Court of Appeal for Ontario

Date: September 27, 2018 Docket: C63343

Justices: Hourigan, Nordheimer and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Liban Omar Appellant

Counsel

Mark Halfyard, for the appellant

Diana Lumba and Bradley Reitz, for the respondent

Heard

September 26, 2018

On Appeal

On appeal from the convictions entered on October 24, 2016 by Justice Joseph De Filippis of the Ontario Court of Justice, with reasons reported at 2016 ONCJ 633.

Reasons for Decision

Introduction

[1] Mr. Omar appeals his conviction on one count of possession for the purpose of trafficking and one count of possession of proceeds of crime. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] The trial proceeded as a blended voir dire. There were two separate voir dire components. First, there was an application in which the appellant asserted that the police violated his ss. 8 and 9 Charter rights when they arrested and searched him on the basis of a tip from a confidential informant. The appellant submitted that the evidence seized should be excluded pursuant to s. 24(2) of the Charter.

[3] Second, there was an application brought by the respondent to admit certain calls made to cellular phones seized from the appellant after his arrest. The respondent submitted that the calls were admissible pursuant to the principled exception to the hearsay rule.

[4] The trial judge rejected the appellant's Charter challenge. The trial judge also admitted the evidence of the telephone calls. The trial judge convicted the appellant and sentenced him to 18 months in custody.

The Facts

[5] The background facts can be stated briefly. About a month before the appellant's arrest, the police received a tip from a confidential informant that a black male with a big beard known as "J.J." sold crack cocaine. The tipster told the police that J.J. drove a black Jeep and provided the licence plate number. The confidential informant had been used in the past and he or she had given reliable information.

[6] About a month later, the same police officer who had received the tip spotted the black Jeep in an area of St. Catherines known for drug activity and prostitution. The driver parked the Jeep some distance from a building and then went inside. The driver matched the description of J.J. A few minutes later, the driver returned to the Jeep and drove off.

[7] The officer called for back-up and began surveillance on the Jeep. The Jeep next went to another building where it again parked some distance from the entrance. The Jeep left a short time later. The police followed the vehicle to a motel in Niagara Falls. The motel was also in a known drug area. The Jeep took a back way to the motel, which the police officers thought was consistent with the driver being surveillance conscious. Once again, the driver parked some distance from the motel. The driver went to a room, emerged a few minutes later and returned to his vehicle while talking on his cell phone.

[8] At this point, the police decided to arrest the driver. They blocked in the Jeep and proceeded to effect the arrest. On arrest, the appellant was found with a cell phone and $100 on his person. A search of the Jeep revealed three more cell phones, a knife and $1,175 in Canadian currency. At the police station, the appellant was strip searched. The police located 20 grams of crack cocaine concealed in his underwear.

[9] During the course of the arrest, calls came in to at least two of the cell phones. A police officer answered three calls on one of the cell phones and one call on another. In each instance, the call was brief. Language was used that indicated that the caller was looking to purchase drugs. In two of the calls, the callers expressly referred to J.J.

[10] The police did not make any effort to locate and interview these four callers, even though three of the callers showed up on call display with either a name or a name and telephone number. No efforts were made to obtain authorization to search the telephones to see if there was contact information in the phones that might match to these callers. Further, the evidence from the police was that they had made efforts in the past to convince callers in such situations to be witnesses but they had never had any success in so doing.

The Arrest and Search

[11] The trial judge correctly applied the test from R. v. Debot, [1989] 2 S.C.R. 1140 in his consideration of the arrest and search based on the information provided by the confidential informant. The trial judge concluded that the information provided was compelling, that the confidential informant had a measure of credibility and that the information provided was corroborated by the police surveillance of the appellant's activities.

[12] We do not see any error in the trial judge's conclusions in this regard. The information provided by the confidential informant was detailed, both with respect to the description of J.J. and also with respect to the black Jeep, including the licence plate number. The informant had provided reliable information to the police in the past. And the police surveillance of the appellant did provide corroboration for the information that the confidential informant had provided.

[13] It is the cumulative effect of the three factors in Debot that is important. On this point, it is worth repeating what Lamer J. said in Debot, at p. 1168:

Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

The "Drug Calls"

[14] The other issue is the admission of the so-called "drug calls". This issue is largely determined by the decision in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520. In that case, the court overturned the trial judge's admission into evidence of a single telephone call that suggested that the accused was a drug dealer. In doing so, however, the court was clear that it was not concluding that such evidence could never be properly admissible under the principled exception to the hearsay rule. In his reasons, Fish J. said, at para. 70:

In concluding as I have, I take care not to be understood to have proposed a categorical rule for drug purchase calls. Although the call at issue here does not withstand scrutiny under the principled approach, this need not always be the case.

[15] The court went on in Baldree to identify circumstances where the principled exception to the hearsay rule would permit the admission of this type of evidence. In particular, the court identified the number of calls as a significant factor in that analysis.

[16] In reaching his conclusion to admit the evidence, the trial judge undertook the type of analysis contemplated in Baldree. He concluded that the evidence was reliable because of its connection to the information provided by the confidential informant and the observations made by the police of the appellant's activities, all of which suggested drug dealing. While the trial judge considered the necessity requirement to be more difficult, he concluded that it was made out because of the common sense reality that the callers would be unlikely, if located, to assist the police, coupled with the experience of the police officer in this case regarding the lack of cooperation of individuals in such circumstances. The trial judge did note that the necessity requirement was not as strongly made out as the reliability requirement, but he also noted that any weaknesses in the former could be compensated by strengths in the latter.

[17] In our view, the situation here mirrors the situation contemplated in Baldree at paras. 71-72. As noted therein, the quantity of calls can suffice to establish reliability. Here there were four separate calls, all of them clearly revealing efforts by the callers to purchase drugs. As noted in Baldree, it would "defy belief" that all of these calls were erroneous or misunderstood. This is the same conclusion that was reached by this court in R. v. Bridgman, 2017 ONCA 940, 138 O.R. (3d) 721 at para. 56 and in R. v. Malcolm-Evans, 2016 ONCA 28, at para. 7.

[18] In a similar fashion, the number of calls can also satisfy the necessity requirement. As Fish J. said in Baldree, at para. 72:

The Crown cannot be expected, where there are numerous declarants, to locate and convince most or all to testify at trial…

[19] The failure of the police to undertake any efforts to locate any of these callers risks undermining a conclusion that the threshold necessity requirement is made out. However, that risk is avoided by the particular circumstances of this case, notably, the number of calls received, that they were received in a short time frame (i.e. within minutes of each other), the specific contents of the calls clearly being to purchase drugs, and the unchallenged evidence of the police witness that prior efforts to enlist drug callers as witnesses had proved futile.

Conclusion

[20] It is for these reasons that the appeal was dismissed.

"C.W. Hourigan J.A."

"I.V.B. Nordheimer J.A."

"Harvison Young J.A."