Court of Appeal for Ontario

Date: 2022-08-19 Docket: C68504

Before: Doherty, Favreau and Copeland JJ.A.

Between: Her Majesty the Queen, Respondent and Rayon Williams, Appellant

Counsel: Jennifer K. Penman and Kristianne C. Anor, for the appellant Xenia Proestos, for the respondent

Heard: August 10, 2022

On appeal from the conviction entered on February 19, 2020 by Justice Christopher Corkery of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant and a co-accused, Courtney Wannan, were convicted of two counts of possession of a controlled substance for the purpose of trafficking (heroin and fentanyl; and cocaine). The appellant and Ms Wannan were arrested without a warrant based on grounds composed of information from a confidential informant and subsequent police investigation which the trial judge found corroborated the information from the informant. At the time of the arrests, the appellant and Ms Wannan were at a gas station refueling a white Ford Fusion they were travelling in. The interior of the vehicle was searched incident to the arrests. Police seized a black satchel from the front passenger seat. The satchel contained a clear plastic baggie with multiple clear baggies inside that contained powder cocaine, crack cocaine, and heroin mixed with fentanyl. The satchel also contained various personal items (which we return to below in relation to the third ground of appeal). Also seized from the vehicle were cash totalling $6,465, sandwich baggies, and two cell phones.

[2] The appellant appeals his convictions, raising three grounds of appeal:

i. The trial judge erred in finding no s. 9 Charter breach;

ii. The trial judge erred in finding no s. 8 Charter breach;

iii. The trial judge erred in failing to instruct the jury on sunglasses found in the black satchel with the drugs and cash, which the appellant asserts were placed there by police.

[3] For reasons explained below, we are not persuaded by any of the grounds of appeal.

(1) The Trial Judge did not err in finding no ss. 9 or 8 Charter violations

[4] The appellant’s first two grounds of appeal are based on a submission that his arrest and the search of the vehicle were unlawful because the information known to police at the time of the arrest did not meet the reasonable and probable grounds threshold. The appellant’s submission is that if there were not reasonable and probable grounds for the arrest, then the warrantless search of the vehicle incident to arrest violated s. 8 of the Charter. The appellant concedes that if the arrest was lawful, then the search of the vehicle incident to arrest was lawful. The respondent agrees that both the ss. 9 and 8 issues rise or fall based on whether there were reasonable and probable grounds for arrest. For this reason, we address these issues together.

[5] The appellant submits that the trial judge erred in finding that the objective branch of the reasonable and probable grounds threshold was satisfied. In substance, the appellant makes two submissions. First, he submits that the investigation did not sufficiently corroborate the confidential source information. In the appellant’s submission, the combination of the source information and the subsequent investigation did not amount to reasonable and probable grounds to believe that he was committing or had committed a drug trafficking offence at the time of his arrest. Second, the appellant submits the trial judge’s conclusion that there were reasonable and probable grounds is undermined by his finding that the officer who made the decision to arrest the appellant was not given complete information about qualifications put on information provided by another officer about the appellant using the nickname provided in the confidential source information.

[6] In order to understand this ground of appeal, it is necessary to outline the chronology of the investigation.

[7] On May 16, 2018 a confidential source provided information to D.C. Unsworth of the Ontario Provincial Police. D.C. Unsworth knew the informant. The informant had previously provided reliable information that resulted in multiple convictions. The informant told D.C. Unsworth that he had first-hand knowledge that a black male who goes by the nickname of “P” was or was going to be trafficking heroin and cocaine in the Peterborough area; that P primarily drives a rental car; that P was tall, approximately 6’2”, large and heavy set; and that P was younger, approximately 30 years old. The informant did not know P’s real name. The informant provided D.C. Unsworth with P’s cell phone number, but D.C. Unsworth could not recall if he checked the number.

[8] After advising his supervisor, D.S. Dupuis, about the tip, D.C. Unsworth spoke to D.C. Kelly of the Peterborough Police Service’s drug enforcement unit to inquire whether the Peterborough police had any information about a drug dealer using the nickname “P”. D.C. Kelly told D.S. Unsworth that a male who went by “P” had recently been in Peterborough, that he sold drugs, and that he frequented a specific address on Bolivar Street, which from his experience was a rooming house that was frequented by drug dealers and drug users. This was information D.C. Kelly was aware of from a source and which he also checked on an internal Peterborough Police database of source information. The information was from within the previous 30 days. D.C. Kelly advised D.C. Unsworth that the information indicated that P may be the appellant. D.C. Kelly also advised D.C. Unsworth that he had not had an opportunity to corroborate the information about P, and it was “for information purposes”.

