Court of Appeal for Ontario

Date: 20220908 Docket: C70258

Before: Tulloch, Lauwers and Trotter JJ.A.

Between: Her Majesty the Queen Respondent

And: Ryan Lewis Appellant

Counsel: Ryan Lewis, in-person Fredrick R. Schumann, appearing as duty counsel Andrew Hotke, for the respondent

Heard and released orally: July 4, 2022

On appeal from: the conviction entered by Justice Lawrence T. Feldman of the Ontario Court of Justice on December 15, 2020, with reasons reported at 2020 ONCJ 592, and from the sentence imposed on August 27, 2021.

Reasons for Decision

[1] The appellant appeals his conviction and sentence for the charges of unauthorized possession of a firearm, possession of a firearm without a licence, unauthorized possession of a firearm in a motor vehicle, possession of a prohibited firearm, careless storage of a firearm, carry concealed weapon, and tamper with a serial number.

[2] He appeals on the basis that the trial judge erred in finding that his ss. 8 and 9 Charter rights were not breached, and as such failed to exclude the evidence under s. 24(2) of the Charter.

[3] We see no merit to the appellant’s grounds of appeal and dismissed the appeal following the oral arguments with reasons to follow. These are the reasons.

[4] The sole issue at trial was whether the arresting officers had reasonable and probable grounds to arrest the appellant, which ultimately led to the seizure of the gun on his person.

[5] The investigation which led to the arrest started on July 20, 2019. Officer Tanner had received information from a handler of a confidential informant about an unplated grey van situated in the parking lot at 100 Mornelle Court.

[6] The informant advised that the van was being used by drug dealers as a storage facility for drugs and firearms. The informant said there were people around the van to protect its contents, and that they almost always possessed firearms or drugs. The informant had seen a firearm and ammunition hidden within the van as recently as July 2019.

[7] After receiving this information, Officer Tanner instructed two other officers, P.C. Rowlands and P.C. Needles, to attend at the location in order to verify the information received. Upon arrival, they observed the van as described. Their attention was drawn to two males, Algernon Comissiong and Amir Mikaili, standing at the rear of a red BMW near the van. The two men were then approached by two other males, Shagghary Scott and Jerell Howe.

[8] The officers observed what they believed to be a hand-to-hand drug transaction between Mr. Comissiong and Mr. Scott. Shortly thereafter, they arrested Mr. Scott for possession of a narcotic for the purpose of trafficking, at which time Mr. Scott blurted out: “I just bought”. A subsequent search incident to arrest revealed he had six small baggies of cocaine and $340 on him.

[9] P.C. Rowlands advised the other officers that Mr. Comissiong, the person who conducted the transaction with Mr. Scott, was arrestable for drug trafficking. P.C. Rowlands then returned to 100 Mornelle Court, where Mr. Comissiong was. He saw Mr. Comissiong leaning into the driver’s side door of a grey Mitsubishi Lancer parked three to four spots from the van. It was later determined that the driver of the Lancer was the appellant, Mr. Lewis.

[10] In addition to P.C. Rowlands, four other officers made similar observations about this interaction between Mr. Comissiong and Mr. Lewis. All the officers present concluded that another drug transaction had occurred. The officers testified that, based on the totality of the evidence at the time, including the information conveyed to them from the handler of the confidential informant, their earlier observations of Mr. Comissiong and Mr. Scott’s transaction, and Mr. Scott’s arrest and subsequent search revealing both drugs and cash, they were satisfied that they had lawful grounds to arrest both Mr. Comissiong and Mr. Lewis.

[11] Mr. Lewis was searched incident to his arrest, and a handgun with ammunition was retrieved from his pants pocket.

[12] At trial, Mr. Lewis challenged the legality of both his arrest under s. 9 and the subsequent search under s. 8 of the Charter. He claimed that there were no reasonable and probable grounds for arrest as he was just engaging in an innocent conversation with Mr. Comissiong. The trial judge disagreed and found that there were reasonable and probable grounds for the police to make the arrest.

[13] In his reasons, the trial judge explained that this was a dynamic situation. The police had been informed by a confidential source that an unplated van was being used as a repository for drugs and firearms, and it was surrounded by people who were likely armed. The police knew the reputation of the area and were mindful that the possibility of firearms made safety a priority. Furthermore, their observations affirmed the confidential source’s information, as did the arrest and search of Mr. Scott. In light of the aforementioned indications of both drugs and firearms, it was open to the officers to infer that the suspect about to be arrested, Mr. Comissiong, was conducting an illegal transaction with Mr. Lewis. The trial judge concluded that this created both a subjective and objective basis to arrest and search Mr. Lewis incident to the arrest. We agree with this conclusion.

[14] The appellant submits that the trial judge made a reversible error by stating “that an experienced officer has an honest subjective belief is in itself some evidence that the belief is objectively reasonable.” This, the appellant argues, is an incorrect statement of law and it subsequently caused the trial judge to put inappropriate weight on the officers’ experiences.

[15] We are not persuaded by this argument. Contrary to the appellant’s submissions, the trial judge did not make a blanket statement that police experience is, in itself, grounds for arrest. Instead, this was identified as only one indicium to consider in the totality of the circumstances. Furthermore, as discussed above, it is clear from the trial judge’s reasons that he did not rely on police experience alone to find that there were sufficient grounds for arrest. We find that the trial judge did not err in legal principle nor application in this regard.

[16] Lastly, in his reasons, the trial judge commented that this was a “close” or “borderline” case. We do not agree. In our view, based on the facts of this case, there was ample evidence to satisfy the requirements for the legal arrest of Mr. Lewis. Indeed, this is what the trial judge proceeded to find.

[17] Accordingly, the conviction appeal is dismissed.

[18] We also see no error in the sentence imposed. In our view, the sentence was fit and well within the appropriate range, and there were no errors in principle. Accordingly, while leave to appeal the sentence is granted, the sentence appeal is denied.

“M. Tulloch J.A.”

“P. Lauwers J.A.”

“Gary Trotter J.A.”