Court of Appeal for Ontario

Citation: R. v. Nicholls, 2022 ONCA 133

Date: 2022-02-16

Docket: C69491

Before: Fairburn A.C.J.O., Doherty and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Jesse Nicholls Appellant

Counsel: Carter Martell, for the appellant Michael Dineen, for the respondent

Heard: February 8, 2022 by video conference

On appeal from the conviction entered and sentence imposed on December 10, 2020 by Justice M.A. Garson of the Superior Court of Justice.

REASONS FOR DECISION

[1] The Stratford police were conducting a drug investigation. Based primarily on information provided by two confidential informants (“C.I.”) and surveillance on the evening of the arrest, the police arrested the appellant, believing he was in possession of narcotics. When the police searched the appellant incident to his arrest, they did not find any drugs, but they did find a partially loaded, concealed firearm in his computer bag. The appellant was charged with several firearm offences. He was ultimately convicted and, after credit for pretrial custody and other considerations, he received a net sentence of 3½ years. He appeals conviction and seeks leave to appeal sentence.

[2] At trial, the appellant conceded he was in possession of the firearm. However, he argued the police did not have reasonable and probable grounds to arrest him, rendering his arrest arbitrary and contrary to s. 9 of the Charter. The appellant further argued that as his arrest was unlawful, the search was also unlawful and a breach of s. 8 of the Charter. The appellant argued the weapon should be excluded from evidence under s. 24(2) of the Charter leading to acquittals on the charges.

[3] The trial judge held that the police did not have reasonable and probable grounds to arrest the appellant. Both the arrest and the subsequent search of the appellant were unconstitutional. The trial judge held, however, that the appellant had failed to establish that the admission of the seized handgun into evidence could bring the administration of justice into disrepute. The trial judge declined to exclude the gun from evidence. Convictions followed.

Was the Arrest Unlawful?

[4] The trial judge accepted that the arresting officer believed he had reasonable and probable grounds to arrest the appellant on drug charges. The trial judge went on, however, to hold, at paras. 49-50:

[49] However, objectively viewed, I am not satisfied that these grounds were reasonable. The information from the C.I.s was neither overly credible nor compelling and was subject to limited corroboration. The limited surveillance of and confirmed association between the applicant and the third party did not sufficiently elaborate the grounds held by the police to believe the applicant possessed C.D.S.A. substances that evening. More specifically, the circumstances known to the police at the time, coupled with the inferences they were entitled to draw based on their training and experience, were not enough to allow DC Serf to form the necessary grounds to arrest the applicant for possession of C.D.S.A. substances.

I wish to be clear. The police had some grounds to believe a criminal offence had taken place, but those grounds fell just short of the necessary standard when viewed objectively.

[5] The appellant submits the trial judge correctly held the arrest and search were unlawful, but wrongly failed to exclude the evidence. The Crown argues that the admissibility of the evidence should never have been in play, as the arrest and therefore the search were lawful.

[6] In support of the claim that the trial judge properly held the arrest was unlawful, the appellant submits the grounds relied on by the police came down almost entirely to the unsupported word of unproven and uncorroborated C.I.s, combined with what was, in reality, innocuous evidence of association between the appellant and a person the C.I.s described as a drug dealer. The appellant maintains that, at best, this evidence supported a suspicion that the appellant was involved in drug trafficking. Suspicion is not enough to justify an arrest. The appellant goes on to argue, correctly, that in the absence of a lawful arrest, the search which produced the gun was unreasonable.

[7] The Crown contends the trial judge was wrong in holding that the totality of the circumstances known to the police did not provide reasonable and probable grounds. The Crown argues there was firsthand information from a C.I. that the appellant supplied drugs to the party with whom he was associating immediately before his arrest. The police also had firsthand information from a different C.I. that the party with whom the appellant was associating before his arrest was a drug dealer. The Crown contends that the movements of the appellant and the others in the several hours that they were under surveillance before the arrest added some additional support for the belief that the appellant was involved in drug dealing. The Crown contends that, on a proper application of the law governing arrest to the evidence, the police had reasonable and probable grounds to believe the appellant had in the past committed, or was in the course of committing, drug-related crimes.