[9] D.C. Unsworth then conducted checks on the appellant’s name in various police databases, including the OPP’s RMS database and CPIC. From the database checks, D.C. Unsworth learned that the appellant’s date of birth (which was in late 1989 – so he was 28 years old at the time of this investigation); that his last known address was in Ajax; that he was known to have a number of nicknames, including “P”; and that he had an extensive criminal record with multiple convictions for possession for the purpose of trafficking of Schedule I substances, the most recent of which were in May 2014.

[10] The next day, May 17, 2018, the informant called D.C. Unsworth again, and told him (in the words of D.C. Unsworth), “P has heroin and cocaine, but [the informant] was unsure where he was going”. It is clear from the transcript that D.C. Unsworth understood this to be present-tense information from the informant, and the trial judge proceeded on that basis.

[11] Based on this information, the OPP conducted surveillance on the afternoon of May 17, 2018 commencing at the address on Bolivar Street in Peterborough provided by D.C. Kelly as associated with P. The surveillance on the Bolivar Street address began at 1:05 p.m. At 1:15 p.m., the appellant was observed arriving at the Bolivar Street address entering for a short time, then leaving with two passengers. Police conducted an MTO inquiry on the licence plate of the vehicle the appellant arrived in which indicated it was registered to a company in Scarborough. The appellant’s appearance was consistent with the physical description of P provided by the confidential source: tall, heavy-set black male, approximately 30 years old. In the approximately one hour that the police conducted surveillance, he attended at a motel and three locations known to police for drug activity, all for very brief stops.

[12] Turning to the appellant’s first submission, we see no error in the finding of the trial judge that the information from the confidential source taken together with the subsequent police investigation met the reasonable and probable grounds threshold. The trial judge correctly instructed himself about the subjective and objective aspects of the reasonable and probable grounds standard. He correctly considered whether the confidential source information was compelling, whether the source was credible, and whether the information from the source was corroborated by police investigation. The trial judge correctly recognized that the assessment of reasonable and probable grounds must consider the totality of the circumstances, and that weaknesses in one of the “three C’s” may be compensated to some extent by the other two.

[13] We would not interfere with the trial judge’s finding that the totality of the circumstances known to police at the time of the arrest met the reasonable and probable grounds threshold. We agree with his finding that the information provided by the source was compelling in light of the amount of detail it contained about the description of the subject and the alleged offence, and coming from a source with first-hand knowledge.

[14] With respect to credibility, the trial judge noted the police evidence that the source had proven reliable in the past, but properly acknowledged that no particulars were provided about the source’s criminal record or any outstanding charges.

[15] We also agree with the trial judge’s finding that there was significant corroboration of the information provided by the source. D.C. Unsworth’s CPIC and RMS database checks revealed that the appellant had used the nickname “P” in the past and had multiple convictions for drug trafficking, which was some corroboration of the information from the source about the use of the nickname “P”. The appellant fit all the details of the source’s description, thus corroborating the physical description, including approximate age. The appellant was in Peterborough that day, consistent with the information from the source (and which was of note since the information D.C. Unsworth found on CPIC was that the appellant lived in Ajax). Based on the uncorroborated information from D.C. Kelly, a drug dealer who went by P and may be the appellant was associated with the Bolivar Street address. The surveillance located the appellant arriving at the Bolivar Street address, entering, spending time inside and leaving with two passengers. The appellant was driving a vehicle owned by a company in Scarborough. During the approximately one hour of surveillance, the appellant made seven brief stops, at locations that D.S. Dupuis testified in his experience were known to police for illegal drug activity.

[16] We are not persuaded that the trial judge erred in finding that the totality of the information established reasonable and probable grounds.

[17] We are also not persuaded by the second branch of the appellant’s Charter argument – in relation to incomplete information conveyed to the officer who made the decision to arrest. The trial judge’s finding that there were reasonable and probable grounds is not undermined by the fact that qualifications D.C. Kelly expressed to D.C. Unsworth in relation to the information he provided about P and that he may be the appellant – that is that the information was uncorroborated – were not conveyed to D.S. Dupuis.

[18] The trial judge accepted the evidence of D.C. Kelly that he placed qualifications on the information he gave to D.C. Unsworth, in particular that it was uncorroborated. The trial judge also found that D.C. Unsworth did not convey those qualifications on the information to D.S. Dupuis. He found that D.S. Dupuis understood that P had been positively identified as the appellant. The trial judge characterized D.S. Dupuis’ belief that P had been positively identified as the appellant as “an honest but reasonably mistaken subjective belief”. There is no suggestion in the trial judge’s reasons that D.C. Unsworth’s failure to convey the qualifications on the information provided by D.C. Kelly was anything other than a miscommunication. The trial judge accepted the evidence of D.C. Unsworth that he agreed he had a duty to disclose to D.S. Dupuis if D.C. Kelly had been guarded or hesitant about the reliability of the information he provided, but that D.C. Unsworth did not understand D.C. Kelly to have conveyed to him any limitations about the reliability of the information.

