Court of Appeal for Ontario

Date: July 10, 2019 Docket: C63781

Judges: Feldman, van Rensburg and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Kresimir Bajich Appellant

Counsel:

• Melanie J. Webb, for the appellant
• Diana Lumba, for the respondent

Heard: June 6, 2019

On appeal from the conviction entered by Justice Lorne E. Chester of the Ontario Court of Justice on April 12, 2017, and from the sentence imposed on April 28, 2017.

Decision

van Rensburg J.A.:

Introduction

[1] The appellant was convicted of three counts of possession of drugs for the purpose of trafficking. He received a custodial sentence of ten months, less three days' presentence custody. He appealed his conviction and sentence. At the hearing of the appeal we dismissed the conviction appeal and allowed the sentence appeal with reasons to follow. These are our reasons.

Background Facts

[2] After receiving identifying information from a confidential informant ("CI"), and conducting surveillance on the appellant for two hours, four officers arrested him for possession of cocaine, cannabis resin and oxycodone for the purpose of trafficking.

[3] The appellant brought an application to exclude from evidence the drugs found on him during the search incident to arrest, claiming various violations of the Canadian Charter of Rights and Freedoms. The trial judge dismissed the application. During the trial proper, the parties entered into a second voir dire to consider the voluntariness of certain inculpatory utterances of the appellant to an arresting officer. The utterances were admitted as evidence at trial. The trial judge concluded on this and other evidence that the appellant's possession of the drugs in question was for the purpose of trafficking. He rejected the defence evidence, including the testimony of the appellant that the drugs were for personal use only.

Issues and Analysis

[4] The appellant raised three arguments on his conviction appeal.

(1) Reasonable Grounds for the Appellant's Arrest

[5] First, the appellant asserted that the trial judge erred in concluding that his arrest was legal, and in particular, that the arresting officer had reasonable grounds for the arrest.

[6] The appellant argued that the information provided by the CI was not reliable. Little was known about the informant, and the information he provided was not detailed or compelling. It was not clear whether the information provided by the CI was first-hand or hearsay. The appellant submitted that the CI's information was little better than an anonymous tip. The appellant also asserted that the surveillance conducted by the police was not sufficiently confirmatory of the information provided by the CI, because the various observations of the appellant over the short two-hour period were not necessarily indicative of drug trafficking.

[7] The appellant relied on the decision of the Court of Appeal of Alberta in R. v. Quilop, 2017 ABCA 70, 49 Alta. L.R. (6th) 213, where a conviction for possession of cocaine for the purpose of trafficking was quashed following an arrest based on confidential information that the appellant was involved in trafficking cocaine and police observations over the course of two days which were equally consistent with lawful behaviour. The appellant in the present appeal asserted that, as in Quilop, while the arresting officer may have had a reasonable suspicion that he possessed drugs for the purpose of trafficking, the trial judge erred in concluding that his arrest was objectively justifiable.

[8] I disagree.

[9] Reasonable grounds to arrest require that an arresting officer subjectively have reasonable grounds on which to base the arrest, and that the grounds for arrest are justifiable from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 21. Where, as here, the grounds are based on confidential source information, the court must consider whether the information provided was compelling, whether the source was credible and whether the information was corroborated by police investigation. The court must consider the totality of the circumstances, and weaknesses in one area may be compensated to some extent by strengths in the other two areas: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168.

[10] A trial judge's ruling that the police had reasonable grounds to arrest an accused is reviewable on a standard of correctness, while the factual findings underpinning any such ruling are entitled to deference: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[11] I see no error in the trial judge's assessment of the confidential information provided in this case, of the corroborating surveillance and, ultimately, of his conclusion on the whole of the evidence that the grounds supporting the appellant's arrest were objectively reasonable. The trial judge examined the totality of the circumstances, which included the CI's information and the police observations. The evidence on the Charter voir dire consisted of the testimony of five police officers – the four who were involved in surveillance and were present at the bar when the appellant was arrested, and the CI's handler, Detective Constable Heron. The appellant did not testify. The trial judge concluded that it was "not a close call", and that the arresting officer, Constable Richer, had both subjectively and objectively reasonable grounds to make the arrest and, by extension, to conduct the search incident to arrest.

[12] The CI's information was communicated by Detective Constable Heron to Constable Richer. Constable Richer was informed sometime during the summer or fall of 2014 that the CI had provided information to the police on at least two occasions, resulting in arrests and charges, and that the informant had no prior criminal record for crimes of dishonesty. The CI named the drugs that the appellant was trafficking (cannabis, cocaine and prescription drugs), and where the deals were taking place (in the bathroom of the Stag's Head Bar in Oshawa, around the bar area and outside the building). According to the CI, the appellant was known as "Big Mouth Chris".

