for analysis. On June 27, 2012, just over two weeks following the arrests, the police received certificates of analysis confirming that the pills contained Schedule IV controlled substances. On July 3 and 4, 2012, the seized material was processed.

[12] On July 12, 2012, 31 days following the arrest and just over two weeks after the certificates of analysis were received, a report to a justice was filed under s. 489.1 of the Criminal Code. Appendix "A" to the form for the report provided a brief summary of the seizures, making reference to the amount of cash and pills seized. Charges were laid and the appellant was summonsed to attend court.

THE APPLICATION TO EXCLUDE THE DRUGS AND MONEY

[13] The appellant brought a Charter application to exclude the seized pills and money from evidence. He maintained that Sgt. Fuhrman had insufficient grounds to make the arrest. Even if the officer's initial belief rose to the constitutionally required level of reasonable grounds, the appellant argued that, as the investigation continued, the grounds for arrest evaporated and this required the return of the property seized.

[14] The trial judge dismissed the Charter application. He accepted the credibility of both Officers Fuhrman and Philp. He concluded that, "through the eyes of an experienced drug enforcement officer", it would have been close to "inescapable" but to arrive at the conclusion that the appellant was involved in a drug transaction.

[15] The trial judge accepted as a fact that Sgt. Fuhrman had made the observations testified to and that he continued to believe that he had witnessed a drug deal "throughout the course of the arrest and in its aftermath". The decision to release the appellant when the officer did not recognize the pills was characterized as nothing more than a reasonable exercise of discretion, one that did not alter the nature of the arrest.

[16] In the end, the trial judge determined that the arrest was based on reasonable grounds and that the search incident to arrest was lawful. The trial judge nevertheless went on to conduct a s. 24(2) analysis, concluding that, if he was wrong and there had been a Charter breach, he would have admitted the evidence in any event.

THE ISSUES

[17] I will deal with the appellant's arguments in the following order. I first consider whether the police had sufficient grounds to justify the arrest. As my answer to this question is yes, it drives my conclusion that the search incident to arrest was also lawful.

[18] I then consider the appellant's argument that the arrest was "abandoned", resulting in the need for the police to return the seized property to the appellant. I conclude that the manner in which the police exercised their discretion at the scene did not require the return of the property seized incident to arrest.

[19] I next consider the appellant's argument that the police breached s. 489.1 of the Criminal Code by failing to file a return to a justice as soon as practicable and this constituted a s. 8 Charter breach. This issue is raised for the first time on appeal and, as discussed later, there is an insufficient factual record to determine the matter now.

[20] Finally, I consider the suggestion that the verdict was unreasonable, concluding that it was not.

THE ARREST AND SUBSEQUENT SEARCH

[21] Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer "must subjectively believe that there are reasonable grounds to make the arrest": R. v. Saciragic, 2017 ONCA 91, leave to appeal refused, [2017] S.C.C.A. No. 106, at para. 16. To fulfill the objective requirement, the officer's belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 38; Saciragic, at para. 16. The objective inquiry asks whether "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest": Storrey, at pp. 250-51.

[22] When considering whether an officer's subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a "scientific or metaphysical exercise", but one that calls for the application of "[c]ommon sense, flexibility, and practical everyday experience": R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.

[23] The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, "credibly-based probability" replaces suspicion: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.

[24] Although the ultimate question as to whether there are reasonable grounds to arrest involves the application of a legal standard to a set of facts, reviewable on a standard of correctness, the trial judge's factual findings are owed deference: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. In this case, the trial judge made critical findings of fact. He accepted the officers' evidence and found Sgt. Fuhrman to be "entirely compelling and reliable".

[25] The trial judge properly took into account Sgt. Fuhrman's over 15 years investigating drugs and his work as an undercover drug officer. It was through the lens of that experience that Sgt. Fuhrman's observations had to be considered, including:

(i) two vehicles parked in a remote part of a parking lot;

(ii) no markers on the vehicles that might suggest that they were connected to a legitimate business;

(iii) bins of a kind that he had previously seen in clandestine chemical drug labs containing Class A CDSA precursors, being moved from one trunk to another;

(iv) labels ripped off of the bins, causing Sgt. Fuhrman to believe that the bins were not involved in what he described as a "legitimate" transaction;

(v) a man emerging from a vehicle carrying a brick-like package in a plastic bag, looking similar to cash the officer himself had packaged for undercover drug deals in the past; and

(vi) a noticeable $20 bill showing through the plastic bag.

[26] Sgt. Fuhrman testified that these observations were consistent with other high-level drug transactions he had witnessed in the past. Indeed, he testified that he had never seen a transaction like this one that did not constitute a drug transaction.

[27] Considering the totality of the circumstances, Sgt. Fuhrman's subjective belief that he was witnessing a drug transaction was objectively reasonable. There is no error in the trial judge's conclusion that the officer believed he was witnessing a drug transaction and had objectively reasonable grounds to arrest.