[19] In the context of all the information available to police at the time of the arrest, the factual finding by the trial judge that qualifications on D.C. Kelly’s information linking the appellant to the nickname “P” were not communicated to D.S. Dupuis does not change our conclusion that the trial judge made no error in finding that there were reasonable and probable grounds at the time of the arrest.

[20] In terms of subjective belief, the fact that D.C. Kelly qualified his information that the appellant used the nickname “P” as being uncorroborated was not conveyed to D.S. Dupuis does not affect Dupuis’ subjective belief. The appellant does not contend otherwise.

[21] In terms of objective grounds, as the trial judge noted, subsequent to his conversation with D.C. Kelly, D.C. Unsworth conducted checks on CPIC and on the internal OPP RMS database. The results of these checks included information that “P” was among a list of nicknames used by the appellant (and that he had a history of convictions of possession for the purpose of trafficking of schedule I substances). Thus, there was some corroboration of the appellant’s use of the nickname “P” apart from that provided by D.C. Kelly.

[22] In any event, the issue in relation to reasonable and probable grounds for arrest was not whether the individual fact of positively identifying the appellant as “P” had been “proven” either on the reasonable and probable grounds standard or on some other standard. Rather, the issue was whether the information from the confidential source and from the police investigation, taken as a whole, amounted to reasonable and probable grounds that the appellant had been or was in the possession of controlled substances for the purpose of trafficking at the time of the arrest: R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 42; R. v. Bajich, 2019 ONCA 586, at paras. 12, 15-16. As we have explained above, we find that the trial judge did not err, and the information known to police at the time of the arrest, considered as a whole, provided reasonable and probable grounds.

(2) There was no error in the jury instruction

[23] The appellant submits that the trial judge erred in failing to instruct the jury that the police, not the appellant, placed the appellant’s sunglasses in the black satchel in which the drugs and money were found. The appellant submits that this constituted non-direction amounting to misdirection. He submits the absence of an instruction about the sunglasses was prejudicial because counsel for the co-accused made the argument in his closing address to the jury that the fact that the appellant’s sunglasses were in the black satchel increased the likelihood that the satchel belonged to the appellant and not the co-accused. The appellant also notes that there were other items in the bag that could have supported the inference that co-accused possessed the satchel, and that directly beneath the satchel on the seat, was a pink wallet containing the co-accused’s identification.

[24] We find no error in the trial judge’s instruction. The factual record is insufficient to support the need for instruction on the sunglasses the appellant proposes, and it was not a sufficiently central issue in the trial to require a specific instruction.

[25] In terms of the factual record, to support the assertion that the police put the sunglasses in the satchel, the appellant relies on a portion of the cross-examination of the arresting officer by counsel for the co-accused, where the officer agreed, after reviewing video of the appellant’s arrest, that the appellant was wearing sunglasses. Although not made explicit in the appellant’s argument on appeal, we understand this to be a submission that it can be inferred that an officer put the sunglasses in the satchel. However, the issue of whether an officer put the sunglasses in the satchel was not explored at trial. D.C. Beavis, who seized the satchel, testified about its contents. His evidence was that among the items contained in the satchel were a RayBan sunglass case and a pair of RayBan sunglasses. Neither D.C. Beavis, nor any other officer testified that they placed the appellant’s sunglasses into the satchel. Trial counsel for the appellant did not cross-examine any of the officers on how the sunglasses ended up in the satchel; nor did counsel for the co-accused. As neither the appellant nor the co-accused chose to testify, there was no defence evidence on the issue. Thus, the evidentiary record does not support the assertion that the police placed the sunglasses in the satchel.

[26] Nor does the record support that any issue related to the sunglasses was so central in the trial that an instruction was required. Neither the Crown nor trial counsel for the appellant mentioned the sunglasses in their closing addresses. The trial judge did not mention the sunglasses in the final instructions to the jury. In the final instructions, when the trial judge addressed the contents of the black satchel, he focused on the drugs and did not mention the sunglasses, the sunglass case, or the other contents of the satchel. He also reminded the jury of the pink wallet found under the satchel on the car seat. The trial judge did not mention the sunglasses in his summary of the position of the co-accused.

[27] Experienced trial counsel for the appellant did not raise any objection either to the reference to the sunglasses in the co-accused’s closing address, or to the lack of mention to the sunglasses in the final instruction. Viewing the record as a whole, it simply was not a central issue in the trial.

[28] Further, the trial judge correctly instructed the jury on the law in relation to possession (including constructive possession and joint possession). He correctly instructed the jury that they were the judges of the facts. He correctly instructed the jury on the use of circumstantial evidence and how that related to the issues of possession that they had to decide.

[29] In the circumstances, we find no error in the jury instruction.

[30] The appeal is dismissed.

“Doherty J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”