[13] The appellant was observed for two hours in and around the Stag's Head Bar by four officers, two of whom posed as bar patrons. Throughout the two hours, the appellant was texting and speaking on his cell phone. He went outside, approached a Jeep Liberty, and had a one minute conversation with the female driver, during which he put his hands into the vehicle. He went into the bathroom twice, on each occasion followed by another patron. He was also seen smoking outside, where he spoke with a female and counted a large amount of cash and coins. After one call, he was observed pulling out a pill vial and counting out the pills in his hand. He then approached and leaned briefly into a large white boom hydro truck. At that point, he was arrested.

[14] Although he did not explicitly refer to Debot, the trial judge assessed the CI's information using the Debot criteria. There was no error in his conclusion that the CI was reliable, and that he provided detailed information. The information was corroborated in material respects by the police surveillance.

[15] As for the surveillance, the appellant's counsel argued that the investigation was insufficient because it was too short, the appellant's nickname was not verified, and each specific interaction or activity in which he had been engaged in and around the bar was not in itself indicative of drug trafficking.

[16] What is critical to the analysis of whether an arrest is objectively reasonable is not the number of incidents observed during police surveillance, but "the nature of the information derived from the surveillance, taken in the context of the totality of the circumstances and weighed through the perspective of the experience of the arresting officer": R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para. 22. The police need not corroborate every detail, nor do they need to confirm a tip to the extent of having observed the commission of the offence: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 22-23. The question is not whether there could be an innocent explanation for each of the activities or interactions observed by the police. Rather, when considering the objective reasonableness of the subjective grounds for arrest, the court must look to the totality of the circumstances, and not consider each fact in isolation: R. v. Labelle, 2016 ONCA 110, at para. 10.

[17] In this case, the overall pattern of the appellant's conduct informed the trial judge's conclusion that the surveillance evidence confirmed much of what was provided by the CI. In the words of the trial judge:

When viewing the totality of the circumstances including [the officers'] actual observations, and comparing the totality with the specific information they received via Constable Richer at the briefing, who got his information from Detective Constable Heron, it is no longer a puzzle. The individual pieces of a jigsaw puzzle become a complete picture.

[18] In Quilop, there was only a tip with no details other than that the appellant was involved in trafficking cocaine, followed by two brief observations of the appellant – over two days of surveillance – involved in incidents taking place in a matter of minutes, with no observations of the appellant handling drugs and where "not much was observed": at para. 31. Here, by contrast, where the police surveillance was viewed in the context of the detailed information provided by a reliable CI, there was no error on the part of the trial judge in his conclusion that there were objectively reasonable grounds for the appellant's arrest.

(2) Did the Trial Judge Err in His Treatment of the Officers' Evidence and the Alleged Inculpatory Utterances of the Appellant?

[19] The appellant's second argument was that, in concluding that the appellant's possession of the drugs was for the purpose of trafficking, the trial judge subjected the defence and Crown evidence to uneven scrutiny. Counsel asserted that the trial judge uncritically accepted the police officers' evidence, in particular Constable Richer's evidence about the appellant's inculpatory utterances, while pointing to discrepancies causing him to reject the defence evidence. The trial judge accepted Constable Richer's evidence that, upon arrest, the appellant made several utterances including "you got me, I needed this, it's a wake-up call", that he had sold a few pills to the man in the boom truck, and that he was stupid for counting the pills in plain view outside the bar. The appellant admitted to saying "you got me" as a statement of fact when he was on the ground during his arrest, but testified that he did not think he had made the other statements.

[20] In argument, the appellant's counsel asserted that the trial judge ought not to have found Constable Richer credible and accepted his evidence about the utterances when they were not heard by any other officer, including Constable Scholtes, who was in the vicinity. Counsel focused on certain alleged inconsistencies in the police evidence on the Charter voir dire and at trial about the arrest and search of the appellant that were not addressed by the trial judge. In particular, Constable Scholtes testified at trial that he searched the appellant both inside and outside the bar, and that he believed the drugs in the appellant's right pocket were found inside the bar, while on the Charter voir dire he had testified that there was no search of the appellant inside. For his part, Constable Richer testified in the trial proper that an initial pat-down search of the appellant was conducted inside the bar, during which he believed Constable Scholtes had seized the pills in the appellant's pocket, and that a more thorough search and the appellant's inculpatory utterances took place outside the bar. On the Charter voir dire, Constable Richer had testified that he was "not a hundred percent [sure] whether P.C. Scholtes seized [the drugs] inside or outside the bar." The appellant's counsel argued that, if Constable Scholtes's evidence was not consistent on one point, then his evidence ought not to have been believed when he testified that he saw the appellant counting cash and pills – two critical observations that informed Officer Richer's decision to arrest. She argued that the trial judge erred by not having addressed these discrepancies in his reasons or having taken them into account in assessing credibility.

[21] I would not give effect to this argument.