[28] The appellant argues that the trial judge failed to take into account innocent explanations for many of the facts relied upon to establish reasonable grounds for the arrest. For instance, the appellant maintains that legitimate trunk-to-trunk transactions can take place, as can cash transactions. He also notes that even Sgt. Fuhrman acknowledged that, from his previous exposure to the bins, he had found them to contain only Class A precursors and not actual prohibited substances.

[29] In further support of his position that there were insufficient grounds to arrest, the appellant also points to what he says are numerous exculpatory factors, ones that he maintains undermined the objective grounds for arrest. For instance, he points to the fact that the CPIC check on the vehicles did not turn up anything of concern, that the transaction took place in broad daylight, and that the men demonstrated no surveillance-conscious behaviour, to underscore that there were insufficient grounds to arrest.

[30] This argument disregards the correct approach to considering the objective reasonableness of the arresting officer's subjective belief. Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.

[31] Considered together, the facts known to Sgt. Fuhrman well supported an arrest. The trial judge did not error in coming to this conclusion.

[32] The appellant does not dispute that if the initial arrest was lawful, the search incident to arrest was also lawful.

[33] A search incident to arrest rests on three components: (a) the arrest is lawful; (b) the search is truly incidental to the arrest, in the sense that it is connected to the arrest, either as a means by which to discover and preserve evidence connected to the arrest, protect safety, or protect against escape; and (c) the search is conducted reasonably: R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37; R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 14, 19, 20.

[34] I have already determined that the arrest was lawful. I also find that the search was truly incidental to arrest and conducted reasonably. Taking the money from the appellant's hand and searching for the content of the bins was clearly connected to the purpose of the arrest. The arrest arose from these very items having been observed. There is no suggestion that the searches were done unreasonably. It follows, therefore, that a lawful search took place, incident to the lawful arrest.

THE ONGOING SEIZURE

[35] The appellant submits that, even if this court finds that the initial arrest was lawful, the grounds for arrest disappeared when the police were unable to identify the pills as controlled substances. The appellant maintains that once the police were unable to identify the pills, the arrest was "abandoned". By this submission, I take the appellant to mean that the grounds for arrest were undermined because the police no longer had reasonable grounds for the arrest. The appellant argues that the legal effect of the "abandoned" arrest was to require the police to return to the appellant and his friend the items that had already been seized. I disagree.

[36] I begin with deference to the trial judge's findings of fact. The trial judge explicitly accepted Sgt. Fuhrman's evidence that, although he did not recognize the pills located in the bins, the officer continued to believe that they contained a controlled substance: "[Sgt. Fuhrman] maintained his belief that he had witnessed a drug deal throughout the course of the arrest and in its aftermath".

[37] I see nothing that would cause this court to interfere with that factual finding. Indeed, it seems like an eminently reasonable conclusion that an experienced drug officer looking at 220,000 pills in plastic bags tied with zip ties, placed in the type of bins that the officer knew to be associated with clandestine chemical drug labs, passed in a trunk-to-trunk transaction, would maintain his belief that the pills contained a controlled substance. This belief takes on an added layer of reasonableness when one considers that the men involved had just exchanged a brick of cash contained in a plastic bag.

[38] The appellant points to two facts that he says fundamentally undermine Sgt. Fuhrman's evidence that, following the arrest, he continued to believe that he had witnessed a drug trafficking offence: (a) the police conducted only a limited search incident to arrest; and (b) the police released the appellant from the scene without conditions. The appellant argues that if the police truly maintained their grounds for arrest, they would have seized his cell phone and, at a minimum, released him in accordance with s. 497(1) of the Criminal Code.

[39] This argument seems to come down to a suggestion that the failure of the police to exercise their discretion at maximum tilt should serve to cast doubt on the reasonable grounds for an arrest. This is problematic reasoning. The police have broad discretion to exercise their powers in a manner commensurate with the circumstances at work. Discretionary decisions that serve to minimize intrusions into privacy, and maximize liberty interests, should be encouraged, not discouraged. I agree with the trial judge that the fact that Sgt. Fuhrman chose not to seize the appellant's phone, or conduct a more thorough search incident to arrest, merely demonstrates a responsible discretionary call on the officer's part. It is not prima facie evidence that he did not continue to maintain his grounds for arrest.

[40] In addition, the decision to release the appellant from the scene was a responsible one. Sgt. Fuhrman told the appellant that if the analysis showed that the drugs contained controlled substances, the officer intended to summons the appellant to court. The fact that the officer did not issue an appearance notice or immediately move to have the appellant summonsed to court (both options under s. 497(1) of the Criminal Code), did not undermine the grounds for arrest.