[8] We see no basis upon which to set aside the trial judge’s finding that the police did not have reasonable and probable grounds to arrest the appellant. The trial judge applied the correct legal principles. He made no material error in his review of the relevant evidence and no error in his fact-finding. His conclusion was not unreasonable. This court must defer to that finding.

Should the Evidence Have Been Excluded?

[9] The trial judge followed the well-established three-part analysis first articulated in R. v. Grant, 2009, SCC 32. In the course of considering the seriousness of the state misconduct, the trial judge observed:

The seriousness of police conduct in these circumstances clearly falls at the lower end of the scale with minimal impact on the rights of the applicant.

[10] In the above passage, the trial judge improperly mixed together the first and second factors to be considered in the Grant analysis. The first factor, the seriousness of the police conduct, is not concerned with the impact of the Charter breach on the rights of the accused. That impact is considered in the second Grant factor. The trial judge’s reference to the “minimal impact” on the accused’s rights is misplaced in his consideration of the first Grant factor.

[11] In any event, the impact on the appellant’s Charter rights was far from minimal. The trial judge recognized that when he turned to the second factor in his analysis. When considering the impact of the Charter breaches on the appellant’s rights, the trial judge said:

This was [a] serious breach that undermined the applicant’s right to privacy, liberty and security of the person. I note the arrest and search took place when he was riding his bicycle on the road.

[12] Considering the reasons as a whole, the trial judge properly addressed the factors relevant to the s. 24(2) analysis. He placed police misconduct at the less serious end of the police misconduct spectrum, while acknowledging the serious impact of the breaches on the appellant’s rights. The trial judge misspoke in his initial reference to the “minimal impact on the rights of the applicant”, but clarified any confusion when he was addressing the relevance of the impact of the breach on the appellant’s rights. Read as a whole, the reasons made it clear that the trial judge regarded the impact of the breach on the appellant’s rights as serious.

[13] The trial judge’s assessment of the blameworthiness of the police conduct reflected his finding that, while the police did not have reasonable and probable grounds, the evidence relied on by them came close to meeting that standard. The appellant argues that this was an unreasonable finding by the trial judge. The appellant contends the information available to the police came nowhere close to reasonable and probable grounds and, that in acting on that evidence to arrest the appellant, the police misconduct was minimally negligent and cannot be said to reflect any good faith on their part. The appellant places the police misconduct significantly further toward the serious end of the police misconduct spectrum.

[14] I see no error in the trial judge’s s. 24(2) analysis. This was, in some respects, a difficult record in the sense that there were gaps in the narrative and uncertainties as to exactly what some of the evidence meant. We think it was open to the trial judge to characterize the evidence as he did and to conclude the grounds were close to meeting the reasonable and probable grounds standard. Deference is owed to that finding: R. v. Buchanan, 2020 ONCA 245. Having regard to the facts as found by the trial judge, this case was not unlike many cases heard on a daily basis in the trial courts. The state misconduct provided some, but not strong, support for excluding the evidence. The impact of the breach on the appellant’s rights favoured exclusion. The third factor, society’s interest in an adjudication on the merits, provided significant support for admitting the evidence, especially in light of the reliability of the evidence and its importance to the prosecution of a serious criminal charge. On this not uncommon constellation of the relevant s. 24(2) factors, trial judges are charged with the responsibility of balancing those factors in each case and determining whether the admission of the evidence would bring the administration of justice into dispute. When all proper factors have been considered, appellate courts must show deference to the balance struck by the trial judge: Grant, at para. 86.

[15] The conviction appeals are dismissed.

The Sentence Appeal

[16] The sentence appeal raises a single question. The appellant argues that the sentence of 6 months imposed on the concealed weapon charge should have been made concurrent rather than consecutive to the other sentences. There is no doubt the trial judge could have exercised his discretion and made the sentence concurrent. He did not explain why he chose to make the sentence consecutive.

[17] The ultimate question on sentence, however, is the fitness of the total sentence imposed. Bearing in mind the seriousness of the offence, and the appellant’s horrendous criminal record, we see no error in the total sentence imposed. We would grant leave to appeal sentence, but would dismiss the sentence appeal.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“David M. Paciocco J.A.”