[22] To successfully argue that a trial judge applied uneven scrutiny to Crown and defence evidence requires more than simply showing that the trial judge could have weighed the evidence differently and come to a different conclusion. The appellant must identify something in the record that makes it clear that the trial judge actually applied different standards in assessing the evidence: R. v. O.N., 2017 ONCA 923, at paras. 4-5; R. v. Howe, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[23] In this case, the trial judge addressed the various discrepancies among the accounts of the four police officers in his Charter ruling. In his ruling on the statement voir dire, which was not blended with the Charter motion or the trial, the trial judge explained why he accepted the Crown's evidence and rejected the appellant's. He found Constable Richer to be a "good reliable witness", who gave his evidence in a straightforward manner and did not embellish. The officer made detailed, largely contemporaneous notes, which captured what the appellant said verbatim for parts of the statement. The trial judge also explained why, by contrast, he rejected the appellant's contrary evidence about his statements – he had consumed five or six beers, a "couple of shots", and three or four Percocets, he had short-term memory problems, he made no notes, his answers were not straightforward or definitive and he embellished his evidence.

[24] The trial judge's reasons were responsive to the arguments that were made to him. The alleged discrepancy in Constable Scholtes's evidence about whether the appellant was searched inside the bar was not drawn to the trial judge's attention, nor was it put to the officer in cross-examination in the trial proper. In fact, after the Charter voir dire the appellant changed counsel. The transcript of the Charter voir dire in which the officer provided a different account of the timing of the search was not available at the statement voir dire or trial and was only produced for the appeal. In any event, we agree with the Crown that nothing turns on this discrepancy and, furthermore, that the trial judge's failure to address an inconsistency that was not put to him does not demonstrate that the trial judge applied different standards in assessing the Crown and defence evidence and making credibility findings.

(3) Did the Trial Judge Misapprehend the Evidence and Err in Finding the Appellant Guilty of Possession "for the Purpose of Trafficking"?

[25] As his third ground of appeal, the appellant argued that the trial judge misapprehended the evidence and erred in concluding that his possession of the drugs seized on his arrest was for the purpose of trafficking.

[26] The appellant testified that he was an addict and that the drugs that were found on him at the time of his arrest were for personal use. The appellant argued that the types and amounts of the drugs were consistent with personal use: the oxycodone was found in a prescription bottle that was in his name; the amount of cash ($228) was not indicative of having received money from selling drugs; and the observations that were made of him were equally consistent with purchasing as with selling drugs. The appellant referred to the trial judge's errors when he characterized the digital weigh scale found on the appellant as "weigh scales", mentioned the presence of "cellular phones" when only one was seized and referred to the appellant's "numerous" trips to the bathroom, when there were only two observed.

[27] The appellant's arguments invite this court to reweigh the evidence at trial, and, in particular, to focus on aspects of the evidence that support the defence that the drugs that were found on the appellant were for personal use only. The issue is not whether there were individual pieces of evidence that were equally consistent with personal use as with drug trafficking, but whether, in this circumstantial case, the trier of fact, acting judicially, could reasonably be satisfied that the appellant's guilt was the only reasonable conclusion available on the totality of the evidence. It is for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.

[28] In this case, the trial judge considered and gave cogent reasons for rejecting the defence evidence. He referred to the appellant's memory loss, his consumption of drugs and alcohol on the day of his arrest, his evasiveness and vagueness, his illogical explanations for why he was counting pills and money and carrying a scale and 13 empty dime bags, as well as the discrepancies between his evidence and that of the other two defence witnesses. Having rejected the appellant's evidence, the trial judge considered the remaining circumstantial evidence and was satisfied beyond a reasonable doubt that the appellant's possession of the drugs was for the purpose of trafficking. This evidence included: the observations of the appellant engaging in two short meets consistent with drug trafficking, his counting of money, the counting of pills immediately before the second meet, his inculpatory statements, including an admission that he sold pills to the man in the hydro boom truck, his possession of $228 in cash, 13 empty dime bags, a scale and a cell phone, and the evidence of a police drug expert about the indicia of trafficking and his opinion that the possession here was for the purpose of low-level trafficking.

[29] Finally, we agree with the Crown that the errors in the trial judge's recitation of the evidence did not play a central role in his reasoning process and do not affect the reasonableness of the verdict: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 6-8.

The Sentence Appeal

[30] Fresh evidence was admitted on consent of the Crown with respect to a serious medical issue that the appellant suffered after his release on bail pending appeal. Based on this evidence, the Crown consented to the sentence appeal. The custodial portion of the sentence accordingly was varied to time served (44 days after credit for pre-sentence custody), and the victim surcharge was set aside. All other terms and conditions of the sentence remain the same.

Disposition

[31] For these reasons, the conviction appeal was dismissed and the sentence appeal was allowed as provided herein.

Released: July 10, 2019

"K. van Rensburg J.A."

"I agree. K. Feldman J.A."

"I agree. Grant Huscroft J.A."