[41] The key fact is that, at the time that the pills and money were lawfully seized, the appellant was under lawful arrest. In these circumstances, it was open to the police to release the appellant, yet continue their investigation. The police were under no obligation to give the lawfully seized items back while the investigation continued: R. v. Backhouse, 194 C.C.C. (3d) 1 (Ont. C.A.), at para. 91. It would be undesirable to construct a rule that would require the police to commit to a greater intrusion into Charter interests, only to justify seizures that were lawfully made in the first instance. Accordingly, it is open to the police to release someone in the field, all the while maintaining a belief that the person committed an offence and that the items lawfully seized should be held.

[42] This ground of appeal must also fail.

THE RETURN TO A JUSTICE

[43] The appellant was arrested on June 11, 2012. The s. 489.1(1) report to a justice was filed thirty-one days later on July 12, 2012. This was about two weeks following receipt of the certificates of analysis, showing that the pills contained Schedule IV prohibited substances. The appellant maintains that his s. 8 Charter rights were breached when the police failed to file the report to a justice "as soon as is practicable".

[44] Where the police wish to keep something seized during the execution of their duties, s. 489.1(1)(b)(ii) of the Criminal Code requires that they make a report to a justice "as soon as is practicable". A report filed under s. 489.1(1)(b)(ii) allows the seized items to be dealt with in accordance with s. 490(1), which grants a justice the power to order the things seized detained or returned. The balance of s. 490 contains numerous provisions governing the continued detention, use, and return of seized property.

[45] Section 489.1(1) applies to seizures made both with and without prior judicial authorization: Backhouse, at para. 111. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; Backhouse, at para. 112. Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system.

[46] The appellant argues that thirty-one days to file a report under s. 489.1(1) is simply too long and that a s. 8 Charter breach is obvious on its face.

[47] There is an inherent flexibility built into the assessment of whether the police acted "as soon as is practicable". Determining whether this requirement has been met is a necessarily fact-specific inquiry and one that should only be answered after a careful review of all of the evidence, including any explanations for why the report was filed when it was: R. v. Kift, 2016 ONCA 374, 349 O.A.C. 239, at para. 10.

[48] The appellant did not raise the timing of the report as an actual Charter complaint in the court below and the Charter application was silent on the issue. Instead, counsel argued that the delay between the seizure and the filing of the report was a fact that informed other Charter issues. When the court sought clarification on this position, counsel specifically disavowed any attempt to rely upon the thirty-one days to filing as a free-standing s. 8 Charter breach.

[49] Accordingly, the appellant seeks to raise this issue for the first time on appeal. There is an insufficient record for this Court to make this fact-sensitive inquiry on appeal because the evidentiary record is lacking in specifics. Although the officer who filed the report under s. 489.1(1) was asked a few questions about the timing of the report, he simply asserted that he had filed it as soon as practicable. In these circumstances, the court is without a complete factual picture to permit the effective and fair disposition of this issue: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 43. I would decline to do so.

UNREASONABLE VERDICT ARGUMENT

[50] The appellant maintains that he is the subject of an unreasonable verdict. He argued before the trial judge that the certificates of analysis did not reveal the actual quantity of the prohibited substances contained in the pills. As such, he argued that the Crown was unable to establish anything more than trace amounts of prohibited substances in the pills and that this should leave a reasonable doubt about whether he knew he was in possession of a controlled substance.

[51] The trial judge was satisfied beyond a reasonable doubt that the Crown had proven each element of the offence. He concluded on the basis of all of the evidence that the appellant "must have known what was in the tubs that he was transferring" and that it "would defy common sense to find otherwise". The trial judge then reviewed evidence pointing toward that common sense inference, evidence that in his view made "no other inference … possible".

[52] Although the trial judge may have initially misstated the appellant's position regarding the quantitative analysis, the matter was raised with him immediately following delivery of his reasons for judgment. In response, the trial judge said:

I have nothing further to add other than the fact that I found, in the entire circumstances of the transaction, given what has been admitted and given what has been found in the evidence and the exhibits and the fact that the money was exchanged in that quantity and the amount was exchanged, beyond a reasonable doubt that Mr. Canary had knowledge of what was in those vats…

[53] Against the factual backdrop of this case, the verdict was one that a properly instructed jury acting judicially could have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. This ground of appeal also fails.

CONCLUSION

[54] I would dismiss the appeal.

Released: March 27, 2018

"Fairburn J.A."

"I agree K. Feldman J.A."

"I agree David Brown J.A."

Footnote

[1] Storrey was decided under the former s. 450(1)(a) of the Criminal Code, when the provision read as "reasonable and probable grounds to believe". Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, removed the reference to "probable grounds", changing the wording to: "believes on reasonable grounds". As noted in Baron v. R., [1993] 1 S.C.R. 416, at p. 446, the word "probable" adds nothing additional to the requirement of reasonableness.